Robert Hemingway v. LLC (2014)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

STATEMENT OF THE CASE

On October 3, 2012, the plaintiff, Robert Hemingway, commenced this action by service of process on the agent for service of the defendant, Stop & Shop Supermarket Co., LLC. In count one of the operative complaint,¹ the plaintiff makes the following allegations.   The plaintiff is a resident of Milford, Connecticut, and the defendant is a foreign limited liability company with its principal office in Quincy, Massachusetts.   The defendant is responsible for the maintenance, safety, and control of certain premises in Milford, Connecticut, in which it operates a supermarket.   On October 25, 2011, at approximately 9:55 p.m., the plaintiff, as an invitee and patron of the defendant, was walking in one of the shopping aisles on the premises when he slipped and fell as a result of construction dust and residue.   The plaintiff suffered injuries as a result.   The defendant owed the plaintiff as a business invitee a duty to exercise reasonable care in the maintenance and control of the premises, which the defendant violated by, inter alia, failing to keep the floor of the premises in a reasonably safe condition, failing to warn parties on the premises of the dangerous condition of which the defendant knew or should have known, and allowing the dangerous condition to exist for an unreasonable period of time.   The defendant also had, or with reasonable diligence should have had, notice and knowledge of the dangerous condition because the condition was created by the defendant's employees or agents.   To this complaint the plaintiff has appended an incident report generated the day after his injury.

Pending before the court is the defendant's motion for summary judgment filed on July 1, 2014.   In support of the motion, the defendant filed a supporting memorandum of law, asserting that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law because there is:  no evidence that a defect existed on the sales floor or from which a defect can be inferred;  no evidence of a causal connection between the alleged defect on the sales floor and the plaintiff's fall;  and no admissible evidence of the defendant having actual or constructive notice of any defective conditions that could have caused the plaintiff's fall.   In support of its motion for summary judgment, the defendant attached part of the plaintiff's deposition transcript.   The defendant specifically points to the plaintiff's deposition testimony where he testifies about the circumstances surrounding his fall.   Noting that the plaintiff alleges he slipped on construction dust and residue on the floor at the time of the accident, the defendant asserts that the plaintiff's testimony is insufficient because no construction work was going on the date and time of the plaintiff's fall, that the plaintiff did not visually observe any foreign substance on the sales floor, and that the plaintiff cannot rely on merely his subjective perception that the floor was slippery.

On July 23, 2014, the plaintiff filed an objection and attached as support his affidavit, additional portions of the transcripts of his deposition and the deposition of Robert J. McGhee, an employee of the defendant.   On July 25, 2014, the plaintiff filed a supplemental objection, attaching the same incident report attached to his amended complaint and portions of the transcript of the deposition of Nancy Stankye, a manager for the defendant.

On August 26, 2014, the plaintiff filed his second supplemental objection, submitting parts of the deposition transcripts of Kevin Tote, a former manager of the Milford supermarket, and Robert S. Fers, Jr., the owner of the construction company that was responsible for the remodeling and construction work on the defendant's supermarket.

In his objection to the summary judgment motion, the plaintiff asserts that material issues of disputed fact exist which preclude summary disposition.   Specifically, the plaintiff points to his deposition testimony, he testified that construction had been going on for months prior to his fall, that after the fall, an employee of the defendant told the plaintiff that construction had been going on in the area where the fall occurred, and that after returning to the area where he had fallen, he saw a fine dust or powder that made the floor feel slippery.   The plaintiff also notes that, rater than being unidentified as the defendant has claimed, the employee in question, Mr. McGhee, testified that he does not recall whether he worked that day or whether he spoke with the plaintiff and therefore does not affirmatively deny this conversation occurred.   Finally, the plaintiff asserts that he does not have to show actual or constructive notice of a dangerous condition when the defendant or its agents or employees caused it.

On September 12, 2014, the defendant filed a reply to the plaintiff's objections.   In support of its response, the defendant attached the following:  the transcript of the deposition of Mr. Fers;  various documents subpoenaed for Mr. Fers' deposition;  and the transcript of the deposition of Mr. Tote. The court heard argument on September 15, 2014, and the plaintiff filed a supplemental memorandum of law on October 2, 2014.

