Kareem Williams v. Autotote Enterprises, Inc. (2010)

Corrected MEMORANDUM OF DECISION

On October 31, 2008, the plaintiff, Kareem Williams, filed a complaint in which he alleges that the defendant, Autotote Enterprises, Inc., negligently caused his injuries by its failure to maintain its premises in a safe condition.   In the only count of his complaint, the plaintiff alleges that the “defendant caused or allowed and permitted [a] liquid to remain” on the entrance/exit ramp to its facility, and that the plaintiff slipped and fell thereon.   On February 16, 2010, the defendant filed the present motion for summary judgment and a memorandum of law in support thereof.   On March 24, 2010, the plaintiff filed an objection to the defendant's motion for summary judgment, a memorandum of law in support of his objection and an affidavit of a witness to the alleged accident.

“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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“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 material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).

“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.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009).

The defendant argues that the plaintiff has neither alleged that the defendant created the alleged dangerous condition, nor that the defendant had actual notice thereof.   Thus, the defendant asserts that the plaintiff must allege and prove that the defendant had constructive notice of the alleged dangerous condition and that the plaintiff has failed to do so.   In support of its motion, the defendant submitted portions of the deposition testimony of the plaintiff in which the plaintiff stated that:  (1) he did not know why he slipped;  (2) he did not see the wet spot but that a witness, Sean, did;  (3) he did not know how long the alleged defect was there;  and (4) it had been raining that night.

In his objection to the defendant's motion for summary judgment, the plaintiff contends that he does allege that the defendant caused the defect.   The plaintiff then argues that the defendant did not offer any proof that it did not cause the alleged dangerous condition, nor that it did not have notice of said condition.   That is, the plaintiff argues that the defendant failed to introduce evidence sufficient to support a judgment in its favor.   In support of its objection, the plaintiff submits the affidavit of Sean Lucas, a witness to the alleged accident.   In paragraph 8 of his affidavit, Lucas states that he “looked on the floor ․ [and saw] a wet spot 2 or 3 feet from where” the plaintiff fell.

“[U]nder [the] traditional premises liability doctrine ․ [the plaintiff] must show that the defendant had actual or constructive notice of the particular hazard at issue.”  Fisher v. Big Y Foods, Inc., 298 Conn. 414, 439, 3 A.3d 919 (2010).  “[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 ․ In the absence of allegations and proof of any facts that would give rise to an enhanced duty ․ [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.”  (Internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).   Where a plaintiff alleges an affirmative act of negligence, however, proof of notice is not required because when a defendant has created the condition, notice may be inferred.  Kelly v. Stop & Shop, Inc., supra, 281 Conn. 777.

“When ․ the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition ․ [t]he controlling question [becomes] that of constructive notice:  whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it ․ 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.   The nature of the business and the location of the foreign substance would be factors in this determination ․ To a considerable degree each case must be decided on its own circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., supra, 281 Conn. 777.

In the present case, the plaintiff does not allege any affirmative act of negligence by the defendant.  “[A]llowing a condition to remain in a state of general disrepair is not the equivalent of an affirmative act of negligence.”   Mitchell v. Covone, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089070 (July 17, 2002, Shapiro, J.), citing Wilson v. New Haven, supra, 213 Conn. 281;  Gambardella v. Kaoud, 38 Conn.App. 355, 359 n.4, 660 A.2d 877 (1995).   The plaintiff's allegation that the defendant “caused or allowed and permitted the liquid to remain on the floor of the premises ․” therefore does not suffice.   Also, the plaintiff does not allege that the defendant had actual notice of the alleged dangerous condition.

Because the plaintiff does not allege that the defendant created or had actual notice of the alleged dangerous condition, the plaintiff must show that the defendant had constructive notice.   As previously stated, the issue of constructive notice is whether the condition existed for such a length of time that the defendant should have discovered it.

The burden on a motion for summary judgment, however, rests with the moving party.   On a defendant's motion for summary judgment, the plaintiff initially has no obligation to present evidence demonstrating that the defendant had constructive notice.   Rather, the defendant must first submit evidence to support its claim of the absence of constructive notice.   Thus, to be entitled to summary judgment based on the absence of constructive notice, the defendant must submit evidence demonstrating that the alleged condition had not existed for such a length of time that the defendant should, in the exercise of due care, have discovered it.   See, e.g., Walker v. Central Connecticut Coast Young Men's Christian Assn., Superior Court, judicial district of Fairfield, Docket No. CV 07 5006163 (May 28, 2008, Frankel, J.);   Leonard v. G & W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 05 5000179 (April 7, 2008, Upson, J.).

The only evidence submitted by the defendant is a portion of the plaintiff's deposition transcript which reveals that the plaintiff did not know how long the alleged dangerous condition existed.   The defendant argues that, as a result of this evidence, “it is uncontroverted that the Plaintiff does not possess any personal knowledge as to the existence of the specific alleged defect that is claimed to have caused him to slip and fall.   If the Plaintiff cannot offer evidence to establish the existence of the alleged defect, then the Defendant cannot possibly be charged with constructive notice of the defect.”   The defendant misconstrues its burden on this motion for summary judgment.   The defendant has submitted no evidence indicating how long the alleged defect had existed.

The defendant has failed to negate the plaintiff's negligence claim.   A genuine issue of material fact remains as to whether the defendant had constructive notice of the alleged defect.   As such, the defendant has failed to demonstrate its entitlement to summary judgment.   Therefore, the defendant's motion for summary judgment is denied.

Woods, J.

Woods, Glenn A., J.