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Bisson v. Wal-Mart Stores, Inc.

Court of Appeals of Connecticut

September 11, 2018

REBECCA BISSON
v.
WAL-MART STORES, INC.

          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 ...


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