Kent Woods v. 120 LLC (2013)

MEMORANDUM OF DECISION

In this premises liability action tried to the court, the plaintiff claims that on February 13, 2008 he sustained injuries and losses as a result of falling on water that pooled on the floor of his workplace at the defendant, CooperSurgical, Inc. The defendant 120 Corporate Drive–Trumbull, LLC, owns the property and leases the building in which the plaintiff fell to CooperSurgical.   The defendant, R.D. Scinto, Inc. is its property manager.¹

The court finds the following facts to have been credibly proven.   The plaintiff was employed at Cooper approximately six months prior to his fall.   He was a “picker” in the shipping department, which required him to remove items from warehouse shelves to fill orders.

During the course of his duties on the date of the incident, the plaintiff had finished his morning break, retrieved his work cart and began to walk towards aisle thirty when he was caused to fall as a result of water that had accumulated near a rear stairwell door of the building.   The plaintiff sustained serious and painful injuries.

The subject building was new construction, and Cooper became the initial tenant pursuant to a written lease that commenced in November 2004.   On the date at issue, water had accumulated on the warehouse floor in the area where the plaintiff fell.   On prior occasions, water had accumulated in the same area by seeping underneath a door leading to an outside stairwell of the building that was located below ground level.   Drainage and landscape conditions outside of the door, combined with weather conditions such as heavy rains, at times caused water to seep under the door and into the warehouse.   The conditions were addressed a few times by Scinto based on their responsibility as property manager for outside maintenance of the premises.²

Prior to the plaintiff's fall, water seeped into the area where the plaintiff fell approximately three to five times in the approximately four-year period before the plaintiff's fall.³  The water was cleaned up either by CooperSurgical or Scinto upon notification of the condition.

The defendants claim that the plaintiff failed to prove that they had either actual or constructive notice of the specific defect claimed by the plaintiff.   In their initial post-trial brief, the plaintiff concedes that the defendants “did not have sufficient actual notice of the water on the morning of the fall ․” However, the plaintiff claims that “the [d]efendants ․ had sufficient notice of the defective condition to constitute both actual and constructive notice under the law.”   The plaintiff advances this claim based on the fact that the defendants knew that on occasions prior to the plaintiff's fall a clogged drain in the outside stairwell caused water to seep under the door and accumulate in the area where the plaintiff fell.   In his initial brief, without any legal citation or analysis, the plaintiff claims in conclusory fashion that under the circumstances of the present action the affirmative act rule operates to create an inference of notice that the defendants knew or should have known of the defective condition.⁴  In his supplemental brief, the plaintiff asserts that “the obvious dangerous condition was the potentiality for flooding the property.   The [d]efendants obviously knew about it otherwise they would not have installed three drains.”   The plaintiff also claims in his subsequent brief that “no matter how one chooses to define the defective condition in this case, it is clear that the [d]efendants knew of it prior to the [p]laintiff's fall.” ⁵

The issue of notice is determinative in this case.   The question is whether the plaintiff has established that the defendants had actual or constructive notice of the specific defect that caused injuries to the plaintiff.   There is no dispute that the water caused the plaintiff to fall and sustain injuries.   In his supplemental brief, the plaintiff attempts to ease his burden to prove notice claiming that under the affirmative act rule actual notice may be inferred because the defendants created the obviously hazardous condition of improper drainage producing the specific condition of the accumulation of water inside the warehouse.

The case of Drible v. Village Improvement Co., 123 Conn. 20, 192 A. 308 (1937), provides a useful discussion of premises liability law, although that case involved a fall on ice.  “An accumulation of ice or snow upon a common approach may impose upon the landlord a liability for injury due to it provided he knew or, in the exercise of a reasonable supervision, ought to have known of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason thereof ․ To charge the property owner with liability, the notice must be of the defect itself which occasioned the injury, and not merely conditions naturally productive of that defect and subsequently in fact producing it ․ In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the steps 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.”  (Citations omitted;  internal quotation marks omitted.)   Drible v. Village Improvement Co., supra, 123 Conn. 23–24.

In a premises liability action, “it [is] incumbent upon [the plaintiff] 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.”   Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002).

The plaintiff has failed to establish that the defendants had actual or constructive notice of the specific defect claimed by the plaintiff.   Additionally, even if the plaintiff was able to prove notice, he failed to prove that the defect existed for such a length of time that the defendants should have remedied it.   At best, the plaintiff has shown that the defendants had notice of conditions of a stairwell drain and surrounding landscape that produced the defect of accumulated water in the building where the plaintiff was employed.

There is no evidence that the defendants actually knew of the presence of the water in the building prior to the plaintiff's fall on February 13, 2008.   After the plaintiff fell, CooperSurgical barricaded the area by placing cones around it, and notified Scinto, who promptly responded to clean it.

