Opinion
No. HHB CV-10-6005108 S
July 15, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FACTS:
On July 10, 2008, the plaintiff, Mary Ziccardi, presumably a social invitee, delivered a gift of basil from her garden to the home of the defendants, Scott and Andrea Saunders. After leaving the basil at the defendants' front door, the plaintiff turned and returned down the sidewalk toward her car. As she stepped from the sidewalk down the steps to the driveway, her foot caught on something and she tumbled forward, sustaining injury. The area in which the plaintiff's foot was caught consists of a brick walkway adjoining a railroad tie. The plaintiff is unable to state that her foot was caught on the walkway or the tie.
The defendants have moved for summary judgment on the basis that the plaintiff is unable to identify a defective condition which caused her fall. The plaintiff has objected to the motion, asserting that there existed an unreasonably dangerous condition and that the trier of fact can make reasonable inferences from the evidence that the condition of the sidewalk caused the fall. Oral argument was presented on May 31, 2011.
LEGAL STANDARD:
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. In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party. Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the 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 that will make a difference in the result of the case . . . (Internal quotation marks omitted.) Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).
"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, 567 A.2d 829 (1989). 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). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." Id.
"A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[T]he `genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Id., 378-79. "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." (Internal quotation marks omitted.) Id.
ANALYSIS
Pursuant to General Statutes § 52-577a, "[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee." See also, Sevigny v. Dibble Hollow Condo. Ass'n., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003).
Typically, for a plaintiff to recover for the breach of a duty owed to her as an invitee, it is incumbent upon her to allege and prove that the defendants either had actual notice of the presence of the specific unsafe condition which caused her injury or constructive notice of it. 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. Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
The defendants assert that they are entitled to summary judgment because the plaintiff cannot identify a defective condition that existed on the defendants' property that caused her fall. "The plaintiff [bears] the burden of proffering some evidence, either direct or circumstantial, from which [a] jury could infer that the defect she allegedly encountered existed for a length of time sufficient to put the defendant on actual or constructive notice of its existence." Columbo v. Stop Shop Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).
In this action, the plaintiff has alleged both active and constructive notice. In her complaint, the plaintiff alleges she "was caused to trip and fall due to a defect in the walking surface at a point where the brick path came to an end prior to a step down onto the driveway surface.
At her deposition, the plaintiff testified, "I left the basil on the doorknob. I went down and — — across the sidewalk, and I put my right foot down on the first step, and my left foot caught on something, and I lost my balance." She later testified that the "something" was on the sidewalk, not the steps and when her left foot caught, she lost her balance and fell. "I tripped on something on the sidewalk. I had one foot down on the first — my right foot on the step . . . and my left foot caught on something, on the sidewalk or the railroad tie that was there. I don't know where it caught."
Both parties have submitted unauthenticated attachments to their respective summary judgment pleadings. The defendant has attached an uncertified transcript of the plaintiff's deposition. The plaintiff has attached photocopies of photographs depicting the alleged defect. Neither side objected to the other's attachment. The court will consider these attachments, despite the mutual failure to comply with P.B. § 17-45. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). The court does not consider the defendant's unauthenticated attachment of what appears to be a web site printout which the defendant has utilized to bolster a statistically fallacious argument that elderly women fall a lot, the plaintiff is an elderly woman and therefore, the plaintiff fell because she is an elderly woman.
The plaintiff's testimony subsequently revealed that the brick sidewalk was separated from the steps by a railroad tie. The only issue as to where the plaintiff's foot caught was whether it was on the sidewalk or the tie. The defect itself, however, is alleged to be that the "walking surface was not level, stable and flush" in the abutment of the sidewalk and tie. That is a specific defect which the plaintiff has identified as allegedly causing her fall. Whether or not that claimed defect caused the plaintiff to fall is an issue for the trier of fact. Sufficient facts have been presented which would support an inference that the cause of the plaintiff's fall was a defective condition of the sidewalk.
CT Page 15764