Audrey Klein v. 17 (2010)

MEMORANDUM OF DECISION AS TO MOTION FOR SUMMARY JUDGMENT OF TOWN OF KILLINGWORTH

The plaintiff, Audrey Klein, commenced this action against the six defendants, Regional School District 17, the Haddam-Killingworth Recreation Department, the Haddam-Killingworth Board of Education, the Town of Haddam, the Town of Killingworth, and Franklin Sparks, acting in his capacity as the director of the Haddam-Killingworth Recreation Department.   Before the court is the motion for summary judgment of the defendant, Town of Killingworth (“Killingworth”).   The plaintiff filed an objection to the motion for summary judgment.   Oral argument was heard on February 8, 2010.

In Count five of her complaint, the plaintiff alleges the following facts.   The plaintiff, a resident of the town of Haddam, was at the Haddam-Killingworth High School swimming pool facility on March 8, 2006, for the purpose of attending an aqua aerobics class operated by the Haddam-Killingworth Recreation Department.   At all times the locker rooms and pool facility were owned, controlled, possessed, managed and/or maintained by the defendant Killingworth.   The plaintiff was exiting the locker room, in the pool facility, when she was caused to fall by the extremely slippery tiled floor, which was covered by water and a powdery substance.   The plaintiff alleges that the injuries she sustained were a direct result of the defective and dangerous condition of which the defendant Killingworth was aware, or should have been aware, and the defendant Killingworth negligently and carelessly allowed the public to enter upon the property, thereby exposing them to that defective and dangerous condition.

“Practice Book § 17-49 provides that 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.”  (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).  “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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

“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 defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it ․ [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 court notes Judge Jones' decision granting the motion for summary judgment filed by the defendants Haddam-Killingworth Recreation Department and Franklin Sparks.   In his memorandum of decision, Judge Jones granted the motion for summary judgment filed by those parties.   The allegations and evidence against those defendants are identical to those against the defendant Killingworth in the present motion.   In his decision, Judge Jones found that “the plaintiff has not provided any evidence to support its allegations that the defendants had actual notice,” and “the plaintiff was only able to point to the existence of the filmy white substance after she fell, and did not notice it prior to her fall.  ‘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.’  Kelly v. Stop & Shop, Inc., supra, 281 Conn. 777.   The plaintiff has failed to show that a genuine issue of material fact exists related to the issues of actual and constructive notice.”   Klein v. Regional School District 17, Superior Court, judicial district of Middlesex, Docket No. CV 08 5004104 (October 9, 2009, Jones, J.).   This court agrees with Judge Jones's well-reasoned decision and adopts it herein.

The plaintiff has attempted to circumvent the prior decision by filing additional evidence.  Practice Book § 17-45 provides in relevant part:  “Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”   In the present case, the plaintiff filed her additional evidence on the afternoon of February 4, 2010.   The motion was heard at the short calendar on February 8, 2010.   The evidence tendered by the plaintiff is untimely pursuant to Practice Book § 17-45, and will therefore not be considered by this court.

Accordingly, the defendant Town of Killingworth's motion for summary judgment is granted.

BURGDORFF, J.

Burgdorff, Mary-Margaret D., J.