Connecticut Trial Court Official Decisions
Unpublished
SPENTRINO v. K-MART CORP., CV 04 0085327 S (12-07-2006)
Patrick Spetrino v. K-Mart Corporation. 2006 Ct. Sup.
22122 No. CV 04 0085327 S. Connecticut Superior Court,
Judicial District of Ansonia-Milford at Milford. December
8, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM OF DECISION RE MOTION #157,
MOTION FOR SUMMARY JUDGMENT
RICHARD A. ROBINSON, JUDGE.
Facts
The plaintiff alleges in the first count of his amended
complaint that on or about April 30, 2002, while acting in
the scope of his employment with Voortman Cookies, he was
delivering cookies at the loading dock at Kmart in Derby,
Connecticut.[fn1] While making the delivery he fell off a
wall due to loose bricks. The plaintiff alleges that his
fall and resulting injuries were proximately caused by the
negligence of Kmart.
In the second count of the amended complaint, the plaintiff
alleges that on the aforementioned date the defendants
Arnold Gorsky, Bruce Gorsky and Paul Gorsky as trustees of
Eastland Derby Realty Trust owned, managed, controlled,
maintained, operated and/or possessed the property where
the fall occurred. He further alleges that his injuries
were caused by the negligence of these defendants, their
servants, agents and/or employees.
On February 7, 2006 the defendant Kmart moved for summary
judgment. The defendant asserts that: (1) the statute of
limitations passed before service was made upon Kmart; (2)
the plaintiff was a licensee and took the premises as he
found them, with all faults, and the open and obvious
conditions precludes recovery; or (3) in the alternative, if
the court finds that he was an invitee, the allegedly
defective condition was open and obvious and known to the
plaintiff.
Standards
Before addressing the merits of the defendant’s motion, a
brief review of the standards for the granting of a motion
for summary judgment is warranted:
“Summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof CT Page 22123
submitted show that there is no genuine issue 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.”
(Internal quotation marks omitted.) Orkney v. Hanover
Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty & Surety Co., 256 Conn. 343,
351 (2001).
Section 17-45 of the Connecticut Practice Book concerns
the proceedings for motions for summary judgment. It
provides that:
A motion for summary judgment shall be supported by such
documents as may be appropriate, including but not limited
to affidavits, certified transcripts of testimony under
oath, disclosures, written admissions and the like. The
motion shall be placed on the short calendar to be held
not less than fifteen days following the filing of the
motion and the supporting materials, unless the judicial
authority otherwise directs. The adverse party [prior to
the day the case is set down for short calendar] shall at
least five days before the date the motion is to be
considered on the short calendar file opposing affidavits
and other available documentary evidence. Affidavits, and
other documentary proof not already a part of the file,
shall be filed and served as are pleadings.
Discussion
This court will address the issues in the order that they
were raised by the moving party.
Statute of Limitations
Section 52-584 C.G.S. provides in pertinent part that: “No
action to recover damages for injury to the person, or to
real property, caused by negligence . . . shall be brought
but within two years from the date when the injury is first
sustained or discovered or in the exercise of reasonable
care should have been discovered . . .” CT Page 22124 The
plaintiff alleges in his complaint that he was injured on
April 30, 2002. The State Marshal’s Return of Service
indicates that the defendant K-Mart was served on April 19,
2004.
It is well settled law in our jurisdiction that an action
commences when service is made upon a defendant. Hillman v.
Town of Greenwich, 211 Conn. 520, 527, 587 A.2d 99 (1991).
Although the court notes that the defendant was served
within two years of the date that the plaintiff alleges
that the injury occurred, the defendant argues that during
the plaintiff’s deposition, the plaintiff admitted that he
did not know the actual date of the accident. In support of
its motion for summary judgment the defendant submitted a
portion of the plaintiff’s deposition that was taken on
June 9, 2005. (See Defendant’s Exhibit A.) The deposition
states in pertinent part that:
Q. Now, the accident report that you had completed with
Kmart that has been marked by the Defendant Gorsky, it
indicates April 2002. How are you certain that it was
April 30th 2002 that you had your accident where you fell
off the wall?
