Dolores Esparo v. Ruby Tuesday, Inc. (2011)

MEMORANDUM OF DECISION IN RE MOTION FOR SUMMARY JUDGMENT (# 115)

FACTS

The lawsuit before the court is a slip and fall action.   In a complaint filed on February 18, 2009, the plaintiff, Dolores Esparo, alleges that on January 21, 2007, she was a patron of a North Haven restaurant owned, operated or maintained by the defendant, Ruby Tuesday, Inc. The plaintiff alleges that the defendant operated a self-service salad bar in the restaurant, that the floor around the salad bar was “slippery and debris ridden” and that the plaintiff was caused to fall as a result of the defendant's failure to maintain the floor in a reasonably safe condition.   The plaintiff also alleges that the defendant's salad bar “mode of operation” created a dangerous condition “in that the defendant utilized a method of displaying a salad bar for consumption that increased the risk of debris falling to the floor and of a customer slipping and falling,” and sustaining injuries.

The defendant filed an answer on July 24, 2009, denying the material allegations of the complaint.¹  On April 21, 2011, the defendant moved for summary judgment on the ground that the plaintiff cannot identify what caused her to slip or, in any event, prove that the defendant had actual or constructive notice of an unsafe condition.   In support of its motion, the defendant filed memoranda of law and various documentary exhibits, including a certified copy of the plaintiff's deposition transcript.   The plaintiff filed responsive memoranda and an affidavit of her husband, James Esparo on June 8, 2011.   The defendant filed a reply on June 16, 2011.   The plaintiff filed a supplemental memorandum in opposition to the motion on October 14, 2011 and the defendants filed a reply to plaintiff's supplemental opposition on October 17, 2011.   The parties argued the motion at short calendar on October 17, 2011.

DISCUSSION

“[M]otion[s] for summary judgment [are] 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 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.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).  “[T]he ‘genuine issue’ aspect of summary judgment 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 ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“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 judgment as a matter ․ Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party ․ 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 ․ [O]nce the moving party has met its burden [of production] ․ the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue.”  (Citations omitted;  internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The defendant argues that it is entitled to summary judgment because the plaintiff cannot identify what caused her to slip and fall, “much less that the defendant had either actual or constructive notice of the alleged defective condition.”   In support of its claim, the defendant proffers the plaintiff's deposition testimony in which the plaintiff states that she does not know precisely what caused her to fall.²  The plaintiff first counters that the “mode of operation” rule applies to this action and the rule eliminates the traditional requirement of notice.   The plaintiff then asserts that under the mode of operation rule, she may establish a prima facie case of negligence by proving that the operation of the salad bar “[gave] rise to a foreseeable risk of injury to customers, and the plaintiff's injuries were caused by an accident within the zone of risk.”   The plaintiff claims that the proffered evidence amply demonstrates the existence of a genuine issue as to those facts.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).  “Typically, [f]or [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.”  (Citations omitted;  emphasis added, internal quotation marks omitted.)  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002).

In Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), however, our Supreme Court “recogniz[ed] for the first time the ‘mode of operation’ rule, which provides an exception to the notice requirement of traditional premises liability doctrine.”  Fischer v. Big Y Foods, Inc., 298 Conn. 414, 419, 3 A.3d 919 (2010).  “The rule, which evolved in response to the proliferation of self-service retail establishments, is rooted in the theory that traditional notice requirements are unfair and unnecessary in the self-service context.”  Kelly v. Stop & Shop, Inc., supra, 778.   Because Kelly governs the resolution of the issues presented before the court, an examination of the facts and reasoning of the decision is warranted.

Kelly involved a plaintiff who sued for negligence after slipping on a piece of lettuce while serving herself at a salad bar in the defendant's supermarket.  Kelly v. Stop & Shop, Inc., supra, 281 Conn. 770–71.   After a bench trial, the trial court determined that the plaintiff had failed to meet her burden of establishing that the defendant had actual or constructive notice of the piece of lettuce and, accordingly, rendered judgment for the defendant.  Id., 770.   On appeal, our Supreme Court surveyed the law of other states and noted that numerous jurisdictions have adopted a mode of operation rule that applies when a customer is injured as a result of a condition inherent in the way a store is operated—notably, when the self-service nature of the business increases the risk of spillage or other hazards which a customer may not be aware of because his or her attention is directed to the store's displays.  Id., 777–83.   Reasoning that businesses employing self-service methods of operation “are aware that some customers will be injured due to the conduct of other customers because such injuries are a likely, and therefore foreseeable, consequence of the self-service method of operation”;  id., 787;  that the notice requirement often places an “insuperable” burden on injured customers;  id., 788;  and that “the rule encourages self-service businesses to exercise reasonable care in their dealings with customers” (internal quotation marks omitted) id., 789;  our Supreme Court expressly adopted the mode of operation rule and held that the plaintiff was not required to prove that the defendant had actual or constructive notice of the piece of lettuce on which she slipped.  Id., 775.   Instead, according to the court's articulation of the rule:  “a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant's business gives rise to a foreseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk.   The defendant may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances.”  Id., 791.  “If the defendant presents such evidence, the burden is [then] on the plaintiff to establish that the steps taken by the defendant to prevent the accident were not reasonable under the circumstances.”  Id., 793.

