Rivera v. CR Summer Hill, Ltd. Partnership

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ROSE RIVERA v. CR SUMMER HILL,
LIMITED PARTNERSHIP ET AL.
(AC 37906)
Lavine, Keller and Mihalakos, Js.
Argued October 13, 2016—officially released January 3, 2017
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Jonathan A. Cantor, for the appellant (plaintiff).
Sharon Baldwin, for the appellees (defendants).
Opinion
MIHALAKOS, J. The plaintiff, Rose Rivera, appeals
from the summary judgment rendered by the trial court
in favor of the defendants, CR Summer Hill, Limited
Partnership, and Carabetta Property Management, Inc.
On appeal, the plaintiff claims that the court improperly
granted the defendants’ motion for summary judgment
because a genuine issue of material fact existed regard-
ing whether the defendants had constructive notice of
the inadequate lighting and the lack of a handrail that
caused the plaintiff’s alleged injuries. We agree and
reverse the judgment of the trial court.
The pleadings and documents submitted in connec-
tion with the defendants’ motion for summary judg-
ment, along with the plaintiff’s objection, reveal the
following alleged facts and procedural history. On Feb-
ruary 4, 2013, the plaintiff visited her sister at the Wood-
bury apartment complex in Middletown. The complex
is owned by CR Summer Hill, Limited Partnership, and
managed by Carabetta Property Management, Inc. The
plaintiff arrived at the complex at approximately 6 p.m.
and traversed a walkway that included a stretch of
elongated steps.1 At the time, she neither observed any
defects along the walkway, nor had any trouble travers-
ing it. At approximately 8 p.m., the plaintiff left her
sister’s residence, travelling along the same walkway.
The walkway was well lit until the plaintiff reached the
stretch of elongated steps. The plaintiff could not see
a step down, and, as a result, she fell, sustaining injuries.
By way of a complaint dated March 27, 2014, the
plaintiff commenced this negligence action against the
defendants, alleging that her fall and resulting injuries
were caused by the negligence and carelessness of the
defendants, their agents, their servants, and/or their
employees in, inter alia, failing to provide adequate
lighting, and failing to provide a handrail or give any
indication of the existence of a change in elevation at
the location of the incident. On November 12, 2014,
the defendants filed a motion for summary judgment,
arguing that no genuine issue of material fact existed,
and, therefore, they were entitled to judgment as a
matter of law. Specifically, the defendants contended
that they had no actual or constructive notice of ‘‘the
alleged dangerous or defective conditions (an unsafe
or defective riser step on that sidewalk at the subject
premises and/or inadequate lighting in the area of her
fall) . . . .’’2 In support of their motion, the defendants
submitted (1) the deposition testimony of the plaintiff
and (2) the affidavit of Franco Pulino, the building man-
ager of the complex at the time of the incident.
Pulino, in his affidavit, asserted that if any structural
defect or problem with inadequate lighting in the loca-
tion of the incident existed, it would have been reported
to him. Furthermore, in the weeks preceding the plain-
tiff’s fall, no one filed complaints or reports regarding
the location of the incident. Moreover, it is Pulino’s
general practice, as it was at the time of the plaintiff’s
fall, to walk the grounds of the complex at least twice
per work day during the winter months. He does so ‘‘in
order to inspect for ground surface conditions generally
and to see whether there are any issues or problems
in pedestrian travel areas which need to be corrected.’’
Pulino further indicated that, in the winter months of
2013, he did not observe any inadequate lighting or
structural defects affecting the location of the incident.
If he had observed any inadequate lighting or defects,
he or the maintenance staff would have made the neces-
sary repairs.
In her opposition to the motion, the plaintiff did not
present any evidence to support the contention that
the defendants had notice of the defects. Instead, she
supported her opposition by referring to her deposition
testimony submitted by the defendants.
In its March 16, 2015 memorandum of decision, the
court concluded that no genuine issue of material fact
existed as to notice of the defects at the location of
the incident. Specifically, the court determined that the
plaintiff did not present any evidence to support ‘‘that
the defendants’ ownership and control of the subject
premises permits an inference of notice of the defects,’’
and that ‘‘[t]he only evidence presented is that the plain-
tiff herself had traversed the very location of her fall
without noting any defects just several hours before
her fall.’’ Accordingly, the court rendered summary
judgment in favor of the defendants. Thereafter, on
March 26, 2015, the plaintiff filed a motion for reconsid-
eration and motion to reargue, which the court denied
on April 13, 2015. The plaintiff then filed this appeal.
Additional facts will be set forth as necessary.
