Argued
March 12, 2018
Procedural
History
Action
to recover damages for personal injuries sustained as a
result of the defendant's alleged negligence, and for
other relief, brought to the Superior Court in the judicial
district of Ansonia-Milford, where the court, Tyma,
J., granted the defendant's motion for summary
judgment and rendered judgment thereon; thereafter, the court
denied the plaintiff's motion to reargue and for
reconsideration, and the plaintiff appealed to this court.
Affirmed.
Ryan
K. Miller, for the appellant (plaintiff).
Michael P. Kenney, with whom, on the brief, was Kate J.
Boucher, for the appellee (defendant).
DiPentima, C. J., and Sheldon and Prescott, Js.
OPINION
DiPENTIMA, C. J.
In this
premises liability action, the plaintiff, Rebecca Bisson,
challenges the summary judgment rendered in favor of the
defendant, Wal-Mart Stores, Inc., [1] in which the trial court
determined that (1) the defendant met its burden of
establishing that no genuine issue of material fact existed
regarding constructive notice of the defect alleged and (2)
that the plaintiff's own evidence did not establish the
existence of a genuine issue of material fact. We affirm the
judgment of the trial court.
The
following facts and procedural history are relevant to our
consideration of the plaintiff's appeal. The plaintiff
commenced this premises liability action on November 13,
2013. In the amended complaint, dated March 4, 2014, the
plaintiff alleged that on February 12, 2013, she entered the
defendant's store in Naugatuck with her aunt. While
walking in the main aisle of the store, the plaintiff slipped
and fell on an accumulation of water. The plaintiff suffered
immediate pain in her left knee, and an employee of the
defendant quickly offered her assistance.
The
plaintiff claimed that her fall was caused by the
defendant's negligence and carelessness in creating the
dangerous and hazardous condition on the floor, failing to
remedy the condition, failing to warn the plaintiff of the
condition, failing to properly inspect its premises to detect
and correct the condition and failing to exercise reasonable
care under the circumstances. The plaintiff also claimed to
have suffered a variety of injuries in the fall as a result
of the defendant's negligence and
carelessness.[2] The defendant filed an answer, denying the
allegations of negligence and carelessness, and raised the
special defense of comparative negligence.
On July
6, 2016, the defendant filed a motion for summary judgment.
Specifically, it argued that ‘‘[t]he
plaintiff's negligence claim against [the defendant]
fails as a matter of law because there is no factual basis
upon which a reasonable jury could find that [the defendant],
through its agents, servants and/or employees, had actual or
constructive notice of the alleged defect at issue.''
Attached to the defendant's memorandum of law in support
of the motion for summary judgment were an excerpt of the
plaintiff's deposition and an affidavit of Jennifer Card,
an employee of the defendant, who had offered assistance to
the plaintiff after her fall. Card's affidavit stated:
‘‘[The plaintiff's] fall occurred in the
exact area where I had performed a safety sweep less than one
minute ([forty] seconds) prior . . . [and] I did not observe
any water, or other liquid, on the area of the floor where
[the plaintiff] fell during my safety sweep . . . .''
On
August 18, 2016, the plaintiff filed an objection to the
defendant's motion for summary judgment. She argued that
‘‘contradictory pieces of evidence . . . bring
about a material fact as to the length of time the water,
which caused the [p]laintiff to slip and fall,
existed.'' Specifically, the plaintiff argued that
Card's affidavit, which she labeled as
‘‘self-serving, '' was contradicted by
Card's deposition. Additionally, the plaintiff contended
that a surveillance video, provided by the defendant,
disproved Card's statements contained in her affidavit
and deposition.[3]
On
September 16, 2016, the defendant replied to the
plaintiff's objection. The defendant noted in its reply
memorandum that the plaintiff had failed to produce the
surveillance video for the trial court's inspection and,
therefore, that video was not part of the record before the
court on the summary judgment proceeding. It did note,
however, that if the surveillance video were to be
considered, it would support Card's deposition testimony
and her affidavit.
On
September 30, 2016, the plaintiff filed a surreply
memorandum, in which she argued that ‘‘[t]he
surveillance video depicts a different version of what is
stated in . . . Card's deposition and affidavit. The
[d]efendant's counsel gave this video to the undersigned,
without any objection or disagreement, several months ago. It
is hereby enclosed for the court's review as an
addendum.'' Attached to the surreply was an affidavit
from the plaintiff's counsel stating that he had
submitted a USB flash drive to the court containing a true
copy of the February 12, 2013 surveillance video from the
defendant's Naugatuck store that the defendant's
counsel previously had mailed to him on August 28, 2015.
The
court, Tyma, J., held a hearing on the
motion for summary judgment on November 21, 2016. At the
start of the hearing, the court noted that it had watched the
surveillance video twice in chambers with both counsel
present. The defendant's counsel argued that the video
demonstrated that the claimed defect, water on the floor, had
existed for no more than one minute, and more likely
forty-two seconds. Specifically, the defendant relied on
Card's affidavit and the surveillance video to support
its contention that she had scanned the area of the
plaintiff's fall approximately forty seconds prior to
that event and did not see any water on the floor. Such a
minimal time period could not constitute a sufficient length
of time for constructive notice of the defect, according to
the defendant's counsel. Further, the defendant's
counsel also directed the trial court to our decision in
Hellamns v. Yale-New Haven Hospital, Inc., 147
Conn.App. 405, 82 A.3d 677 (2013), cert. granted, 311 Conn.