Although the defendant argues that it had no actual or constructive notice of any hazard, there is no question that the plaintiff is proceeding on a mode of operation theory of liability, which does not require proof of notice.   Moreover, the defendant has not presented any evidence that it exercised reasonable care under the circumstances.   Therefore, in conformity with the prima facie standard articulated in Kelly v. Stop & Shop, Inc., supra, 281 Conn. 791, the defendant in the present case may prevail on summary judgment only if there is an absence of a genuine issue that (1) the defendant's salad bar operation did not pose a foreseeable risk of injury to the plaintiff or (2) the plaintiff's injury was not caused by an accident within the zone of risk.

The defendant does not claim that its salad bar operation did not pose foreseeable risks to the plaintiff.   Indeed, “[a] mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous situation.”   (Internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., supra, 281 Conn. 793, quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 565, 818 A.2d 314 (2003).   Rather, the defendant asserts that “the plaintiff cannot identify the particular hazard that caused her injury” and, in support of this claim, relies on the plaintiff's deposition testimony in which she stated that she does not know exactly what caused her to slip.   A full review of the plaintiff's deposition transcript, however, reveals that the plaintiff also testified to the following salient facts.   On the date of the incident, the plaintiff, who was sixty-four years old, went with her husband to the defendant's restaurant for an early dinner.   After she and her husband had been seated, the waitress invited them to use the self-service salad bar.   The salad bar was rectangular in shape and openly displayed various types of vegetables and salad dressing.   The floor around the salad bar was made of a “hard surface” that was not covered by any mats or carpet.   There were no attendants stationed at the salad bar.   After the plaintiff filled her plate, she began to walk back to her table and, about four or five feet from the salad bar, her feet suddenly slipped “up” and she fell on her rear.   From the fall the plaintiff broke her plate and sustained a deep cut along her left index finger.   The plaintiff was then taken by paramedics to a hospital where “about six” stitches were required to close the wound.   Although she does not know what she slipped on, she remembers seeing lettuce droppings on the floor prior to falling and she believes these droppings were located where she fell.³  In addition, the plaintiff's husband testified in an affidavit that although he did not see the accident, he used the salad bar before the plaintiff fell and he noticed “droppings and spatterings on the tile floor in the area of the salad bar.”   He also testified that while at the salad bar he “walked in a sticky substance” and saw “droppings of a liquid.”   Viewing the foregoing evidence in the light most favorable to the plaintiff, including testimony regarding the manner in which she fell, where she fell and the substances observed in the vicinity, there is a basis for a fair and reasonable person to infer not only that the salad bar created a foreseeable risk of customers slipping on salad debris, but also that the plaintiff did in fact slip on fallen lettuce or “droppings and spatterings” located across the salad bar floor.

Relying on Kubera v. Barnes & Noble Booksellers, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5012729 (March 10, 2009, Elgo, J.), the defendant claims that the plaintiff must identify what caused her to fall.   The case, however, is legally and factually distinguishable.   Kubera involved a plaintiff who, while walking down an aisle of the defendant's bookstore, “ ‘hit something’ and fell forward.”  Id. The court granted summary judgment for the defendant because the plaintiff was unable to identify what caused her to fall.  Id. The court in Kubera, however, did not discuss the mode of operation rule because the plaintiff asserted res ipsa loquitur as her theory of liability.  Id. Morever, the plaintiff in Kubera could not identify anything that she could have possibly “hit” prior to falling.  Id. It is axiomatic that the “[proximate] causal connection must be based upon more than conjecture and surmise.”  (Internal quotation marks omitted.)  Winn v. Posades, 281 Conn. 50, 57, 913 A.2d 407 (2007).   In contrast, the plaintiff here has demonstrated the presence of hazardous substances in the vicinity of her fall from which a jury could properly make an inference of causation.