The plaintiff claims that the court improperly granted
the defendants’ motion for summary judgment, arguing
that the evidence ‘‘established a question of material
fact as to whether the [defendants] had actual or con-
structive notice of the defects.’’ Specifically, the plaintiff
contends that a fact finder reasonably could find that
the defendants had constructive notice of inadequate
lighting and the lack of a handrail when Pulino, as
building manager of the complex, walked by the loca-
tion of the incident ‘‘at least sixty-two (62) times over
the six (6) weeks and three (3) days immediately pre-
ceding the [plaintiff’s] fall.’’3 We agree with the plaintiff.
We first set forth our standard of review and relevant
law. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides 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 deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case.’’ (Internal quotation marks
omitted.) DiPietro v. Farmington Sports Arena, LLC,
306 Conn. 107, 115–16, 49 A.3d 951 (2012).
‘‘The existence of the genuine issue of material fact
must be demonstrated by counteraffidavits and con-
crete evidence. . . . If the affidavits and the other sup-
porting documents are inadequate, then the court is
justified in granting the summary judgment, assuming
that the movant has met his burden of proof. . . .
When a party files a motion for summary judgment
and there [are] no contradictory affidavits, the court
properly [decides] the motion by looking only to the
sufficiency of the [movant’s] affidavits and other proof.
. . . Finally, the scope of our review of the trial court’s
decision to grant the [defendants’ motions] for summary
judgment is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Barile v. LensCrafters, Inc., 74
Conn. App. 283, 285–86, 811 A.2d 743 (2002).
The complaint in the present case sounds in negli-
gence on a theory of premises liability. The parties do
not dispute that the plaintiff was a business invitee of
the defendants, and, as such, the defendants owed the
plaintiff a duty of care to keep their premises in a
reasonably safe condition. ‘‘The relevant principles of
premises liability are well established. A business
owner owes its invitees a duty to keep its premises in
a reasonably safe condition. . . . In addition, the pos-
sessor of land must warn an invitee of dangers that the
invitee could not reasonably be expected to discover.
. . . Nevertheless, [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 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. . . .
‘‘Accordingly, business owners do not breach their
duty to invitees by failing to remedy a danger unless
they had actual or constructive notice of that danger.
To defeat a motion for summary judgment in a case
based on allegedly defective conditions, the plaintiff
has the burden of offering evidence from which a jury
reasonably could conclude that the defendant had
notice of the condition and failed to take reasonable
steps to remedy the condition after such notice.’’ (Cita-
tions omitted; internal quotation marks omitted.) DiPie-
tro v. Farmington Sports Arena, LLC, supra, 306
Conn. 116–17.
For the purpose of the summary judgment motion,
the defendants conceded the allegations that there was
inadequate lighting and that the elongated steps were
unsafe,4 and, therefore, we need not determine whether
a question of material fact existed regarding such
defects. Further, the plaintiff does not argue on appeal
that the defendants had actual notice of the defects. As
a result, the question before us is whether a genuine
issue of material fact exists as to whether the defen-
dants had constructive notice of the defects at the loca-
tion of the incident.
On the basis of our plenary review of the record, we
conclude that a genuine issue of material fact exists as
to whether the defendants had constructive notice of
inadequate lighting and the lack of a handrail at the
location of the incident. ‘‘[The] question [of constructive
notice] entails an inquiry into whether the condition had
existed for such a length of time that the [defendants’]
employees should, in the exercise of due care, have
discovered it in time to have remedied it. . . . What
constitutes a reasonable length of time is largely a ques-
tion of fact to be determined in the light of the particular
circumstances of a case.’’ (Internal quotation marks
omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125
Conn. App. 174, 179, 6 A.3d 1199 (2010), cert. denied,
300 Conn. 916, 13 A.3d 1103 (2011).
In her deposition testimony, the plaintiff testified that
the location where she fell had inadequate lighting, stat-
ing that she initially could see where she was walking,
but once she reached the elongated steps, she could
no longer see where she was going.5 Specifically, she
stated that ‘‘[t]here was no light on the side of the
building,’’ and that ‘‘[i]t was actually pitch black in that
area.’’ Furthermore, when asked if she observed any
problems with unsafe ground surface conditions affect-
ing the elongated steps, the plaintiff stated that there
was no handrail.
The plaintiff also stated, however, that she had not
previously noted any problems with inadequate lighting
at the location of the incident, and that she was not
aware of any tenants or visitors of the complex pre-
viously noting any problems affecting the location of
the incident. Moreover, the plaintiff was not aware of
any complaints made to the property manager or the
maintenance staff about structural defects affecting the
sidewalk or that stretch of steps.
