Opinion
CV176074701S
06-03-2019
Victoria PUE v. WAL-MART STORES, INC.
UNPUBLISHED OPINION
Wilson, J.
FACTS
The plaintiff, Victoria Pue, filed a complaint on October 31, 2017, against the defendant, Wal-Mart Stores Inc., in which she alleges the following facts. On November 3, 2015, the plaintiff was lawfully on the premises, as a business invitee of a retail grocery store owned and operated by the defendant at 315 Foxon Boulevard, in New Haven, Connecticut (premises), when she slipped and fell, without warning, on a puddle of yogurt and/or other liquid on the floor near aisles nine and ten. As a result of the fall, the plaintiff suffered pain and sustained injuries. The fall was a direct and proximate cause of the negligence and carelessness of the defendant acting through one or more of its agents, servants or employees. The defendant filed an answer and special defense on January 23, 2018, whereby it admits that it owns and operates the premises, but leaves the plaintiff to her proof and/or denies the remaining allegations. The defendant also alleges a special defense that the plaintiff’s injuries were caused by her own negligence and carelessness. The plaintiff filed a reply on January 23, 2018, and she denies the special defense.
On September 4, 2018, the defendant filed a motion for summary judgment, and a memorandum of law in support. In support of the motion, the defendant submitted by way of evidence, a notice of a proposed exhibit (surveillance video) to be provided at oral argument, and an affidavit of Michael Nuzzi, an asset protection associate for the defendant at the premises. The defendant argues that no genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law because it did not receive actual or constructive notice of the defective condition and, therefore, cannot be liable for the plaintiff’s injuries. The defendant asserts that the surveillance video clearly depicts a shopper dropping a container of yogurt, another shopper picking the container up and placing it on a display, said shopper looking at a substance on the floor, and the plaintiff slipping and falling shortly thereafter, but does not depict any employee of the defendant responding to the spilled yogurt prior to the plaintiff’s fall. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶4-16. In addition, the defendant attached an affidavit of Gloriliz Rodriguez, the personnel manager for the defendant at the premises on the date of the alleged fall, to its reply brief filed on November 1, 2018, wherein she attests that she is familiar with the identity of employees at the premises, and that after viewing the surveillance video, she did not recognize anyone on the video as an employee. See Def.’s Reply Obj. Mot. Summ. J., Rodriguez Aff., ¶¶3, 5-7. The defendant also filed a later reply to the plaintiff s supplement to her objection to the motion for summary judgment on January 31, 2019. In both reply briefs, the defendant argues that the plaintiff fails to provide any evidence to raise a genuine issue of material fact regarding whether the defendant had actual or constructive notice of the spilled yogurt because the plaintiff’s affidavit is self-serving, and the alleged employee of the defendant has not been verified.
In his affidavit, Nuzzi certifies to the truth and accuracy of the contents of the surveillance video and gives a play-by-play of the events depicted in the surveillance video. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶4-18.
The court did not expressly permit the defendant to file the later reply brief. "It is within the trial court’s discretion whether to accept or decline supplemental evidence in connection with a motion for summary judgment." Corneroli v. Kutz, 183 Conn.App. 401, 425 n.10, 193 A.3d 64 (2018). As the plaintiff did not object to the filing of this later reply brief, the court will consider the same.
