Pue v. Wal-Mart Stores, Inc.

Victoria PUE v. WAL-MART STORES, INC.

No. CV176074701S

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

June 3, 2019

UNPUBLISHED OPINION

Wilson, J.

FACTS

The plaintiff, Victoria Pue, filed a complaint on October 31 2017, against the defendant, Wal-Mart Stores Inc., in which she alleges the following facts. On November 3, 2015, the plaintiff was lawfully on the premises, as a business invitee of a retail grocery store owned and operated by the defendant at 315 Foxon Boulevard, in New Haven, Connecticut (premises) when she slipped and fell, without warning, on a puddle of yogurt and/or other liquid on the floor near aisles nine and ten. As a result of the fall, the plaintiff suffered pain and sustained injuries. The fall was a direct and proximate cause of the negligence and carelessness of the defendant acting through one or more of its agents, servants or employees. The defendant filed an answer and special defense on January 23 2018, whereby it admits that it owns and operates the premises, but leaves the plaintiff to her proof and/or denies the remaining allegations. The defendant also alleges a special defense that the plaintiff’s injuries were caused by her own negligence and carelessness. The plaintiff filed a reply on January 23, 2018, and she denies the special defense.

On September 4, 2018, the defendant filed a motion for summary judgment, and a memorandum of law in support. In support of the motion, the defendant submitted by way of evidence, a notice of a proposed exhibit (surveillance video) to be provided at oral argument, and an affidavit of Michael Nuzzi an asset protection associate for the defendant at the premises.^[1] The defendant argues that no genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law because it did not receive actual or constructive notice of the defective condition and, therefore, cannot be liable for the plaintiff’s injuries. The defendant asserts that the surveillance video clearly depicts a shopper dropping a container of yogurt, another shopper picking the container up and placing it on a display, said shopper looking at a substance on the floor, and the plaintiff slipping and falling shortly thereafter, but does not depict any employee of the defendant responding to the spilled yogurt prior to the plaintiff’s fall. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶4-16. In addition, the defendant attached an affidavit of Gloriliz Rodriguez, the personnel manager for the defendant at the premises on the date of the alleged fall, to its reply brief filed on November 1, 2018, wherein she attests that she is familiar with the identity of employees at the premises, and that after viewing the surveillance video, she did not recognize anyone on the video as an employee. See Def.’s Reply Obj. Mot. Summ. J., Rodriguez Aff., ¶¶3, 5-7. The defendant also filed a later reply to the plaintiff s supplement to her objection to the motion for summary judgment on January 31, 2019.^[2] In both reply briefs, the defendant argues that the plaintiff fails to provide any evidence to raise a genuine issue of material fact regarding whether the defendant had actual or constructive notice of the spilled yogurt because the plaintiff’s affidavit is self-serving, and the alleged employee of the defendant has not been verified.

On October 3, 2018, the plaintiff filed an objection to the motion for summary judgment, and a memorandum of law in opposition. The plaintiff counters that there is a genuine issue of material fact, and submits by way of evidence, copies of time-stamped photographs from the surveillance video.^[3] Specifically, the plaintiff asserts that an individual shown on the surveillance video is an employee of the defendant, that he actually saw the spilled yogurt and, therefore, had actual or constructive notice of the defect that caused the plaintiff’s fall. The plaintiff argues that the surveillance video shows "an unknown Wal-Mart employee walking over the exact location of the spilled yogurt mere seconds after it was spilled ... As the employee exits the cash register line, he walks directly into the path where the Plaintiff would later fall. The employee then walks either directly over or directly onto the substance on the ground." Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. The plaintiff also argues that the employee neither stops and calls for maintenance to clean the spill nor waits and warns patrons about the condition of the floor. See Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. Instead, he "just proceeds forward ignoring the slippery nature of the floor." Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. The plaintiff filed a supplement to her objection to the motion for summary judgment on December 27, 2018, wherein she attached her own affidavit, dated December 5, 2018. In her affidavit, the plaintiff attests that she spoke with a manager at the premises after the fall and filled out an incident report. See Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶5. She further attests that, during their conversation, "an unknown African-American male employee of Wal-Mart was called to the desk by the manager," and said employee "stated that he saw the spilled yogurt on the floor when he walked by and was going to ‘deal with it.’" Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶¶6-7.

The motion was initially scheduled for oral argument on November 5, 2018. At that hearing, the surveillance video was marked as defendant’s Exhibit A, and counsel for both parties and this court watched the surveillance video. The court gave the plaintiff permission to file a supplemental brief in response to the video. Additional argument was heard at short calendar on February 4, 2019.

DISCUSSION

Practice Book § 17-49 provides that 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." "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. 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 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017). "A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).

"[A] premises liability claim is a negligence cause of action." Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 791 n.4, 130 A.3d 868 (2015). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 373, 119 A.3d 462 (2015). As to business owners, "[a] business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 116. "[B]usiness owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." Id., 117. "Under Connecticut law, the existence of both actual and constructive notice is a question of fact." Vendrella v. Astriab Family Ltd. Partnership, 133 Conn.App. 630, 659, 36 A.3d 707 (2012), aff’d, 311 Conn. 301, 87 A.3d 546 (2014).

"A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant’s employee ... or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition." (Citation omitted.) Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 412, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014) (appeal subsequently withdrawn on May 9, 2014).

As to constructive...