The evidence reflected that Pulino conducts his
twice-a-day inspections during the work days of the
winter, and that the winter season begins with the sol-
stice on December 21. The plaintiff’s fall occurred on
February 4, 2013, which means that, by the time of the
fall, Pulino would have walked past the location of the
incident at least sixty-two times. The evidence submit-
ted reasonably could lead a fact finder to conclude that,
in walking by the area at least sixty-two times, Pulino,
with reasonable inspection, would have noticed that
part of an otherwise illuminated walkway lacked ade-
quate lighting.6 Noticing the lack of illumination, Pulino
would have been alerted to the defect. A question of
fact, therefore, exists as to whether inadequate lighting
remained for a sufficient length of time for Pulino,
through his inspections, to become aware of the defect,
and for the defendants to remedy it before the plain-
tiff’s fall.
We conclude, furthermore, that the evidence indi-
cates that a genuine issue of material fact exists as to
whether the defendants had constructive notice of the
lack of a handrail. ‘‘[Triers of fact] are not required to
leave common sense at the courtroom door . . . nor
are they expected to lay aside matters of common
knowledge or their own observations and experience
of the affairs of life, but, on the contrary, to apply them
to the facts at hand . . . .’’ (Internal quotation marks
omitted.) In re Kristy A., 83 Conn. App. 298, 316, 848
A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579(2004). Based on common knowledge, a fact finder rea-
sonably could conclude that a set of steps requires a
handrail. Bearing that in mind, a fact finder reasonably
could conclude that, in walking past the area at least
sixty-two times before the plaintiff’s fall, Pulino would
have noticed that the elongated steps lacked a handrail
to assist persons traversing the area. A question of fact,
therefore, exists as to whether the defect of the lack
of a handrail remained for a sufficient length of time
that the defendants, through Pulino, could have discov-
ered and remedied it.
On the basis of the foregoing, we disagree with the
court’s conclusion that no genuine issue of material
fact existed as to the defendants’ constructive notice
of the defects. Whether the defendants had constructive
notice of inadequate lighting and the lack of a handrail
at the location of the incident is a question for the
fact finder.
The judgment is reversed and the case remanded for
further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The walkway was further described in the defendants’ brief as ‘‘a series
of elongated steps, a stretch of sidewalk, a set of normal steps, and then
an additional stretch of sidewalk.’’
2
For the purpose of the summary judgment motion, the defendants con-
ceded that the lighting was inadequate and that the step was unsafe, but
argued that they had no notice of the claimed defects.
3
In her opposition to the motion for summary judgment, the plaintiff also
argued that the defendants created the hazardous conditions that caused
her fall, and, therefore, proof of notice was not necessary. The plaintiff,
however, does not raise this argument on appeal.
4
The defendants’ concession that the steps were unsafe included the lack
of a handrail. In their reply brief to the plaintiff’s objection to their motion
for summary judgment, the defendants stated the following: ‘‘[W]ith respect
to the plaintiff’s . . . contention that the absence of a handrail in the area
of her fall as another unsafe condition creates a triable issue of fact, ‘notice’
and ‘defect’ are two separate, distinct prima facie elements of a premises
liability claim . . . . In their summary judgment motion, [the defendants]
are not contending that there is no genuine issue of fact as to ‘defect.’
Although they deny the plaintiff’s allegations that the lighting was inadequate
or the rise step was unsafe, for purposes of this motion, those allegations
are conceded and are not at issue. [The defendants] are merely contending
that there is no evidence that they had notice of the claimed defects, whether
inadequate lighting, the riser step on the sidewalk, or a hand railing.’’
5
The deposition testimony contained the following relevant colloquy:
‘‘[The Defendants’ Counsel]: And when you were walking along the side-
walk up until that three step staircase there was illumination and you could
see where you were going?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendants’ Counsel]: And [when] you went down the three step
staircase there was illumination, you could see where you were going?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendants’ Counsel]: And then once you got down to the bottom
of the staircase, that’s where there was a problem with lighting?
‘‘[The Plaintiff]: Correct.
‘‘[The Defendants’ Counsel]: And, again, you indicated that you did not
see the elongated step at all in the moments right before the fall, correct?
‘‘[The Plaintiff]: Correct.’’
6
Some ambiguity exists as to whether there was no lighting, or whether
there was artificial lighting that subsequently had burned out. We must take
the evidence in the light most favorable to the nonmovant, and the plaintiff
testified that there was no light and that it was pitch black at the location
of the incident.