Hill v. OSJ of Bloomfield, LLC, 091520 CTCA, AC 42397
| Opinion Judge | MOLL, J. |
| Party Name | ALICIA HILL v. OSJ OF BLOOMFIELD, LLC |
| Attorney | Bruce H. Raymond, with whom was Evan K. Buchb-erger, for the appellant (defendant). Domenic D. Perito, with whom, on the brief, was Richard E. Joaquin, for the appellee (plaintiff). |
| Judge Panel | DiPentima, C. J., and Moll and Bear, Js. |
| Case Date | September 15, 2020 |
| Court | Connecticut Court of Appeals |
Argued January 9, 2020
Procedural History
Action to recover damages for the defendant's alleged negligence, brought to the Superior Court in the judicial district of Hartford and tried to the court, Gordon, J.; judgment for the plaintiff, from which the defendant appealed to this court. Reversed; judgment directed.
Bruce H. Raymond, with whom was Evan K. Buchb-erger, for the appellant (defendant).
Domenic D. Perito, with whom, on the brief, was Richard E. Joaquin, for the appellee (plaintiff).
DiPentima, C. J., and Moll and Bear, Js. [*]
OPINION
MOLL, J.
‘‘Drawing logical deductions and making reasonable inferences from facts in evidence, whether that evidence be oral or circumstantial, is a recognized and proper procedure in determining the rights and obligations of litigants, but to be logical and reasonable they must rest upon some basis of definite facts, and any conclusion reached without such evidential basis is a mere surmise or guess.'' (Internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999). This important principle lies at the heart of this premises liability appeal. The defendant, OSJ of Bloomfield, LLC, doing business as Ocean State Job Lot, appeals from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiff, Alicia Hill, for injuries she sustained when two empty cardboard boxes fell onto her head and shoulder from the top shelf of the aisle she was browsing. On appeal, the defendant claims that the trial court (1) improperly applied the mode of operation rule as a basis for finding the defendant liable in negligence, and (2) erroneously found that the defendant's merchandise stacking methods caused the boxes to fall on the plaintiff.1 The plaintiff argues that the judgment should be affirmed because she proved her premises liability claim under the affirmative act rule. We conclude that the evidence adduced at trial does not support the imposition of liability on the basis of the mode of operation rule or the affirmative act rule. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment for the defendant.
The trial court's memorandum of decision sets forth the following recitation, which is relevant to our resolution of this appeal. ‘‘The plaintiff testified that [on July 1, 2015] she was walking down the stationery aisle of the [defendant's] store when two empty boxes fell off of a shelf to her right and struck her in the head and right shoulder. [Devin] Gordon, [another shopper in the store], testified that he was in the same aisle and saw the boxes fall off the shelf and strike the plaintiff. The plaintiff testified that prior to the boxes falling on her, she saw two employees of the defendant stocking merchandise in the Internet coupon aisle directly adjacent to the stationery aisle. [The defendant's store manager, Aron Moore] admitted that he and another employee were stocking merchandise in the Internet coupon aisle in the moments preceding the incident, and that as soon as they heard a loud noise, they entered the stationery aisle where they saw the plaintiff and Gordon, who was holding one of the boxes.
‘‘Moore testified that the top shelf of the Internet coupon aisle is seven feet tall and is used as a ‘profile shelf' to hold overstocked merchandise. According to Moore, the top shelf of the Internet coupon aisle is twelve inches wide and six inches higher than the top shelf of the stationery aisle. The plaintiff introduced a photograph that she took within minutes of the accident showing the top shelves of the stationery aisle and the Internet coupon aisle. The photograph shows a series of boxes containing nine inch fans stacked one on top of the other on the top shelf of the Internet coupon aisle. The photograph also shows one of the boxes containing the nine inch fans hanging over the box below it and cantilevered in the direction of the stationery aisle. The [photograph] also shows a gap in the top row of stacked nine inch fans in a location directly adjacent to the top shelf of the stationery aisle where theemptyboxes had been displayed immediately before they fell. The [photograph] also shows one of the nine inch fan boxes in this precise location.''
On June 13, 2017, the plaintiff commenced this action, alleging that she sustained injuries to her head, neck, and right shoulder as a result of the boxes falling onto her and that the incident was caused by the negligence of the defendant. On November 8, 2018, the case was tried to the court. Three witnesses testified: Moore (the store manager), Gordon (the eyewitness), and the plaintiff. Thereafter, the parties submitted posttrial briefs. On December 7, 2018, the trial court issued a memorandum of decision rendering judgment in favor of the plaintiff. Setting forth the principles from this court's decision in Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002), the court concluded that the plaintiff ‘‘sustained her burden of proving by a fair preponderance of the evidence that the empty display boxes fell and struck the plaintiff as a result of the defendant's negligence.'' Specifically, the court found that ‘‘Moore and another employee of the defendant were stocking merchandise in the Internet coupon aisle when one of the nine inch fan boxes on the top shelf of the Internet coupon aisle toppled over and into the display boxes on the top shelf of the stationery aisle, thereby causing the display boxes to fall off the shelf and onto the plaintiff.'' The court awarded the plaintiff $23, 001.96 in past medical expenses and $7500 for pain and suffering for a total of $30, 501.96 in damages. This appeal followed. Additional facts will be set forth as necessary.
The defendant principally claims on appeal that the trial court improperly applied the mode of operation rule in finding the defendant liable. Specifically, the defendant maintains that the record is devoid of any evidence that (1) the defendant employed a particular mode of operation that is distinct from a similar business, (2) such mode of operation created a regularly occurring or inherently foreseeable hazard, and (3) the plaintiff's injury occurred within a limited zone of risk. We agree with the defendant and conclude that the evidence at trial did not support the application of the mode of operation rule.
We begin with the standard of review and general principles of premises liability. ‘‘[T]he scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.'' (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007). ‘‘A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Internal quotation marks omitted.) Lyme Land Conservation Trust, Inc. v. Platner, 325 Conn. 737, 755, 159 A.3d 666 (2017). ‘‘In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.'' (Internal quotation marks omitted.) Coppedge v. Travis, 187 Conn.App. 528, 532, 202 A.3d 1116 (2019).
‘‘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. . . . Nevertheless, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her 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.''2 (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). As this court recently explained, to succeed in a traditional negligence action that is based on premises liability, ‘‘the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it.'' (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 628, 195 A.3d 707 (2018).
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