Patricia Jordan v. LLC (2013)

MOTION FOR SUMMARY JUDGMENT (# 130.00)

BACKGROUND AND FACTS

The defendants Krishna Subramian and Lakshmi Sirvanam (seller defendants) move for summary judgment on the grounds that the plaintiff has not proved that the staircase she fell on was defective, that the defendants were not obligated to warn the plaintiff of the danger of walking on hardwood floors and stairs in stockings and that there is no evidence that they knew their floors were excessively slippery.   The plaintiff, Patricia Jordan, brought the present action against the seller defendants and NRT New England, doing business as Coldwell Banker Residential Brokerage, formerly served as Realogy Franchise Group ¹ (broker defendant), after she fell down the stairs while viewing the seller defendants' property, a house located at 9 Paddock Road in East Lyme, Connecticut, which they had hired the broker defendant to sell.   According to the amended complaint, the seller defendants and the broker defendant asked the plaintiff to remove her shoes while on the property.   The plaintiff alleges she then slipped while coming down the wooden staircase wearing compression stockings.   Count one of the complaint alleges negligence and carelessness on the part of the broker defendant in requiring removal of shoes while knowing about a dangerous condition, failing to provide slip resistant surfaces, and failing to warn the plaintiff of the dangerous condition created by removal of footwear.   Count two alleges the same against the seller defendants.

Both defendants have filed answers denying or claiming lack of knowledge as to the plaintiff's claims.   They have also pleaded as a special defense that the plaintiff's injuries were caused by her own negligence.   In addition, the broker defendant has made a cross claim for indemnification from the seller defendants, claiming that it had no knowledge of the dangerous condition and that the seller defendants asked the plaintiff to remove her shoes.

The seller defendants moved for summary judgment on February 5, 2013 (motion 130.00).   They provided a memorandum of law as well as depositions ² of the plaintiff, both seller defendants, and Mary Salvatore, the alleged agent of the broker defendant who showed the plaintiff the property.   The plaintiff objected to the seller defendants' motion, claiming that the seller defendants disregarded the court's scheduling order and that there are material facts in issue regarding whether there was a defect, whether the seller defendants knew about it, and whether the defendants had knowledge of the defective condition.   The plaintiff provided a memorandum in opposition, the scheduling order, the plaintiff's medical records and excerpts from the depositions submitted by the seller defendants.   At short calendar, the court determined that it would grant the seller defendants permission to file a motion for summary judgment despite the scheduling order and requested supplemental briefing on the applicability of DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 49 A.3d 951 (2012), to the case.   The plaintiff provided her supplemental memorandum in opposition on April 9, 2013.   The seller defendants provided their supplemental memorandum in support on April 19, 2013.

LAW RE SUMMARY JUDGMENT

“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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

“[I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).  “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007).   However, hearsay evidence may be considered “[f]or the limited purposes of showing that the parties could produce such competent evidence at trial in the form of testimony from their respective experts.”  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 423 n.20, 944 A.2d 925 (2008).

DISCUSSION

The seller defendants claim in their memoranda in support and in their affidavits that they were not present when the plaintiff viewed their house.   They contend that the only request they made to Salvatore regarding shoes was that visitors, if they were willing, take off their shoes in the prayer room.   They further claim that they did not have a duty to disclose the obvious danger of walking on wooden floors in stockings to the plaintiff.³  Salvatore's deposition supports this;  she also stated that she removed her own shoes at the door of the property and that the plaintiff removed her shoes after walking around the first floor.   Salvatore stated that she told the plaintiff she did not need to remove her shoes, but the plaintiff said she would out of respect for the seller defendants.   The plaintiff counters in her memoranda and stated in her deposition that Salvatore told her she had to take off her shoes in the house.   She also stated that the wooden steps looked “highly polished, glossy,” and that an expert hired by her attorney had determined that the stairs were “highly glossy and highly slippery.”   Finally, she argues that the issue of whether the potential danger of walking on wooden stairs in stockings was open and obvious requires a factual determination by a jury.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, there can be no actionable negligence ․ unless there exists a cognizable duty of care.”  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).   “[A]s a business invitee the defendants owed [the plaintiff] a duty to maintain their premises in a reasonably safe condition ․ To hold the defendant liable for her personal injuries [though], 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 ․ Furthermore, [i]t is within the province of the trier of fact to determine whether a defective condition existed.”  (Citations omitted, internal quotation marks omitted.)   Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).

“The relevant principles of premises liability are well established.   A business owner owes its invitees a duty to keep its premises in a reasonably safe condition ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ․ Nevertheless, [for [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.   Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger.   To defeat a motion for summary judgment in a case based on allegedly defective conditions, the plaintiff has the burden of offering evidence from which a jury reasonably could conclude that the defendant had notice of the condition and failed to take reasonable steps to remedy the condition after such notice.”  (Citations omitted, internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–117, 49 A.3d 951 (2012) (holding that defendant owners of indoor soccer stadium lacked constructive notice that carpet was unsafe for playing soccer despite expert testimony because defendant could not have known it was unsafe upon installation, or at any other point prior to the plaintiff's injury).