A. You know, that’s a good question, I can’t be sure of
that date either, to be honest with you. I can’t be sure
but I believe that that was the date.
The defendant also submitted an affidavit of Sally Rock,
the claims manager for Kmart Corporation. The affiant
states that:
4. I have reviewed the records regarding delivers of
Voortman’s Cookies to Kmart’s Derby, Connecticut store in
April 2002. Attached is the last invoice for deliveries in
the Month of April 2002. It indicates that a delivery was
made on April 15, 2002.[fn2]
5. Kmart’s records do not indicate any deliveries in
April 2002 after that of the attached invoice.
On March 7, 2006 the plaintiff filed an objection to the
defendant’s motion for summary judgment. The plaintiff
argues that during the June 9, 2005 deposition the
plaintiff initially testified that the date that he was
injured was April 30, 2002.[fn3] Additionally the plaintiff
argues that deliveries from Voortman’s were not always made
on the date CT Page 22125 stated on the invoice.
The plaintiff submitted his affidavit in support of his
objection to the motion for summary judgment. Said
affidavit provides in pertinent part that:
4. I have reviewed the Voortman Cookie invoice attached
to Defendant’s Motion for Summary Judgment dated February
2, 2006 as Exhibit B.
5. As a former Voortman distributor who worked with
Robert Dizinno, the distributor at the time in question, I
have personal knowledge of the usual business practice
regarding such invoices.
6. Such invoices were typically created and printed in
advance of actual delivery.
In addition to his affidavit, the plaintiff submitted
affidavits from Michael Horvath, Christopher Marolta. Each
of these affiants stated that they witnessed the fall in
question and that it occurred on April 30, 2002.
In seeking summary judgment, it is the movant who has the
burden of showing the nonexistence of any issue of fact.
The courts are in entire agreement that the moving party
for summary judgment has the burden of showing the absence
of any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. The courts hold the
movant to a strict standard. To satisfy his burden the
movant must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact . . . As
the burden of proof is on the movant, the evidence must
be viewed in the light most favorable to the opponent.
Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d
1165 (2004) (citations omitted; internal quotation marks
omitted). In light of the foregoing this court concludes
that the movant has failed to satisfy its burden of showing
that it is quite clear what the truth is, and excluding any
real doubt as to the existence of any genuine issue of CT
Page 22126 material fact as to the date of the accident.
The plaintiff was a licensee and took the premises as he
found them.
“Ordinarily, the status of one who sustains injury while
upon the property of another is a question of fact . . .
Where, however, the facts essential to the determination of
the plaintiff’s status are not in dispute, a legal question
is presented.” (Internal quotation marks omitted.) Kolaniak
v. Board of Education, 28 Conn.App. 277, 282, 610 A.2d 193
(1992).
“In general, there is an ascending degree of duty owed by
the possessor of land to persons on the land based on their
entrant status, i.e., trespasser, licensee or invitee . . .
A possessor of land has a duty to an invitee to reasonably
inspect and maintain the premises in order to render them
reasonably safe . . . In addition, the possessor of land
must warn an invitee of dangers that the invitee could not
reasonably be expected to discover . . .” (Citations
omitted.) Morin v. Bell Court Condominium Ass’n., Inc., 223
Conn. 323, 327, 612 A.2d 1197 (1992). “Invitees fall into
certain general categories. A public invitee is a person
who is invited to enter or remain on land as a member of
the public for a purpose for which the land is held open to
the public . . . A business invitee is a person who is
invited to enter or remain on land for a purpose directly
or indirectly connected with business dealing with the
possessor of land . . . General Statutes § 52-557a,
which provides that [t]he standard of care owed to a social
invitee shall be the same as the standard of care owed to a
business invitee, in effect recognizes a third kind of
invitee, namely, the social invitee. The distinction
between one who is an invitee and one who is merely a
licensee turns largely on whether the visitor has received
an invitation, as opposed to permission, from the possessor
of land, to enter the land or remain on the land. Although
an invitation itself does not establish the status of an
invitee, it is essential to it. Mere permission, as
distinguished from invitation, is sufficient to make the
visitor a licensee but it does not make him an invitee.”
