Baptiste v. Better Val-U Supermarket, Inc.

Decision Date10 December 2002
Docket Number(SC 16764).
Citation262 Conn. 135,811 A.2d 687
CourtConnecticut Supreme Court
PartiesSTERNE BAPTISTE v. BETTER VAL-U SUPERMARKET, INC., ET AL.

Borden, Norcott, Katz, Palmer and Vertefeuille, Js. Michael D. Colonese, with whom, on the brief, was Dana M. Horton, for the appellant (named defendant).

Lorenzo J. Cicchiello, for the appellee (plaintiff).

Opinion

KATZ, J.

The dispositive issue in this appeal is whether the trial court properly determined that, under the circumstances of this case, the named defendant, Better Val-U Supermarket, Inc. (defendant), owed a duty to the plaintiff, Sterne Baptiste, who, in the course of completing the forms necessary to conduct a monetary wire transfer through facilities owned by Western Union Financial Services, Inc. (Western Union), which were located on the defendant's premises, placed on the defendant's counter an envelope containing $5000 in cash, which disappeared. The plaintiff brought an action against the defendant1 alleging negligence for its failure to: (1) provide a safe and secure area for the transaction of monetary wire transfers; (2) monitor adequately the area where monetary transfers took place in order to discourage loss, theft and larceny; (3) use security cameras in the area in which monetary wire transfers took place in order to discourage loss, theft and larceny and to assist in the investigation of loss claims; and (4) train properly its employees in the safe and secure transaction of monetary wire transfers. Following a court trial, the trial court concluded that the area of the defendant's store where the plaintiff had gone to make his transaction was not secure and that it should have been made secure.2 The court also found that the plaintiff was contributorily negligent, however, less than 50 percent negligent, and rendered judgment awarding him $2500 in damages. The defendant appealed3 from the judgment, claiming that the trial court improperly had determined that: (1) the defendant owed a duty to the plaintiff to protect against the loss he had sustained; (2) the defendant had breached that duty; (3) the breach of that duty proximately caused the plaintiff's injury; and (4) the plaintiff was not contributorily negligent for the full extent of his loss. We agree with the defendant's first claim and, accordingly, reverse the judgment of the trial court.4

The trial court reasonably could have found the following facts. On March 21, 1999, at approximately 10:30 a.m., the plaintiff entered the defendant's store, located at 469 Hamilton Avenue in Norwich, for the purpose of conducting a monetary wire transfer. A Western Union wire transfer facility was located inside the store. The plaintiff had in his possession a bank envelope containing $5000 in United States currency, which he intended to transfer to his wife in Haiti. He had performed such wire transfers at the defendant's store in the past. Accordingly, he went to the counter that serviced Western Union wire transfers and began to fill out the forms necessary to accomplish the transaction. When the pen he had been using ran out of ink, the plaintiff asked one of the defendant's employees for another pen, at which time he placed the envelope containing the money on the counter to his left. None of the defendant's employees watched the plaintiff fill out the paperwork, but instead waited on other customers. After completing the forms to effect the transfer, the plaintiff notified one of the defendant's employees that he had finished. Another employee, called upon to complete the transaction, asked the plaintiff for the money, at which time the plaintiff realized that the envelope containing the money was missing. The police were then notified of the incident.

"We begin by setting forth the relevant parameters under our negligence jurisprudence. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998). The issue of whether a duty exists is a question of law; Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001); Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 226, 228-29, 682 A.2d 106 (1996); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982); see also 57A Am. Jur. 2d, Negligence § 85 (1989).

"[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? ... Gomes v. Commercial Union Ins. Co., supra, 258 Conn. 615; Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997); see also 57A Am. Jur. 2d 216, supra, § 154 (ordinary care has reference to probabilities of danger rather than possibilities of peril). The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 31, p. 170; see also Schiavone v. Falango, 149 Conn. 293, 298, 179 A.2d 622 (1962) ([r]easonable care does not require that one must guard against eventualities which, at best, are too remote to be reasonably foreseeable). Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation . . . would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken. Bonczkiewicz v. Merberg Wrecking Corp., 148 Conn. 573, 579, 172 A.2d 917 (1961)." (Internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002). Finally, "[i]f a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotation marks omitted.) Gomes v. Commercial Union Ins. Co., supra, 614-15; accord Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974).

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. Martin v. Stop & Shop Supermarket Cos., 70 Conn. App. 250, 251, 796 A.2d 1277 (2002); Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Typically, "[f]or the 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." (Citations omitted.) Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966); accord Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474, 806 A.2d 546 (2002). In the absence of allegations and proof of any facts that would give rise to an enhanced duty; cf. Furstein v. Hill, 218 Conn. 610, 624, 590 A.2d 939 (1991) (noting that "under certain circumstances a heightened duty to the licensee can arise"); the defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.

On the basis of our review of the record in this case, the plaintiff neither pleaded nor proved that the incident that occurred on March 21, 1999, was...

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    ...action in negligence are well established: duty; breach of that duty; causation; and actual injury.” Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (Conn.2002) (internal quotation marks and citations omitted). The existence of a duty is a question of law. Gordo......
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1 books & journal articles
  • 2003 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 77, 2003
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