Opinion
No. FSTCV08-5008080
July 8, 2011
Memorandum of Decision on Motions for Summary Judgment (Nos. 133 135)
PROCEDURAL/FACTUAL BACKGROUND
This motion for summary judgment arises out of a slip and fall accident on June 18, 2006. On that date, the plaintiff, Diane Walsh, alleges that she tripped over a rug at 735-737 Canal Street in Stamford, Connecticut, and broke her wrist. The plaintiff originally sued seven defendants: The Art Antique Exchange, LLC; Stamford Antiques Center, Inc.; Antares SHS GP, LLC; Antares SHS Limited Partnership; Mid-Century Antiques, LLC; Canal Street Antiques, LLC; and The Decorator's Secret, LLC. On February 26, 2009, the plaintiff withdrew her action against Mid-Century Antiques, LLC; Canal Street Antiques, LLC; and The Decorator's Secret, LLC. On October 8, 2009, the plaintiff moved for and was granted permission to add an additional defendant, Antares Yale Towne SPE, LLC.
The plaintiff's amended complaint, filed October 8, 2009, sounds in three counts. The first count is based on premises liability and alleges that the carpet was a dangerous and defective condition and that the defendants were negligent in failing to inspect the carpet, failing to maintain the carpet, failing to erect safeguards, failing to warn, and conducting activities in such a manner to cause harm to pedestrians.
The second count alleges negligent nuisance. That count incorporates the factual allegations of the first count and further alleges that a "series of consecutive oriental rugs to line the aisle walkway" constituted a dangerous and defective condition of an ongoing and continuous nature. It was an unreasonable use of the property. It had a natural tendency to create danger and inflict injury.
The third count alleges absolute nuisance. That count incorporates the allegations of the first count. It further alleges that the use of a series of "oriental carpets" constituted an unreasonable and dangerous condition. The defendants created that condition intentionally. The condition had the natural tendency to create danger and cause injury to those who traversed it.
On January 19, 2010, The Art Antique Exchange and Stamford Antiques Center (the Antiques defendants) moved for summary judgment on the ground that they did not have actual or constructive notice of the alleged defective condition. They filed an accompanying memorandum of law in support with attachments consisting of the affidavit of Andrew Clark, a partner of the defendants Art Antique Exchange and Stamford Antique Center, Inc, excerpts from the deposition of plaintiff Diane Walsh, and a sworn "Declaration" signed by plaintiff Diane Walsh on August 24, 2007. On February 2, 2010, Antares Yale and Towne SPE, LLC, Antares SHS GP LLC, and Antares SHS Limited Partnership (the Antares defendants) also moved for summary judgment on the ground that they did not have actual or constructive notice of the alleged defect. They submitted a memorandum of law in support that incorporated by reference the memorandum and materials submitted by the Antiques defendants.
On February 9, 2010, the plaintiff filed an objection and memorandum in opposition to the defendants' motions for summary judgment, with an attachment consisting of excerpts from the deposition of Andrew Clark. Both motions were argued at the short calendar of March 14, 2011.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"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. 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).
A Negligence Claim
As to the first count of the plaintiff's complaint, the defendants argue that they did not have actual or constructive notice of the alleged defect. They argue that there is no evidence that they were on actual or constructive notice of the alleged defect. The plaintiff counters that the plaintiff need not demonstrate the precise cause of her fall because the doctrine of res ipsa loquitur applies to this case. She argues that the defendants were in exclusive control of the area in which she fell, and that their negligence was the only possible cause of the accident.
"It is undisputed that the owner of a retail store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers . . . Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees: Typically, [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, in addition to control by the defendant, 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." (Citation omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
In order to recover on her theory of premises liability, therefore, the plaintiff must show, first, the existence of an unsafe condition on the premises and, second, that the defendants were on actual or constructive notice of such a defect. In order to succeed on their motions for summary judgment, the defendants must demonstrate the absence of any genuine issue of material fact as to each of those two issues and that they are entitled to a judgment as a matter of law. In argument they have conflated the two issues and argue, in effect, that they had no actual or constructive notice of the specific defect claimed by the plaintiff because plaintiff has not identified any specific defect which allegedly caused her fall and her injuries.
