Loretta Napoli v. Danbury Mall Associates et al. (2010)

MEMORANDUM OF DECISION

Motion for Summary Judgment # 143

On September 9, 2009, the plaintiff, Loretta Napoli, commenced this action against the defendants, Danbury Mall Associates, L.P. Danbury Mall, LLC Schindler Elevator Corporation (Schindler) and Otis Elevator Company, for injuries she allegedly sustained on an escalator located in the Danbury Fair Mall.¹

On November 2, 2009, the plaintiff filed a five-count revised complaint alleging the following facts.   On September 5, 2007, the plaintiff stepped onto the down escalator located just outside Macy's Department Store and was caused to fall by the dangerous and defective condition of the escalator.   As a result of the accident, the plaintiff suffered injuries to her right knee and leg.   The plaintiff has alleged claims sounding in negligence against each of the defendants with the exception of Otis Elevator Company against whom she has alleged a product liability claim pursuant to General Statutes § 52-772m.

On June 28, 2010, Schindler filed a motion for summary judgment, accompanied by a memorandum of law.   On August 5, 2010, the plaintiff filed a memorandum in opposition.   On August 10, 2010, Schindler filed a reply memorandum to the plaintiff's memorandum in opposition.²  Argument was heard at short calendar on August 16, 2010.

DISCUSSION

A “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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.)  Zhang v. Omnipoint Communication Enterprises, Inc., 272 Conn. 627, 633, 866 A.2d 588 (2005).  “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 a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).

Summary judgment is particularly “ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

In its memorandum of law in support of summary judgment, Schindler argues that the deadline for disclosing expert witnesses has passed.   The plaintiff has not disclosed any expert to render testimony as to the appropriate standard of care for an escalator maintenance company, whether Schindler breached any such standard of care in its maintenance of the subject escalator and whether any such breach proximately caused the escalator malfunction that the plaintiff contends caused her to fall and sustain injuries.   Absent expert testimony on these requisite elements of proof for her negligence claim, the plaintiff cannot, as a matter of law, prevail on her claims against Schindler.

In her objection, the plaintiff asserts three grounds for denying the defendant's motion for summary judgment.   First, she argues that this litigation is in the early stages of discovery and information gathering.   Second, the plaintiff argues that she may pursue a negligence claim against the defendant under the theory of res ipsa loquitur.   Third, the plaintiff argues that she was prevented from conducting an inspection of the escalator in question despite notice given to the defendant and is thereby entitled to an adverse inference against the defendant for spoilation of the evidence, which will establish a prima facie case.   The court need not address these last two arguments made by the plaintiff, as her first argument provides sufficient grounds to deny the motion for summary judgment.

Practice Book § 17-47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”   A party contending that it needs to conduct discovery to respond to a motion for summary judgment is required to “show by affidavit precisely what facts are within the exclusive knowledge of the moving party and what steps he has taken to attempt to acquire these facts.”  Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 230, 253 A.2d 22 (1968).  “A party opposing a summary judgment motion pursuant to § 382 [now Practice Book (1998 Rev.) § 17-47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed including some indication as to what steps that party has taken to secure facts necessary to defeat the motion ․ The trial court has wide discretion under [§ 17-47] to determine whether the party seeking additional time to conduct discovery already has had a sufficient opportunity to establish facts in opposition to the summary judgment motion ․” (Citations omitted.)   Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997).

Although no affidavits were provided to the court to justify why discovery has not occurred, the court is nonetheless persuaded by the arguments made by the plaintiff at oral argument and in her memorandum.   It has been represented to the court that discovery is still in its early stages and that the plaintiff has not yet been afforded ample opportunity to explore discovery and establish support for her cause of action against the defendants.

In light of the circumstances, pursuant to the provisions of § 17-47 of the Connecticut Practice Book, the court denies the defendant's motion for summary judgment without prejudice.   The defendant may reclaim the motion following discovery should it find it necessary to do so.

Marano, J.

FOOTNOTES

FN1. The plaintiff originally alleged a claim against Macy's Retail Holdings, Inc. However, that claim was withdrawn on October 8, 2009.   The plaintiff's Amended/Revised Complaint filed on November 2, 2009, is the operative complaint..  FN1. The plaintiff originally alleged a claim against Macy's Retail Holdings, Inc. However, that claim was withdrawn on October 8, 2009.   The plaintiff's Amended/Revised Complaint filed on November 2, 2009, is the operative complaint.

FN2. On October 4, 2010, the plaintiff submitted a Supplemental Memorandum of Law in Support of Plaintiff's Objection to Defendant's, Schindler Elevator Corporation's, Motion for Summary Judgment.   On October 5, 2010, Schindler filed a reply in which it argued that the plaintiff's supplemental memorandum was procedurally improper because the plaintiff had not sought, nor received permission from the court to file additional briefs.   As the court did not request or give permission for the filing of further memoranda, this court will not consider the plaintiff's supplemental brief..  FN2. On October 4, 2010, the plaintiff submitted a Supplemental Memorandum of Law in Support of Plaintiff's Objection to Defendant's, Schindler Elevator Corporation's, Motion for Summary Judgment.   On October 5, 2010, Schindler filed a reply in which it argued that the plaintiff's supplemental memorandum was procedurally improper because the plaintiff had not sought, nor received permission from the court to file additional briefs.   As the court did not request or give permission for the filing of further memoranda, this court will not consider the plaintiff's supplemental brief.

Marano, Richard M., J.