Nicole Soden v. Target Stores, Inc. et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BACKGROUND:

In her complaint, the plaintiff, Nicole Soden, alleges that, as a business invitee of the defendant, The Price Chopper, Inc., she was caused to slip and fall on a “slippery substance” on the floor of the defendant, Target Stores, Inc.'s (“Target”) premises, causing her to sustain injuries and damages.¹

At the time, the plaintiff was in the kitchen wares aisle.   At her deposition, she testified that the substance was a small puddle of clear, jelly type liquid.   At his deposition, the plaintiff's husband described the substance as cloudy water.   One of the defendant's employees did not know the nature of the liquid.   Another said it was a small puddle of water.   The substance was near shelving where items are displayed.   There is no merchandise containing liquid displayed on the shelves or in the immediate area.   The store does have a section where customers can purchase beverages.   No one testified as to any debris in the area.   The weather was not inclement.

The defendant has moved for summary judgment, arguing that the plaintiff can neither prove actual or constructive notice of the alleged defect and that the legal theory of “mode of operation” is not applicable.   The plaintiff concedes that she cannot establish actual notice but opposes the motion as to constructive notice and mode of operation.   The parties presented their respective positions at oral argument on July 25, 2011.

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.2 777 (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 Constructive Notice of Defect

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 plaintiff concedes that she cannot establish active notice.²  The defendant asserts that the plaintiff cannot establish constructive notice.

“It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it ․ The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy 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.”  (Citations omitted;  internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163–64, 914 A.2d 529 (2007).

“To a considerable degree each case must be decided on its own circumstances.   Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant.”  (Internal quotation marks omitted.)  Kelly v. Stop and Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).

“[T]o recover under our current law, the plaintiff [is] required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiff's injuries.”  Riccio v. Harbour Village Condominium Assn., Inc., supra, 281 Conn. at 164.

“Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant's 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, as the moving party, has the burden of establishing that there are no material facts in question and that it is entitled to summary judgment as a matter of law.  Practice Book § 17–49.   Here, the defendant has offered affidavits and certified deposition transcripts of all known witnesses to the incident.   None of the witnesses can competently testify as to the exact nature of the substance on the floor, where it came from or how long it had been there prior to the plaintiff's fall.   The defendant has submitted sufficient evidence to support its claim of the lack of constructive notice.

Having established its claim of entitlement to summary judgment, the defendant's motion must be countered by the plaintiff with material facts in dispute.  Hurley v. Heart Physicians P.C., supra, 278 Conn. at 314.   The plaintiff must establish evidence of the defendant's constructive notice of the defect.  Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 777.   It is not sufficient that the plaintiff establishes that the defect existed.   The plaintiff has not submitted any evidence that the defendant had constructive notice of the defect due to the length of time it existed.   She is required to do so to successfully rebut the defendant's proffer that it had no constructive notice.

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.

In her sur-reply, the plaintiff states that an inference can be had that the defect existed for anywhere from 90 seconds to several minutes.   There is no evidence, however, to support the inference.

To establish constructive notice, there must be direct or circumstantial evidence that the alleged defective condition had existed for a sufficient period of time to permit its discovery if a reasonable inspection had been conducted.   See Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 777 (2007).

The plaintiff cannot establish how long the defective condition existed.   Neither she nor any of the witnesses have that knowledge.   Although what constitutes a reasonable length of time is a question of fact, there is no disputed fact as to the length of time, as no one can establish it either way.   The undisputed facts here demonstrate that there is no genuine material factual issue.   See James v. Valley–Shore Y.M.C.A., Inc., 125 Conn.App. 174, 6 A.3d 1199 (2010).

The mere presence of the clear liquid on the floor does not provide an evidential basis for a conclusion that the defect existed for any sufficient length of time to provide notice.   See Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 777 (“Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice ․ );  Columbo v. Stop & Shop Supermarket Co., 67 Conn.App. 62, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002) (evidence that plaintiff fell on dirty milk insufficient basis for an inference to be drawn that milk was on floor for a sufficient period of time to establish actual or constructive notice).

