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8.22.2012

Connecticut Supreme Court Reverses Connecticut Appellate Court and Upholds Trial Court’s Grant of Summary Judgment.

Connecticut Supreme Court Reverses Connecticut Appellate Court and Upholds Trial Court’s Grant of Summary Judgment In Favor Of Howd and Ludorf, LLC Client, Farmington Sports Arena; Karen DiPietro v. Farmington Sports Arena, LLC, ET AL (SC 18726) (Aug 2012).

This week the Connecticut Supreme Court reversed the decision of the Connecticut Appellate Court, thereby upholding the trial court’s grant of summary judgment in favor of Howd & Ludorf, LLC client, Farmington Sports Arena (“FSA”), in this premises liability case.  The lawsuit arose out of an incident that occurred during an indoor soccer match that was played in FSA’s facility on March 9, 2002.  The minor plaintiff, who was then 11 years old, sustained an ankle injury while in the process of trying to score off a fast break.  She alleged that the injury was caused by a defective playing surface that had been installed approximately four months earlier.  Specifically, she claimed that her foot “stuck” to the artificial surface, which consisted of low-cut, commercial grade carpeting.  Her claim was that the defendant had negligently installed a playing surface that was inherently dangerous for use at an indoor soccer facility.

The defendant moved for summary judgment and offered an overwhelming amount of evidence to show there were no apparent defects associated with the playing surface and, that if there were, they were not on notice of same.  The surface was well maintained, properly installed and had been inspected by the Connecticut Junior Soccer Association just months before the day of the injury.  The surface was the same, or similar, to that utilized at other Connecticut indoor soccer facilities during that era.  While there were no government or industry standards applicable to the use of this surface for indoor soccer, the U.S. Indoor Soccer Association did not prohibit the use of this type of surface, and the MISL (Major Indoor Soccer League) was using this type of surface for its games.  The injured player’s coach provided an affidavit stating that there was nothing wrong with the surface, and that it was a “normal” surface.  The owner of FSA, who had played indoor soccer himself for many years, testified at deposition that he decided to use this surface based upon his own experience and his knowledge of what other Connecticut facilities were using at the time.  Finally, it was undisputed that there had been no prior complaints or prior soccer related injuries associated with this surface during the four months that it had been in use.

The only thing offered by the plaintiff to rebut this evidence was the affidavit of her expert witness.  He had conducted scientific testing using the plaintiff’s shoe and a remnant of the actual playing surface.  He opined that this surface was not as safe as other surfaces because the interface between the shoe and surface was such that it increased the chance of an ankle injury.  Thus, he opined that this was a defect that caused the plaintiff’s ankle injury.  Plaintiff's counsel then argued that the defendant was “on notice” of the dangerous condition because it installed it and never tested it before allowing play on it.  The trial court granted the defendant’s summary judgment motion.  The relevant basis for the trial court’s ruling was that the plaintiff had not produced evidence that the defendant had notice of the alleged hazardous condition.  Thereafter, the Appellate Court reversed.  It reasoned that the plaintiff did not need to prove notice of a dangerous condition because the defendant was responsible for creating that condition.  After granting the defendant’s petition for certification, the Supreme Court resolved what it ultimately determined to be the dispositive issue: Whether the Appellate Court correctly concluded that the plaintiff had established a genuine issue of material fact concerning the defendant’s actual or constructive knowledge of a dangerous condition?

The Supreme Court reversed the Appellate Court and held that the plaintiff did need to prove that the defendant was on notice of the existence of a specific, defective condition.  It went on to hold that the defendant had offered substantial evidence showing that it had no reason to be on notice of the alleged danger, and that plaintiff had failed to offer any evidence to raise a question of fact on this “essential element” of her case.  The only thing that she had offered to do this was the opinion of her expert, which was based upon a scientific test that he had run.  The Court ruled that the results of that test were relevant to injury causation, but did not prove that the defendant was on notice of the alleged defect.  The Court then went on to explain the workings of the Affirmative Act Rule insofar as negligence based premises liability cases are concerned, and ruled that the Rule did not apply to the facts of this case so as to relieve the plaintiff of the burden of proving that the defendant had constructive notice of the alleged dangerous condition.  (The Court ruled that the Affirmative Act Rule only applies where the defendant created an “obviously dangerous defect”).  That was not the case at FSA.  The Court described the condition as a latent one.  This decision is important.  First, it reinforces the long-held rule that, in Connecticut, business owners are not insurers of their customers’ safety.  Next, it clarifies several aspects of Connecticut premises liability law, both on the need for proof of notice of a specific premises defect even where the defect is “latent”, and the circumstances in which the Affirmative Act Rule may be invoked so as to relieve a plaintiff of the burden of proving the essential “Notice” element in order to rebut a well-supported motion for summary judgment.  The Court also discussed its fairly recent adoption of the Mode of Operation Rule and bolstered its ruling in Fischer v Big Y Foods, Inc., 298 Conn 414, 423 3 A.3d 919 (2010), which limits the application of that rule.  This, coupled the Court’s fairly cogent and succinct definition of Connecticut premises liability law, makes this a decision that we anticipate will be cited extensively.

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