“Whether the defendant had actual or constructive notice of the alleged defect is a question of fact that renders summary judgment inappropriate.”   Gearin v. Klingberg Family Centers, Inc., Superior Court, judicial district of New Britain, Docket No. CV 10 6005819 (November 22, 2011, Swienton, J.).   In addition, “a property owner has no duty to warn an invitee of open and obvious dangers actually known to the invitee ․” Gargano v. Azpiri, 110 Conn.App. 502, 509, 955 A.2d 593 (2008).   In Smith v. Union & New Haven Trust Co., 121 Conn. 369, 371, 185 A. 81 (1936), “[t]he evidence [went] no further than to show that the floor was highly polished.   An owner in treating a floor may use wax or oil or other substance in the customary manner without incurring liability to one who slips and falls thereon, unless the owner is negligent in the materials he uses or in the manner of applying them.”  (Overturning in the defendant's favor the trial court's denial of a motion to set aside the verdict in favor of the plaintiff.)

In the present case, there is clearly an issue of fact regarding whether the defendants asked the plaintiff to take off her shoes.   Salvatore claims that she told the plaintiff that she could leave her shoes on, but the plaintiff claims that she was told to take them off per the seller defendant's request.⁴  For the purposes of a motion for summary judgment, therefore, the court will assume that the seller defendants did request that visitors take off their shoes.   The remaining issue then is whether, knowing that invitees would be walking without shoes, the seller defendants were on notice, either real or constructive, that the wooden staircase presented an unsafe condition.

The plaintiff alleges that the defendants had constructive notice of the danger of the staircase because they told her to remove her shoes and they knew that the staircase was polished wood.   The testing which the plaintiff referenced in her deposition is important to the issue of constructive notice.⁵  The plaintiff stated that a professional company did a test on the staircase and determined that it was “highly glossy and highly slippery.”   In DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 116–17, the court granted summary judgment despite the plaintiff's presentation of expert testimony that the floor in question was unreasonably dangerous.   While Dipietro is very similar to the present case, in Dipietro the defendant arena owners and their agents were not in the practice of themselves playing soccer on the arena floor, whereas in the present case, the seller defendants were in the practice of walking on the stairs in socks or stockings.   The expert testimony and the plaintiff's testimony as to the slipperiness of the staircase therefore could be sufficient for the jury to conclude that the floor was unreasonably slippery and that the seller defendants must have known that the floor was slippery because they were walking on it in socks or stockings every day.  Smith v. Union & New Haven Trust Co., supra, 121 Conn. 369, is also distinguishable because it dealt with negligent application of wax to a floor, rather than with a floor or set of stairs that were allegedly unsafe by their nature.

Finally, the court agrees with the plaintiff that there is an issue of fact regarding whether the slippery nature of the floors was open and obvious.   It is a matter of common knowledge that wooden floors are slippery when walked on in stockings.   The plaintiff has, however, presented some evidence that these floors were excessively slippery, beyond what one would expect.   At the summary judgment stage this is all that is necessary.

ORDER

For reasons stated above, the court hereby denies the seller defendants' motion for summary judgment as to count two (# 130.00).

Devine, J.

FOOTNOTES

FN1. The plaintiff filed an amended complaint amending the name of the broker defendant from Realogy Franchise Group to NRT New England, with the broker defendant's consent, on May 26, 2011..  FN1. The plaintiff filed an amended complaint amending the name of the broker defendant from Realogy Franchise Group to NRT New England, with the broker defendant's consent, on May 26, 2011.

FN2. As submitted by the defendant the plaintiff's deposition is certified, Krishna Subramian's is uncertified, Lakshmi Sirvanam's is certified and Mary Salvatore's has an unsigned certification page.   The plaintiff does not contest this, however, and provides certified excerpts from each deposition..  FN2. As submitted by the defendant the plaintiff's deposition is certified, Krishna Subramian's is uncertified, Lakshmi Sirvanam's is certified and Mary Salvatore's has an unsigned certification page.   The plaintiff does not contest this, however, and provides certified excerpts from each deposition.

FN3. The plaintiff also argued at short calendar that the claim that a condition is open and obvious must be specially pleaded.   An open and obvious danger negates the duty to warn.  Gargano v. Azpiri, 110 Conn.App. 502, 509, 955 A.2d 593 (2008).   It could therefore fall under a general denial because it shows “that the plaintiff's statements of fact are untrue.”  Practice Book § 10–50..  FN3. The plaintiff also argued at short calendar that the claim that a condition is open and obvious must be specially pleaded.   An open and obvious danger negates the duty to warn.  Gargano v. Azpiri, 110 Conn.App. 502, 509, 955 A.2d 593 (2008).   It could therefore fall under a general denial because it shows “that the plaintiff's statements of fact are untrue.”  Practice Book § 10–50.

FN4. Contrary to the seller defendants' claims, the plaintiff's statement is admissible as hearsay within the exception for statements of a person authorized by a party opponent to speak on their behalf.   See Conn.Code Evid. § 8–3(1)(C)..  FN4. Contrary to the seller defendants' claims, the plaintiff's statement is admissible as hearsay within the exception for statements of a person authorized by a party opponent to speak on their behalf.   See Conn.Code Evid. § 8–3(1)(C).

FN5. While the seller defendants are correct that technically, this statement is inadmissible hearsay, it is hearsay which indicates the existence of competent expert testimony.   The court will therefore consider the evidence at the summary judgment stage on the assumption that admissible evidence will be provided at trial.   See Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 423 n.20..  FN5. While the seller defendants are correct that technically, this statement is inadmissible hearsay, it is hearsay which indicates the existence of competent expert testimony.   The court will therefore consider the evidence at the summary judgment stage on the assumption that admissible evidence will be provided at trial.   See Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 423 n.20.

Devine, James J., J.