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.

II Mode of Operation

In 2007, the Connecticut Supreme Court, in Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 791–92, recognized for the first time the “mode of operation” rule, which provides an exception to the notice requirement of traditional premises liability doctrine.  “The mode of operation rule ․ allows a customer injured due to a condition inherent in the way [a] store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition.”  (Internal quotation marks omitted.)  Id. at 777.   As with traditional premises liability doctrine, the plaintiff bears the ultimate burden of proving negligence.  Id. at 791–92.

The court revisited the mode of operation rule in Fisher v. Big Y Foods, Inc., 298 Conn. 414, 3 A.3d 929 (2010) to determine the nature of the business for which such a rule would apply in place of traditional premises liability doctrine.   The court noted that, in Kelly, where the plaintiff slipped and fell on a wet, slimy piece of lettuce at the self-service salad bar, there was testimony that the area around the salad bar was ‘precarious' because customers regularly caused items from the salad bar to fall to the floor below.  Id. at 425–26.  “Thus, in Kelly, we agreed with a claim that a particular method of operation within a generally self-service supermarket had created a regularly occurring hazardous condition, and our holding, which included the adoption of the mode of operation rule, necessarily corresponded to that claim.   In concluding that the mode of operation rule could apply to the facts of the case, we emphasized evidence that related to the particular method of operating the salad bar and showed that the salad bar was hazardous.”   (Internal footnote omitted.   Emphasis in original.)  Id. at 426.

The court went on to note, “A close examination of the cases cited in Kelly and additional, similar jurisprudence makes clear, however, that in most jurisdictions recognizing the mode of operation rule, it is not triggered by the mere presence of those factors, i.e., simply because the defendant is a retail store that allows customers to remove items from shelves and items sometimes are dropped, but only upon an additional showing that a more specific method of operation within a self-service retail environment gave rise to a foreseeable risk of a regularly occurring hazardous condition similar to the particular condition that caused the injury.”  (Footnotes omitted.   Emphasis in original.)  Id. at 427.

“[A] rule that presumptively established a storekeeper's negligence simply for having placed packaged items on shelves for customer selection and removal, without requiring any evidence that they were displayed in a particularly dangerous manner, would require us to ignore the modern day reality that all retail establishments operate in this manner and, given competitive considerations and customer demands, they have no other choice.”  (Footnote omitted.   Emphasis in original.)  Id. at 438.

In the present case, the substance on the floor was located in the kitchen wares area.   There were no liquids sold nearby.   There is no evidence as to what the liquid was or how it got there.   There is no evidence to support the plaintiff's contention in her sur-reply that the defect resulted from a customer's purchase of a beverage in another part of the store.   The defect was not a foreseeable, regular, and thereby reasonably anticipated occurrence, as was the situation in Kelly.   The mode of operation rule is not applicable to the circumstances as presented in this case.

“When a dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff.”  (Internal citations omitted.   Internal quotation marks omitted.)  Fisher v. Big Y Foods, Inc., supra, 298 Conn. at 439.   As the mode of operation rule is inapplicable here and the plaintiff cannot establish actual or constructive notice on the part of the defendant, the defendant is entitled to summary judgment in its favor.

ORDER:

The defendant's motion for summary judgment (119.00) is granted.   The objection (123.00) is overruled.

Robert E. Young, J.

FOOTNOTES

FN1. The plaintiff has withdrawn her complaint against the other defendant, Jeffrey Krug (108.00)..  FN1. The plaintiff has withdrawn her complaint against the other defendant, Jeffrey Krug (108.00).

FN2. In her memorandum in support of objection to motion for summary judgment (124.00), plaintiff states, “The plaintiff concedes that the defendant likely did not have any actual notice of the dangerous condition that caused her to fall.”.  FN2. In her memorandum in support of objection to motion for summary judgment (124.00), plaintiff states, “The plaintiff concedes that the defendant likely did not have any actual notice of the dangerous condition that caused her to fall.”

Young, Robert E., J.