DISCUSSION

I

‘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.”  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “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 as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   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 ․ 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Consequently, although the defendant is correct that the plaintiff ultimately bears the burden of proving the existence of a defect and the defendant's actual or constructive knowledge of it, the defendant's present emphasis of this point must be clarified in this procedural context because on its motion for summary judgment, the defendant bears the initial burden of showing the absence of a genuine issue of material fact and that it deserves judgment as a matter of law.  Id. More specifically, the defendant, as the moving party, bears the initial burden of showing the absence of a defective condition or the absence of any notice of such condition.  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 57 A.3d 391 (defendant's motion for summary judgment failed when it relied solely on plaintiff's deposition to establish lack of notice when this deposition did not address the issue).

The Supreme Court has urged the courts to exercise caution in addressing negligence claims through summary judgment.  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty 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).  “[T]he issue of whether a defendant owes a duty of care [however) is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)   Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).   Similarly, “[a]lthough the issue of causation generally is a question reserved for the trier of fact ․ the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation.”  (Internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).

Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007);  Great Country Bank v. Pastore, 241 Conn. 423, 437, 696 A.2d 1254 (1997).   Moreover, documents filed by parties on a summary judgment must be sufficiently authenticated.  Bruno v. Geller, 136 Conn.App. 707, 714–15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).²

II

A

The relevant principles of premises liability are well established.   A business owner owes its invitees ³ 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 [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 ․ [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.”  (Citations omitted;  internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–17, 49 A.3d 951 (2012).  “On the question of notice, the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises.”  Kirby v. Zlotnick, 160 Conn. 341, 344–45, 278 A.2d 822 (1971).

“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.”  (Citation omitted.)  Hellamns v. Yale–New Haven Hospital, Inc., 147 Conn.App. 405, 412, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014).   When evaluating whether a defendant had constructive knowledge of the defective condition, “[t]he controlling question ․ is whether the condition had existed for such a length of time that the defendants' employees should, in the exercise of due care, have, discovered it in time to have remedied it ․ What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case.   The nature of the business and the location of the defective condition would be factors in this determination.   To a considerable degree each case must be decided on its own circumstances.”  (Citation omitted.)  Pollack v. Gampel, 163 Conn. 462, 469–70, 313 A.2d 73 (1972).  “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 v. Farmington Sports Arena, LLC, supra, 306 Conn. 118.

“[T]he existence of both actual and constructive notice is a question of fact.”  Vendrella v. Astriab Family Ltd. Partnership, 133 Conn.App. 630, 659, 36 A.3d 707 (2012), aff'd, 311 Conn. 301, 87 A.3d 546 (2014).   “Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects ․” (Internal quotation marks omitted.)  Cruz v. Drezek, 175 Conn. 230, 235, 397 A.2d 1335 (1978).

As previously stated, the defendant as the moving party has the initial burden of establishing an absence of a genuine issue of material fact and that it deserves judgment as a matter of law.   The defendant relies primarily on the plaintiff's deposition testimony to support its arguments.   Although the defendant claims that the plaintiff's statements clearly establish that the floor was free from debris, the plaintiff's statements are much more ambiguous than the defendant portrays them.   In the portions of the transcript submitted, the plaintiff testifies, in relevant part, that prior to the fall, he had just finished paying for groceries at the self-checkout registers and was heading to the nearest exit.   About five to eight feet from the register, the plaintiff's left foot went out from underneath him.   The plaintiff fell to the ground and injured himself.   He did not see anything on the floor prior to his falling, and because he was dazed, he observed nothing on the floor while on the ground prior to him standing back up.

