Johnston Cox v. Santini Villa Apartments et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS SANTINI VILLA APARTMENTS, LLC AND DEER VALLEY, LLC (# 138)

Pursuant to Practice Book § 17–49, the defendants Santini Villa Apartments, LLC and Deer Valley, LLC and have moved for summary judgment on Counts One and Two of the complaint.   For the reasons set forth herein, the motion is granted.

I. FACTS AND PROCEDURAL BACKGROUND

The plaintiff Johnston Cox alleges that on May 8, 2010 he fell on a stairway on the grounds of Santini Villa Apartments in Ellington.   At the time of the fall, the premises were on premises owned and/or controlled by the defendants Santini Villa Apartments, LLC and Deer Valley, LLC.

At the time of the fall, the plaintiff was on the defendants' premises on behalf of the Salvation Army to pick up items that had been donated to that organization by a resident of Santini Villa Apartments.   Cox ascended the stairs to enter the apartment without incident.   As he was exiting the apartment carrying a piece of furniture, Cox alleges that a “brick” (i.e., paver) on the bottom tread of the stairway was loose and came out of place, slid out from under his feet, and caused him to fall.   Eric Santini, a representative of the defendants, was called to the scene after the fall and testified that “two cap pieces” had been dislodged from the bottom tread.   Those “bricks or “cap pieces” or paving blocks were secured by an adhesive.   The plaintiff alleges that they were improperly secured, or that the adhesive was inadequate.   Further facts will be supplied as necessary in the analysis that follows.

II. ANALYSIS

A. Summary Judgment, Generally

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.   The party moving 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.  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Internal quotation marks omitted.)  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In reviewing the evidence offered, the trial court must “view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted).  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).   When deciding a summary judgment motion, the trial court may not decide issues of material fact, but only determine whether such genuine issues exist.   Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“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.   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.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B. Discussion

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 his fall, and therefore they may not be held liable.

To prevail in a cause of action against a landowner for injury sustained on the landowner's property the plaintiff must prove;  (1) the landowner failed to reasonably inspect and maintain the premises to make them reasonably safe;  or (2) the landowner failed to warn of dangers that the plaintiff could not reasonably be expected to discover;  and (3) that the landowner had actual or constructive notice of the specific danger that was the proximate cause of the plaintiff's injuries.  Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008).

“[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 before the court sufficient to establish a genuine issue of material fact as to whether the defendants had actual notice of the improperly secured paving stone on the bottom tread of the stairway.

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 as to how long the paving block was loose or unsecured before the plaintiff's fall.   Indeed, it may have come “loose” precisely at the moment of the fall.   Regardless, without any evidence as to how long the block was loose, a jury could not reasonably conclude that the allegedly dangerous condition existed for such a time that the defendants had notice of it and failed to take reasonable steps to remedy it after such notice.

The plaintiff contends that “a reasonable inspection of the stairs/paver would have disclosed that there was insufficient adhesive to properly secure the same.”   Visible dangerous conditions may put a premises owner with enough time to discover and remedy the condition on constructive notice of that condition, Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 119, 49 A.3d 951 (2012), but there are no facts here to suggest that the defendants, by “inspection,” would be made aware that the stairway was unsafe.   The adhesive in question was not visible to the eye;  to “visually inspect” the adhesive to see if it was adequate, the stairway would have to be dismantled, breaking the adhesive bond and defeating the whole purpose of the inspection.   The plaintiff does not contend that the stairway had missing paving blocks, broken paving blocks, out-of-place paving blocks or uneven or irregular surfaces on the stairway at the time of the plaintiff's fall.   The plaintiff testified that he saw nothing “unusual” about the stairway before he fell, and specifically that he did not see anything “wrong” with the step that he fell on.   Nor did the plaintiff testify that any paving blocks moved under his feet when he ascended the stairs.   The evidence does not raise any genuine material dispute as to whether a reasonable inspection would have revealed that paving blocks in the stairway had insufficient adhesive.

“Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard.”  Dipietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 118.

In the present case, no evidence has been presented from which a reasonable fact finder could conclude that some other factor should have alerted the defendants to the allegedly dangerous condition of the stairway.   There is no evidence of previous complaints about the stairway, or any history or injuries due to falls on that particular stairway or any other similar stairway on the premises.   Constructive notice may arise from the existence of industry standards or government regulations.  Id. But the plaintiff has offered no evidence that there were industry standards or government regulations in effect that would have put the defendants on constructive notice of the stairway's allegedly dangerous nature.

In the absence of previous complaints tending to show a danger, or industry and government standards, the evidence fails to provide a basis from which a jury could conclude that other factors beyond a “reasonable inspection” would have alerted defendants to the alleged dangerous and defective condition of the stairway.

Because the plaintiff failed to establish a genuine issue of material fact as to the defendants' actual or constructive notice of the allegedly dangerous condition of the stairway, the defendants are entitled to summary judgment.

III. CONCLUSION

Summary judgment will enter in favor of the defendants on Counts One and Two of the Complaint.

BY THE COURT,

Sheridan J.

Sheridan, David M., J.