Lauren Disanti v. The Price Chopper, Inc. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

In her revised complaint, the plaintiff Lauren Disanti, alleges that, while she was a business invitee of the defendant, The Price Chopper, Inc, she was caused to slip and fall on a strip of plastic left on the floor, causing her to sustain injuries and damages.   She claims that the defendant (1) caused, allowed or permitted the strip of plastic to remain on the floor;  (2) knew or should have known the plastic strip was there, had adequate time to remove it but failed to do so;  (3) failed to maintain its premises in a reasonably safe condition;  and (4) failed to conduct reasonable inspections. ¶ 6, plaintiff's revised complaint.

The defendant has moved for summary judgment, arguing that the plaintiff can neither prove a specific premises defect nor establish that the defendant had notice of the defect.   The plaintiff opposes the motion.

LEGAL STANDARD:

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.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․ (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2d 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   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 issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted).  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted, internal quotation marks omitted.)   United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “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.”  (Internal quotation marks omitted.)  Id.

ANALYSIS

I. Identification of Specific Defect

The first basis for summary judgment asserted by the defendant is that the plaintiff cannot identify a specific premises defect.   In support of its argument, the defendant argues that the plaintiff did not specifically identify the object which caused her fall.   In ¶ 5 of her revised complaint, the plaintiff identified the object as a slip of plastic left on the floor.   Although the plaintiff described the foreign object which she alleges caused her fall as a strip of plastic, ¶ 5, revised complaint, at her deposition,¹ she alternatively described it as a wire tie, a packing tie and a piece of packing plastic.

Unlike other cases in which summary judgment was granted because the plaintiff was unable to testify at all as to what defect caused injury, this plaintiff has described in varying terms a foreign object which was on the floor, causing her to fall.   It is not unreasonable for the trier of fact to believe that this foreign object, despite the lack of forensic analysis of its composition, caused the plaintiff injury.   The plaintiff's description of the defect is sufficiently specific to survive summary judgment.

II. Notice of Defect

The second basis for summary judgment asserted by the defendant is the lack of notice.   There are two types of notice, actual and constructive.   For the plaintiff to recover for the breach of a duty owed to her as an invitee, it was 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 fall or constructive notice of it.  Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966).   The defendant does not address actual notice, focusing solely on the lack of proof of constructive notice.

Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendants employees, in the exercise of due care, to discover the defect in time to have remedied it.   While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition, some evidence is required.   Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case.”  (Internal citations omitted.)   Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 521, 625 Conn. 1087, cert. denied, 224 Conn. 923 (1992).

The defendant asserts that the plaintiff has no evidence as to the length of time the alleged foreign object remained on the floor before the plaintiff encountered it.   The plaintiff has not submitted any evidentiary foundation to establish that the defendant had constructive notice of the alleged defect.   She is required to do so.  Hurley v. Heart Physicians P.C., supra, 278 Conn. at 314.   It is not enough for the plaintiff to establish that the defect existed.   The plaintiff must establish evidence of the defendant's constructive notice of the defect.  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).   The plaintiff offers no evidence or argument that the defendant had constructive notice of the alleged defect.

Although circumstantial evidence can establish constructive notice, Sokolowski v. Medi Mart, Inc., 24 Conn.App 276, 287, 587 A.2d 1056 (1991);  no such circumstantial evidence exists here.   The plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time so as to enable the court to exercise its function as factfinder.

Nor was the court able to infer that the defect had existed for any length of time, since there was no evidence to establish a basis for such an inference.   “An inference must have some definite basis in the facts,” Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986);  and the conclusion based on it must not be the result of speculation and conjecture.  Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959).

Gulycz v. Stop & Shop Cos., supra, 29 Conn.App at 521–22.

Rather than assert any evidence of constructive notice as she has pleaded in her complaint, in her objection, the plaintiff argues that “the nature of the plastic strip itself as described by the plaintiff at several points in her deposition ․ [suggests] that the strip was a packing tie that could have been dropped by the plaintiff's own employees, it seeming unlikely that a customer would be the origin of such a thing.”   If an employee of the defendant was the source of the foreign object, the plaintiff is correct that active notice would be established.   When a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.  Fuller v. First National Supermarkets, Inc., 38 Conn.App 299, 301, 661 A.2d 110 (1995).

However, there are two problems with this argument.   The first is the lack of any actual evidence that an employee of the defendant was the source of the foreign object as opposed to another source, such as a vendor.²  An inference must have some definite basis in the facts and the conclusions based it must not be the result of speculation and conjecture.”  Palmieri v. Massaro, 146 Conn. 705, 708, 155 A.2d 750 (1959).

The second problem is that the plaintiff has failed to affirmatively plead actual notice.   In order to establish this assertion of affirmative negligence, the plaintiff must first plead it.  “For the plaintiff to recover for the breach of a duty owed to her as a business invitee, she had to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall ․ If the plaintiff, however, alleges an affirmative act of negligence, i.e., that the defendants conduct created the unsafe condition, proof of notice is not necessary.”  (Citations omitted.   Quotation marks omitted.   Emphasis supplied.)  Fuller v. First National Supermarkets, Inc., supra.   The plaintiff here has not alleged that the defendant created the unsafe condition, only that it caused, allowed or permitted it to remain, which are allegations of passive negligence.

“When ․ the plaintiff does not allege either that the defendants conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that ‘[t]he controlling question [becomes] that of constructive notice whether the condition had existed for such a length of time that the [defendants] employees should, in the exercise of due care, have discovered it in time to have remedied it.’  Morris v. King Cole Stores, Inc., 132 Conn. 489, 492–93, 45 A.2d 710 (1946).”  Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 777.   The plaintiff, in her opposition, provides no evidence, proof or claim of constructive notice.  “[T]he party opposing [a motion for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact which will make a difference in the result of the case ․” Hurley v. Heart Physicians P.C., supra, 278 Conn. at 314.

The plaintiff has not raised a genuine issue of material fact as to the defendant's actual or constructive notice of the defect.   With no factual basis for a finding that the defendant had actual or constructive notice of the defect that caused the plaintiff's fall so as to allow it to remedy the situation, the defendant is entitled to summary judgment as a matter of law.

ORDER

The defendant's motion for summary judgment (123.00) is granted.   The objection (125.00) is overruled.

Robert E Young, J.

FOOTNOTES

FN1. Both parties have submitted as attachments to their respective pleadings uncertified pages of the plaintiff's deposition transcript.   At oral argument, the parties stipulated that the court may rely on the accuracy of these attachments, despite the mutual failure to comply with P.B. § 17–45.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. Both parties have submitted as attachments to their respective pleadings uncertified pages of the plaintiff's deposition transcript.   At oral argument, the parties stipulated that the court may rely on the accuracy of these attachments, despite the mutual failure to comply with P.B. § 17–45.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

FN2. It should be noted that the plaintiff testified that the accident happened in the [potato] “chip aisle.”.  FN2. It should be noted that the plaintiff testified that the accident happened in the [potato] “chip aisle.”

Young, Robert E., J.