The plaintiff got up and continued walking towards the exit when an employee approached him and instructed him not to leave because the plaintiff had to make an accident report.   The plaintiff testifies that he was not immediately aware of what he fell on.   After the fall, he walked over to where he fell with the employee, and that the employee stated that it was slippery because of the construction.   The plaintiff states that he observed a fine dust or powder.   When he ran his foot over the spot near where he fell, it felt slippery.   The plaintiff explains that the dust was not a bright white powder or obvious, that he did not see any scuff marks or tracks in it, and that no marks were left after he ran his foot across it.   He also states that the amount of dust “looked light,” was not as much as a quarter or half-inch, and was not in piles.   The plaintiff also testifies that, while he could not see the dust from five feet away or while standing up, he is sure that “if I went down on my hands and knees I could find where the dust possibly might have been left over from being swept up.”   Within minutes after the fall, the employee sought a manager, who gave the plaintiff paperwork to fill out concerning the accident.   After finishing the paperwork, the plaintiff left.

When this fall occurred, the store was in the middle of being remodeled.   The plaintiff recalls seeing scaffolding and tarps in the front part of the store in the general area of the checkout registers, but he does not recall seeing any contractors there from the time he entered until the time that he fell.   The scaffolding was about five feet to the right of the checkout lane used by the plaintiff.

In opposition to the motion for summary judgment, the plaintiff also submitted his own affidavit.   In it, he reaffirms much of the description of the fall from his deposition, and most importantly, he affirms that, upon his inspection;  “there was a construction fine dust/residue on the floor in the area of [his] fall.”   The court rejects the defendant's argument that the plaintiff's statements, when viewed in their entirety, establish that there is no genuine issue of material fact concerning the existence of debris on the floor at the time of the plaintiff's fall as alleged.

The defendant has also submitted the deposition of Robert S. Fers, Jr. Mr. Fers, who describes work schedules for work performed at the defendant's store from August 1, 2011, to August 25, 2011.   Mr. Fers indicates that he does not possess any record indicating that any work was done when the store would have been in operation on October 25, 2011, the day of the plaintiff's fall, but he also states that there are reasons that a subcontractor could have come in early or stayed later.   Mr. Fers notes that the following work was done in the days before the plaintiff's fall.   On the night before the plaintiff's fall, the subcontractors were to:  relocate and set the existing natural food cases, which should not involve any cutting and which Mr. Fers does not believe was located in the front of this store;  swap out a rack and gas in the upstairs compressor room in the back of the store;  and supply and install dry ice blocks in the refrigerated cases.   On August 23, 2011, two days before the accident, the subcontractors were to do work upstairs and along the perimeter of the refrigerated cases, which would have involved no cutting of dry ice or plastic.

Mr. Fers also provided information about the subcontractors who were used in the remodeling of the defendant's store and the type of work they generally would perform.   Of the two different contractors who provided tile work, Mr. Fers testifies that two different types of tiles would have been used, ceramic and vinyl, but that the ceramic tile would generally be used in areas where there is food preparation or in the bathroom and not used in the front of the defendant's store.   He was not able to say exactly which contractors were performing work on the day of the plaintiff's fall or the days immediately preceding it.

Mr. Fers further explained that remodeling projects routinely or ordinarily occurred at night after the store closes:  specifically, that work would start around closing time at roughly 11 p.m. and would end when the store opened at 6:00 or 7:00 a.m. the next morning.   The subcontractors would generally be responsible for cleaning up after themselves at the end of a shift and that “on a daily basis it was everybody's responsibility” to inspect that the area was cleaned.   While the store was open, Mr. Fers notes that the defendant's employees would have been cleaning throughout the day and that the stores are constantly cleaning as remodeling work is being done.

The defendant also submitted the deposition transcript of Kevin Tote. Mr. Tote is a store manager, but was not working the day of the plaintiff's fall.   Mr. Tote started in his position in July or August 2011, the week that the remodeling began.   The remodeling project finished in October of that same year.   According to Tote, all of the work done on the remodeling project was done between 10:00 p.m. when the store was closed to 6:00 or 7:00 a.m. the following day.

