Jacqueline Smart v. St. Raphael Foundation (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 126)

FACTS

On December 10, 2008, the plaintiff, Jacqueline Smart, commenced this action by service of process on the defendants, Saint Raphael Foundation, Inc. (the Foundation) and Saint Raphael Healthcare System, Inc. The defendants did not object to the plaintiff's request to amend, dated September 3, 2009, and that amended complaint was therefore deemed filed with the consent of the defendants and is the operative complaint in this case.   The plaintiff's amended complaint alleges the following facts.   On December 10, 2006, the plaintiff was an invitee at the Hospital of Saint Raphael.   That hospital is owned, possessed, and controlled by the defendants.   While there, the plaintiff slipped and fell on a puddle of water on the floor of a women's bathroom.   As a result of that fall, the plaintiff sustained various injuries.   The defendants had actual and constructive knowledge of the puddle of water.   The plaintiff alleges that the fall was due to the defendants' negligence in that they failed to properly maintain the bathroom;  failed to adequately inspect the bathroom;  permitted the water to accumulate;  and failed to warn the plaintiff of the accumulation of the water.

On September 23, 2009, the defendants filed answers and special defenses to the plaintiff's amended complaint.   On September 29, 2009, the plaintiff filed replies to the defendants' special defenses.   A jury trial in this case is scheduled to commence on April 20, 2011.   On November 22, 2010, the defendants filed a request to file a motion for summary judgment, a motion for summary judgment, and a memorandum of law in support.   The court granted the defendant's request to file the motion on December 6, 2010.   On December 6, 2010, the plaintiff filed an objection to the defendants' motion for summary judgment and an accompanying memorandum of law.   On December 17, 2010, the defendants filed a reply memorandum.   The court heard oral argument at short calendar on December 20, 2010.

DISCUSSION

“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.   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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially 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).

The defendants together argue that the plaintiff must prove actual or constructive knowledge of the alleged defective condition in order to recover on a premises liability theory.   They argue that the plaintiff cannot produce evidence of the defendants' actual knowledge of the alleged defective condition.   They further argue that the plaintiff cannot produce evidence of their constructive notice of the alleged defective condition.   Finally, the Foundation argues that, as to it individually, it did not own, possess, or control the premises in question and therefore cannot be liable on a premises liability theory of negligence.

The plaintiff replies that the defendants have not met their initial burden of showing the' absence of any genuine issue of material fact because the evidence they cite, the plaintiff's deposition testimony, was not based on the plaintiff's personal knowledge.   The plaintiff argues that the court can infer that the puddle of water in question probably came from the toilet and that whether that condition existed for a long enough time to confer constructive notice on the defendants is a genuine issue of material fact.

A The Defendants' Actual Knowledge of the Alleged Defective Condition

“It is undisputed that the owner of a retail store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers ․ Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees:  Typically, [for [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 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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Kelly v. Stop and Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).

In terms of actual notice, the defendants do not submit any evidence to meet their initial burden of showing the absence of any genuine issue of material fact.   At the summary judgment stage, as outlined above, it is the moving party's burden to show the absence of any genuine issue of material fact before the court examines whether that party is entitled to a judgment as a matter of law.   The defendants' argument that the plaintiff has not produced evidence is inapposite because the initial burden is on the defendants.   They have failed to meet that burden.   The court therefore denies the defendants' motion for summary judgment because the defendants have failed to show the absence of any genuine issue of material fact with respect to the defendants' actual notice.

B The Defendants' Constructive Knowledge of the Alleged Defective Condition

Moreover, the defendant has failed to meet its burden of showing the absence of any genuine issue of material fact with respect to the issue of constructive notice.   Where the plaintiff fails to show actual notice, the issue for purposes of summary judgment is “whether a genuine issue of material fact exists as to whether the defendant had constructive notice of the defect of which the plaintiff complains.   That question entails an inquiry into 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.”  (Internal quotation marks omitted.)  James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 179-80, 6 A.3d 1199 (2010).