The plaintiff contends that the defendants were responsible for the stairwell drainage issue causing the defective condition of water entering the warehouse, and that this obviates the notice requirement.   The court disagrees under the circumstance of the present action.  “The affirmative act rule creates the inference of knowledge when defendants are responsible for creating the allegedly dangerous condition.”  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 123, 49 A.3d 951 (2012).   In DiPietro, our Supreme Court noted the limited application of that rule.  “Analysis of the affirmative act rule as it has been applied shows that it permits the inference of actual notice only when the defendant or its employees created an obviously hazardous condition.   For example, notice of the unsafe condition has been inferred in slip and fall cases when employees left water in an aisle after watering plants ․ or left pricing stickers on a floor ․ or when an employer allowed the unstable stacking of boxes of aluminum folding tables ․

This reading of the affirmative act rule is consistent with decisions in other states.   The Appellate Court's analysis in Meek, which we adopted in Kelly v. Stop & Shop, Inc. ... cited three cases for the proposition that, when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof ․ Upon closer examination, each of those cases involved factual scenarios in which the defendant was on notice of a dangerous condition, through constructive notice, actual notice, or a foreseeably hazardous mode of operation, respectively.   Rather than acting as an alternative to notice, the affirmative act rule allows an inference of notice when circumstantial evidence shows that the defendant knew or should have known of the dangerous condition because it was a foreseeably hazardous one that the defendant itself created.”  (Citations omitted;  internal quotation marks omitted.)  Id., 123–24.

The court concludes that the affirmative act rule is inapplicable in the present case.   As discussed, the defendants had neither actual nor constructive notice of the accumulated water, and this action does not involve a mode of operation scenario.   This case is clearly distinguishable from those cases discussed by the Court in DiPietro in which the affirmative act rule was found to apply.   The defect in the present action is not the type of “obviously hazardous condition” that warrants an inference of notice.   In advancing this argument, the plaintiff confuses notice of the defect itself with notice of a cause possibly producing a defect at some time in future.

The case of Prado v. City of New Haven, 246 Conn. 638, 717 A.2d 1216 (1999), is instructive on the notice issue.   That case involved an appeal by the plaintiff from a judgment rendered by the trial court for the defendant based on the plaintiff's failure to prove notice.  Id., 640.   The relevant facts are succinctly set forth by the Court.  “The trial court concluded that, while the bonfire was a highway defect within the meaning of § 13a–149, the plaintiff failed to prove that the defendant had actual or constructive notice of the defect and a reasonable opportunity to remedy such defect.   The trial court held that notice of the custom of annual bonfires was not sufficient notice for purposes of [§ 13a–149].   Because the actual bonfire had existed for only ninety seconds before the accident, and the authorities had not been notified of its existence prior to the plaintiff's injury, the trial court concluded that the defendant did not have the requisite notice of the specific defect under § 13a–149.”  (Internal quotation marks omitted.)  Id.

The plaintiff argued on appeal that the custom of annual bonfires at the subject intersection on July 3rd constituted actual or constructive notice to the city of the specific fire set on the date the plaintiff was injured.   Id., 641.   The Court affirmed the judgment.  Id., 648.   In so doing, the court noted, in part, as follows:

This court previously has held that “[t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it.   Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.”  (Emphasis added;  internal quotation marks omitted.)  Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919).   The case of Jainchill v. Schwartz, 116 Conn. 522, 165 A. 689 (1933), illustrates this principle.   In Jainchill, the plaintiff slipped on a Hartford sidewalk that was covered with a slippery substance caused by the defendant Schwartz' practice of unpacking fish near the sidewalk.  Id., 523, 524.   The plaintiff had also sued the city of Hartford.   This court held that the city was not liable because it did not know of the slippery condition on the sidewalk that day.   Id., 525–26.   While there was evidence that the city knew about Schwartz' custom of unpacking fish in this manner, we held that knowledge of a custom that might create a defect did not establish notice of the slippery sidewalk on the morning of the accident.  Id., 525.   We concluded that conditions that are likely to produce a defect and the defect itself are distinguishable, and that liability attaches under the highway defect statute only if a municipality has notice of the defect itself.   See id.;   see also Carl v. New Haven, supra, 628.

Similarly, the predictability of a future defect is insufficient to prove that a municipality had notice of a defect.   In Aaronson v. New Haven, 94 Conn. 690, 110 A. 872 (1920), a silent policeman was placed in the roadway to regulate traffic.  Id., 692.   The silent policeman had toppled over into the lanes of travel on numerous occasions.  Id., 693.   It was dislodged and rolled into the travel lanes at approximately 6:30 p.m. one evening, and someone had notified the police by 7 p.m. Id. It, nevertheless, still remained in the travel lanes at 7:30 p.m., when the plaintiff's car collided with it.   The plaintiff sued the city of New Haven.   We held that the city could be held liable because its officials had actual notice of the highway defect and ample time to remedy it.  Id. This court was careful to point out, however, that its decision rested on the one-half hour lapse between the notice and the accident, and not on the fact that the silent policeman had toppled over in the past and had a propensity to topple over in the future.   See generally id., 695–96.   Despite the other occasions on which it had toppled over into the travel lanes, we indicated that the city did not receive actual or constructive notice of the defect until the police officer in charge was notified of the condition at 7 p.m. See id., 696;  see also Pajor v. Wallingford, 47 Conn.App. 365, 374–77, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998) (even though city knew that water from melted snowbanks on adjacent property tended to flow across sidewalk, making ice and slippery conditions very probable, city did not have actual or constructive notice that sidewalk was defectively slippery on day of accident).   Thus, the predictability of a future defect does not provide the requisite notice to establish municipal liability under § 13a–149.

