Opinion
AANCV156019053S
12-18-2017
Janice ZACHLOD v. SEYMOUR BEACON FALLS, LLC
UNPUBLISHED OPINION
OPINION
TYMA, J.
This case arises from a slip and fall at a supermarket in Seymour, Connecticut. The defendant, Stop & Shop Supermarket Company, LLC (Stop & Shop), moves for summary judgment on the plaintiff’s, Janice Zachlod’s, complaint claiming there is no genuine issue of material fact that the plaintiff has failed to establish a specific defect that she claims caused her injuries, and that Stop & Shop had constructive notice of the alleged defective condition.
The plaintiff claims that she slipped on a " super shiny" area in an aisle in the store. The plaintiff objects to the summary judgment motion contending that the plaintiff’s deposition testimony " is sufficient to establish a question of fact as to whether the plaintiff’s fall and subsequent injuries were a result of the over polished, shiny portion of the floor."
The following undisputed facts are relevant to the court’s determination of the motion. The plaintiff entered Stop & Shop along with her husband late in the afternoon on January 13, 2015. She separated from her husband once they were in the store, and went by herself to the aisle where laundry detergent was located. The plaintiff entered the aisle, slipped and fell on a portion of the floor that was allegedly super shiny, and sustained injuries. At the time of her fall, the plaintiff was wearing low heeled boots with black heels.
The plaintiff alleges in her complaint that Stop & Shop " waxed or buffed the floor" on which she fell. She claims that the store was negligent in that it failed to maintain and inspect the floor; failed to notify the public of the slippery condition; allowed the condition to exist for an unreasonable length of time; created the defect by over waxing the floor; knew or should have known that leaving the floor buffed or waxed would likely lead to a customer falling; did not put out signs warning of the condition; and failed to properly train its employees to clear the floor, and to notify the public of possible floor hazards within the store.
The plaintiff filed an amended complaint against the defendants, Cleaning Services Group, Inc. and MDA Enterprises, Inc. The plaintiff alleges that Cleaning Services agreed with Stop & Shop to clean the floor at issue, and that MDA agreed with Cleaning Services and/or Stop & Shop to clean the floors. The plaintiff makes the same claims of negligence against each defendant. Cleaning Services and MDA are represented by the same attorney, who has filed an essentially identical summary judgment motion as Stop & Shop. Therefore, the court’s decision on Stop & Shop’s motion will also be dispositive of the other defendants’ summary judgment motion.
Stop & Shop moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff has failed to establish a specific defect, and there is no evidence that the company had constructive notice of the condition. Stop & Shop submits portions of the plaintiff’s deposition testimony in support of its motion. The plaintiff responds that her deposition testimony establishes a genuine issue of material fact as to the existence of a specific defect, that is, a super shiny portion of the floor on which she slipped. The plaintiff further responds, although the argument as set forth in the brief is unclear, that Stop & Shop has failed to meet its burden of proof on the issue of constructive notice because it has not submitted any affidavits or other documents directly addressing the plaintiff’s is specific claims of negligence set forth in her complaint. The plaintiff argues that the only evidence submitted by Stop & Shop in support of its motion is excerpts of the plaintiff’s deposition testimony, which does not address the specific allegations of negligence asserted by the plaintiff.
" Pursuant to Practice Book § 17-49, 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... 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." (Internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 333, 71 A.3d 492 (2013). " Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough ... for the opposing party merely to assert the existence of such a disputed issue." (Citations omitted; internal quotation marks omitted.) Daily v. New Britain Machine Co., 200 Conn. 562, 568-69, 512 A.2d 893 (1986).
" The fundamental purpose of summary judgment is preventing unnecessary trials ... If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law ...
" To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action ...
" If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of that plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case ... It logically follows that, in evaluating a defendant’s motion for summary judgment, a trial court’s task does not necessarily end upon its finding that a genuine factual dispute exists as to one or some essential elements of a plaintiff’s cause of action. If a defendant has substantively addressed additional essential elements in support of his motion, so too should the trial court in determining whether summary judgment is appropriate." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 822-24, 116 A.3d 1195 (2015).
The plaintiff’s claim is premised on premises liability law. There is no dispute that at the time of the alleged fall the plaintiff was a business invitee of Stop & Shop, which was in possession and control of the premises.
" [F]or [a] plaintiff to recover for the breach of a 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 caused [his injury] or constructive notice ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
" The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006). " What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case ... Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." (Citation omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 777. " While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition ... some evidence is required." (Citation omitted.) Gulycz v. Stop & Shop Co., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
The court will first address Stop & Shop’s claim that there is no evidence of a specific defect that caused the plaintiff to fall and become injured. In support of its motion for summary judgment, Stop & Shop has submitted deposition testimony of the plaintiff in support of its contention that there is no evidence of a specific defect. The plaintiff has not submitted any counterevidence, other than refer to the deposition excerpts in the record and the pleadings.
Viewing the evidence most favorably to the plaintiff, Stop & Shop has demonstrated the absence of a genuine factual issue as to the absence of evidence of a specific defect causing the plaintiff to fall. At her deposition in evidence, the plaintiff stated the following:
" I went to make a right hand turn, and I just slipped. And the next thing I knew, I was on the floor." Thereafter, the following exchange occurred between counsel for Stop & Shop and the plaintiff.
