Rebecca Godfrey v. Whispering Woods Condominium Association, Inc. (2012)

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

FACTS

On November 5, 2009, the plaintiff, Rebecca Godfrey, commenced this personal injury action against the defendant, Whispering Woods Condominium Association, Inc., alleging it negligently caused her injuries because it knew or should have known of the unsafe condition of its property.   In the single-count complaint, the plaintiff alleges the following facts.   The defendant owned, controlled and maintained the property where she resided.   According to the defendant's rules, residents were required to move their vehicles to a particular area so that they would not impede snow removal.   In these rules, the defendant also agreed to provide the residents with containers of sand that they could use on their walkways during inclement weather.   On December 2, 2007, the plaintiff slipped and fell on ice in front of her residence when she left her apartment to move her car in accordance with the defendant's rule.   At that time, the defendant had not provided her with any sand to use on the walkway and sidewalk in front of her residence.

The plaintiff further alleges the following.   The defendant negligently caused her injuries because it caused or allowed the sidewalk and exit to be and remain in a defective, unsafe, and dangerous condition;  it failed to warn the plaintiff of the condition;  it knew or should have known that by both requiring that residents move their cars during ice and snow events, and failing to provide the sand and salt for the sidewalks, as promised, it created a dangerous condition;  it failed to make a proper and reasonable inspection of the entranceway to determine whether or not sand was available;  and it failed to repair or remedy the condition.

On June 15, 2011, the defendant filed the present motion for summary judgment, the memorandum of law in support thereof, a certified copy of the transcript of the plaintiff's deposition testimony and the signed and sworn affidavit of Connie Tosto, the defendant's president.   On July 20, 2011, the plaintiff filed an objection to the defendant's motion for summary judgment, a memorandum in support of her objection, a certified copy of the transcript of her deposition testimony, a copy of the defendant's annual parking notice and the signed and sworn affidavit of witness Peter Rissi, the plaintiff's boyfriend.   On October 11, 2011, the defendant filed a reply to the plaintiff's objection.

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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553, 985 A.2d 1042 (2010).  “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 ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

On March 31, 2010, the defendant filed an answer in which it admits that it owned, controlled, and maintained the property where the plaintiff fell and that it agreed to provide the residents with sand during inclement weather.   Otherwise, it denies the material allegations in the complaint or leaves the plaintiff to her proof.

The defendant argues that it is entitled to summary judgment because the plaintiff's deposition testimony and the statements made by Connie Tosto in her affidavit establish that the defendant had no actual or constructive notice of the dangerous or defective condition that allegedly caused the plaintiff's fall and resulting injuries.   Further, the defendant argues that since it did not have actual or constructive notice of the dangerous or defective condition, as a matter of law, it cannot be found to have breached a duty of care to the plaintiff.

In her objection, the plaintiff argues that:  (1) there is a disputed issue of fact as to whether the defendant had constructive notice of the defect, (2) the defendant is liable for her injuries under the “mode of operation” rule, which does not require her to prove that the defendant had notice of the defect because the defendant implemented a snow removal policy that required its residents to move their vehicles in response to winter storms, and (3) there is a disputed issue of fact as to the defendant's alleged failure to take reasonable precautions to safeguard its residents, specifically in its failure to provide residents with buckets of sand/salt for their use.

The plaintiff argues that the defendant had constructive notice of the defective condition in that it failed to make a reasonable inspection and this failure was equivalent to actual notice.   The plaintiff also contends that the defendant had knowledge that:  (1) residents walk outside on the sidewalk and parking lot in winter conditions to comply with the defendant's rule requiring residents to move their vehicles to designated spots to avoid being fined, (2) earlier in the day, a winter mix precipitation fell on the sidewalks and parking lot, (3) in the annual notice entitled “snow removal,” the defendant stated they would provide containers with sand throughout the complex for residents to use, (4) the containers of sand or salt were not provided on December 2, 2007, and (5) these containers were provided in prior years.   As evidence of these assertions, the plaintiff submitted her own deposition testimony, a copy of the defendant's annual snow removal notice, and the affidavit of Peter Rissi.

The defendant, in its reply, contends that the copy of the defendant's annual notice of snow removal policy submitted by the plaintiff has not been authenticated, is hearsay and thus cannot be considered by the court.   The court agrees with the defendant's contention regarding the lack of proper authentication of this document and therefore will not consider it in ruling on the defendant's motion.¹  Further, the defendant argues that the “mode of operation” rule of premises liability only applies to commercial retail establishments and thus is inapplicable in the present case.²  Additionally, the defendant contends that the affidavit of Peter Rissi raises no issues of material fact as to whether the defendant took reasonable precautions to safeguard its residents, because the plaintiff fell in the parking lot and not on the sidewalk.   Thus, Rissi's statements alleging the defendant did not provide sand to the residents, preventing Rissi from applying it to walkways, will not make any difference in the outcome of this case.

