Opinion
No. CV05-5000179S
April 7, 2008
AMENDED MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#149, #151 AND #152)
Following reconsideration of the defendants' motions for summary judgment, the court hereby orders its previous memoranda of decision vacated and replaced with the following.
In this action arising from the plaintiff's alleged slip and fall in an icy or snowy parking lot controlled by the defendants, the defendants have moved for summary judgment, making two arguments. First, they argue that they are not liable because they did not have actual or constructive notice of the slippery condition of the area of the parking lot where the plaintiff allegedly fell. Second, they argue that they are not liable because the plaintiff's fall occurred during an ongoing storm or so soon after the end of the storm that their failure to remove the ice and snow was not unreasonable.
The defendant John's Lawncare Landscaping, LLC, makes the second argument only. The other defendants make both arguments.
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." Practice Book § 17-49. "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 . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The court will first address the defendants' argument regarding notice. The defendants claim that they did not have constructive notice of the slippery condition of the area of the parking lot where the plaintiff allegedly fell. Specifically, the defendants argue that the plaintiff must demonstrate that the defendants had knowledge, either actual or constructive, of the specific defect that caused her fall, which, the defendants argue, requires the plaintiff to show exactly where she fell. They further argue that because the plaintiff, during her deposition, was not able to identify the exact spot where she fell, she has not met her burden of demonstrating constructive notice.
"When . . . 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 . . . [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 . . . 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." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).
As an initial matter, it is noted that a plaintiff generally does not have an obligation to prove her case prior to trial. As previously stated, the burden shifts to the plaintiff to produce evidence to raise a genuine issue of material fact only once the defendants, as the moving parties, have met their initial burden of providing evidence sufficient to demonstrate the nonexistence of any genuine issue of material fact. See Zielinski v. Kotsoris, supra, 279 Conn. 318-19; Rockwell v. Quintner, 96 Conn.App. 221, 228-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). Accordingly, the initial question for the court to consider is whether the defendants have submitted evidence that is sufficient to support a conclusion that the defendants did not have constructive notice of the slippery condition in the area where the plaintiff allegedly fell; that is, the defendants must offer evidence to demonstrate that the condition had not existed for such a length of time that their employees should, in the exercise of due care, have discovered it in time to have remedied it.
The evidence on which the defendants rely on this issue is the plaintiff's statement, during her deposition, that she could not identify the exact spot where she fell, which, the defendants argue, is fatal to her cause of action pursuant to Boretti v. Panacea Co., 67 Conn.App. 223, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). In Boretti, which involved a slip and fall on ice in a parking lot, the trial court permitted the plaintiff to elicit testimony from her daughter, who was with her at the time of her fall, regarding the specific condition of the parking lot in the area where her motor vehicle was parked, but did not permit the plaintiff to elicit testimony from her daughter about the general condition of the parking lot. Id., 226-27. On appeal, the Supreme Court affirmed, concluding that the latter evidence was not probative of constructive notice because constructive notice "cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) Id., 228.
The defendants' reliance on Boretti is misplaced under the facts of the present case. While the plaintiff in this case was not able to identify the exact location of her fall, she was able to identify, with the help of photographs, the area of the parking lot where she fell. Specifically, she was able to point out that she fell in an area near a tree shown in one of the photographs. She was also able to say that her car was parked in one of the parking spaces marked in yellow in the photograph and that she had not yet reached her car when she fell. Thus, the plaintiff's deposition testimony in the present case is not analogous to the daughter's testimony in Boretti regarding the condition of the parking lot generally; it is more analogous to the daughter's testimony regarding the specific condition where the plaintiff fell, which the trial court in Boretti allowed. Additionally, and perhaps more importantly, the excerpts the defendants have submitted from the plaintiff's deposition do not reach the essential question of constructive notice, that is, how long the hazardous condition had existed prior to the plaintiff's alleged fall, and whether the length of time was such that the defendants should have discovered the condition. Accordingly, the defendants have failed to demonstrate that there is no genuine issue of material fact regarding constructive notice; therefore, they are not entitled to summary judgment on the basis of that issue.
It is difficult for the court to determine the exact degree of specificity the plaintiff provided in her deposition testimony, because the photographs referred to therein have not been submitted to the court. However, in the context of a motion for summary judgment, in which the court must view the evidence in the light most favorable to the nonmoving party, the ambiguity created by the absence of the photographs must be resolved in the plaintiff's favor.
The defendants have also suggested that constructive notice is lacking because of the plaintiff's uncertainty, at her deposition, about whether she slipped on ice or snow or both. They have failed to offer any authority indicating that a plaintiff is barred from recovering for a slip and fall because she cannot say with certainty whether the substance she fell on was ice or snow or both, and the court has discovered no such authority.
The defendants' other argument is that they are entitled to summary judgment because the plaintiff's fall occurred during an ongoing storm or so soon after the end of the storm that the defendants' failure to remove any ice and snow was reasonable. In this regard, our Supreme Court has stated: "[I]n the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989).
The defendants have failed to establish that there is no genuine issue of material fact regarding whether there was an ongoing storm at the time of the plaintiff's fall. Although the defendants have submitted weather records indicating that precipitation continued to fall at the time of the plaintiff's fall and thereafter, those reports are from Meriden and Hartford, not from Wolcott, where the plaintiff's fall occurred. Moreover, the plaintiff testified that on the morning of her fall, she awakened at 7 a.m. and that the storm had already ended at that time. The plaintiff's testimony, as well as her husband's, indicates that she fell in the parking lot after 9 a.m. Accordingly, there is a genuine issue of material fact regarding whether there was an ongoing storm at the time of the plaintiff's fall.
The plaintiff also argues that, even if there was an ongoing storm, there is a genuine issue of material fact regarding whether there were unusual circumstances that nevertheless obligated the defendants to remove snow and ice during the storm. In light of the court's conclusion that there is a genuine issue as to whether the storm was ongoing, it need not address this additional issue.
The defendants maintain, however, that they are not liable because the lapse of time between the end of the storm and the plaintiff's fall was within the reasonable time that a property owner is permitted to wait before removing ice and snow. See id. In this regard, the court notes that the evidence discussed previously, when viewed in the light most favorable to the plaintiff, would support a conclusion that the plaintiff fell more than two hours after the end of the storm. For the court to grant summary judgment in favor of the defendants, therefore, it would have to conclude that two hours is a reasonable time to wait to clear ice and snow as a matter of law. How much time is reasonable for a landowner to wait, however, is an issue of fact to be resolved by the finder of fact at trial after considering all of the circumstances. See Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 344 n. 4, 710 A.2d 788 (1998) ("[t]he court . . . properly allowed the jury to consider all of the evidence presented and to make the factual determination as to whether, at the time of the plaintiff's fall, the storm had ended and a reasonable time thereafter had passed"). The defendants have not provided, nor is the court aware of, any authority for the proposition that a wait of more than two hours is reasonable as a matter of law.
For the foregoing reasons, the court denies the defendants' motions for summary judgment.