The Hartford Insurance Group as Subrogee of Carecentrix v. 99 111 LLC (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 117)

I. BACKGROUND

In this action the plaintiff, The Hartford Insurance Group as subrogee of Carecentrix, seeks reimbursement for workers' compensation benefits it paid to the intervening plaintiff, Wendy Taylor, as a result of injuries she received when she fell on the property of the defendant, Merchant 99–111 Founders, LLC, while in the scope of her employment with Carecentrix.   The defendant has moved for summary judgment claiming that there is no genuine issue of material fact that the plaintiffs cannot establish notice of the specific defect which allegedly caused Taylor's fall.   The parties submitted memoranda of law and deposition testimony, as well as affidavits, in support of their respective positions, and oral argument on the motion was heard by the court on November 25, 2013.

II. DISCUSSION

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   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 ․ 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 ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–2 (2011).

“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, for a plaintiff to recover for the breach of a duty owed to him as a business 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 ․ The 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 ․ Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger.”  (Internal quotation marks and citations omitted.)  Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–7 (2012).

Founders claims that there is no evidence that it had actual knowledge of the alleged defect, namely a wet leaf or leaves on the pathway.   Therefore, it claims that plaintiff must prove constructive notice.  “When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that [t]he controlling question [becomes] that of constructive notice:  whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied 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.   The nature of the business and the location of the foreign substance would be factors in this determination ․ To a considerable degree each case must be decided on its own circumstances.   Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant.”  (Internal quotation marks and citations omitted.)  Kelly v. Stop & Shop, 281 Conn. 768, 777 (2007).

The plaintiff claims that there is a material question of fact as to whether the wet leaves were on the ground long enough to establish notice.   The court agrees.   Although the defendant's property manager states that at no time, in the fall of 2010 and prior to the date of Taylor's fall, did the defendant receive any complaint regarding any undue accumulation of leaves on the property.   Taylor, however, claims that she had noticed the leaves the day before her fall as well as the week before.  “Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it ․ While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition ․ some evidence is required ․ Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case.”  (Internal quotation marks and citations omitted.)  Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 521, cert.   Denied, 224 Conn. 923 (1992).

III. CONCLUSION

For the foregoing reasons, the court finds that material issues of fact exist as to whether the defendant had constructive notice of the alleged accumulation of leaves where Taylor fell.   Therefore the motion for summary judgment is denied.

Jane S. Scholl, J.

Scholl, Jane S., J.