The defect alleged by the plaintiff is ". . . an upended and/or unsecured and/or improperly laid and/or overly worn and/or otherwise dangerous and defective carpet located within the common area of the aisle walkway running between and alongside a series of antique vendors' booths located within the Premises. The carpet in question was one of a series of carpets that covered the aisle walkway from one end of the building to the other." (Amended Complaint, ¶ 9.) The extremely general and imprecise allegation of defect presage difficulty in satisfying the notice requirement. The evidence submitted by defendants bears this out. Mr. Clark's affidavit states: that on the date in question the Antique Defendants rented out space to various antique dealers, so that the various antique dealers could sell their goods (¶ 4); that various dealers would display antique carpets flat on the floor and when an antique dealer sold a specific antique carpet they would replace that carpet with another for sale (¶¶ 5, 6); the plaintiff alleges that on June 18, 2006 she tripped over an antique carpet (¶ 7); that the plaintiff never reported to any representative of [the Antique Defendants] which specific antique carpet she alleges to have tripped over (¶ 8); that [the Antique Defendants] have no independent knowledge of any defects contained within or around the antique carpet plaintiff alleges to have tripped over (¶ 18); that [the Antique Defendants] have no independent knowledge and/or prior notice of any defective condition of any antique carpet and/or any other carpet, located within the subject property on or about June 18, 2006, and at any other time prior thereto; (¶ 19); and that as [the Antique Defendants] had no knowledge, whether from the plaintiff or independently, of the specific carpet the plaintiff alleges to have tripped over, and of the alleged defects claimed by the plaintiff, they have no knowledge as to any alleged defect was a continuing one. The plaintiff's own Declaration is not inconsistent with the Clark affidavit. "My accident occurred as I was backing up to take a photograph." (¶ 3.) "I was in the common area and while backing up tripped over something. I did not see what I tripped over." (¶ 4.) In deposition, when confronted with those statements from her Declaration, she testified, "I never came to the realization that the carpet may have caused my fall. It was the only thing that was there." (p. 62.) She testified that, while walking backward on the carpet, she felt "something" that she did not see hit the back of her heel, causing her to fall backwards; and that she stepped on "something that was not flat" hitting the back of her shoe (p. 85) but could not say how long that condition had been there. (p. 86.) Other than saying the carpet in question was a large oriental style rug, she could not identify or describe the rug: "I don't remember what the rug looked like" (p. 53). And, when confronted with the allegations of carpet defect from her amended complaint, she testified:
Q. Regarding the carpeting you claim caused your fall, was it up-ended?
A. No.
Q. Was it improperly laid?
A. I wouldn't know that.
Q. Was it overly worn?
A. I wouldn't know that.
Q. Was it dangerous?
A. I wouldn't know that.
Q. Was it defective?
A. I wouldn't know that.
(p. 78.)
The court holds that the defendants have sustained their initial burden of showing the absence of any material issue of fact on the issue of lack of any actual or constructive notice of the specific defect that caused plaintiff's fall and injuries. This is so because the evidence submitted shows conclusively that the alleged carpet which allegedly caused the fall has not been identified, and there is no evidence that the alleged carpet was defective or dangerous in any way, or for what period of time the carpet or other defect in question had been in place at the premises in the same condition as the time of the accident. Under these circumstances it would be impossible as a matter of law for either group of defendants to have actual or constructive notice of the specific defect which caused the fall. One cannot have notice of a specific condition or defect that cannot even be identified.
As the plaintiff testified: "They changed, the rugs change. Whatever rugs sell, they are typically replaced by other rugs." (p. 48.)
Plaintiff as the non-moving party attempts to satisfy her burden of showing the factual predicate for an issue of fact by invoking the doctine of res ipsa loquitur, which allows a reasonable inference of negligence when three conditions are satisfied: "(1) [t]he situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection, or user; (2) both inspection and user must have been at the time of the injury in the control of the party charged with neglect; [and] (3) the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured." Giles v. New Haven, 228 Conn. 441, 446 (1996). Aside from the fact that the evidence submitted fails to satisfy at least the first requirement (a person who claims to have tripped over "something" is not a situation that can only occur from someone's carelessness), plaintiff has cited no authority, nor is the court aware of any, that the doctrine of res ipsa relieves a plaintiff in a premises liability action from proving actual or constructive notice of a specific defect. "The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption . . . It is but a specific application of the general principle that negligence can be proved by circumstantial evidence." Lowman v. Housing Authority, 150 Conn. 665, 670 (1963). The doctrine cannot be invoked unless there is enough evidence that, if credited, presents the defendant's negligence as the most plausible explanation. Giles, supra, at 447. That evidence is totally lacking here, especially when one considers that evidence of prior notice of specific defect is an essential element of negligence in a premises liability case. See Riccio v. Harbour Village Condominium Association, 281 Conn. 160 (2007) (Supreme Court declined to relax the notice of specific defect requirement to a notice of general conditions requirement.)
Plaintiff also attempts to demonstrate an issue of fact from the deposition testimony of the Antique Defendants partner Andrew Clark, who testified that his staff was responsible for laying out rugs, inspecting, vacuuming and maintaining them and making sure they were properly resecured "if anybody complained about an edge of a rug being loose or something." (Tr.14.) Although this testimony would be relevant on the issue of control, which is not raised by these motions for summary judgment, it is not an admission or even circumstantial evidence on the issue of notice of specific defect — which is here at issue — because the question and Mr. Clark's answer were all hypothetical, based on an assumption that the allegations of the plaintiff's complaint were true. This was later made clear:
Q. Do you know if the rug . . . that Mrs. Walsh allegedly tripped on, do you know if it was secured or not that day?
A. From what I'm reading, it was quote bunched up. So it was either being installed. But . . .
Q. So you infer from the fact that it was bunched up it had not been secured, assuming that's true?
A The very nature — if it was true, that it was bunched up, would mean, in all odds, that Nelson [defendant's employee] was there installing it. To have a rug rolled up or bunched up in the middle of the aisles, I can't believe existed.