Q: Did you observe any foreign substance on the floor?
A: No.
Q: You didn’t observe any liquid or anything such as that?
A: No.
Q: Do you know what it is that caused you to fall?
A: Well, looking at it later with my husband, it was that particular area of the floor was super shiny, and all I can see was shine, and two long black marks from my boots.
* * * *
Q: What do you mean by " super shiny?"
A: Oh, I mean shiny ... It was glossy, I guess would be the best word I could think of.
* * * *
Q: After you fell, did you have any residue or foreign substance on your clothing?
A: No.
* * * *
Q: Have you ever seen anybody in that store waxing the floors?
A: No.
Q: Have you ever seen anybody buffing the floors?
A: No.
* * * *
Q: Did you touch the shiny spot with your hand?
A: No.
* * * *
Q: Do you know how long the spot was there?
A: I don’t know.
Q: How long had you been in the store approximately before you had your fall?
A: I just walked into the store, up the main aisle, so just a matter of minutes.
The substance of the plaintiff’s testimony is that she suddenly and unexpectedly slipped on a super shiny spot on the floor in the detergent aisle. The plaintiff equates the phrase super shiny with glossy. When asked in her deposition how large the spot was, she did not know. The plaintiff did not identify a specific defect, such as wax or some other substance, which caused the floor to be super shiny. In this regard, the plaintiff testified that " the entire place is shiny ... but sometimes there are areas that are shinier than others." At the time that she fell, she was wearing " low heeled boots, " which left two approximately foot long marks on the floor. There is no evidence as to how long the super shiny condition existed prior to the plaintiff’s fall, and she was only in the store for a matter of minutes before falling.
There is no evidence from which a trier of fact could reasonably conclude that a specific defect existed, and that, even if one existed, Stop & Shop had constructive notice of the defect. The plaintiff alleges a general condition of the floor, not a specific defect on the floor.
In Monahan v. Montgomery, 153 Conn. 386, 387-88, 216 A.2d 824 (1965), the plaintiff’s decedent sought to recover for the death of the decedent, who, while raking brush on the defendant’s property, fell and died two days later. Prior to his death, the decedent said that he fell as a result of tripping over a branch. Id., 388. The plaintiff alleged that the defendant failed to keep the premises in a reasonably safe condition in permitting the accumulation of brush and debris in the area where the decedent fell. Id. There were no witnesses to his fall. Id.
The jury rendered a verdict for the plaintiff, and the defendant appealed. Id., 389. The law that the court applied to the case was well settled. " We have repeatedly stated that the notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ... On a 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 and realization cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. (Citations omitted.) Id., 390. " It was incumbent upon the plaintiff to remove these issues from the realm of surmise, guess, conjecture and speculation." Id., 391.
The court commented that there was evidence as to the general condition existing on the defendant’s premises at the time that the plaintiff fell, but there was no evidence that the plaintiff tripped over a particular branch or an accumulation of debris. Id., 391-92. " [T]he existence of such a general condition is not sufficient." Id., 391.
Also, there was no evidence as to how long the condition existed prior to the fall. Id., 392. In setting aside the judgment and ordering that judgment be rendered for the defendant, the court stated that " [u]nder the circumstances, there was no evidence from which the jury could reasonably conclude that the claimed specific defect had existed for such a sufficient length of time that the defendant should have discovered it in the exercise of a reasonable supervision of her premises or to what extent it was a material factor in causing the injuries which the decedent sustained."
In objecting to summary judgment, the plaintiff contends that her " testimony is sufficient to establish a question of fact as to whether the plaintiff’s fall and subsequent injuries were the result of the " over polished, shiny portion of the floor." The plaintiff’s objection appears to rely on an inference that because the floor was super shiny, it was defective because it was over waxed. The record is devoid of any facts that would support the inference, and remove it from speculation and conjecture. " A permissible inference rests upon premises of fact; conjecture does not." Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 446, 538 A.2d 690 (1988). See Gulycz v. Stop & Shop Cos., Inc., supra, 29 Conn.App. 522 (" [a]n inference must have some definite basis in the facts ... and the conclusion based on it must not be the result of speculation and conjecture" [citation omitted; internal quotation marks omitted]).
Stop & Shop has met its burden in establishing that there is no genuine issue of material fact, and that it is entitled to a judgment as a matter of law. The plaintiff has failed to produce evidence demonstrating a material issue of fact. More particularly, there is an absence of a triable factual issue as to evidence of a specific defect, and, even if there was such evidence, whether Stop & Shop had constructive notice of a specific defect.
Based on the foregoing, Stop & Shop’s motion for summary judgment (138.00) is granted. Correspondingly, the plaintiff’s objection (151.00) to the motion is overruled.
For the same reasons, the defendant’s, Cleaning Services Group, Inc.’s and MDA Enterprises, Inc.’s motion for summary judgment (143.00) is granted. Correspondingly, the plaintiff’s objection to the motion (152.00) is overruled.