On October 3, 2018, the plaintiff filed an objection to the motion for summary judgment, and a memorandum of law in opposition. The plaintiff counters that there is a genuine issue of material fact, and submits by way of evidence, copies of time-stamped photographs from the surveillance video. Specifically, the plaintiff asserts that an individual shown on the surveillance video is an employee of the defendant, that he actually saw the spilled yogurt and, therefore, had actual or constructive notice of the defect that caused the plaintiff’s fall. The plaintiff argues that the surveillance video shows "an unknown Wal-Mart employee walking over the exact location of the spilled yogurt mere seconds after it was spilled ... As the employee exits the cash register line, he walks directly into the path where the Plaintiff would later fall. The employee then walks either directly over or directly onto the substance on the ground." Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. The plaintiff also argues that the employee neither stops and calls for maintenance to clean the spill nor waits and warns patrons about the condition of the floor. See Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. Instead, he "just proceeds forward ignoring the slippery nature of the floor." Pl.’s Mem. Opp’n. Mot. Summ. J., p. 7. The plaintiff filed a supplement to her objection to the motion for summary judgment on December 27, 2018, wherein she attached her own affidavit, dated December 5, 2018. In her affidavit, the plaintiff attests that she spoke with a manager at the premises after the fall and filled out an incident report. See Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶5. She further attests that, during their conversation, "an unknown African-American male employee of Wal-Mart was called to the desk by the manager," and said employee "stated that he saw the spilled yogurt on the floor when he walked by and was going to ‘deal with it.’" Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶¶6-7.
The plaintiff submitted copies of time-stamped photographs from the surveillance video, without any certification or authentication. As the parties have not objected to any evidence presented, the court will consider the same. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) (holding "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency"). "[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be ... Additionally, in considering a motion for summary judgment, [i]t is within the court’s discretion whether to accept or decline [to accept] ... supplemental evidence." (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
The motion was initially scheduled for oral argument on November 5, 2018. At that hearing, the surveillance video was marked as defendant’s Exhibit A, and counsel for both parties and this court watched the surveillance video. The court gave the plaintiff permission to file a supplemental brief in response to the video. Additional argument was heard at short calendar on February 4, 2019.
DISCUSSION
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 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 ... 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017). "A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
"[A] premises liability claim is a negligence cause of action." Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 791 n.4, 130 A.3d 868 (2015). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 373, 119 A.3d 462 (2015). As to business owners, "[a] business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 116. "[B]usiness owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." Id., 117. "Under Connecticut law, the existence of both actual and constructive notice is a question of fact." Vendrella v. Astriab Family Ltd. Partnership, 133 Conn.App. 630, 659, 36 A.3d 707 (2012), aff’d, 311 Conn. 301, 87 A.3d 546 (2014).
"A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant’s employee ... or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition." (Citation omitted.) Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 412, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014) (appeal subsequently withdrawn on May 9, 2014).
As to constructive notice, "[t]he controlling question in deciding whether the [defendant] had constructive notice of the defective condition is whether the condition existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Diaz v. Manchester Memorial Hospital, supra, 161 Conn.App. 792; see also Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 408. "What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in the light of the particular circumstances of each case." (Internal quotation marks omitted.) Sauro v. Areno Co., 171 Conn. 168, 171, 368 A.2d 58 (1976); see also Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 629, 195 A.3d 707 (2018). Thus, "[w]hat constitutes a reasonable length of time is largely a question of fact ... The nature of the business and the location of the foreign substance would be factors in this determination ..." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). Further, in cases involving discoverable, and not inherently dangerous, defects, "[l]onger periods of time create the inference of constructive knowledge ..." DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 118 n.5.
"[T]he 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." (Internal quotation marks omitted.) Rockhill v. Danbury Hospital, 176 Conn.App. 39, 49, 168 A.3d 630 (2017). "Accordingly, the following relevant legal principles apply to this action. To hold the defendant liable for her personal injuries ... the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and [for constructive notice] (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 626.
In the present case, the defendant argues that there is no evidence indicating that the defendant had actual notice of the spilled yogurt. The defendant does not submit an affidavit stating that it did not receive any reports of the spilled yogurt before the plaintiff fell, to support the argument that there was no actual notice. Instead, the defendant relies, almost exclusively, on the surveillance video and Nuzzi’s affidavit, which clearly depicts a shopper dropping a container of yogurt, another shopper picking the container up and placing it on a display, said shopper looking at a substance on the floor, and the plaintiff slipping and falling shortly thereafter, but does not depict any employee of the defendant responding to the spilled yogurt prior to the plaintiff’s fall. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶4-16.