Q. So let me see if I understand your testimony. If we assume for the sake of argument that this was a bunched up oriental carpet in front of Mr. Geithman's booth, it would be your belief based on your experience with the store and Mr. Casada [employee] that he would have been in that area working on it?
A. Right.
(Tr. 22, 23.)
Contrary to plaintiff's argument, this testimony does not support an inference of negligence and notice. "An inference must have some definite basis in the facts; and the conclusion based on it must not be the result of speculation and conjecture." Mercado v. Wal-Mart Stores, Superior Court Docket No. CV99-0060680S, (March 20, 2000, Sferraza, J.) 2000 WL 350306 at *2. Viewed in the light most favorable to the plaintiff, and based on the totality of evidence cited by all parties, it cannot be found that either group of defendants had either actual or constructive notice any defect in the area of plaintiff's fall which would have caused her injuries. The motion for summary judgment is therefore granted as to the first count.
B Nuisance Claims
The plaintiff's complaint, in counts two and three, also alleges that the rugs were a negligent, or, in the alternative, absolute nuisance. The defendants argue that the plaintiff cannot recover under those theories of liability because the plaintiff cannot prove any of the four elements of a nuisance. The plaintiff counters that the existence of nuisance is an issue of fact. She further argues that laying a series of area rugs in a walkway would tend to create a dangerous hazard to pedestrians and that such a hazard is therefore a nuisance.
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance. W. Prosser W. Keeton, [Torts (5th Ed. 1984)] § 86, p. 616. [The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages . . . These elements developed through a long line of cases that can be described best as public nuisance cases." (Citations omitted; internal quotation marks omitted.) Murphy v. EAPWJP, LLC, 123 Conn.App. 316, 325-26, 1 A.3d 1171, cert. denied 298 Conn. 960, 5 A.3d 489 (2010).
"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
In this case, the plaintiff's nuisance claim is not a private nuisance because the nuisance alleged in the plaintiff's complaint is not an invasion of the plaintiff's interest in the private use and enjoyment of land. The plaintiff must therefore be alleging a public nuisance.
"We have defined the concept of public nuisance as follows. Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence . . . Moreover, a private individual may create a nuisance in a public place . . . Typical examples of public nuisances are: pollution and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." (Citations omitted; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).
A public nuisance claim is not a substitute for a negligence claim grounded in premises liability. "One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance." Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939). In Webel the Supreme Court ruled that an allegation of an uneven floor was not a public or private nuisance claim, but rather a premises liability claim. In that case, the plaintiff's complaint alleged that the floor of the ladies restroom was seven inches higher than the floor of the rest of the shop. The plaintiff alleged that she tripped over that seven-inch lip. The Supreme Court ruled that the plaintiff's allegations would not state a claim for public or private nuisance, but rather alleged premises liability. See also Kelsey v. Schoolground Three, 49 Conn.Sup. 338, 877 A.2d 963 (2005) (granting defendant's motion for summary judgment where plaintiff alleged that her deceased husband slipped and fell on private property even though the property was accessible to the public); Dahlstrom v. Roosevelt Mills, Inc., 27 Conn. Sup. 355, 238 A.2d 431 (1967) (plaintiff's complaint did not state a cause of action for public nuisance where soft drink vending machine in defendant's store allegedly caused injuries); Norton v. Land Management, Inc., Superior Court, Judicial District of New Haven, Docket No. NNH 391950 (December 12, 1996, Blue, J.) (plaintiff's complaint did not state a cause of action for public nuisance where the plaintiff alleged that he slipped and fell on loose stones and gravel in the defendant's parking lot).
The issue before the court was whether the defendant, the lessor of the premises, could be held liable where the plaintiff's complaint alleged that the lessee was in possession of the premises. In ruling on that demurrer, however, the court ruled "The liability in this case, if one exists, belongs in the field of negligence." Webel v. Yale University, supra, 125 Conn. 525.
In this case, an oriental rug inside the defendant's business did not violate the "rights enjoyed by citizens as part of the public." Webel v. Yale University, supra, 125 Conn. 525. Indeed the oriental rug in this case, an alleged defect in the defendants' premises, is similar to the seven inch lip in the floor between rooms in Webel. There, our Supreme Court ruled that the defect in the premises was properly actionable under a premises liability theory, but not under a public nuisance theory. Id. Similarly, here, "[t]he liability in this case, if one exists, belongs in the field of negligence." Under the second and third counts there are no genuine issues of fact that would have a bearing on the plaintiff's ability to recover under those nuisance theories and the defendants are entitled to judgments thereon as a matter of law.
ORDER
For the foregoing reasons, the motions for summary judgment are granted, and judgment shall enter in favor of the moving defendants The Art Antique Exchange, LL, Stamford Antique Center, Inc., Antares Yale and Towne SPE, LLC, Antares SHS GP, LLC, and Antares SHS Limited Partnership on all three counts of the complaint.