Opinion
No. CV 07 5013627
September 22, 2010
MEMORANDUM OF DECISION
This action arises from injuries sustained by the adult plaintiff, Lisa Paranto, on a trampoline on August 10, 2005. On August 30, 2007, the plaintiff filed suit against Shannon and Eileen Piotrkowski, the owners of the trampoline and the property where the trampoline was located. Thereafter, the Piotrkowskis filed a third-party complaint against the manufacturer of the trampoline, Variflex, Inc. and the retailer, Toys R Us. On May 11, 2010, the Piotrkowskis filed their motion for summary judgment. On June 22, 2010, Variflex and Toys R Us filed their motion for summary judgment. On July 21, 2010, the Piotrkowskis filed an objection to the motion filed by Variflex and Toys R Us. The plaintiff filed her objection to the Piotrkowskis' motion on July 26, 2010. The Piotrkowskis filed their reply memorandum on July 30, 2010. The parties appeared for oral argument at short calendar on August 2, 2010.
"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 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The Piotrkowskis argue that they are entitled to judgment because the plaintiff cannot establish that they were negligent because she is unable to identify a defect on the trampoline; the plaintiff cannot rebut the fact that they regularly and reasonably inspected their property, including the trampoline; and that they had no duty to warn the adult plaintiff of a dangerous condition. Variflex and Toys R Us move for summary judgment on the grounds that the Piotrkowskis failed to disclose any expert adequate to offer an opinion of the alleged defective nature of the trampoline; and there exists no basis for the claimed "defect." The plaintiff opposes both motions arguing that there exist genuine issues of material fact in dispute.
In regard to the plaintiff's claims against the Piotrkowskis: "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 . . . 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 dealings with the possessor of the land . . . [General Statutes § 52-557a], which provides that the 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." (Citations omitted; internal quotation marks omitted.) CT Page 18627 Sevigny v. Dibble Hollow Condo. Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003).
"[A] possessor of land [however] has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition . . . 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." (Citation omitted; internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 344-45, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). "[T]he plaintiff [must] allege and prove that the defendants had either actual or constructive knowledge of the specific defective condition which caused the injury and not merely of conditions naturally productive of that defect . . . On the question of notice . . . consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). "The plaintiff [bears] the burden of proffering some evidence, either direct or circumstantial, from which [a] 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." Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).
As to the Piorkowskis' claims against Variflex and Toys R Us: "The Connecticut Supreme Court has outlined the essential elements of a strict product liability claim as follows: `(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in the condition.' Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980)." Fallon v. The Matworks, 50 Conn.Sup. 207, 226, 918 A.2d 1067 [ 42 Conn. L. Rptr. 726] (2007).
Therefore, both premises liability and products liability claims require that a plaintiff identify the specific defect that caused his or her injuries. By example, in Kubera v. Barnes Noble Booksellers, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5012729 (March 10, 2009, Elgo, J.), a premises liability action, the court granted the defendant's motion for summary judgment because the plaintiff's deposition testimony revealed that she was unable to identify what caused her to fall in the defendant's store.
The plaintiff alleged that she "hit something" and fell forward in the defendant's store, which she described as being in "disarray," with scattered tables and chairs. In her deposition, the plaintiff was unable to identify what caused her to fall, although she did not believe it was any of the chairs or tables that were scattered in the cafe area. The plaintiff was also unable to identify whether she tripped on the carpet or tile portion of the aisle. She testified that because she was looking up for the women's sign, she was unable to identify what caused her to trip. She maintained, however, that the general disarray of the cafe area was the defect for which the defendant was negligent. The court disagreed and found that even if the cafe area was in a defective condition at the time of her fall, the plaintiff failed to establish that this condition caused her to suffer injury. In granting summary judgment, the court noted: "The mere fact that the plaintiff fell in the defendant's store does not warrant the presumption or inference that the defendant caused her injury and was therefore negligent." Contra Link v. BJ's Wholesale Club, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5012033 (July 15, 2010, Wilson, J.) (denying summary judgment because plaintiff sufficiently identified that he fell on garbage and debris in front of defendants' store).
