Opinion
UWYCV166032179S
10-30-2017
Kim Stevenson v. Family Dollar Stores of Connecticut, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #111
Barbara Brazzel-Massaro, J.
INTRODUCTION
The plaintiff, Kim Stevenson, filed this action against the Family Dollar store by writ, summons and complaint dated August 26, 2016 and filed on September 27, 2016. The plaintiff brings a cause of action under premises liability alleging the defendant failed to move the unattended shopping cart from the aisle or to inspect for carts and to warn customers of its presence. The defendant filed an answer denying the claims and special defenses alleging that the plaintiff is responsible for any injury because of her failure to exercise due care.
The defendant filed a motion for summary judgment with a memorandum of law dated July 19, 2017. The plaintiff filed a memorandum in opposition on September 19, 2017. Counsel appeared at short calendar and argued the motion on October 23, 2017.
FACTUAL BACKGROUND.
On November 21, 2015, the plaintiff Kim Stevenson was a customer at the Family Dollar Store located at 90 Store Avenue in Waterbury, Connecticut. She alleges that she was a business invitee. On this date she contends that she had paid for some items at the register and then went back into the store area where she walked into a cart that was in the aisle behind the register. The plaintiff contends that the defendant is responsible for her injury as a result of their failure to make the premises safe in that: a) it allowed a dangerous condition to exist in the nature of an unattended shopping cart left at the end of an aisle where the cash registers are located, a location where shopping carts are not normally stored; b) failed to inspect the store for dangerous conditions such as the unattended shopping carts; c) failed to take adequate measures to remedy or remove the dangerous condition; d) failed to warn the plaintiff of the dangerous condition. The defendant denies that it is responsible and denies in particular that the shopping cart which the plaintiff walked into was a dangerous condition.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co of America, 310 Conn. 304, 324 n. 12, 77 A.3d 726 (2013). " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, Id. " To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and therefore, cannot refute evidence properly presented to the court under Practice Book § 17-45." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn 223, 228, 116 A.3d 297 (2015).
" [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty to the particular situations at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). As noted above the plaintiff alleges four separate ways in which the defendant was negligent but each involves the location of a shopping cart within the store. None of the allegations of the plaintiff involve a specific defect in the cart which would cause harm to a customer. It is a common practice for stores to provide its customers with a shopping cart that can be utilized to gather the goods they intend to purchase. There is nothing inherently dangerous about a shopping cart located in the store or for that matter outside of the store if used by customers to carry their purchases to their car. Many customers use the carts outside and leave them in the middle of the parking lot rather than in an area designated as cart return. This behavior by customers is known to everyone. Additionally, a shopping cart is not a small discrete item which is not clearly present and visible to shoppers. The case of Samuelson v. J.C. Penney Co., No. 116360, 1994 WL 60088, at *1 (Conn. Super Ct. Feb. 17, 1994) supports the position that the shopping cart is not a dangerous instrumentality.
For instance, if the cart was in poor condition and in some way malfunctioned by wheels not working or a portion of the cart falling on the plaintiff that would be an obvious condition which could be argued as defective. Here, the cart is still in the aisle behind the area where the plaintiff is checking out. No one pushed it, she did not reach for it and experience some injury but she merely walked, as all shoppers do, into the cart that had been left in the aisle by a customer for what has been described as a minute or two. See: Alice Suits v. Kohl's Department Store, Docket No. WWM CV 09-5004485 (Windham, April 29, 2011).
Under the theory of premises liability, " [t]he law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008). Here the parties do not dispute that the plaintiff was a business invitee, so that the defendant is obligated to use reasonable care to keep the premises reasonably safe, or at least to warn an invitee of any hazard which might render the premises unsafe. Under the theory of premises liability to an invitee for a defective condition upon the land, " the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it, " (Internal quotation marks omitted.) Martin v. Stop & Shop Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). " [F]or the plaintiff to recover for breach of duty owed to him as a business invitee, it is incumbent upon him to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." Mott v. Wal-Mart Stores, L.P., 139 Conn.App. 618, 627, 57 A.3d 391 (2012). On the question of notice the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Citations omitted; Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). In the instant action the plaintiff contends the defect is an unattended carriage and the defendant's failure to remove or warn the plaintiff that it was in the aisle.