Mr. Tote states that the defendant's employees were responsible for general cleaning, maintenance, and to “freshen things up” during the remodeling.   Mr. Tote notes that the defendant's cleaning crews generally did their job during the day, but that floor crews would also work overnight.   He also notes that the construction crews were responsible for their own clean-up and that the defendant's employees were not responsible for cleaning up after the construction crews.   He does not recall having to follow-up with a contractor concerning any issues with their cleaning.

During the period of the construction, Mr. Tote would walk around the store multiple times every day.   He notes that he would always make a point of walking around the area where construction had occurred the night before, giving these locations priority and examining them first the next morning.   He also states that there is always dust in construction, but he does not recall any excessive amount of dust or seeing any sort of dust or residue.   He further does not recall any scaffolding in place in the store at or around the time of the plaintiff's fall.

At the time of the construction, Mr. Tote testifies that he was working ten-to twelve-hour days at the time of the construction.   In reviewing a copy of the MAC Risk Management Notice Intake Information,⁴ Mr. Tote notes that such incident reports were prepared in the ordinary course of business by a third party after a manager called in an incident.   With regards to this particular incident report, he notes that it was submitted by a different manager, Ms. Stankye,⁵ because she was there during the incident and would therefore have had firsthand knowledge of the incident.   When asked when he would have become aware of the plaintiff's fall, Mr. Tote states that he could not say without speculating.

On one hand, the testimony of Mr. Fers and Mr. Tote suggests the absence of work that could have been the source of any dust associated with the plaintiff's fall.   On the other hand, the plaintiff's deposition, relied on by both parties, and his affidavit submitted in support of his objection, indicate that he recalls observing a fine, slippery substance on the floor, as well as scaffolding and tarps in the vicinity of his fall.   The plaintiff contends that the existence of the scaffolding and tarps supports a reasonable inference that construction of some sort was occurring in the area at that time.   On a motion for summary judgment the court cannot weigh the strength of these positions or the credibility of the declarants.   The court's charge is not to resolve disputed facts that may exist, but to determine whether there exist genuine issues of material fact.   The court concludes that there are genuine issues of material fact in dispute on whether a slippery condition existed on the floor when the plaintiff allegedly fell.

B

Finally, the defendant argues that there it is undisputed that it did not have actual or constructive knowledge of any possible defect.   The defendant primarily relies on the plaintiff's deposition in asserting the absence of any admissible evidence showing actual or constructive notice existed.   However, the plaintiff's testimony alone does not affirmatively establish or explicitly indicate that the defendant did not have actual or constructive notice of the alleged defect.   See generally Mott v. Wal–Mart Stores East, LP, supra, 139 Conn.App. 618 (defendant failed to establish absence of factual dispute regarding notice when it relied solely on plaintiffs' deposition which did not address this issue).

Although the defendant's submissions support the defendant's argument that it did not have notice of any defect, issues of fact nevertheless remain concerning the existence of a defect, whether contractors caused it, and how long any defect existed.   The evidence indicates that the plaintiff fell approximately between the hours of 9:00 and 10:00 p.m., and that the contractors usually did not work while the store was open.   Therefore, any defective condition would reasonably have existed for at least fifteen hours or more.⁶  When making the factual determination of whether the defendant had constructive notice of a defect, “[t]here is no set period of time which is determinative ․ It is settled, however, that what constitutes a reasonable length of time is usually a question of fact to be determined in light of the particular circumstances of a case.”  (Citations omitted;  internal quotation marks omitted.)   Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV–13–6006595–S (April 23, 2014, Mullins, J.), and cases cited therein.

Furthermore, although Mr. Tote testified that the subcontractors were responsible for their own clean-up prior to the store opening for the day, that the store was regularly cleaned during the day by the defendant's employees, and that he always examined the area where the contractors had been working the next morning, it is uncontested that Mr. Tote was not working that night and no substantive testimony by any employee that was working has been submitted by the defendant.⁷  Additionally, apart from the brief description by Mr. Tote that the employees clean during the day, there is no additional evidence concerning the practice or procedures of the defendant's employees in keeping the store clean.