In order for the plaintiff to establish constructive knowledge of the allegedly defective condition, she must show that the alleged defective condition existed for such a length of time that the defendants' employees should have remedied it.   In support of their argument that there is no genuine issue of material fact as to this issue, the defendants cite the deposition testimony of the plaintiff, wherein she testified that she had no idea how long the alleged defective condition existed before her alleged accident.   (Pl.Dep.33:7-9, Dec. 21, 2009.)   That evidence is insufficient to meet the defendants' initial burden of showing the absence of any genuine issue of material fact.   The plaintiff's personal knowledge of the defect is immaterial.   The material issue of fact for the purpose of establishing constructive notice is the period of time over which the alleged defect existed, and whether in that amount of time the defendants should have discovered and corrected the defect.   Here, the defendants have not produced any evidence to meet their initial burden.¹  The court denies the defendants' motion for summary judgment as to the issue of constructive knowledge.

C The Foundation's Possession and Control

The Foundation, individually, argues that it was never in possession and control of the premises on which the alleged incident occurred and therefore cannot be held liable in this premises liability action.   In support of that argument, the Foundation submits the affidavit of Janeanne Lubin-Szafranski.   In that affidavit, Luibin-Szafranski swears that she is the vice general counsel of the Foundation.   She further swears that the Foundation “has never owned, operated, possessed, managed, maintained and/or controlled [the premises] where the plaintiff alleges she was injured.”   That affidavit meets the Foundation's initial burden, as the moving party, of showing the absence of any genuine issue of material fact with respect to the Foundation's possession and control of the subject premises.

In response to Lubin-Szafranski's affidavit, the plaintiff does not submit any evidence that would show that there is a genuine issue of material fact as to the Foundation's possession and control of the premises on which the plaintiff was allegedly injured.   The Foundation has therefore met its burden of showing that there is no genuine issue of material fact with respect to the question of whether it was in control of the subject premises.

“Liability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property ․ The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination.”  (Citations omitted;  internal quotation marks omitted.)   Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773-74, 881 A.2d 379 (2005).

In order for the plaintiff to establish liability for the Foundation as a matter of law, she must demonstrate as a threshold issue that the Foundation has possession and control of the property.   As discussed above, the defendant has shown the absence of any genuine issue of material fact with respect to that issue.   The Foundation is therefore entitled to a judgment as a matter of law with respect to the premises liability claims against it because it did not have possession and control of the subject premises.   Therefore the court grants the Foundation's motion for summary judgment with respect to count one of the plaintiff's amended complaint.

CONCLUSION

Accordingly, the court denies the defendants' motion for summary judgment with respect to the actual and constructive notice issues.   The defendants did not meet their burden of showing the absence of any genuine issue of material fact as to either (a) actual notice or (b) constructive notice.   The court grants the Foundation's individual motion for summary judgment because it met its burden of showing the absence of any genuine issue of material fact with respect to possession and control of the subject premises.   The Foundation is entitled to a judgment as a matter of law because possession and control is a threshold requirement to a premises liability action.

Wilson, J.

FOOTNOTES

FN1. Even if the defendants had submitted affidavits showing that the accumulated water had existed in that state for a short period of time, the determination of whether, in the exercise of due care, they would have discovered and remedied that defective condition is also a question of fact.   There is no period of time after which, as a matter of law, a defendant is charged with constructive notice of a dangerous condition.   Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007) ( “What constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of a case” [Internal quotation marks omitted] ).   Compare White v. E. & F. Construction Co., 151 Conn. 110, 113, 193 A.2d 716 (1963) (evidence that a puddle of rainwater collected on the floor for two minutes was insufficient to charge landowner defendant with constructive knowledge of its presence);  with Fabrizio v. Stop & Shop Supermarket Co., Superior Court, Judicial District of Danbury, Docket No. CV 96 0324723 (December 18, 1998, Stodolink, J.) (foreign substance on supermarket floor for thirty minutes insufficient to confer constructive notice)..  FN1. Even if the defendants had submitted affidavits showing that the accumulated water had existed in that state for a short period of time, the determination of whether, in the exercise of due care, they would have discovered and remedied that defective condition is also a question of fact.   There is no period of time after which, as a matter of law, a defendant is charged with constructive notice of a dangerous condition.   Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007) ( “What constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of a case” [Internal quotation marks omitted] ).   Compare White v. E. & F. Construction Co., 151 Conn. 110, 113, 193 A.2d 716 (1963) (evidence that a puddle of rainwater collected on the floor for two minutes was insufficient to charge landowner defendant with constructive knowledge of its presence);  with Fabrizio v. Stop & Shop Supermarket Co., Superior Court, Judicial District of Danbury, Docket No. CV 96 0324723 (December 18, 1998, Stodolink, J.) (foreign substance on supermarket floor for thirty minutes insufficient to confer constructive notice).

Wilson, Robin L., J.