The defendant also claims that the mode of operation rule does not apply in the present case because the plaintiff has not demonstrated, in accordance with Fisher v. Big Y Foods, Inc., supra, 298 Conn. 427, 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 ․” The defendant completely misapplies Fisher.   In that case, our Supreme Court held that the mode of operation rule was not implicated in a situation where the plaintiff slipped and fell on a puddle of liquid while walking down an aisle of the defendant's supermarket, because the rule cannot be triggered “simply because the defendant is a retail store that allows customers to remove items from shelves and items sometimes are dropped ․” Id. The court clarified that, consistent with its decision in Kelly, the mode of operation rule applies “only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises.”  Id., 423.   Here, just as in Kelly, the specific method of operation is a self-service salad bar.   Moreover, as previously discussed, the plaintiff has presented evidence that the operation of the salad bar in question created an inherently foreseeable risk that a customer could slip and fall as a result of salad droppings on the floor.

Also without merit is the defendant's argument that the court should disregard James Esparo's affidavit.   The defendant first argues that the affidavit is self-serving and cites Paranto v. Piotrkowski, Superior Court, judicial district of New Haven, Docket No. CV 07 5013627 (September 22, 2010, Zoarski, J.T.R.) (“affidavits containing self-serving allegations need not be viewed as persuasive by the court”) to support its claim that the affidavit should not be considered.   In Paranto, however, the affidavits in question were submitted by the party moving for summary judgment.  Id. Even if the court did consider Esparo's affidavit to be self-serving, which the court does not, the affidavit has been submitted by the nonmoving party here and, as a consequence, it must be viewed in the light most favorable to that party.   See Maltas v. Maltas, supra, 298 Conn. 365.   The defendant additionally claims that Esparo's testimony is contradicted by the restaurant's surveillance footage.   Yet, “testimonial evidence generally requires a determination of credibility, which is the function and exclusive province of the trier of fact.”   Sumler v. Galloway, Superior Court, judicial district of New Haven, Docket No. CV 10 6008976 (August 31, 2010, Wilson, J.) [50 Conn. L. Rptr. 546], citing Bogart v. Tucker, 164 Conn. 277, 283, 320 A.2d 803 (1973).   Therefore, any evaluation of Esparo's credibility should be reserved for the jury.

CONCLUSION

Based on the foregoing, the motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. The defendant also raised a number of special defenses that are not presently relevant..  FN1. The defendant also raised a number of special defenses that are not presently relevant.

FN2. According to the defendant, the plaintiff also testified that “there was no slippery substance under her feet that made her fall” and “[s]he saw lettuce on the floor but did not fall on that piece of lettuce.”   The defendant's loose characterizations of the plaintiff's statements grossly misrepresent their intended meaning.   Regarding the former characterization, the plaintiff, in reality, answered “no” to the following question:  “When you were walking into the restaurant, was your foot slippery or was there a slippery substance under your feet that made you fall?”   The plaintiff never testified that there was no slippery substance under her feet when she fell.   As to the latter characterization, the plaintiff stated “not that I know of” in response to the question:  “But you didn't fall on that piece of lettuce?”.  FN2. According to the defendant, the plaintiff also testified that “there was no slippery substance under her feet that made her fall” and “[s]he saw lettuce on the floor but did not fall on that piece of lettuce.”   The defendant's loose characterizations of the plaintiff's statements grossly misrepresent their intended meaning.   Regarding the former characterization, the plaintiff, in reality, answered “no” to the following question:  “When you were walking into the restaurant, was your foot slippery or was there a slippery substance under your feet that made you fall?”   The plaintiff never testified that there was no slippery substance under her feet when she fell.   As to the latter characterization, the plaintiff stated “not that I know of” in response to the question:  “But you didn't fall on that piece of lettuce?”

FN3. This aspect of the plaintiff's testimony is not entirely consistent.   At another point in the deposition, the plaintiff answered in the affirmative when she was asked whether “the place where you fell was a different place from where the lettuce was ․ ?” The court is mindful, however, that it must view even inconsistent evidence in the light most favorable to the nonmovant in a summary judgment proceeding.   See Maltas v. Maltas, supra, 298 Conn. 365..  FN3. This aspect of the plaintiff's testimony is not entirely consistent.   At another point in the deposition, the plaintiff answered in the affirmative when she was asked whether “the place where you fell was a different place from where the lettuce was ․ ?” The court is mindful, however, that it must view even inconsistent evidence in the light most favorable to the nonmovant in a summary judgment proceeding.   See Maltas v. Maltas, supra, 298 Conn. 365.

Wilson, Robin L., J.