The placement of a carriage in an aisle cannot of itself create a defect. Common sense tells us that in the normal process of shopping with a carriage the shopper steps away for varied times from the cart. To hold this as a defect would be beyond the reasonable care standard which is required of a possessor of land but would be more akin to a strict liability standard. This theory contradicts the law which states that a possessor of land does not have a duty to warn an invitee when a condition is " . . . either known to him or so obvious to him that he may be expected to discover it . . ." Kurti v. Becker, 54 Conn.App. 335, 344, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). It is like the elephant in the room.
The plaintiff in her complaint has failed to indicate other than the existence of the shopping cart what was the defect of the cart for which the defendant is liable. For instance, in the case of Alice Suits v. Kohl's Department Store, Docket No. WWM CV 09-5004485 (April 29, 2011), the plaintiff alleged that the shopping cart she was pushing had a number of specific defects to the wheels of the cart which caused it to suddenly stop and she fell forward sustaining injuries to her legs from the cart. In that case the jury was presented with testimony and evidence about defects she alleged in her complaint. No such claims were made in this action.
The crux of the negligence claim here is simply whether the shopping cart located in the aisle was a defect in the premises which the defendant had a duty to correct (here, by moving the cart out of the aisle area.) There is no inherent defect alleged as a result of a shopping cart in the aisles. It is this argument that the plaintiff ignores. In fact, on a regular basis there are customers who take shopping carts up and down the aisles and possibly step away from the cart as they are searching for an item, or attend to a personal need. In Stern v. Costco Wholesale, 882 N.Y.S.2d 266, 63 A.D.3d 1139, 1140 (2009), the court rejected the argument that a flatbed shopping cart left in an aisle was a defect. The plaintiff provided no case law which supports the claim that this is a defect. Instead she contends that because the employee recognized that the cart was not kept in that area that opens the door to a question of fact as to whether it was a defect.
In the argument on this motion, the court asked what is the difference with leaving the cart in an aisle because you forgot an item and went back into the store to get the missing item. Also what if the customer left the cart in an area so they could use the restroom which does not allow carts or to run to their motor vehicle because they forgot a list, their wallet, a card, a coupon etc. There are a number of reasons a customer may leave the cart unattended but that alone does not open the door to a premises liability action to someone who for whatever reason walks into the cart.
There is nothing in this testimony which points to a defect. Defendant argues that the statement of the employee demonstrates that the placement was open and obvious to the plaintiff thus precluding a finding of a defect. The duty to keep the invitee reasonably safe does not become an absolute duty for any action where the invitee is injured. To do such would be tantamount to strict liability of the part of the store for any incident where the customer is injured on the property. The law specifically addresses many situations in which the owner, operator or possessor of a store open to the public is responsible for negligent acts. This is not one of them.
Unlike the Fleming v. Allied Supermarkets, Inc. 236 F.Supp. 306 (W.D. Ok. 1964), case there are no allegations that the cart was used in a manner that was dangerous/defective and that the store had sufficient time to correct the activity. The plaintiff contends that the defendant had actual notice that the cart was in the aisle because of statements by the employee that it did not belong there and thus the defendant is liable. This argument misses the mark. There was no testimony or statement that the placement of the shopping cart made it a defect. What about the cart was a defect? The mere placement of it in the aisle without more i.e. a defective condition on the cart such as broken rails that protrude to poke or cut customers, or broken wheels which cause the cart to malfunction, then there would be no basis for finding premises liability negligence.
Lastly, the defendant argues that the placement of the carriage was in an aisle where if anything, it was an open and obvious risk to the plaintiff of its location and no one needed to warn her of it. In Stern v. Costco Wholesale, 882 N.Y.S.2d 266, 267, 63 A.D.3d 1139, 1140 (2009) and Bernth v. King Kullen Grocery Co., Inc., 830 N.Y.S.2d 222, 36 A.D.3d 844, 845 (2007) the court found that carts left in the aisle are open and obvious and not inherently dangerous. In other words, the shopper has notice to walk around a cart in the store.
The defendant has demonstrated that there is no genuine issue of material fact in support of the plaintiff's allegations and thus summary judgment is granted.