Barbaro v. Lucky Brand Dungarees Stores, LLC

Anna BARBARO v. LUCKY BRAND DUNGAREES STORES, LLC

No. CV176072191S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

June 18, 2019

UNPUBLISHED OPINION

Wilson, J.

FACTS

This action arises out of an alleged slip and fall incident that occurred on the premises of Lucky Brand Dungarees Stores LLC, on March 17, 2017. The defendants, Lucky Brand Dungarees Stores, LLC, Lucky Brand Dungarees Stores USA, LLC, and Lucky Brand Dungarees USA, LLC, are limited liability companies duly organized under the laws of the State of Delaware, and are authorized to conduct business in the State of Connecticut.^[1] The plaintiff, Anna Barbaro, filed a three-count amended complaint in this action on November 13 2017, against all three defendants sounding in premises liability.

In counts one through three of her amended complaint, the plaintiff alleges the following facts. At all relevant times the defendants owned, operated, controlled, possessed maintained and/or managed a commercial retail space known as the Lucky Brand Store (store) located at the Clinton Crossing Premium Outlet Facility, having an address of 20 Killingworth Turnpike, Clinton Connecticut (Clinton Crossing). On March 17, 2017, the plaintiff was a business invitee and lawfully on the premises of Clinton Crossing and the store. At approximately noon, the plaintiff entered the store from the open air mall area of Clinton Crossing. As the plaintiff entered the store, she was caused to trip and fall into a display. The plaintiff’s fall was the result of her tripping on a metal frame and/or a rubber mat located at the store’s entrance that was allowed to be in a raised position.

The defendants, through their agents, servants and/or employees, were negligent and careless in one or more of the following ways: (1) allowing a dangerous condition to exist at the entrance of the store; (2) the defendants knew, or in the exercise of reasonable and proper inspection should have known, about the dangerous and defective condition, a raised metal frame and/or rubber mat, and should have taken timely measures and remedies to correct the same, but failed to do so; (3) failure to keep the area inside the store at the entrance where the plaintiff fell in a reasonably safe condition for the plaintiff and other business invitees, when in the exercise of reasonable care it should have done so; (4) failure to conduct an adequate inspection of the area inside the store at the entrance of the store prior to the incident; (5) failure to warn invitees and the plaintiff of a dangerous and/or defective condition that existed inside the store at the entrance which was a well-traveled area; (6) breach of their duty to keep the store reasonably safe for all those who lawfully use the store; and (7) failure to block off or barricade the walkway to prevent people, such as the plaintiff, from walking in the area inside the store at the entrance. As a direct and proximate result of the plaintiff’s fall, the plaintiff sustained injuries and seeks damages.

On September 5, 2018, the defendants filed the instant motion for summary judgment as to counts one through three of the plaintiff’s amended complaint on the grounds that there are no genuine issues of material fact that a defect did not exist at the subject premises, and even if there was a defect, defendants did not have actual or constructive notice of any defect, which therefore entitles them to judgment as a matter of law. In support of their motion, the defendants filed a memorandum of law and exhibits. On November 1, 2018, the plaintiff filed an objection to the defendants’ motion for summary judgment accompanied by a memorandum of law and exhibits. The plaintiff argues that genuine issues of material fact exist as to the existence of a defect, whether the defendants had notice of the defect, and whether the defendant’s negligence was the actual and proximate cause of the plaintiff’s injuries. On January 9, 2019, the defendants filed a reply to the plaintiff’s objection to the motion for summary judgment. On February 6, 2019, the plaintiffs filed a surreply to the defendants’ reply to the plaintiff’s objection to the motion for summary judgment. Oral argument was heard on the motion at short calendar on February 19, 2019.

DISCUSSION

I Legal Standard of Review

"[S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016); see also Practice Book § 17-49. "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. 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 ... 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). "A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821 116 A.3d 1195 (2015). "A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Emphasis omitted; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).

"Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21. "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 ..." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). "Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment ... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ..." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21.

"Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing 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." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013).

In the present matter, the defendants move for entry of summary judgment based on two grounds. First, the defendants argue that there is no genuine issue of material fact as to whether a defective condition existed on the premises that caused the plaintiff’s alleged injuries. Specifically, the defendants argue that they have submitted uncontroverted evidence that a specific defective condition did not exist on the premises that allegedly caused the plaintiff’s injuries. Additionally the defendants argue that there is no genuine issue of material fact as to whether the defendants had actual or constructive notice of the alleged defective condition on the premises. In support, the defendants emphasize that the plaintiff repeatedly testified during her deposition that she was unsure what she tripped on at the premises or why she tripped. Thus, the defendants argue, the plaintiff’s testimony demonstrates that her claim lies in the field of speculation and conjecture because the plaintiff cannot identify what she tripped on with certainty. Moreover, the defendants argue that they have submitted uncontroverted evidence that ...