Gulycz v. Stop and Shop Companies, Inc.

• Decision Date: 22 December 1992
• Docket Number: No. 10948,10948
• Citation: Gulycz v. Stop and Shop Companies, Inc., 615 A.2d 1087, 29 Conn.App. 519 (Conn. App. 1992)
• Court: Connecticut Court of Appeals
• Parties: Eugene GULYCZ v. STOP AND SHOP COMPANIES, INC.

Page 1087

615 A.2d 1087

29 Conn.App. 519

Eugene GULYCZ v.STOP AND SHOP COMPANIES, INC.

No. 10948.

Appellate Court of Connecticut.

Argued Oct. 5, 1992.

Decided Nov. 17, 1992.

Certification Denied Dec. 22, 1992.

John R. Williams, New Haven, for appellant(plaintiff).

Barbara B. Sacks, Hartford, with whom, on the brief, was Laura N. Ondrush, Unionville, for appellee(defendant).

Before FOTI, LAVERY and FREDERICK A. FREEDMAN, JJ.

FOTI, Judge.

The plaintiff appeals from the judgment of dismissal rendered during a trial to the court for failure of the plaintiff to make out a prima facie case.¹The plaintiff brought the underlying action to recover damages for leg injuries he sustained on January 30, 1989, when his trousers were caught on a protruding hinge and screw on a shelf at the end of a check-out aisle at the defendant's store in New Britain.Following the plaintiff's testimony and the introduction of medical reports pursuant to General Statutes § 52-174, the plaintiff rested.The defendant then moved to dismiss the action on the ground that the plaintiff had failed to make out a prima facie case by failing to prove that the defendant had either actual or constructive notice of the condition that the plaintiff claimed in his complaint to have existed in the defendant's store.The court granted the defendant's motion.

On appeal, the plaintiff claims that the trial court improperly granted the motion to dismiss because the defect was structural in nature and the trier of fact could reasonably have inferred that the condition had existed long enough for it to have come to the defendant's attention.He also claims that the trial court did not apply the proper standard in granting the motion to dismiss.We affirm the judgment of the trial court.

It is not disputed that the plaintiff was a business invitee, and that the defendant owed him a duty to keep its premises in a reasonably safe condition.Cruz v. Drezek, 175 Conn. 230, 234, 397 A.2d 1335(1978).Also undisputed is that, if that duty was breached, and if the defendant had actual or constructive notice of the defect within a reasonable time to remedy it, the plaintiff would be entitled to recover damage for his injuries.Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710(1946).The plaintiff produced no evidence to establish that the defendant had actual notice of the alleged defect.Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it.McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057(1976).

While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition;seeKapilotis v. Shop Rite Supermarket, Inc., 14 Conn.App. 250, 251, 540 A.2d 376(1988); some evidence is required.Schwartz v. Waterbury Public Market, Inc., 6 Conn.App. 429, 432-33, 505 A.2d 1272(1986).Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case.Id.

The plaintiff claims that the defect was structural in nature and therefore must have existed for a sufficient length of time so as to enable an inference of constructive notice.The record is devoid of such evidence.The only evidence that the plaintiff put before the trial court, other than medical reports, was his own testimony that he saw the protruding hinge and screw on which he struck his knee.He further testified that after the accident he asked others, including two people who brought in the carriages, the head cashier, the aisle supervisor and the stock clerk, "if they saw it."There was no evidence, however, whether they"saw it" before or after the injury.No witness was called to establish whether any employee had observed the defect at any time prior to the plaintiff's injury.If there had been some evidence that the defect existed prior to the injury, the trier of fact would have had a basis to determine whether the length of time was sufficient to permit a reasonable inference of constructive notice.

Although circumstantial evidence can establish constructive notice;Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 287, 587 A.2d 1056(1991); no such circumstantial evidence exists here.The plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time so as to enable the court to exercise its function as factfinder.Nor was the court able to infer that the defect had existed for any length of time, since there was no evidence to establish a basis for such an inference."An inference must have some definite basis in the facts";Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624(198...