Likewise, in Marisco v. Allegre Banquets, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5018088 (August 6, 2009, Zoarski, J.T.R.), a products liability action, the court granted summary judgment finding that the plaintiff's mere guess, conjecture, or speculation that there was a foreign object in his prime rib that caused him injuries was not sufficient to maintain his action against the defendants. The plaintiff's deposition demonstrated that neither he nor anyone else saw or had any knowledge of what caused his injuries. More specifically, the deposition showed that the plaintiff had no evidence that demonstrated the prime rib's defectiveness, as an attendant removed his plate before he could return to his table to examine what he had bitten into.
In ultimately granting summary judgment, the Marisco court discussed the malfunction doctrine. "In modern products liability litigation . . . a plaintiff normally must prove that a product was defective, that the product contained the defect when it left the defendant's control, and that the defect proximately caused the plaintiff's harm. A plaintiff who fails to establish each of these elements by a preponderance of the evidence fails to make a prima facie case. If a manufacturing defect causes a product accident, usually the plaintiff can prove the defect and its causal relation to both the manufacturer and the accident largely by direct evidence — as by testimony from an expert that the product contained an identifiable production flaw, deviating from design specifications, that caused the product to fail in a particular manner. Sometimes, however, a product may malfunction under circumstances suggesting a manufacturing defect . . . but without leaving any direct physical evidence as to how or why, specifically, the product failed to operate properly. In such cases, the absence of direct evidence of product defectiveness and causation hampers a plaintiff's efforts to establish a prima facie products liability case . . . Under the malfunction doctrine, a plaintiff may establish a prima facie case of product defect by proving that the product failed in normal use under circumstances suggesting a product defect. Put otherwise, a product defect may be inferred by circumstantial evidence that (1) the product malfunctioned, (2) the malfunction occurred during proper use, and (3) the product had not been altered or misused in a manner that probably caused the malfunction. The malfunction doctrine may be described less formally as providing that a plaintiff need not establish that a specific defect caused an accident if circumstantial evidence permits an inference that the product, in one way or another, probably was defective." Id.
The court continued: "While courts have applied the malfunction doctrine in many cases to help plaintiffs get to the jury when evidence of a specific defect is unavailable, plaintiffs have lost many other cases in which they have relied unreasonably upon this type of circumstantial proof. The doctrine presents a seductive but faulty shelter for plaintiffs with insufficient proof of defect and causation, and the law reports brim with decisions that recite the propriety of the doctrine as a general proposition but hold it inapplicable to the facts. The opinions in such cases frequently note that, while the malfunction doctrine provides a method for plaintiffs in proper cases to establish defectiveness and causation, the law will not allow plaintiffs or juries to rely on guess, conjecture, or speculation. Although the malfunction doctrine may come to a plaintiff's rescue when circumstances fairly suggest the responsibility of a product defect, it is hornbook law that proof of a product accident alone proves neither defectiveness nor causation. Nor does further proof that the accident was caused by a malfunction suffice to prove these elements. The crucial additional showing required of a plaintiff in a malfunction case is the negation of causes for the malfunction other than a product defect." Id.
The malfunction doctrine was previously applied in Fallon v. The Matworks, supra, 50 Conn.Sup. 207, and in Metropolitan Property Casualty Ins. Co v. Deere Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4007111 (January 25, 2008, Wagner, J.T.R.) ( 44 Conn. L. Rptr. 836). In Fallon, supra, 50 Conn.Sup. 209, the plaintiff claimed that she slipped and fell on a defective carpet tile. The carpet tile, which allegedly caused her injury, was not available because after the incident, the entire floor covering was taken up and discarded. See id., 210. Prior thereto, however, the plaintiff herself appeared on the premises and evidently obtained another carpet tile (or portion of a carpet tile) from the floor in question, although not the one that she allegedly tripped on. See id. This was marked as an exhibit at the plaintiff's deposition. See id. In light of the doctrine's applicability as a theory of liability against one of the named defendants, the Fallon court ultimately denied that defendant's motion for summary judgment. See id., 225-26.
