Opinion
No. 476093
June 17, 2005
MEMORANDUM OF DECISION
The plaintiff resides in a condominium at Harbor Village Condominiums. The defendant Harbor Village Condominium Association, Inc. owns and controls the common areas of this large condominium complex. On March 8, 2001, the plaintiff was bringing trash to a trash disposal unit located on a common area. There was a good deal of snow on the ground from one or more snow falls that had occurred prior to March 8, 2001. While the plaintiff was at the trash disposal unit, she slipped on a small patch of ice, allegedly sustaining injuries.
The plaintiff brought this action against the defendant. The case was tried to a jury. After the plaintiff rested, the defendant moved for a directed verdict on the grounds that the plaintiff had failed to prove that the defendant had actual or constructive notice of the ice patch. The court agreed and granted the motion. The plaintiff has moved to set aside the directed verdict.
"It is undisputed that the plaintiff in this case was a business invitee of the defendant and that, consequently, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition . . . Typically, [f]or the plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her 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 . . ." (Citations omitted; internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, CT Page 10549 811 A.2d 687 (2002).
At oral argument on the plaintiff's motion to set aside the verdict, the plaintiff advanced four reasons why the court erred in directing a verdict for the defendant based on lack of actual or constructive notice of the existence of the "small" patch of ice where she fell.
Thus characterized by the plaintiff at oral argument.
First, the plaintiff argues that there was evidence that she saw sand on the area where she fell when she went back to take photographs of that area and that this is evidence of notice to the defendant. This is something of a non sequitur. While the sand on the ice after the plaintiff's fall is evidence that the defendant had actual notice of the ice at that time, that the defendant had actual notice of the ice after the plaintiff fell is, without more, not evidence that it had actual notice of the ice before she fell. Nor is it any evidence that it should have known of the unsafe condition in time to have taken steps to correct the condition or to take other suitable precautions. There simply was no evidence, direct or circumstantial, as to when the ice formed. Moreover, "[i]t has long been the settled rule in this State that evidence of subsequent repairs is inadmissible to prove negligence or an admission of negligence at the time of the accident." Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936); see Curry v. Burns, 33 Conn.App. 65, 69, 633 A.2d 315 (1993).
Second, the plaintiff argues that it is common knowledge that snow or ice has a tendency to melt and re-freeze. The answer here is two-fold. First, "the 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." (Internal quotation marks omitted.) Cruz v. Drezek, 175 Conn. 230, 235, 397 A.2d 1335 (1978). "On the question of notice the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). Second, the plaintiff's argument still does not answer the question as to when the ice was formed. That there was ice on the ground on which the plaintiff fell and that there was also snow which had fallen prior to the date of her fall does not prove that the defendant had constructive notice of the ice. Dible v. Village Improvement Co., 123 Conn. 20, 192 A. 308 (1937). "Mere proof of the presence of some snow or ice or both does not necessarily show a breach of defendant's duty." (Emphasis added.) Id., 23.
Third, the plaintiff argued that the instant case is "unique" because the defendant is a condominium association which is paid to make its premises safe. The rule is that "the owner of the property owe[s] to the [plaintiff] invitee the duty to use reasonable care to have and maintain the premises reasonably safe for the reasonably to be anticipated uses the invitee would make of them." Kopjanski v. Festa, 160 Conn. 65, 273 A.2d 692 (1970). This is not a new standard. See Beers v. Housatonic Rail-Road Co., 19 Conn. 566, 571-72 (1849). "The standard of care is unvarying — that of the ordinarily prudent person under the circumstances surrounding him — but . . . the degree of care varies with the circumstances." (Emphasis in original.) Matulis v. Gans, 107 Conn. 562, 565, 141 A. 870 (1928). The plaintiff has not cited, and the court's own research has not unearthed, any authority for the proposition that the standard of care varies depending on whether the defendant is being compensated or has a profit motive. Moreover, even if the defendant had an elevated duty to render the premises safe, there remains no evidence as to when the ice formed.
Finally, the plaintiff alleges that the defendant admitted notice in his special defense when it alleged that the plaintiff "knew or should have known that the area over which she was walking could be slippery as a result of weather then and there existing . . ."
"Judicial admissions are voluntary and knowing concession of fact by a party or a party's attorney occurring during judicial proceedings . . . Whether a party's statement is a judicial admission or an evidentiary admission is a factual determination to be made by the trial court." In re Kristy, 83 Conn.App. 298, 312, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004). An allegation that the plaintiff "knew or should have known that the area over which she was walking could be slippery as a result of [the] weather" (emphasis added) is not a concession that the defendant had actual notice of or should have known that a small patch of ice actually existed next to the trash disposal unit where the plaintiff was standing. Cf. Toomey v. Danaher, 161 Conn. 204, 214, 286 A.2d 293 (1971). The special defense seeks to impose negligence on the plaintiff for not exercising greater care in view of conditions naturally productive of slipperiness. Such an allegation does not admit that the defendant had actual or constructive notice of the actual defect, even though the weather conditions may have subsequently produced the defect. Cruz v. Drezek, supra, 175 Conn. 235. Moreover, an admission must be offered into evidence to be considered. Toomey v. Danaher, supra, 161 Conn. 214; Martins v. Connecticut Light Power Co., 35 Conn.App. 212, 228, 645 A.2d 557 (1994). This was not.
The motion to set aside the directed verdict is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court