Opinion
No. CV-07-5009397S
November 19, 2009
RULING ON MOTION FOR SUMMARY JUDGMENT (#114)
The plaintiff Charles Williams (Williams) brought this action against the City of New Haven (City) and certain individuals for damages arising from an injury he allegedly sustained when he slipped and fell on March 17, 2006 on what he alleged was a "slushy" which was on the floor in the cafeteria of the Wilbur Cross High School. The City, on behalf of all the defendants, moved for summary judgment on the sole ground that there is "no evidence upon which the finder of fact could infer that the defect allegedly encountered existed for a length of time sufficient to put the defendants on actual or constructive notice of its existence."
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "The facts at issue [in a motion for summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). In this case, Williams has alleged eight specifications of negligence that include a failure to make proper and reasonable inspection and a failure to supervise custodians and require them to keep the floors of the cafeteria safe for persons using the cafeteria. "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
The specific allegations of negligence are that each of the individual defendants "caused or allowed and permitted the floor of said cafeteria to be and remain in a slippery, unsafe, wet and dangerous condition"; "caused or allowed and permitted said floor to be and remain covered with a slushy when the same was dangerous to the plaintiff and other persons entering said school"; "maintained said property and floor in the aforesaid conditions"; "failed to repair or remedy said condition by placing mats, warning signs or the like when the same were reasonably necessary under the circumstances"; "failed to clear said area or mop said slushy up;" failed to warn the plaintiff of the aforesaid condition"; "failed to make proper and reasonable inspection"; "failed to supervise the custodians in said school and require them to keep said premises, including the floor of the cafeteria: safe for persons traveling in said cafeteria." (¶ 7 Counts 1, 3, 5, 7, 9.)
In support of its motion, the City submitted two pages of Williams' deposition testimony. Williams filed an objection to the City's motion accompanied by a more complete excerpt of his deposition testimony, the Accident Report filled out on the day of the incident, the City's responses to plaintiff's interrogatories and requests for production, and a copy of a memorandum referencing "Custodian Job Responsibilities." The following facts can be gleaned from these submissions: Williams was a student at Wilbur Cross High School. He entered the cafeteria at around 11:00 a.m. and left at 11:35 a.m., at which time he fell on what he described to be a blue "slushy" that was all in one area on the cafeteria floor and the size of a baseball cap. This substance was not on the floor in this area when he passed by it upon entering the cafeteria. The area where he fell was near the door. There were also tables in the area where he fell and he had to go past those tables to exit the cafeteria. At the time he fell, the bell had rung, Williams was on his way to class and he was the last person to leave the lunch room. On certain days, Williams observed custodians in the lunch room during his lunch period but he did not see any that day. The job responsibilities for custodians included mopping and sweeping floors, collecting and disposing of debris as directed and performing related work as required. The Accident Report notes that an accident of this type could be prevented in the future by "wiping up spills right away."
Under the common law, the City, as the possessor of the premises, owed a duty to Williams, an invitee, "to inspect and maintain the premises to render them reasonably safe . . ." Gargano v. Azpiri, 110 Conn.App. 502, 511, 955 A.2d 593 (2008). This duty exists even when there is an open and obvious defect that is known to the invitee. Id. "An occupier of land is chargeable with constructive notice of defects when dealing with invitees . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it." (Citation omitted; internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 339, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). A party may rely upon circumstantial evidence to establish constructive notice. Cruz v. Drezek, 175 Conn. 230, 235-36, 397 A.2d. 1335 (1978). "What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in the light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree, each case must be decided on its own circumstances." (Quotation marks omitted; citations omitted.) Sauro v. Arena Co., 171 Conn. 168, 171, 368 A.2d 58 (1976). There is no set period of time which is determinative. See e.g., Aaronson v. New Haven, 94 Conn. 690, 693, 110 A. 872 (1920) (thirty minutes); Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 286-87, 587 A.2d 1056 (1991) (something more than 15 minutes). Abundant evidence is not required to demonstrate, directly or circumstantially, that there was a sufficient length of time to discover a defective condition if a reasonable inspection had been conducted, but some evidence is required. Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
Whether the "slushy" was on the floor of the cafeteria for a sufficient length of time to put the City on notice is a material question of fact in this case. The City maintains that the mere presence of the "slushy" on the floor provides an insufficient evidential basis for a conclusion that the defect existed for any sufficient length of time. See Columbo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002) (evidence that plaintiff fell on dirty milk insufficient basis for an inference to be drawn that milk was on floor for a sufficient period of time to establish actual or constructive notice). If that were the only evidence, the City would be correct. However, the submissions contain a number of facts that could be considered by a reasonable juror in drawing an inference regarding the sufficient length of time for the City to have had constructive notice of the "slushy" on the cafeteria floor, under the particular circumstances of this case, including: the length of the student's lunch period, that items such as a "slushy" were sold to students during lunch, that in order to enter and exit the cafeteria the students had to travel in an area close to tables and that was where Williams fell on the "slushy," that the "slushy" was the size of a baseball cap when he slipped on it, and that custodians were frequently in the cafeteria during the lunch hour. Viewing this evidence in the light most favorable to the non-moving party, as required, the court cannot say that the trier of fact could reach only one reasonable conclusion on the issue of notice. See Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000). The evidence may be weak, but it is not nonexistent.
For the foregoing reasons, the motion for summary judgment (#114) is denied.