Bonnie Gearin v. Klingberg Family Centers, Inc. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, # 117

FACTS

On July 2, 2010, the plaintiff, Bonnie Gearin, filed a complaint for negligence grounded in premises liability, negligent supervision and negligent training against the defendant, Klingberg Family Centers, Inc., alleging the following facts.   On November 20, 2009, the plaintiff was invited to a dinner hosted at the defendant's dining hall.   At the event, the defendant's employees offered to give the plaintiff and other guests a tour of the facility.   While on the tour with employees of the defendant, the plaintiff was directed to walk across a grassy, muddy, sloped area.   The plaintiff fell and sustained injuries from the fall.   The plaintiff alleges that the defendant was negligent in failing (a) to maintain the premises in a reasonably safe condition, (b) to have adequate safety procedures to prevent its employees from conducting tours in hazardous areas, (c) to properly train its employees concerning safety procedures when conducting tours, (d) to make a proper and reasonable inspection, (e) to take steps to remedy the condition, (f) to maintain proper safeguards or to warn of the dangerous condition and (g) to cordon off the muddy area.

On June 6, 2011, the defendant filed a motion for summary judgment.   The motion is accompanied by a certified transcript of the plaintiff's deposition, an affidavit of the defendant's director of human resources and a memorandum of law.   The plaintiff filed a memorandum of law in opposition on August 1, 2011, along with an affidavit of a safety engineer and excerpts of the plaintiff's deposition testimony.   On August 25, 2011, the defendant filed a reply memorandum.   The matter was heard at short calendar on September 6, 2011.

DISCUSSION

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “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.”  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 ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

In the present case, the defendant argues that it is entitled to summary judgment on the grounds that (1) the plaintiff cannot prove the existence of a specific defect and (2) the plaintiff cannot prove the defendant knew or should have known about a specific defect.   It relies on excerpts of the plaintiff's deposition in which she stated that the fall happened on an unimproved grass covered gradually sloped hill.   The plaintiff also testified in her deposition that prior to the incident she did not know how long the condition existed or whether there had been any prior falls in the area where she fell.

In response, the plaintiff submitted the affidavit of Gilbert Nicholls, a safety engineer to substantiate her claims as to whether a defective condition existed.   As to notice of the defect, in addition to offering the opinion of Nicholls that the defendant knew or should have known through the course of normal operations of the defendant, the plaintiff highlights her own deposition in which she testified that she was told by an employee of the defendant that she was the second person to have fallen.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   Baptiste v. Better Val–U Supermarket, 262 Conn. 135, 138, 811 A.2d 687 (2002).  “To hold the defendant liable for her personal injuries ․ the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it.”  (Internal quotation marks omitted.)  Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).   If “the plaintiff ․ was a business invitee of the defendant ․ [then] the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition ․ Typically, for the 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 ․ The 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.”  (Citations omitted;  internal quotation marks omitted.)  Id., 140.

The plaintiff's deposition does contain some evidence, when viewed in the light most favorable to the plaintiff, to rebut the evidence submitted by the defendant.   In response to the question “what caused [your foot] to slip out from under you?” the plaintiff replied that “[i]t felt like the grass separated from the dirt.   So it was—I'm assuming there had to be a certain amount of moisture in the dirt for the grass to—my foot slipped.”   Later in the deposition, the plaintiff states that, in order for the dirt to be characterized as mud, there needs to be enough moisture “to make the grass separate.”   Finally, the plaintiff indicated she slipped in mud when she testified that “[i]n the proximity that I was to the mud hole, yes, I would have to say that I would interpret it as being mud [that she slipped on].   I didn't slip on the grass—I mean, I slipped on the grass, but it was because the grass moved.”   Accordingly, when viewing the evidence in the light most favorable to the plaintiff, there is some evidence of a factual dispute regarding the alleged defect of a muddy slope.   Whether or not the claimed defect caused the plaintiff to fall is an issue for the trier of fact.   As result there is a genuine issue of material fact on the issue of a defect.

Whether the defendant had actual or constructive notice of the alleged defect is a question of fact that renders summary judgment inappropriate at this time.  “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.”  (Citation omitted;  internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006).   The Supreme Court “ha[s] further defined constructive notice as follows:  A possessor of land is charged with constructive notice of a dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk.”  (Internal quotation marks omitted.)  Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990).

“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 such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Regarding the issue of constructive notice, the plaintiff relies on the affidavit of her expert, Nicholls, who opined that the defendant knew or should have known through the normal course of operations that the area where the plaintiff allegedly fell, had become muddy, and created a dangerous condition.   Because the defendant has the burden to establish the absence of any genuine issue of material fact concerning each element of the plaintiff's claim, and has failed to do so with respect to constructive notice, its motion for summary judgment must fail.¹

CONCLUSION

Based on the foregoing, the defendant's motion for summary judgment is hereby denied.

Cynthia K. Swienton

FOOTNOTES

FN1. The plaintiff further argues, in its memorandum of opposition, that the defendant has failed to negate two claims alleged in the complaint.   The first claim is that the defendant failed to have adequate safety procedures to prevent its employees from conducting tours in those areas “where the accumulation of mud posed a hazard to tour participants.”   The second claim is that the defendant failed to properly train its employees concerning safety procedures when conducting tours.   The defendant argues that the plaintiff has failed to submit evidence that the defendant's employees were conducting a tour or directing the guests.   According to the defendant, this failure means that the allegations of negligent supervision and training are “immaterial” because the only evidence before the court addresses the premises liability claim.The defendant's argument is without merit.   Under the summary judgment standard, the moving party has the burden of showing the nonexistence of any issue of material fact.   Only after the moving party has shown the nonexistence of material fact does the burden shift to the nonmoving party.   Here, the defendant has not shown the nonexistence of any material fact on these two claims.   Instead, the defendant has simply stated that the only evidence before this court is the plaintiff's “simple, straightforward premises liability claim for a slip-and-fall on an unreasonably dangerous, defective ground surface.”.  FN1. The plaintiff further argues, in its memorandum of opposition, that the defendant has failed to negate two claims alleged in the complaint.   The first claim is that the defendant failed to have adequate safety procedures to prevent its employees from conducting tours in those areas “where the accumulation of mud posed a hazard to tour participants.”   The second claim is that the defendant failed to properly train its employees concerning safety procedures when conducting tours.   The defendant argues that the plaintiff has failed to submit evidence that the defendant's employees were conducting a tour or directing the guests.   According to the defendant, this failure means that the allegations of negligent supervision and training are “immaterial” because the only evidence before the court addresses the premises liability claim.The defendant's argument is without merit.   Under the summary judgment standard, the moving party has the burden of showing the nonexistence of any issue of material fact.   Only after the moving party has shown the nonexistence of material fact does the burden shift to the nonmoving party.   Here, the defendant has not shown the nonexistence of any material fact on these two claims.   Instead, the defendant has simply stated that the only evidence before this court is the plaintiff's “simple, straightforward premises liability claim for a slip-and-fall on an unreasonably dangerous, defective ground surface.”

Swienton, Cynthia K., J.