Mott v. Wal–Mart Stores E., LP.

• Decision Date: 18 December 2012
• Docket Number: No. 33974.,33974.
• Citation: 57 A.3d 391,139 Conn.App. 618
• Court: Connecticut Court of Appeals
• Parties: Matthew MOTT v. WAL–MART STORES EAST, LP.

139 Conn.App. 618

57 A.3d 391

Matthew MOTT

v.WAL–MART STORES EAST, LP.

No. 33974.

Appellate Court of Connecticut.

Argued Sept. 7, 2012.

Decided Dec. 18, 2012.

Christopher DeMarco, Hamden, for the appellant (plaintiff).

Kate Boucher, with whom, on the brief, was Joaquin Madry, Hartford, for the appellee (defendant).

ROBINSON, BEAR and DUPONT, Js.

ROBINSON, J.

The plaintiff in this premises liability action, Matthew Mott, appeals from the summary judgment rendered by the trial court in favor of the defendant, Wal–Mart Stores East, LP. The plaintiff claims on appeal that the court improperly granted the defendant's motion for summary judgment solely on the basis that the plaintiff failed to file an opposing affidavit in support of his objection to the motion for summary judgment. We agree and, accordingly, reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In 2009, the plaintiff initiated this action after he allegedly slipped and fell on an area of ice in the defendant's parking lot, breaking his ankle. In his revised complaint, the plaintiff alleged that the defendant was negligent because it failed to maintain the parking lot in a reasonably safe condition, to inspect the parking lot following an accumulation of ice to determine whether it was safe for use, to warn the plaintiff of the dangerous condition and/or to take reasonable steps to remedy the condition after it knew or should have known about the danger created by the ice. The defendant filed an answer to the complaint in which it denied all allegations that the plaintiff was injured as a result of any negligence by the defendant and asserted a special defense of contributory negligence.

After the case had been assigned for trial, the defendant sought and was granted permission to file a motion for summary judgment pursuant to Practice Book § 17–44.¹ The defendant stated in its motion for summary judgment that it was “readily evident” that the plaintiff could not demonstrate that the defendant had had actual or constructive notice of the spot of ice that the plaintiff allegedly fell on, and, because there was no genuine issue of material fact as to whether the defendant had actual or constructive notice of that specific defect, it was entitled to judgment as a matter of law on the entire complaint. In support of the motion for summary judgment, the defendant filed a memorandum of law to which it attached copies of the plaintiff's notice of the filing of his revised complaint,² a transcript of a portion of the plaintiff's deposition testimony and an unreported Superior Court opinion, Gomez v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV–05–5000100–S, 2006 WL 894906 (March 7, 2006), which the defendant cited in its memorandum.

After receiving an extension of time to respond to the motion for summary judgment, the plaintiff filed an objection to the motion for summary judgment on August 10, 2011. The objection was accompanied by a memorandum of law in which the plaintiff argued that whether the defendant had actual or constructive notice of the defect alleged was a genuine issue of material fact that remained in dispute. According to the plaintiff, he had an incident report indicating that another person had slipped on ice on the defendant's premises approximately twenty hours prior to the plaintiff's fall. Further, the plaintiff indicated that weather data existed that showed that two inches of snow, sleet and freezing rain had precipitated the day prior to the plaintiff's fall. The plaintiff, however, did not attach an affidavit or other documentary evidence in support of those assertions. The defendant filed a reply to the plaintiff's objection arguing that the plaintiff had failed to produce any evidence that would “remove the issue of notice from the realm of speculation or conjecture.”

On September 6, 2011, the court heard argument on the defendant's motion for summary judgment. At the outset, the court noted on the record that the plaintiff had failed to file any documentary evidence in support of his opposition to the defendant's motion for summary judgment. The court next heard very brief arguments on the merits of the motion for summary judgment. At the conclusion of arguments, the court indicated that it would “take the papers.”

Later that same day, the plaintiff filed a supplemental memorandum in opposition to the motion for summary judgment. The purpose of the supplemental memorandum was to submit a copy of the incident report that the plaintiff had referenced in his objection to the motion for summary judgment concerning the other slip and fall at the defendant's premises, but which he had failed to attach as an exhibit to his opposition. According to the plaintiff, the incident report, which had been disclosed by the defendant as part of an April 21, 2011 response to a request for production, constituted some evidence of the defendant's notice of the dangerous condition of the parking lot prior to his injury. The defendant filed an objection to the supplemental memorandum on September 8, 2011, arguing that Practice Book § 17–45 requires that affidavits and other documentary evidence in opposition to summary judgment motions be filed before the motion is heard and, citing Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006), that it is well within the discretion of the court to refuse to consider documentary evidence that is not timely submitted.

On September 13, 2011, the court issued a one page memorandum of decision granting the defendant's motion for summary judgment. The court concluded that “[t]he materials submitted by the defendant indicate that it had no notice of the alleged defect prior to the fall. The plaintiff's objection claims otherwise, but the problem is that the plaintiff has utterly failed to comply with [Practice Book] § 17–46.... Given this complete failure to comply with the requirements of the rules of practice, the plaintiff's factual assertions cannot be considered. Under these circumstances, the motion for summary judgment must be granted.” The court does not state whether it considered the report attached to the plaintiff's supplemental opposition. On September 19, 2011, the court issued an order marking off the defendant's objection to the plaintiff's supplemental memorandum in opposition to summary judgment “because a ruling [had] already been issued granting the defendant's motion for summary judgment.”

Also on September 19, 2011, the plaintiff filed a motion to reargue. The plaintiff argued that the court erroneously had based its decision entirely on the plaintiff's failure to submit an affidavit in opposition to the motion for summary judgment in accordance with Practice Book § 17–45, but appeared to ignore that the plaintiff later submitted documentary evidence with his supplemental opposition from which the court could have found that a genuine issue of material fact existed as to the issue of notice. The plaintiff also argued that he was “at a loss as to what materials the court [was] referring to” when it stated that the defendant had submitted materials indicating that the defendant “had no notice of the alleged defect prior to the fall.” The defendant opposed the motion to reargue on the ground that the court properly had disregarded the report that the plaintiff attempted to submit following argument of the motion for summary judgment and that the plaintiff's deposition testimony, submitted with its motion for summary judgment, established that the defendant did not have “notice of the alleged defective condition, namely an ‘accumulation of ice on said premises'....” The court denied the motion to reargue without comment. This appeal followed.

We first set forth the relevant standards that generally govern our review of a court's decision to grant a defendant's motion for summary judgment. “Practice Book § [17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuineissue 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.... [I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record.” (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 42–43, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012).

On appeal, the plaintiff claims that the court improperly granted the defendant's motion for summary judgment solely on the basis of the plaintiff's failure to append an affidavit to his memorandum in opposition, and that it did so despite the fact that the defendant had failed to submit any documentary evidence in support of the motion that established the absence of a genuine issue of material fact concerning whether the defendant had actual or constructive notice of the defect that allegedly resulted in the plaintiff's...