In Metropolitan Property Casualty Ins. Co., supra, 44 Conn. L. Rptr. 836, the plaintiff's insureds experienced difficulty with their John Deere tractor when mowing the lawn, put the tractor in the garage of their home, and subsequently, a fire started in the garage, consuming the garage and adjacent home. See id. The plaintiff insurer, which covered the loss, filed suit against Deere Company and the sellers of the tractor. See id. The defendants claimed that because all five expert witnesses agreed that the cause of the fire was undetermined, the evidence failed to show the presence of any defective condition in the John Deere tractor. See id., 837. The plaintiff on the other hand, argued that the cause of the fire constitutes the ultimate issue of fact which has to be decided by the jury. See id.
The court denied the defendants' motion for summary judgment on the basis that the plaintiff submitted the deposition testimony of the insured, in which she testified that on the day of the fire, the tractor was running poorly and that the tractor was shaking and that she was unable to finish cutting the grass. See id. In addition, the insured testified that he had problems with the tractor after he brought the tractor in to have a tune up, specifically that the tractor had problems starting, would backfire, and blow black smoke. See id. In light of this evidence, the court concluded: "Whether the product was actually defective, or was the result of having a tune up which changed the product design in some way, taking it out of the realm of products liability, is an issue of material fact regarding the defectiveness of the tractor." See id.
In the present case, the court is presented with the following evidence. In the affidavits of Shannon and Eileen Piotrkowski, dated April 13 and April 7, 2010, respectively, they attest to the following. "Our family purchased the subject trampoline new from Toys R Us in April 2005, which was assembled in accordance with the manufacturer's instructions and placed on the level asphalt area in the backyard . . . The trampoline had several warning signs attached to the trampoline's perimeter and on poles near the entrance to the trampoline. The trampoline also came with nylon fencing that was installed around the perimeter of the trampoline and opened for entry at the poles with the warning signs . . . Since the date of our purchase, [our] two daughters . . . aged thirteen and five years old respectively, and their friends used the trampoline on several occasions and never had any problems with the trampoline. None of the children were ever injured while jumping on the trampoline and no one ever complained that there were any problems or defects with the trampoline . . . On August 10, 2005, plaintiff and her boyfriend were at our house for dinner. During that time, plaintiff climbed onto the trampoline wearing socks on her feet and began jumping on the trampoline with my two daughters . . . [P]laintiff's boyfriend and [us] sat nearby watching them have a good time. Plaintiff never made any complaints or indicated that there was any problem with the trampoline . . . A few minutes later, plaintiff jumped up and when she landed she complained that she hurt her knee . . . The trampoline was inspected following the incident and there was nothing wrong with the trampoline. [Our] daughters were able to use the trampoline within days following the subject incident . . . We never had to make any repairs to the trampoline before or after the subject incident . . . We often inspected the trampoline to ensure that it was safe, especially considering that our daughters and their friends were primarily the individuals that used the trampoline . . . As of August 10, 2005, the trampoline was new and only five months old. There were no defects or problems with the trampoline."
The Piotrkowskis also provide the court with a certified copy of the plaintiff's deposition, taken on November 17, 2009. In her deposition, the plaintiff was asked what caused her to have problems with her leg, to which she responded: "I was on the trampoline bouncing for a short period of time, and [the Piotrkowskis' daughters] were bouncing around me. I said I wanted to come off, and I went up and came down and got an injury to my knee. I heard something snap, and then came back up and down, and I couldn't get off the trampoline . . . I came down on both feet but harder on the left foot, came back up, and came down, and that's when I stayed down." The voluminous deposition includes detailed questions about the plaintiff's medical treatment after her injury and her past medical treatment for other non-related injuries occurring years prior.
