Specific Defect Doctrine in Premises Liability Case

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July 25, 2009

Relevant case law in Connecticut places a heavy burden on a "slip and fall" plaintiff to demonstrate that a defendant had actual or constructive notice of the specific defect that led to the accident and not merely of conditions naturally productive of that defect even though subsequently in fact producing it.[1]

The Connecticut Appellate Court put it this way: "The plaintiff bears the burden of proffering some evidence, either direct or circumstantial, from which the jury could infer that the defect she allegedly encountered existed for a length of time sufficient to put the defendant on actual or constructive notice of its existence. In the absence of such evidence, we cannot permit a jury to reach such a conclusion on the basis of either speculation or conjecture."[2]

An illustrative case is Carmody v. Kohl's Dep't Stores, Inc., 2004 U.S. Dist. LEXIS 22421 (D. Conn. 2004). In Carmody, the customer slipped and fell in defendant store, and submitted evidence that: (1) she fell within a couple of steps of a soaking wet rug at the entrance to the store; (2) the rug was sufficiently wet to be noticed by incoming customers who testified in affidavits that there was water on the floor around the customer after she fell; and (3) the store's floor was very slippery when wet. The court held that the store was not entitled to summary judgment because there was circumstantial evidence from which a reasonable juror could find that the store had constructive notice of the defect that led to the customer's injuries. Moreover, the parties offered affidavits and depositions of witnesses to the customer's fall who took polar opposite positions on whether the floor in the customer's vicinity was even wet at the time of the customer's accident. Thus, the court held that there were genuine issues of facts that made summary judgment inappropriate.

Historically, notice could not be found to exist from knowledge of the general or overall conditions existing on the premises.

In Monahan v. Montgomery, 153 Conn. 386 (1966), the decedent was killed after falling on the defendant's property, where he had been cleaning branches and leaves. While the decedent stated just after the fall that he fell over a branch, there were no witnesses and he was never able to identify which branch had caused his fall. The Connecticut Supreme Court held that, because no specific branch was ever identified and because there was no evidence presented regarding the branch's size, position, or whether the decedent had moved the branch himself as he was in the process of cleaning up the debris in the area, a jury could not reasonably conclude that a specific defect existed. Id., 392.

In White v. E & F Construction Co., 151 Conn. 110 (1963), the plaintiff invitee was injured in a fall on a basement stairway in an apartment house owned by the defendant property owner. The invitee intended to hang laundry in the cellar to dry and fell to the basement floor. She noticed that the landing was wet, that the door to the rear entry was propped open at the time, and that rain was coming through the doorway. The trial court directed a verdict on the ground that there was no evidence to show that the property owner had notice of the condition that caused the invitee's fall. The court held that the jury could not have found that the property owner was liable for the invitee's injuries because there was nothing to show that the property owner knew of the unsafe condition or was chargeable with notice of it because, had it exercised a reasonable inspection of the premises, it would have known of the condition. The evidence did not support a finding that the condition had existed for a sufficient length of time to charge the property owner with constructive notice. Constructive notice would have required notice of the presence of the water itself, and not merely of conditions naturally productive of it. The appellate court held that the evidence was insufficient to support a verdict for the invitee, and the trial court did not err in directing a verdict.[3]

The Connecticut Supreme Court has reiterated the holdings of prior decisions regarding business invitees and their burden to prove that a defendant had notice of the specific defect that caused the injury. In enunciating the principles of the specific defect rule, the Court has held: "We have repeatedly stated that the 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. ... On the question of notice, the trier's consideration must be confined to the defendant's knowledge of the specific condition causing the injury, and such knowledge of the general or overall conditions obtaining on the premises. ... Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects.[4]

In Ormsby v. Frankel, 255 Conn. 670 (2001), the plaintiff drove over an ice patch and lost control of her motor vehicle. The court permitted the plaintiff to provide evidence of the existence of previous and recurring icing conditions at the same location where the plaintiff's accident occurred. The trial court's reasoning is instructive: "the issue of the prior awareness of similar defects does not prove knowledge of this particular defect ... but I think it's relevant to the issue of notice and relevant to the issue of the time period as argued." Id. at 680.

In White v. Town of Westport, 72 Conn. App. 169 (2002), a defective highway action, the injured party, while driving his motorcycle on a town road, lost control of his motorcycle due to sand on the road. During the trial, the trial court refused to admit the testimony of a woman who lived near the site of the accident, who would have testified that she observed sand in the general area, but was unable to testify as to whether sand was present as the exact site of the accident. The Appellate Court affirmed the exclusion of evidence of sand in the same general area.[5]

[1] See LaFaive v. DiLoreto, 2 Conn. App. 58, 60 (1984).

[2] Colombo v. Stop & Shop Supermarket Co., 67 Conn. App. 62, 64 (2001) (citations omitted).

[3] See Halsted v. BJ's Wholesale Club, 2005 Conn. Super. LEXIS 1663 (claim that plaintiff slipped and fell on an ice patch and the classification of defendant's inspection as constant created a question of fact as to the length of time the specific defect or dangerous condition was in place and whether the condition had existed for a length of time sufficient for defendant, in the exercise of due care, to have discovered the defect in time to have remedied it).

[4] Cruz v. Drezek, 175 Conn. 230, 234-35 (1978) (citations omitted; internal quotation marks omitted).

[5] See Boretti v. Panacea Co., 67 Conn. App. 223 (2001) (in a slip and fall in a parking lot, testimony regarding general condition of parking lot properly excluded as irrelevant, pursuant to specific defect doctrine).