Alice Avallone v. Shepard Hill Association, Inc. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 112)

FACTS

On November 5, 2012, the plaintiff, Alice Avallone, filed a one-count premises liability complaint against the defendant, Shepard Hill Association, Inc. The plaintiff alleges the following facts.   The plaintiff resides in Hamden at 29 Shepard Hill, a property owned and maintained by the defendant.   On the evening of October 27, 2010, the plaintiff was walking towards the entrance of the property when she fell due to improper lighting, an unsafe elevation between the sidewalk and walkway, an accumulation of leaves, and an unmarked common walkway.   As a result of the fall, the plaintiff suffered various injuries and incurred economic losses.

On March 28, 2013, the defendant filed a motion for summary judgment accompanied by, inter alia, a memorandum in support thereof and the plaintiff's deposition testimony.   In response, the plaintiff filed a memorandum in support of her objection to the defendant's motion on August 7, 2013, accompanied by, inter alia, the plaintiff's affidavit and an affidavit from the president of the defendant's board of directors.¹  The defendant filed a reply on September 6, 2013.   This matter was heard at short calendar on January 13, 2014.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)   Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711, 59 A.3d 207 (2013), quoting DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “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.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

The defendant argues that it cannot be held liable because there is no issue of material fact that it lacked actual or constructive notice regarding the allegedly defective conditions.   In response, the plaintiff contends that there is an issue of material fact regarding whether the defendant had constructive notice of the allegedly hazardous conditions that caused her fall.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ If a plaintiff cannot prove all of those elements, the cause of action fails.”   (Internal quotation marks omitted.)  Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 69, 70 A.3d 126 (2013).  “To hold the defendant liable for her personal injuries ․ 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;  footnote omitted;  internal quotation marks omitted.)  Palmieri v. Stop and Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).

“[I]n the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it ․” (Internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006).   In other words, “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.”  (Internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–17, 49 A.3d 951 (2012).

“A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant's employee ․ or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition ․ To establish constructive notice, [t]he controlling question ․ 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 light of the particular circumstances of the case.”  (Citations omitted;  internal quotation marks omitted.)  Hellamns v. Yale–New Haven Hospital, Inc., 147 Conn.App. 405, 412 (2013).

In the present case, the arguments advanced by both parties focus on the leaves that obstructed the plaintiff's ability to see the demarcation of the raised sidewalk and the unimproved ground surrounding it.   In support of the defendant's argument that it had no actual notice of the allegedly dangerous condition, the defendant submits an affidavit from Mary Monahan, the president of the defendant's board of directors, attesting that the defendant “was never made aware of any reports or complaints, whether from the plaintiff, any other unit owners or tenants living at the subject premises, any visitors or guests, or any pedestrians present at the subject premises for any reason ․” Def.'s Aff. ¶¶ 7–8.   This evidence is corroborated by the plaintiff's own testimony that in the weeks and months leading up to the accident, neither she nor any members of her family made any reports or complaints to the defendant regarding the quality of the leaf removal service.   Pl.'s Dep., 36–37.   In response, the plaintiff does not cite any evidence to the contrary or even argue that the defendant had actual notice of the allegedly dangerous condition.   Therefore, there is no genuine issue of material fact that the defendant lacked actual notice regarding the presence of leaves.   Having established that the defendant had no actual notice, the court must next determine whether the defendant had constructive notice of the alleged defect.

“[T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.”   (Internal quotation marks omitted.)  Nicefaro v. New Haven, 116 Conn.App. 610, 614, 976 A.2d 75 (2009).   Here, the defendant argues that it did not have constructive notice of the accumulation of leaves because its landscaping contractor performed leaf removal services on October 25, 2010, only two days before the plaintiff's accident.   Def.'s Aff. ¶ 10.   The length of time between the landscaping contractor removing leaves on the property and the plaintiff's accident is undisputed.   Nonetheless, our Supreme Court has expressly held, “[w]hat constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of the case.”   (Internal quotation marks omitted.)  Considine v. Waterbury, supra, 279 Conn. 870;  see also Nicefaro v. New Haven, supra, 613 (“[t]he existence of constructive notice is a question of fact”).   Thus, although the defendant has submitted undisputed evidence that demonstrates the passage of only two days between the last leaf removal and the date of the plaintiff's fall, a finder of fact must ultimately decide whether this two-day period constitutes a reasonable length of time for the defendant, in the exercise of reasonable care, to discover the alleged dangerous conditions and to remedy it.   Accordingly, a genuine issue of material fact exists as to whether the defendant had constructive notice of the allegedly defective conditions.   Because the defendant has not met its burden by demonstrating the absence of any genuine issues of material fact, the plaintiff is not required to provide any evidence at this stage of the proceedings.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. The plaintiff also submits a report from a safety consultant in support of her objection to the motion for summary judgment.   The defendant contends, however, that the report is inadmissible hearsay because it has not been authenticated.   Generally, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citations omitted, internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Here, the plaintiff has not attempted to authenticate the consultant's report.   Consequently, the report is hearsay and, therefore, the court will not consider it in deciding the pending motion..  FN1. The plaintiff also submits a report from a safety consultant in support of her objection to the motion for summary judgment.   The defendant contends, however, that the report is inadmissible hearsay because it has not been authenticated.   Generally, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citations omitted, internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Here, the plaintiff has not attempted to authenticate the consultant's report.   Consequently, the report is hearsay and, therefore, the court will not consider it in deciding the pending motion.

Wilson, Robin L., J.