Mirelle Desmornes v. Deborah Towers et al. (2014)

MEMORANDUM OF DECISION RE SUMMARY JUDGMENT

The defendant Pet Smart, Inc. (hereinafter Pet Smart) has moved for summary judgment against the plaintiff's Count Three of its amended complaint (# 109) and the defendant's apportionment complaint, also against Pet Smart, dated October 5, 2012 (# 119).   The plaintiff has filed an objection to Pet Smart's motion for summary judgment, but the defendant/apportionment plaintiff has not filed any objection.

The underlying circumstances surrounding the plaintiff's fall at the entrance to Pet Smart's store in Waterbury, Connecticut don't appear to be in dispute.   The plaintiff's claim of negligence against Pet Smart is two-pronged.   One claim is that Pet Smart didn't have a separate entrance for dogs, and the other is that the subject floor sign was not safely located in the said entranceway.   The plaintiff claims that these two conditions made Pet Smart liable for the plaintiff's injuries.

The plaintiff was exiting the said store before it was formally opened, and therefore the interior and exterior sliding doors at the entranceway were activated by a store employee.   Exterior to the store was the defendant with her dog, a larger Shepherd type dog, as opposed to the plaintiff's smaller Spaniel type dog.   At that point the defendant's dog ran towards the plaintiff's dog in an aggressive manner, causing the plaintiff to back up suddenly and lose her balance and to fall into the said floor sign with ensuing injuries.

The defendant Pet Smart does allow customers to bring their dogs inside the store.   However, Pet Smart argues that the Connecticut General Statute § 22–357 is controlling:  the owner or keeper of a dog is strictly liable for damage done by the dog.   Pet Smart argues further that it is not a “keeper” of any dog, as defined in Connecticut General Statutes § 22–327, that is, a person, other than the owner, who harbors or has possession of any dog.

The plaintiff's argument against the summary judgment motion lacks the depth and substance that the defendant Pet Smart has offered.  Buturla v. St. Onge, 9 Conn.App. 495 (1987) and Falby v. Zarembski, 221 Conn. 14 (1992).   In each of those cases, the appeal court found that the respective defendants (premise owners and employers) did not exercise any type of control over the actions of the dog.   There was no evidence offered by the plaintiff to indicate that Pet Smart knew or could have known about any aggressive propensities of the defendant's dog.   The only person who would know of such propensities of her dog was the owner/keeper, i.e. the defendant-Towers.  (Ref. Malone v. Steinberg, 138 Conn. 718, 722 (1952)).   Therefore, separate entrances for pet owners would not change the statutory duty for such owners.

There was a video surveillance camera overseeing the subject entranceway that captured the actual incident involving the plaintiff and defendant and their respective dogs.   The court finds that video was particularly probative of how the plaintiff sustained her injuries and the extent to which the subject sign was a contributing factor to those injuries.   The issue becomes whether or not Pet Smart as the premises owner should have known and therefore foreseen that the sign posed a hazardous condition for customers entering and leaving through the main entrance of the store.   The video indicates that the sign was placed in the corner of the entranceway and not obstructing or interfering with the pedestrian traffic moving through the sliding glass doors in and out of the store.

When the foreseeability test is applied to the facts in this case, it becomes a rather tenuous analysis to find that a duty will arise for the defendant Pet Smart not to place an advertising sign in plain view at the public entrance to its store.   The defendant turns to a series of out-of-state cases ¹ and distinguishes several Connecticut cases cited by the plaintiff as inapplicable:  Rokicki v. Putnam Fish & Game Club, 2012 WL 4801457 (Conn.Sup.Ct., J.D. Windham (September 14, 2012) and Pisel v. Stamford Hospital, 180 Conn. 314 (1980).

The defendant Pet Smart makes the stronger argument in support of its motion and this Court adopts that position and the authority offered as support.

“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.”   See Riccio v. Harbour Village Condominium Ass'n, Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007) (standard on directed verdict).  Cruz v. Drezek, 175 Conn. 230, 235 (1978);  DiPietro v. Farmington Sports Arena, 306 Conn. 107, 117 (2012).

This Court is able to find that there was no breach of any recognized industry standards relating to the placement of signs.  “Business owners are chargeable with constructive notice of a dangerous condition when, had they exercised reasonable care, they would have discovered the condition.   2 Restatement (Second), Torts § 343 (1965).   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, supra, at 117–18.

The defendant Pet Smart did not create any such dangerous condition nor did any third party, like a customer and therefore no inference of an obvious hazard can be made in this case.   This Court does not adopt “the mode of operation rule” nor “the affirmative act rule” in this case.   The Court further finds that those line of cases ² may have application to certain store operations within specific areas of a retail store, but not so in this particular incident involving general ingress and egress of the premises.

Therefore the defendant Pet Smart's motion for summary judgment is granted as to the Third Count of the Amended Complaint (# 109) and also as to the defendant Deborah Towers' Revised Apportionment Complaint (# 119).

V. ROCHE, J.

FOOTNOTES

FN1. Medallion Stores, Inc. v. Eidt, 405 S.W.2nd 417;  Suriano v. Sears, Roebuck & Co., 117 Wash.App. 819, 72 P.3d 1097 (2003);  Cudney v. Sears, Roebuck & Co., 84 F.Sup.2d 856 (E.D.Mich.2000);  Bud's Outlet v. Smith, 781 So.2nd 219, 223 (Ala.App.2000)..  FN1. Medallion Stores, Inc. v. Eidt, 405 S.W.2nd 417;  Suriano v. Sears, Roebuck & Co., 117 Wash.App. 819, 72 P.3d 1097 (2003);  Cudney v. Sears, Roebuck & Co., 84 F.Sup.2d 856 (E.D.Mich.2000);  Bud's Outlet v. Smith, 781 So.2nd 219, 223 (Ala.App.2000).

FN2. Meek v. Wal–Mart Stores, Inc., 72 Conn.App. 467, 478 (2002);  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777 (2007);  Humphrey v. Great A & P Tea Co., 295 Conn. 855, 859–60 (2010)..  FN2. Meek v. Wal–Mart Stores, Inc., 72 Conn.App. 467, 478 (2002);  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777 (2007);  Humphrey v. Great A & P Tea Co., 295 Conn. 855, 859–60 (2010).

Roche, Vincent E., J.