Marie Mason v. Town Fair Tire Centers, Inc. (2010)

RULING ON MOTION FOR SUMMARY JUDGMENT (# 109)

In a one-count complaint dated October 3, 2008 and filed on October 14, 2008, the plaintiff Marie Mason (“Mason”) alleged that, on October 14, 2006, she sustained personal injuries on premises controlled, possessed and maintained by the defendant Town Fair Tire Centers, Inc. (“Town Fair”) as a result of “a defective and/or dangerous condition [on the premises] in that there were raised areas in the parking lot and/or driveway, commonly known as speed bumps, and no warning signs were posted regarding said speedbumps [sic].” (¶ 3.)   Mason alleged, among other things, that Town Fair was negligent in failing to warn about the “dangerous characteristics” of the speed bumps (¶ 5.c) and in taking “no measures to remedy or correct them” although the conditions had “existed for a reasonable period of time.” (¶ 5.e.)

On May 7, 2010, Town Fair Tire moved for summary judgment on the sole ground that it “did not have notice of the alleged defective condition in this case.” ¹  Essentially, Town Fair's position is that the complaint only alleges the general condition of the property, of which it admits it was aware, but fails to allege a specific defective condition and thus it cannot be found to have had any duty to Mason as a matter of law.   In response, Mason asserts that the alleged dangerous characteristics of the speed bumps is that they are located in close proximity to the service bays and in a high traffic area.   Mason maintains that there is a genuine issue of material fact as to whether the location of the speed bumps created a specific dangerous and defective condition leading to a duty on the part of Town Fair to remedy or to warn.

“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).  “ ‘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).

In support of its motion for summary judgment, Town Fair relies on Mason's deposition testimony in which she states that she had frequented the premises many times before October 2006 and was aware of the location of the speed bumps, that she saw the speed bump over which she tripped on October 14, 2006 on her way into the store, that the speed bump was painted yellow and that she tripped because she wasn't looking at the ground.   It also relies on the affidavit of the general manager of the store at the relevant time in which he avers that he was familiar with the location and condition of the speed bumps on October 14, 2006, that they were all painted yellow and that no one had complained about the location or condition of the speed bumps during the six years he was the manager of the Town Fair store.   Neither the absence of any complaints nor the plaintiff's own knowledge of the location of the speed bumps is dispositive of the material factual issue of whether Town Fair had notice of the specific defect claimed here with respect to the placement of the speed bumps in proximity to the service bays from which, Mason maintains, a duty of care could arise.

Mason was a business invitee of Town Fair. “Under the common law, a possessor of land owes an invitee two separate duties:  the duty to inspect and maintain the premises to render them reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be expected to discover.”  Gargano v. Azpiri, 110 Conn.App. 502, 510, 955 A.2d 593 (2008).   Although there is no duty to warn an invitee “who has actual knowledge of a dangerous condition,” Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994), “a possessor of land has a duty to maintain the premises in a reasonably safe condition, despite the openness and obviousness of a defect of which the invitee has knowledge.”  Gargano v. Azpiri, supra at 510.   Furthermore, under certain limited circumstances a business may owe a duty to its invitees to warn them of dangers they could not reasonably be expected to discover associated with the invitee's anticipated uses of the premises.   See Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981).

In her response to Town Fair's motion for summary judgment, Mason has averred that as she walked in the traffic lane to return to her car, she heard noises coming from the service bay which caused her to turn her attention away from where she was walking and then she tripped on a speed bump in the traffic lane across from the areas where the service bays were located.   Whether Town Fair should have anticipated that she would have walked in the traffic lane in the vicinity of the service bays is a question of material fact.   Likewise, whether the location of the speed bumps in proximity to the service bays created a specific dangerous and defective condition is a question of material fact.   Generally, the trier of fact must determine the existence of a specific defective condition.  Cruz v. Drezek, 175 Conn. 230, 235, 397 A.2d. 1335 (1978);  Palmieri v. Stop & Shop, 103 Conn.App. 121, 124, 927 A.2d 371 (2007).

“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, supra, 175 Conn. 235-36.  “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;  emphasis supplied.)  Sauro v. Arena Co., 171 Conn. 168, 171, 368 A.2d 58 (1976).   Generally, the existence of constructive notice is a question of fact.   See Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 275, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009).

Based on the foregoing, the court concludes that there are genuine issues of material fact as to whether Town Fair had notice of the specific defective and dangerous condition that Mason maintains existed on the date of her fall.   Accordingly, the motion for summary judgment is denied.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. Neither proximate cause nor the existence and extent of any comparative negligence have been raised as issues to be decided by Town Fair's motion for summary judgment..  FN1. Neither proximate cause nor the existence and extent of any comparative negligence have been raised as issues to be decided by Town Fair's motion for summary judgment.

Lager, Linda K., J.