Subsequently, she is again asked about the circumstances surrounding her injury on the trampoline. She was asked: "[W]as the trampoline working as you expected it?" to which she responded: "I guess as a trampoline would work." The plaintiff also testified that this had been her first time on a trampoline, that she did not see the warning signs placed on the trampoline and didn't ask anyone about the warning signs. When asked whether she was aware of anything that was wrong with the trampoline or "the way it was moving or bouncing," she responded that she didn't know. "So can you say there was something wrong with the trampoline that caused your injury?" The plaintiff responded: "I don't know. I came up, I came down. I don't know." She further stated that: "No one prior to me getting on the trampoline had said that something was wrong [with] it or while I was on the trampoline." She was asked: "And nothing was broken on the trampoline that you saw?" and answered: "Not that I saw."
When asked how she injured herself, she answered: "I mean I came down, and I — the girls were bouncing me, and I heard the snap and came back up and then came back down on my butt." When asked whether she claims in her suit that someone is at fault for her injuries, she stated: "I don't know if anyone was at fault. I don't know if there was something wrong with the trampoline . . ." Finally, the defendants include photographs of the trampoline and its surroundings and a photograph of the warning label on the trampoline.
In light of this evidence, the court is satisfied that the Piotrkowskis, Variflex and Toys R Us are entitled to summary judgment as a matter of law. In regard to the plaintiff's premises liability claims against the Piotrkowskis, the court finds that the plaintiff's deposition demonstrates that the plaintiff cannot identify a defect in the trampoline that caused her injuries. The present case is akin to the facts presented in Kubera v. Barnes Noble Booksellers, Inc., supra, Superior Court, Docket No. CV 07 5012729, where the court granted summary judgment in favor of the defendants because the plaintiff's deposition testimony revealed that she was unable to identify what caused her to fall in the defendant's store. The court agrees with the Kubera court that the mere fact that the plaintiff was injured on the Piotrkowskis' property "does not warrant the presumption or inference that the defendant caused her injury and was therefore negligent." See id.
Similarly, and as to the Piotrkowskis' claims against Variflex and Toys R Us, the court finds that the plaintiff's guess, conjecture, or speculation that the Piotrkowskis' trampoline was defective is unsubstantiated and therefore, insufficient to maintain an action against the trampoline's manufacturer and retailer. The present case is akin to the facts before the court in Marisco v. Allegre Banquets, Inc., supra, Superior Court, Docket No. CV 08 5018088, where the plaintiff's deposition demonstrated that neither he nor anyone else saw or had any knowledge of what caused his injuries and further, the plaintiff was unable to provide any evidence of the prime rib's defectiveness.
The plaintiff argues that the self-serving affidavits of Eileen and Shannon Piotrkowski should not be used to support summary judgment in this case. The court notes that affidavits containing self-serving allegations need not be viewed as persuasive by the court. See Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 174, 947 A.2d 291 (2008); 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568, 636 A.2d 1377 (1994); see also Erlich v. Forest Land Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0453266 (January 6, 2003, Celotto, J.T.R.) ( 33 Conn. L. Rptr. 592, 593 n. 1) ("The court need not view affidavits containing self-serving and unsubstantiated allegations as persuasive"). Additionally, "[t]he Superior Courts have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment." Corsi v. Pascal, Superior Court, judicial district of New Haven, Docket No. CV 04 4004535 (June 13, 2007, Holden, J.).
The court, however, has been provided with the plaintiff's deposition, which, on its own, indicates that the plaintiff cannot identify a defect in the trampoline that caused her injuries. Moreover, her testimony does not describe the trampoline's malfunction or that it was otherwise working improperly. Rather, the evidence presented demonstrates that there was not a defective or dangerous condition in existence at the time the plaintiff was on the Piotrkowskis' premises, which would breach their duty to the plaintiff, as a social invitee, to inspect the premises or to warn the plaintiff. As a result, the court finds that the Piotrkowskis, along with the trampoline's manufacturer and retailer, Variflex and Toys R Us, are entitled to judgment.
Conclusion
The Piotrkowskis' motion for summary judgment (#160) is hereby granted. The motion for summary judgment filed by Variflex and Toys R Us (#165) is hereby granted.