Jasulavic v. K-Mart Corporation, No. Cv 97 0138381 (Mar. 22, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT The plaintiff in this case claims to have fallen in a K-Mart store when she slipped on a scarf and was injured. The defendant brings this Motion for Summary Judgment claiming there is no genuine issue of material fact. The defendant claims that the plaintiff does not know what caused her to fall and therefore she will be unable to prove that the defendant had notice of the claimed defect.

In deciding this motion, the court must accept the allegations of the complaint as true, Yanow v. Teal Industries178 Conn. 262, and must view the evidence in the light "most favorable to the non moving party" Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005. The defendant claims that the plaintiff did not see the scarf as alleged and testified that she did not see it on pages 14, 17, 19, 57 of her deposition. However on page 13 of her deposition she testified "I did not see a scarf hanging on the floor: but there was a scarf hanging on the ground" and further on the same page at line 18 she testified "I didn't see it, and I slipped on the scarf, and my foot hit it".

As to this motion I must accept the plaintiffs allegations contained in paragraph 5, b and as to notice, the jury will decide whether the defendants inspection procedure was adequate and/or whether the defendant failed to maintain "a proper number of clerks in the store to insure that fallen clothing does not remain on the floor" as alleged in paragraph 5 f of the complaint. These are fact questions that must be resolved by jury. In addition the plaintiff has alleged that the condition surrounding the clothing and accessory rack was "hazardous" and faults, the defendant in paragraph 5, d for its failure to warn. Whether the condition surrounding the rack was "hazardous" which necessitated a duty to warn is also fact question for the jury to decide.

There are factual questions to be determined and therefore this court must deny the defendants Motion for Summary Judgment.

PELLEGRINO (J) CT Page 3403