“[F]or a plaintiff to recover for a 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.”  (Internal quotation marks omitted.)   Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).³

The plaintiff does not argue or provide evidence that the defendant had actual notice of the icy condition in the parking lot where she allegedly sustained her injuries.   Thus the question before the court is whether a genuine issue of material fact exists as to whether the defendant had constructive notice of the defect of the condition that allegedly caused her to slip and fall, namely the ice that formed as a result of a previous snowfall.  “When ․ the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition ․ [t]he controlling question [becomes] that of constructive notice:  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.”  (Citation omitted;  internal quotation marks omitted.)  Id., 777.

In the context of a trial, “[u]nder our current law, [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty.   In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed;  and, secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice.”  (Internal quotation marks omitted.)  Riccio v. Harbour Village, 281 Conn. 160, 164, 914 A.2d 529 (2007).

Nevertheless, this court has ruled that in order to succeed on a motion for summary judgment, it is the defendant, not the plaintiff, who must affirmatively establish that they did not have actual or constructive notice.   “On a defendant's motion for summary judgment, the plaintiff initially has no obligation to present evidence demonstrating that the defendant had constructive notice.   Rather, the defendant must first submit evidence to support its claim of the absence of constructive notice.   Thus, to be entitled to summary judgment based on the absence of constructive notice, the defendant must submit evidence demonstrating that the alleged condition had not existed for such a length of time that the defendant should, in the exercise of due care, have discovered it.”   Williams v. Autotote Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5024151 (December 6, 2010, Woods, J.).   See also, Ortiz v. National Amusements, Inc., Superior Court, judicial district of New Haven, Docket No. CV 09 5029196 (May 26, 2011, Woods, J.)

In the present case, there is a genuine issue of material fact as to whether the defendant had constructive notice of the defect which allegedly caused the plaintiff's injuries.   The defendant argues in its motion for summary judgment that it had no notice of the condition and submitted the affidavit of Connie Tosto, the president of the defendant's board of directors.   In her affidavit, Tosto testified, inter alia, that:  (1) any such icy, slippery, or otherwise unsafe or dangerous condition in the parking lot where the plaintiff fell, if reported, would have been reported to her, (2) the defendant was never made aware of any patches of ice in the area or any icy, slippery or otherwise unsafe or dangerous conditions on the property either earlier on in the day or at any time in the days immediately following December 2, 2007, (3) in the days before the plaintiff's fall there were no complaints or reports to the defendant, either after snow removal work had been done by the defendant's hired snow removal contractor or at any other time, by any other residents, about any patches of ice or other slippery or dangerous conditions, and (4) since there were no reports, the defendant does not know how long the patch of ice which the plaintiff allegedly slipped and fell on had been present when the plaintiff fell.

The defendant has submitted no evidence indicating how long the defect had existed, nor evidence of any inspection that would establish that any existing defect would have been discovered in a reasonable time prior to the incident.   To the contrary, Tosto's statement that she did not know how long the ice was present establishes that there is a genuine issue of fact as to whether the defendant had constructive notice of the alleged defect.   Therefore, the defendant has failed to demonstrate its entitlement to summary judgment.

CONCLUSION

For the foregoing reasons, the defendant has failed to establish that no genuine issue of material fact exists as to constructive notice and, the court denies its motion for summary judgment.

Woods, J.

FOOTNOTES

FN1. “Practice Book § [17–45], although containing the phrase ‘including but not limited to,’ contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ․ [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005)..  FN1. “Practice Book § [17–45], although containing the phrase ‘including but not limited to,’ contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ․ [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).

FN2. 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.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).   The Supreme 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 the place of traditional premises liability doctrine.   In Fisher, the Court found that the “mode of operation” is triggered by showing that a “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.”  (Emphasis in original) Id., 427.Therefore, the court is of the opinion that the “mode of operation” rule is not applicable to the circumstances presented in this case..  FN2. 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.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).   The Supreme 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 the place of traditional premises liability doctrine.   In Fisher, the Court found that the “mode of operation” is triggered by showing that a “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.”  (Emphasis in original) Id., 427.Therefore, the court is of the opinion that the “mode of operation” rule is not applicable to the circumstances presented in this case.

FN3. See also Riccio v. Harbour Village Condominium Association, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007) (“In the present case, it is undisputed that the plaintiff was a business invitee and that the defendant therefore had a duty to keep the condominium premises in a reasonably safe condition”)..  FN3. See also Riccio v. Harbour Village Condominium Association, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007) (“In the present case, it is undisputed that the plaintiff was a business invitee and that the defendant therefore had a duty to keep the condominium premises in a reasonably safe condition”).

Woods, Glenn A., J.