Opinion
No. CV 07-5006163S
May 28, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The plaintiff filed Motion for Summary Judgment (motion #130) claiming that there are no questions of fact presented by the complaint or requiring adjudicating by the Court.
The defendant filed a brief in Opposition to Motion for Summary Judgment claiming that there are genuine issues of material facts which cause summary judgment to be inappropriate for the just adjudication of the plaintiff's claims.
Summary judgment is an appropriate remedy when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The procedure of summary judgment is designed to expedite a litigation proceeding and eliminate delay and expense where there is no real issue to be tried. See Wilson v. New Haven, 213 Conn. 277 (1989). Both the moving party and the party in opposition may rely on pleadings, affidavits and discovery materials, and the moving party shall, and the opposing party may, file appropriate memoranda of law. See Practice Book §§ 11-19, 17-45 and 17-46. The party seeking summary judgment has the burden of showing that no issue of material fact exists, and the party opposing the motion must substantiate its claim that a material fact issue exists. See Home Insurance Co. v. Aetna Life Casualty, 235 Conn. 185 (1995).
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Id.
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). See also Hartford Accident v. Ace American Reinsurance Co., 284 Conn. 744, 755, 936 A.2d 226 (2007).
"Summary judgment "shall be rendered forthwith if the 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." Practice Book § 17-49. "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The plaintiff in her Second Amended Complaint dated May 29, 2007 claims that she was injured when she was an invitee on the premises of the defendant. She was using a treadmill when she was thrown off balance and fell. She claims a defect in the treadmill and claims that the defendant had actual or constructive knowledge that the treadmill in question was in a dangerous or defective condition.
The defendant claims that the plaintiff can not identify the specific defect that cased her to fall and that the YMCA had no knowledge, either actual or constructive of any defect.
The court will address the defendants' argument regarding notice. The defendants claims that they did not have constructive notice of anything being wrong with the treadmill on which the plaintiff allegedly fell. Specifically, the defendants argue that the plaintiff must demonstrate that the defendants had knowledge, either actual or constructive, of the specific defect that caused her fall, which, the defendants argue, requires the plaintiff to show exactly how she fell. They further argue that because the plaintiff, during her deposition, was not able to identify the exact cause of how she fell and that her testimony in some way was contradictory, she has not met her burden of demonstrating constructive notice.
"When . . . the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition . . . [t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it . . . To a considerable degree each case must be decided on its own circumstances. Evidence which goes no further than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).
"As an initial matter, it is noted that a plaintiff generally does not have an obligation to prove her case prior to trial. As previously stated, the burden shifts to the plaintiff to produce evidence to raise a genuine issue of material fact only once the defendants, as the moving parties, have met their initial burden of providing evidence sufficient to demonstrate the nonexistence of any genuine issue of material fact. See Zielinski v. Kotsoris, supra, 279 Conn. 318-19; Rockwell v. Quintner, 96 Conn.App. 221, 228-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). Accordingly, the initial question for the court to consider is whether the defendants have submitted evidence that is sufficient to support a conclusion that the defendants did not have constructive notice of the slippery condition in the area where the plaintiff allegedly fell; that is, the defendants must offer evidence to demonstrate that the condition had not existed for such a length of time that their employees should, in the exercise of due care, have discovered it in time to have remedied it." Leonard v. G W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV05-5000179S (Apr. 7, 2008, Upson, J.) 2008 Ct.Sup. 5657.
The defendants have failed to establish that there is no genuine issue of material fact regarding whether there was a defect in the treadmill or if they had notice of such. Although the defendants have submitted excerpts of the plaintiff's testimony at her deposition, so has the plaintiff. Accordingly, there is a genuine issue of material fact regarding notice and causation, therefore the motion for summary judgment is denied.