The plaintiff focuses on the statement he claims was made by Robert McGhee, the employee who allegedly assisted him after his fall, that the floor was slippery because of the construction.   Attendance logs indicate that McGhee was working on the day in question, but he does not recall working on this day and he does not recall making the statement as alleged by the plaintiff.   However, because of his lack of recollection, he does not affirmatively deny making the statement either.

The plaintiff also emphasizes that the defendant's notice of any defect is implicated because any such defect was caused by the defendant's agents or employees.   This so called “affirmative act” rule is relevant to the issue of notice in this case, but not in the manner as advanced by the plaintiff.   Our Supreme Court has explained that this “affirmative act” rule does not create an exemption from the notice requirements of a premises liability claim, but “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.”  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 124, 49 A.3d 951 (2012).

In summary, the court concludes that a genuine issue of material fact exists as to whether the defendant had actual notice or constructive notice of the defect as alleged by the plaintiff.

CONCLUSION

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

STEVENS, J.

Dated this 20th day of November 2014.

FOOTNOTES

FN1. On August 26, 2014, the plaintiff filed an amended complaint pursuant to Practice Book § 10–60(a)..  FN1. On August 26, 2014, the plaintiff filed an amended complaint pursuant to Practice Book § 10–60(a).

FN2. The defendant represents that the parties have agreed that the uncertified deposition transcripts the plaintiff, Ms. Stankye, and Mr. McGhee may be considered.   In addition, the parties have made other submissions that are uncertified and are not objected to.   See generally, Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (“[A] court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party”)..  FN2. The defendant represents that the parties have agreed that the uncertified deposition transcripts the plaintiff, Ms. Stankye, and Mr. McGhee may be considered.   In addition, the parties have made other submissions that are uncertified and are not objected to.   See generally, Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (“[A] court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party”).

FN3. “Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ 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 ․ The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land.   Although an invitation itself does not establish the status of an invitee, it is essential to it.”  (Citation omitted;  internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506–07, 955 A.2d 593 (2008)..  FN3. “Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ 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 ․ The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land.   Although an invitation itself does not establish the status of an invitee, it is essential to it.”  (Citation omitted;  internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506–07, 955 A.2d 593 (2008).

FN4. Although this document was marked as exhibit 2 during Mr. Tote's deposition, the transcript notes that counsel retained the exhibits.   The plaintiff has submitted a document matching this description as exhibit D with his July 25, 2014 supplemental objection and with his August 26, 2014 amended revised complaint..  FN4. Although this document was marked as exhibit 2 during Mr. Tote's deposition, the transcript notes that counsel retained the exhibits.   The plaintiff has submitted a document matching this description as exhibit D with his July 25, 2014 supplemental objection and with his August 26, 2014 amended revised complaint.

FN5. The transcript of Mr. Tote's deposition spells Ms. Stankye's surname as “Stanke.”.  FN5. The transcript of Mr. Tote's deposition spells Ms. Stankye's surname as “Stanke.”

FN6. It is also noted that in Mr. Fers' deposition testimony, contractors had done work in area of the registers several weeks earlier..  FN6. It is also noted that in Mr. Fers' deposition testimony, contractors had done work in area of the registers several weeks earlier.

FN7. Portions of the transcripts of the depositions of Mr. McGhee and Ms. Stankye were submitted in support of the plaintiff's objections.   Mr. McGhee testified that, although the time sheets indicate he was working on August 25, 2011, he has no recollection of working that night, witnessing the plaintiff's fall, or speaking with the plaintiff.   The portion of Ms. Stankye's deposition submitted concern whether the store was undergoing remodeling at or near that date..  FN7. Portions of the transcripts of the depositions of Mr. McGhee and Ms. Stankye were submitted in support of the plaintiff's objections.   Mr. McGhee testified that, although the time sheets indicate he was working on August 25, 2011, he has no recollection of working that night, witnessing the plaintiff's fall, or speaking with the plaintiff.   The portion of Ms. Stankye's deposition submitted concern whether the store was undergoing remodeling at or near that date.

Stevens, Barry K., J.