918, 85 A.3d 652 (2014) (appeal withdrawn May 9, 2014), in
support of the defendant's argument for summary judgment.
The
plaintiff's counsel challenged the defendant's claim
that there was no genuine issue as to the duration of the
defect. Specifically, he argued that, given the fact that
there was snow on the ground outside on the day of the
plaintiff's fall in the store, a genuine issue of
material fact existed as to whether the defendant had
‘‘taken reasonable steps to make sure that [its]
invitees, [its] customers, were safe under the
circumstances.'' The plaintiff's counsel also
claimed that inconsistencies between Card's affidavit and
her deposition regarding the nature and details of her
‘‘safety sweep'' precluded the granting
of summary judgment in favor of the defendant.
The
court iterated that it had watched the surveillance video
twice and commented that it showed Card walking down one of
the main aisles of the defendant's store.[4] Specifically, it
noted that Card traversed the area where the plaintiff's
accident would occur. The court then stated:
‘‘And approximately forty to forty-two or
forty-three seconds later, we see the plaintiff come and slip
and fall in the spot where there's allegedly water. So we
do know from the surveillance video that you got that
it's consistent with [Card's] deposition testimony,
that was about forty seconds.'' The plaintiff's
counsel subsequently claimed that the video supported the
claim that a reasonable person could conclude that water had
been on the floor for a longer period of time.
The
court then rendered an oral decision[5] granting the defendant's
motion for summary judgment. It expressly based its decision
on Card's affidavit, her deposition testimony and the
surveillance video.[6] It concluded that the defendant had met
its initial burden of demonstrating that there was no genuine
issue of material fact that the defendant did not have
constructive notice of the water on the floor.[7] It then
determined that the plaintiff had failed to meet her burden
of offering contrary evidence demonstrating the existence of
a genuine issue of material fact.[8] The court subsequently
denied the plaintiff's motion for reconsideration or
reargument. This appeal followed.
We
begin with our standard of review and the relevant legal
principles. The fundamental purpose of summary judgment is to
prevent unnecessary trials. Stuart v. Freiberg, 316
Conn. 809, 822, 116 A.3d 1195 (2015). ‘‘The
standard by which we review a trial court's decision to
grant a motion for summary judgment is well established.
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. . . . Although the party seeking summary
judgment has the burden of showing the nonexistence of any
material fact . . . a party opposing summary judgment must
substantiate its adverse claim by showing that there is a
genuine issue of material fact together with the
evidence disclosing the existence of such an issue. . .
. It is not enough . . . for the opposing party merely to
assert the existence of such a disputed issue. . . . Mere
assertions of fact, whether contained in a complaint or in a
brief, are insufficient to establish the existence of a
material fact and, therefore, cannot refute evidence properly
presented to the court [in support of a motion for summary
judgment]. . . .
‘‘As
a general rule, then, [w]hena motion for summary judgment is
filed and supported by affidavits and other documents, an
adverse party, by affidavit or as otherwise provided by . . .
[the rules of practice], must set forth specific facts
showing that there is a genuine issue for trial, and if he
does not so respond, summary judgment shall be entered
against him. . . . Requiring the nonmovant to produce such
evidence does not shift the burden of proof. Rather, it
ensures that the nonmovant has not raised a specious issue
for the sole purpose of forcing the case to trial. . . .
‘‘More
specifically, [t]he party opposing a motion for summary
judgment must present evidence that demonstrates the
existence of some disputed factual issue . . . . The movant
has the burden of showing the nonexistence of such issues but
the evidence thus presented, if otherwise sufficient, is not
rebutted by the bald statement that an issue of fact does
exist. . . . To oppose a motion for summary judgment
successfully, the nonmovant must recite specific facts . . .
which contradict those stated in the movant's affidavits
and documents. . . . The opposing party to a motion for
summary judgment must substantiate its adverse claim by
showing that there is a genuine issue of material fact
together with the evidence disclosing the existence of such
an issue. . . . The existence of the genuine issue of
material fact must be demonstrated by counter-affidavits and
concrete evidence. . . . Our review of the trial court's
decision to grant a motion for summary judgment is
plenary.'' (Citation omitted; emphasis in original;
internal quotation marks omitted.) Bruno v. Whipple,
162 Conn.App. 186, 213-15, 130 A.3d 899 (2015), cert. denied,
321 Conn. 901, 138 A.3d 280 (2016); see also Practice Book
§ 17-49.
The
parties do not dispute that the complaint set forth a claim
of negligence based upon premises liability, that the
plaintiff was a business invitee[9] and that this was a
constructive notice case. Accordingly, the following relevant
legal principles apply to this action. ‘‘To hold
the defendant liable for her 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.'' (Internal quotation marks
omitted.) Palmieri v. Stop & Shop Cos., 103
Conn.App. 121, 123-24, 927 A.2d 371 (2007); see also
Martin v. Stop & Shop Supermaket Cos., 70
Conn.App. 250, 251, 796 A.2d 1277 (2002).
Our
Supreme Court has explained that ‘‘[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 ...