Deborah Miller v. Clayton Sorvillo (2009)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 116)

On August 28, 2009, the defendant, Clayton Sorvillo, filed a motion for summary judgment on the ground that there is no genuine issue of material fact with respect to whether he had actual or constructive notice of the dangerous condition upon which the plaintiff, Deborah Miller allegedly slipped.   The plaintiff filed a memorandum in opposition on September 29, 2009.   This court heard oral argument on October 13, 2009.   For reasons more fully set forth herein, this court denies the defendant's motion.

In her complaint, dated November 17, 2008, the plaintiff alleges that the defendant owned and/or operated a property located at 75 Hemingway Ave., East Haven, Connecticut on or about June 18, 2008.   On that date, the plaintiff claims she was visiting a tenant of the premises.   While leaving the premises via the stairway at the back of the property, the plaintiff asserts that she slipped on mold that had accumulated on the stairs as a result of the negligence of the defendant landlord, who knew or should have known of the dangerous condition and should have taken steps to fix it.

“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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “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 such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).   “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52-200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).

The defendant argues that he is entitled to judgment because there is no evidence that he had actual or constructive notice of the mold which allegedly caused the plaintiff's injury.   He states that he had never seen mold and that he had never been informed of mold by the plaintiff or any other person.   Therefore, the defendant claims there are no genuine issues of material fact with regard to notice, and as such, he is entitled to judgment as a matter of law.   In support of his motion, the defendant submits:  (1) the defendant's own signed and sworn affidavit;  (2) the certified deposition transcript of the plaintiff;  (3) the certified deposition transcript of the defendant;  and (4) the certified deposition transcript of Theresa Coppola, a tenant at the residence in question.

The plaintiff opposes the motion for summary judgment arguing that there are genuine issues of material fact as to whether the defendant knew or should have known of the dangerous condition.   The plaintiff relies in part on the defendant's own deposition, in which he acknowledged that he had visited the premises and used the stairs on many occasions prior to the plaintiff's fall.   Based upon this factual admission, the plaintiff argues that the defendant should have been aware of the mold.   In support of her objection, the plaintiff submits:  (1) the certified deposition transcript of the plaintiff;  and (2) the certified deposition transcript of the defendant.

“A possessor of land is charged with constructive notice of a dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk ․ Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant ․ Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is, in the eyes of the law, equivalent to actual knowledge.”  (Internal quotation marks omitted.)  Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990).

In the present case, the plaintiff testified in her deposition that mold was present on “[e]very one of [the stairs].   That's why they were always slippery.   There's no sun that hits them, you know what I mean, to dry them out.   They're full of mold.”  (Pl.'s Dep. 65:4-7, April 28, 2009.)   Additionally, when asked during his deposition if he had used the stairs prior to the alleged incident, the defendant noted that he visited the premises “definitely once or twice a month ․” (Def.'s Dep. 21:20-21, April 28, 2009.)   If the mold was indeed present, as the plaintiff claims, then the defendant would have had notice, constructive or otherwise, of the alleged defect.   Therefore, there are issues of material fact in dispute regarding notice and the defendant is not entitled to judgment.

For the foregoing reasons, the court denies the defendant's motion for summary judgment.

Robinson, A., J.

Robinson, Angela C., J.