Alfred Johnson v. James Woodward, Jr. et al. (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (113)

FACTS

On July 23, 2012, the plaintiff, Alfred Johnson, commenced this action by service of process on the defendants, James Woodward, Jr., Vera Woodward, and Beazley Property Management, Inc.¹ In the complaint filed November 5, 2012, the plaintiff alleges the following facts.   The defendants were owners or property managers of the property at 935–947 West Main Street, Branford, Connecticut, and were in possession and control of the premises.   On November 27, 2010, the plaintiff was walking in the parking lot of 935–947 West Main Street when he fell off of a retaining wall and suffered injuries therefrom.   Count one asserts a negligence claim against James Woodward, Jr., and Vera Woodward, and count two asserts a negligence claim against Beazley Property Management, Inc. The plaintiff alleges that his injuries were caused by the defendants' negligence in that (1) the defective wall was dangerous;  (2) the defendants allowed the wall to remain in a dangerous and defective condition;  (3) the defendants failed to inspect the wall for defects or other hazards;  (4) the defendants failed to correct the defective wall;  (5) the defendants failed to adequately warn of the unsafe condition, including failing to place warning signs, flashing lights, or barricades around the defective condition;  (6) the defendants failed to exercise reasonable care under the circumstances;  (7) the defendants failed to employ sufficient personnel to inspect and maintain the wall and parking lot;  and (8) the defendants failed to install a fence at the top of the wall in order to prevent patrons from falling.

On September 17, 2013, the defendants filed a motion for summary judgment and a memorandum of law in support.   The plaintiff filed an objection to the motion and a memorandum of law in support on November 20, 2013.   The matter was heard at short calendar on November 25, 2013.   Pursuant to this court's permission, the plaintiff filed an affidavit in opposition to the motion for summary judgment on December 9, 2013, and the defendants filed a supplemental memorandum of law in support of their motion on January 29, 2014.²

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 ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating [its] entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transporation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue of material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law ․ To satisfy [its] 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it 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.”   (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).

“A genuine issue has been variously described as a triable, substantial or real issue of fact and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “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.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarly v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

The defendants argue that there is no genuine issue of material fact that the plaintiff is unable to identify the condition or area that caused him to fall, a necessary element under the specific defect doctrine.   In support of their motion, the defendants attached as exhibits excerpts from the plaintiff's deposition and a portion of the plaintiff's hospital record from the Hospital of St. Raphael, indicating that the plaintiff is blind in both eyes.³  The plaintiff, in his objection to the motion, argues that there is sufficient evidence to support his allegations as to how the incident occurred, specifically that the plaintiff fell off of a defective retaining wall that lacked a railing.   In support of his objection, the plaintiff attached as evidence pictures of the parking lot in which the plaintiff allegedly fell and an affidavit of the plaintiff describing the incident.   Subsequently, the plaintiff filed a supplemental affidavit of his expert, Michael Shanok, a Registered Professional Engineer in the state of Connecticut.

“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.”  (Internal quotation marks omitted.)  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).

“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, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as an 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.” ⁴  (Citations omitted;  internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–17, 49 A.3d 951 (2012).   To summarize, “[t]o hold the defendant liable for [his] 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;  internal quotation marks omitted.)  Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).   The notice to the defendant must be of the specific defect or unsafe condition that the plaintiff claims caused the injury.  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007);  Cruz v. Drezek, supra, 175 Conn. 234–35;  White v. E & F Construction Co., 151 Conn. 110, 114, 193 A.2d 716 (1963).

In the present case, the defendants argue that the plaintiff is unable to identify the specific defect that caused his injury.   To support this position, the defendants offer excerpts from the plaintiff's deposition transcript in which he states that the plaintiff was walking towards the liquor store on the upper level of the parking lot at 935–947 West Main Street when he took a step and “there was nothing there.”   It further states that the plaintiff doesn't remember anything after that until he hit the ground.   The defendants also rely on the plaintiff's hospital record which indicates that he is blind.

