Opinion
No. 07-5007155
February 26, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #110
FACTS
On November 16, 2007, the plaintiff, Sandra Koozmitch, brought this action for injuries she allegedly sustained from slipping and falling on ice in the parking lot of a Burger King fast food restaurant being operated in Norwich, Connecticut. In her original complaint, the plaintiff alleged negligence claims against South Kendall Properties, Inc. and Burger King Corporation. On May 11, 2009, the defendants filed a motion for summary judgment on the ground that they had no notice of the specific defect that the plaintiff alleged and therefore could not have breached any duty to cure the alleged condition.
On November 24, 2009, the plaintiff filed a request to amend and amended complaint. The first and second counts of the amended complaint allege negligence claims against South Kendall Properties, Inc. and Burger King Corporation, respectively. The third and fourth counts of the amended complaint allege spoliation of evidence claims against South Kendall Properties, Inc. and Burger King Corporation, respectively. On November 25, 2009, the plaintiff filed an objection to the defendants' motion for summary judgment. The defendants did not file an objection to the plaintiff's request to amend or a response to the plaintiff's objection to the motion for summary judgment.
The court recognizes that the plaintiff filed her request to amend and amended complaint after the defendants filed their motion for summary judgment. Nevertheless, the amended complaint is the plaintiff's operative pleading, as the defendants are deemed to have consented to the plaintiff's request to amend pursuant to Practice Book § 10-60(a)(3), in that they did not file a timely objection thereto. Pursuant to Practice Book § 10-61, the defendants' motion for summary judgment will be applied to the plaintiff's amended complaint.
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).
"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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Negligence — Premise Liability (First and Second Counts)
The defendants argue that they are entitled to summary judgment because the plaintiff cannot prove that they had actual or constructive notice of the specific defect that allegedly caused the plaintiff's injuries. In support of their argument, the defendants present evidence that prior to her fall, the plaintiff saw snow piled up on the grass and above and along the curb, but did not know that ice existed. Additionally, the defendants submit the affidavit of the manager of the restaurant, who states that he inspected the parking lot shortly before the plaintiff fell and did not observe any ice or snow. Finally, the defendants provide the affidavit of a meteorologist who states that no precipitation occurred on the date of the alleged injury, and that "no snow cover remained on unexposed, undisturbed treated ground surfaces . . ." (Affidavit of John J. Bagioni, paragraph 5.)
In response, the plaintiff submits evidence that both her sister and the manager of the restaurant observed the ice after her fall. Additionally, the plaintiff's disclosure of expert witness indicates that a meteorologist will testify that "any untouched snow on the ground as a result of the December 9, 2005 snowfall would have melted by December 19, 2005, yet any snow piled up as a result of plowing would have remained up to and including December 22, 2005. [The meteorologist] will testify that from December 19, 2005 until December 22, 2005, standing water would have remained frozen most of the time." (Plaintiff's Disclosure of Expert Witness, p. 2.)
"It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it. The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it . . . What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case." (Citations omitted; internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163-64, 914 A.2d 529 (2007).
The defendants rely heavily on Riccio v. Harbour Village Condominium Assn., Inc.; id., 164; in support of their position that the plaintiff cannot show that they had knowledge of the ice that was allegedly present in the parking lot at the time of the plaintiff's injury. In Riccio, the plaintiff allegedly fell in the parking lot of a condominium building and sustained injuries. Id., 162. At trial, the defendant, the condominium association, moved for a directed verdict after the plaintiff presented her case-in-chief. Id. The trial court granted the defendant's motion "on the basis that the plaintiff had failed to introduce sufficient evidence to establish that the defendant had notice of the defect that caused the plaintiff's injury, namely, ice on the common walkway near the garbage bin." Id.
On appeal, the Connecticut Supreme Court upheld the trial court's ruling, stating that "[u]nder our current law, [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty. In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed; and, secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice . . . Thus, in order to recover under our current law, the plaintiff was required to prove that the defendant had . . . actual or constructive notice of the specific defect that caused the plaintiff's injuries." (Citation omitted; internal quotation marks omitted.) Id., 164.
The Supreme Court continued, noting that "[i]t is a matter of common knowledge that whether snow melts and refreezes is entirely dependent on the ambient air temperature. In the present case, the plaintiff failed to produce any evidence regarding the air temperature in Branford on the days and hours preceding her fall. The plaintiff therefore failed to produce any evidential basis from which a fact finder could determine that the black ice that caused the plaintiff's fall in fact had been caused by the melting and refreezing of snow and not by another intervening factor, such as, for example, an accidental spill of fluid on the ground near the garbage bin where the plaintiff fell." Id., 165.
In contrast, the plaintiff in the present case presents the exact evidence that the Supreme Court found lacking in Riccio. The defendants' own evidence indicates that snow was piled in the parking lot at the time of the alleged injury. The plaintiff presents evidence that the snow could have melted and refrozen in the parking lot, creating a patch of ice that caused her to fall. Thus, an issue of fact exists as to how the alleged condition was created. Additionally, the defendant submits evidence that the manager found no ice in the parking lot prior to the plaintiff's fall, but the plaintiff presents evidence that her sister and the manager observed the ice subsequent to her injury. Whether the alleged condition existed for a length of time reasonable for the defendants to discover and remedy it is a question of fact. Genuine issues of material fact exist that preclude summary judgment from entering on the first and second counts.
Spoliation of Evidence (Third and Fourth Counts)
In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244, 905 A.2d 1165 (2006), the Connecticut Supreme Court presented the elements of a cause of action for intentional spoliation of evidence: "(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of [the] defendant that litigation exists or is probable, (3) willful destruction of evidence by [the] defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts." (Internal quotation marks omitted.) The plaintiff alleges facts to support each of these elements in her amended complaint. The defendants have not addressed this cause of action in their motion for summary judgment, nor have they presented evidence that entitles them to judgment as a matter of law on counts three and four. Accordingly, summary judgment cannot enter with respect to these counts.
CONCLUSION
Based on the foregoing, the defendants' motion for summary judgment is denied with respect to all counts of the plaintiff's amended complaint.