Stranza Dawson v. Alcohol & Drug Recovery Centers, Inc., Intervenor et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 125)

The plaintiff, Stranza Dawson, served this two-count complaint on May 10, 2011, alleging negligence against Tower Business Center, LLC (count one) and Hulk Thomas d/b/a Nutmeg Management Corp. (count two).   Specifically, the plaintiff alleges that she was an employee of Alcohol and Drug Recovery Center, whose offices were located at 3580 Main Street, Hartford.   The building at that location is owned by Tower Business Center, LLC and managed by Hulk Thomas d/b/a Nutmeg Management Corp. On June 25, 2009 the plaintiff was sitting at her desk during the course of her employment, attempted to move her chair and caught the wheel of the chair on ripped carpeting causing the chair to flip over and the plaintiff fell to the ground, suffering injuries.

Plaintiff alleges that the defendants are liable in negligence because they failed to repair the dangerous and defective condition of the carpet, failed to make a reasonable inspection of the premises for hazards and defects, and failed to post adequate warnings regarding the dangerous condition.

Defendants filed this joint motion for summary judgment as to both counts of the complaint on October 12, 2012, after receiving permission from the court.

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In their motion for summary judgment the defendants argue that the plaintiff cannot establish that the defendants had actual or constructive notice of the specific defect that allegedly caused her fall, and therefore they may not be held liable.

“Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] 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 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 ․ As our Supreme Court observed, to 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.”  James v. Valley–Shore YMCA, Inc., 125 Conn.App. 174, 178–79, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011).

In the present case, there is no evidence that the defendants had actual notice of the specific tear in the carpet.   The plaintiff points to no such evidence and a review of the plaintiff's deposition transcript reveals only that the plaintiff previously mentioned other tears in different parts of the carpet, which were addressed by the defendants.   The deposition does not contain any testimony indicating that the plaintiff alerted the defendants to the specific tear she alleges caused her fall.   Nor does any other evidence before the court establish a genuine issue of material fact as to whether the defendants had actual notice of the tear.

As to constructive notice, “[t]he 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.”   Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006).

Here, there is no evidence before the court as to how long the defect existed before the plaintiff's fall.   In her deposition, the following exchange occurred between the plaintiff and the defendants' counsel:

Q. I have a quick follow up.   It sounds like you never told anybody about the tear in the back that was behind your desk?

A Because you couldn't really see it.

Q. You never were able to tell anyone about it?

A. No.

Q. When in terms of this incident did you first learn that there was a tear under your chair?

A. I didn't until that day.

Q. Do you think it might have torn that day?

A. I don't know.

There is no other evidence as to when the tear in the carpet came about or how long it existed.   Without any evidence as to how long the defect existed, a jury could not determine whether the condition existed for such a time that the defendants should have repaired it.   It does not appear that there is any genuine issue of material fact as to whether the defendants had constructive notice.

The plaintiff also argues that the defendants should be liable under the mode of operation rule which allows a customer injured due to a condition inherant in the way a store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition.   Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).  “[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.”  Id., 791.

In several Superior Court cases issued since our jurisdiction has adopted the rule, it has been held that the mode of operation rule only waives the notice requirement in cases involving self-service business under specific factual scenarios.   See Berry v. Staples Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 08 5018858 (October 9, 2008, Aurigemma, J.) (46 Conn. L. Rptr. 505, 506), the plaintiff brought suit after tripping and falling on a crease or fold in a rug or runner on the floor of the defendant's store based on a theory that the defendant's mode of operation, which included customers removing large items from display, created the risk of such an incident.   The Superior Court noted, “[i]n Kelly, the Court adopted the mode of operation rule to relieve a plaintiff from providing notice if the defendant's ‘self service mode of operation business gave 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 Court described the rationale for relaxing the traditional notice requirements:  The modern self-service for of retail sales encourages ․ patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of dropping and spillage.”   The Superior Court concluded:  “The plaintiff has failed to allege any facts that could establish that a crease in a runner was a foreseeable risk created by the self-service mode of operation ․ Clearly, a crease in a rug can occur in any premises, whether it is a self-service retail store, a movie theater, a restaurant or clothing store ․ The ․ count is ․ stricken because ․ the count contains no facts which bring it within the class of cases in which the defendant's mode of operation relieves the plaintiff of the burden of proving notice of the defective condition.”  Id.

In Marini v. Wal–Mart Stores, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 07 6001487 (August 19, 2008, Frankel, J.) (“The allegations in the complaint are that the defendant placed items outside the store containing merchandise for sale ․ [T]he plaintiff alleges ․ that the display was defective and/or ․ inadequately erected ․ Nowhere in the complaint does the plaintiff allege that other customers of the store rendered the display hazardous.   The question arises, is that enough to bring it under the umbrella of the rule.   The answer is no”).

In the present case, the plaintiff alleges that the defendants failed to repair a carpet, failed to make reasonable inspection, and failed to warn the plaintiff.   The plaintiff argues that the defendants' inadequate repair of other rips in their carpet or failure to replace the carpet was a “mode of operation.”   This does not fit within the meaning of the mode of operation rule.

Since there is no genuine issue of material fact, summary judgment is granted in the defendants' favor.

Wagner, JTR

Wagner, Jerry, J.T.R.