(Citations omitted; internal quotation marks omitted).
Corcoran v. Jacovino, 161 Conn. 462, 465-66, 290 A.2d 225
(1971).
The defendant argues that the plaintiff was a licensee
because he no longer worked for the local franchise
distributing Voortman’s Cookies at the time that he was
injured. He was merely volunteering his services with no
expectation of payment. The plaintiff further argues that
while vendors of Voortman’s Cookies were certainly invitees
their non-employees, unofficial volunteers were not. The
defendant does not CT Page 22127 cite any legal authority
to support its position that the plaintiff as a volunteer
assisting a business invitee under the facts alleged in
this case cannot be an invitee, but only a licensee.
The plaintiff’s status upon entering the property in
question is in dispute. The facts essential to the
determination of the plaintiff’s status are also in
dispute. The moving party has failed to meet its burden of
proof to show that there are no genuine issues of material
fact as to the plaintiff’s status when he entered the
subject property.
If the plaintiff is an invitee, the allegedly defective
condition was open and obvious and known to the plaintiff.
The defendant next argues that even if the defendant is an
invitee he is barred from recovering against the defendant
under the facts as alleged. The defendant argues that the
plaintiff was aware of the condition of the premises that
caused his injuries and that liability cannot be imposed in
a situation a plaintiff knows of the condition or they are
so open and obvious they should be apparent.
Page thirty-eight of the plaintiff’s June 9, 2005
deposition provides in pertinent part:
Q. Now, on these 10 occasions where you were using the
wall, what condition did you find the wall in?
A. I made it up and down, so apparently I didn’t hit that
particular spot.
Q. Did you ever notice whether or not the blocks were
loose or missing?
A. It was a shabby wall, there were spots where you could
see that there might be a block missing, but this was just
a regular piece, it was a loose block.
Q. So prior to April 2002 you could see that the wall was
shabby?
A. It was a little shabby, you know, it’s an old
building. It was painted that wall.
Page thirty-nine of the aforementioned deposition
provides: CT Page 22128
Q. Now, you said you fell on a loose block, where was
this loose block?
A. Within a few feet, probably, I couldn’t say exactly,
but I would step down to get to the lower areas so it was
before that, four of five feet.
Q. Was this loose block a loose block that was stacked on
top of on another?
A. It was the top block.
Q. So was it the sill of the top block, was there a sill?
A. That’s what it was, in other words, the top layer of
block.
Q. And had you noticed that on your way up that the
blocks, the sill was loose?
A. No.
Q. Now when you stepped on that sill that was loose what
happened?
A. It wobbled, felt like I was going to fall backward,
thank God I fell forward, just loose, threw me off.
“Warning an invitee against dangers which are either known
to him or are so obvious to him that he may be expected to
discover them is unnecessary.” Kraus v. Newton, 14
Conn.App. 561, 569, 542 A.2d 1163 (1988), aff’d, 211 Conn.
191, 558 A.2d 240 (1989); Warren v. Stancliff, supra, 157
Conn. 216, 220, 251 A.2d 74 (1968) (“The possessor of land
has no duty to warn an invitee of a dangerous condition when
the invitee has actual knowledge of the condition”). The
issue, however, of open and obvious should be reserved for
the trier of fact when there is “room for reasonable
disagreement as to whether the plaintiff was or should have
been aware of the condition just before his [injury].”
(Emphasis added.) Warren v. Stancliff, supra, 157 Conn.
220-21; Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308
(1994). CT Page 22129 In the current situation there is
room for reasonable disagreement as to whether the
plaintiff should have been aware of the alleged loose block
that he says caused him to fall and become injured.
Conclusion
For all of the foregoing reasons the defendant’s motion for
summary judgment is denied.
So ordered.
[fn1] The description of the plaintiff’s employment status
was taken directly from the allegations in the complaint.
[fn2] The invoice indicates that a delivery was made on
April 15, 2002 at 1:02 p.m.
[fn3] See plaintiff’s deposition at page 8. (Plaintiff’s
Exhibit I.) CT Page 22130