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Phan v. Home Depot U.S.A., Inc.

Superior Court of Connecticut, Judicial District of Hartford

April 5, 2016

Elizabeth Phan
v.
Home Depot U.S.A., Inc

          MEMORANDUM OF DECISION

          Nina F. Elgo, J.

         The plaintiff, Elizabeth Phan, has filed this premises liability action against the defendant, Home Depot U.S.A., Inc., as a result of injuries she sustained to her foot when she was shopping for laminate building materials at the defendant's store in Bristol, Connecticut on June 4, 2011. The defendant has filed this motion for summary judgment (1) on the ground that there is no genuine issue of material fact and that the plaintiff is unable to support a traditional premises liability claim, as alleged in count one of the plaintiff's amended complaint, because the defendant does not owe the plaintiff a duty of care or did not have actual or constructive notice of the defect, and (2) on the ground that the mode of operation rule is inapplicable to this case as a matter of law, as alleged in count two. This court denies the motion for summary judgment as to count one but grants the motion as to count two.

         The plaintiff filed an amended complaint on July 3, 2013, alleging the following facts in the first count of the amended complaint (first count). The plaintiff was shopping for laminate building materials (melamine) at the defendant's store in Bristol, Connecticut (premises) on June 4, 2011, when she was injured by a large piece of melamine that " fell from the shelf onto the floor striking her left foot." The injury was caused by the defendant's negligence and carelessness in that it: (1) maintained the area of the store containing the melamine display in a dangerous condition; (2) allowed the melamine to remain in such a way that it constituted a hazard; (3) failed to warn the plaintiff of this hazardous condition; (4) failed to cordon off the area; (5) failed to train its employees to warn patrons of the hazardous condition; (6) failed to properly assist the patron; (7) utilized a mode of operation that resulted in the creation of this hazardous condition; and, (8) failed to remedy the defective condition. The second count of the amended complaint (second count) sounding in a " mode of operation" premises liability cause of action re-alleges most of the allegations in the first count and also alleges the following facts: (1) the defendant placed the melamine in shelving so that customers could access, remove, and return the melamine to the shelving; (2) customers accessing the melamine were causing it to be dangerously rearranged such that customers were at risk of the melamine falling from the shelves; and, (3) displaying the items in this precarious and dangerous way was the mode of operation that created an inherently foreseeable hazard.[1] In its amended answer filed on July 29, 2013, the defendant admits to controlling and possessing the premises, which is open to the public, denies liability, and denies or leaves the plaintiff to her proof regarding the remainder of the allegations.

         LEGAL STANDARD

         " [S]ummary 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) Russell v. Mitchell Properties, Inc., 148 Conn.App. 635, 638, 87 A.3d 591, cert. denied, 314 Conn. 912, 100 A.3d 404 (2014). " 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).

         " 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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).

         Our courts have determined that " [i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner . . . Summary judgment is particularly ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . ." (Citation omitted; internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004). Nevertheless, " [t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).

         DISCUSSION

         In the present case, the defendant moves for summary judgment arguing that the mode of operation rule of premises liability is inapplicable to this case as a matter of law, because it cannot be held liable for the plaintiff's injury merely because it is a self-service store. Further, the defendant argues that it does not have a duty to protect the plaintiff from her own negligence and carelessness, because a store owner is not an insurer of its customers' safety. In response, the plaintiff counters that the defendant can be held liable under the mode of operation rule, not because it operates in a self-service manner, but because of the manner in which it displays heavy merchandise like the item that caused plaintiff's injury. Specifically, the plaintiff argues that the defendant's lack of policy to limit or prevent customers from handling such merchandise without store assistance creates foreseeable, hazardous conditions in which customers could injure themselves, or other patrons.

         " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty . . . The issue of whether a duty exists is a question of law . . ." (Citations omitted; internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). " A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859-60, 905 A.2d 70 (2006). " Although it has been said that no universal test for [duty] ever has been formulated . . . [the] threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). " [W]hether [an] injury is reasonably foreseeable ordinarily gives rise to a question of fact . . . [F]oreseeability becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citation omitted; internal quotation marks omitted.) Id., 330.

         " [F]or [a] plaintiff to recover for the breach of a duty owed . . . 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 . . . must be . . . 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." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). In this case, there is no dispute that this is a premises liability action, and that the plaintiff was a business invitee.

         I. Mode of Operation Rule of Premises Liability

         The mode of operation rule is an exception within the law of premises liability whereby a plaintiff, alleging an act of negligence, does not bear the burden of establishing that the premises' owner had actual or constructive notice of the unsafe condition that caused the injury. The plaintiff must still establish a prima facie case of negligence, but when a plaintiff alleges " that the defendant's [own] conduct created the unsafe condition, proof of notice is not necessary . . . [T]hat is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof . . . The mode of operation rule . . . allows a customer injured due to a condition inherent in the way [a] store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). In the context of premises liability cases involving self-service retail establishments, a number of jurisdictions have waived the traditional notice requirements as unfair and unnecessary, and adopted the mode of operation rule because " [t]he modern self-service form of retail sales encourages . . . patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage." (Internal quotation marks omitted.) Id., 778.

         Connecticut's Supreme Court first adopted the mode of operation rule of premises liability in Kelly v. Stop & Shop, Inc., whereby a plaintiff brought suit for injuries sustained after a slip and fall on a piece of lettuce that had fallen from the defendant's self-service salad bar. Id., 793. " [A] plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant's business gives rise to a foreseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk . The defendant may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances. Of course, the finder of fact bears the ultimate responsibility of determining whether the defendant exercised such care . . . [T]he defendant's burden in such cases is one of production, and . . . the ...


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