In response, the plaintiff offers the following evidence to show that a genuine issue of material fact exists:  photographs of the parking lot in which the incident occurred, the plaintiff's affidavit explaining the circumstances leading up to the fall and what occurred thereafter, and an affidavit of the plaintiff's expert, Michael Shanok.   In his affidavit, Mr. Shanok states that it is “not possible to pinpoint the exact location where [the plaintiff] unknowingly walked off the retaining wall” and that it is reasonable to believe that an individual who is legally blind could unknowingly walk off the wall.   Finally, Mr. Shanok states that the “presence of an unguarded retaining wall was in violation of the state and federal safety regulations and standards of common care that applied to the involved premises.

In summary judgment procedure, the burden is on the movant to show that there is no genuine issue of material fact and that the movant is entitled to summary judgment as a matter of law.   For the court to grant summary judgment to the defendants, however, it is not enough for the defendants to claim that the plaintiff cannot identify a defect.   In order to succeed on their motion for summary judgment, the defendants must show that there is no genuine issue of material fact that the plaintiff is unable to identify a specific defect that caused his fall.   The deposition evidence provided by the defendants shows that the plaintiff cannot identify a specific, physical object that caused him to fall.   However, this evidence is not sufficient to show that the lack of a fence or other type of guard that would prevent a fall, such as the one alleged in the present case, is not a defect itself.   The plaintiff alleges in the complaint that “the defendants failed to install a fence at the top of the wall in order to prevent patrons from falling.”   Pl. Comp. The burden of negating this claim is on the defendants.   See Mott v. Wal–Mart Stores East, LP, supra, 139 Conn.App. 626.   In addition, the plaintiff's answers in his deposition testimony are consistent with the conclusion that there was no wall or fence to guard against falling.   Defs. Exs. A–C. The defect alleged is not based on the existence of a tangible, identifiable defect;  rather, the claim is based on the lack of structure, the absence of which may amount to a defect.   The issue of whether the lack of a fence or guardrail is a defect is a triable issue of fact for the factfinder.   Because the evidence does not foreclose the possibility of there being a specific defect, the defendants have not sustained their burden of showing there is no genuine issue of material fact as to the presence of or the plaintiff's ability to identify a specific defect.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. Because the allegations against each defendant are the same and all of the defendants are moving for summary judgment pursuant to the same motion, this memorandum will refer to all of the defendants collectively as “the defendants.”.  FN1. Because the allegations against each defendant are the same and all of the defendants are moving for summary judgment pursuant to the same motion, this memorandum will refer to all of the defendants collectively as “the defendants.”

FN2. The defendants' filing on January 29, 2014, will not be considered by this court because it was not filed by the deadline date of December 23, 2013 provided by the court..  FN2. The defendants' filing on January 29, 2014, will not be considered by this court because it was not filed by the deadline date of December 23, 2013 provided by the court.

FN3. It is unclear whether the plaintiff is completely blind or legally blind with some vision.   The defendants' memorandum of law in support of their motion for summary judgment indicates that the plaintiff is “legally blind.”   The hospital record indicates that the plaintiff is “blind.”   Moreover, the plaintiff's deposition testimony indicates that the plaintiff “saw” stairs after his fall.   This allows the court to infer that the plaintiff has some vision, although limited..  FN3. It is unclear whether the plaintiff is completely blind or legally blind with some vision.   The defendants' memorandum of law in support of their motion for summary judgment indicates that the plaintiff is “legally blind.”   The hospital record indicates that the plaintiff is “blind.”   Moreover, the plaintiff's deposition testimony indicates that the plaintiff “saw” stairs after his fall.   This allows the court to infer that the plaintiff has some vision, although limited.

FN4. “Invitees fall into certain general categories ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal quotation marks omitted.)  Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971)..  FN4. “Invitees fall into certain general categories ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal quotation marks omitted.)  Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971).

Wilson, Robin L., J.