Prado v. City of New Haven, supra, 246 Conn. 642–44.

The court finds that notice that heavy rains may likely create conditions concerning the drain and landscaping adjacent to the stairwell and door leading to the interior portion of the building where the plaintiff fell on water does not suffice as notice of the defect itself.   The defendants did not have notice of the water accumulation inside the building until they were informed by CooperSurgical.   There is no claim by the plaintiff, and under the circumstances of this case there cannot be any claim, that the defendants should have discovered the water upon a reasonable inspection of the premises.   The only reasonable inference from the evidence is that the defendants knew that sometimes periods of heavier rains caused the stairwell drain to clog and water to enter the building.   As discussed, such knowledge would, at most, charge the defendants with knowledge of conditions that may produce the defective water accumulation that caused the plaintiff to fall.   There is no evidence that the defendants were aware of the accumulated water on the date of the plaintiff's fall prior to being notified it.   The defendants responded promptly responding to, and remedying, the defect.   To the extent that the plaintiff broadly claims that the defect is something other than the water, such as the drains and surrounding landscape, the court disagrees.   As discussed, this case was tried based on the claim, and the evidence establishes, that the specific defect complained of is the accumulation of water inside the building where the plaintiff was employed.

In view of the foregoing, judgment is rendered for the defendants.

TYMA, J.

FOOTNOTES

FN1. CooperSurgical and Scinto are hereinafter collectively referred to as the defendants..  FN1. CooperSurgical and Scinto are hereinafter collectively referred to as the defendants.

FN2. A circular drain directly outside the door became clogged with mulch, leaves and grass clippings.   At some point, Scinto removed the materials from the drain to unclog it and installed a drain above the stairwell in an effort to divert water from running down the stairwell.   Subsequent to that drain clogging, Scinto removed the mulch from the surrounding area in an attempt to prevent clogging and planted grass.   When the drain clogged again in 2010, Scinto replaced the circular drain with a trench drain.   The trench drain is rectangular and larger in size than the drain it replaced.   The defendants admit, and the evidence shows, that the clogging of the drain at the bottom of the stairwell at times caused water to seep under the adjoining door and accumulate in the area where the plaintiff fell..  FN2. A circular drain directly outside the door became clogged with mulch, leaves and grass clippings.   At some point, Scinto removed the materials from the drain to unclog it and installed a drain above the stairwell in an effort to divert water from running down the stairwell.   Subsequent to that drain clogging, Scinto removed the mulch from the surrounding area in an attempt to prevent clogging and planted grass.   When the drain clogged again in 2010, Scinto replaced the circular drain with a trench drain.   The trench drain is rectangular and larger in size than the drain it replaced.   The defendants admit, and the evidence shows, that the clogging of the drain at the bottom of the stairwell at times caused water to seep under the adjoining door and accumulate in the area where the plaintiff fell.

FN3. The court makes this finding based on the testimony of Lee Plutino, a distribution manager for Cooper, Chet Rutkowski, who at the time of his testimony was a facilities manager of Cooper, and Bob Linley, an employee of the defendant, R.D. Scinto, Inc., who took care of the maintenance of the building for 120 Corporate Drive..  FN3. The court makes this finding based on the testimony of Lee Plutino, a distribution manager for Cooper, Chet Rutkowski, who at the time of his testimony was a facilities manager of Cooper, and Bob Linley, an employee of the defendant, R.D. Scinto, Inc., who took care of the maintenance of the building for 120 Corporate Drive.

FN4. The court requested, and received, subsequent legal briefs on the issue..  FN4. The court requested, and received, subsequent legal briefs on the issue.

FN5. The plaintiff pleaded and tried this action as one involving the specific defendant being water on the floor of the building.   For example, in his operative complaint, the plaintiff alleged that he “encountered a dangerous and defective condition consisting of an accumulation of water that caused him to slip, fall and thereby sustain ․ injuries and damages.”.  FN5. The plaintiff pleaded and tried this action as one involving the specific defendant being water on the floor of the building.   For example, in his operative complaint, the plaintiff alleged that he “encountered a dangerous and defective condition consisting of an accumulation of water that caused him to slip, fall and thereby sustain ․ injuries and damages.”

Tyma, Theodore R., J.