It is clear to the court, after watching the surveillance video, that the defendant did not create the defective condition. See Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 640 (holding that "[w]hen a court is presented with [a video recording] in deciding a motion for summary judgment, it should view the facts in the light depicted by the recording"); Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶16; see also Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 412. After watching the surveillance video, however, the court is not convinced that the person (not the aforementioned shoppers) shown in the video, walking by the spilled yogurt after the shoppers walk away and before the plaintiff falls, and wearing what appears to be a vest and a name tag similar to the attire of other employees of the defendant, is not an employee of the defendant as argued by the defendant. See Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 640; Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶16; see also Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 412. Nevertheless, the court agrees with the defendant that it is not definitive that the person, even if an employee, that walks by the spilled yogurt noticed and/or looked down at the spilled yogurt. See Hellamns v. Yale-New Haven Hospital, Inc., supra, 413 (holding that "[w]hile circumstantial evidence can establish constructive notice, a plaintiff’s assertion that an employee walked past the defect, absent evidence that the employee actually did see the defect, is insufficient"). Additionally, the defendant relies on the Rodriguez affidavit, wherein she avers that she is familiar with the identity of employees at the premises, and that after viewing the surveillance video, she did not recognize this unknown individual as an employee of the defendant. See Def.’s Reply Obj. Mot. Summ. J., Rodriguez Aff., ¶¶3, 5-7. As a matter of law, therefore, there is no genuine issue of material fact that the defendant did not have actual notice of the spilled yogurt.
As to the issue of constructive notice, the defendant argues that there is no genuine issue of material fact that the spilled yogurt did not remain on the floor for a period of time long enough for the defendant to have discovered it before the plaintiff fell, such that the defendant would have acquired constructive notice. As previously noted, even if the person seen in the surveillance video that walked by the spilled yogurt is an employee of the defendant, it is not clear that he noticed and/or looked down at the spilled yogurt. Moreover, even he if he had looked down and noticed the spilled yogurt, the defendant argues that the amount of time between when the spill occurred and when the plaintiff fell was too short to have amounted to constructive notice. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶17-18. Nuzzi attests that approximately three minutes and five seconds elapsed from the time the yogurt container fell, spilled, and was picked up off of the floor until the time the plaintiff fell. See Def.’s Mem. Supp. Mot. Summ. J., Nuzzi Aff., ¶¶8-10, 15, 17.
Courts have consistently held that a period of minutes is insufficient to establish constructive notice. See, e.g., White v. E&F Construction Co., 151 Conn. 110, 113-14, 193 A.2d 716 (1963) (finding evidence that wet steps existed for approximately two minutes prior to plaintiff’s fall, alone, was insufficient to charge defendant with constructive notice); Jonas v. Newfield Towers Realty Co., Superior Court, judicial district of Middlesex, Docket No. CV-106003150-S (November 9, 2011, Aurigemma, J.) (finding that where water was on floor for "only several minutes" this "was clearly insufficient time" for constructive notice); see also Mason v. Wal-Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6013281-S (May 1, 2012, Stengel, J.T.R.) (53 Conn.L.Rptr. 882, 883) (finding that where video footage showed water that caused fall had existed on ground for mere sixty seconds, "[i]t would be unreasonable for this court to find that the defendant had constructive notice ... The defendant’s store is large, and such minute-to-minute monitoring would be unfeasible."). Moreover, even if the person in the video is an employee of the defendant, the defendant argues that it is not enough to find that he was an employee and saw the spilled yogurt, it would also have to be within his scope of employment to clean up the spilled yogurt, and the plaintiffs do not allege or argue the same. See Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 412. In light of the surveillance video that shows that the spilled yogurt existed for approximately three minutes prior to the plaintiff’s fall, and does not definitively support that an employee of the defendant saw the spill, there is no genuine issue of material fact that the defendant has met its initial burden of showing the absence of constructive notice as a matter of law.
In her objection to the defendant’s motion for summary judgment, the plaintiff challenges the defendant’s depiction of the surveillance video and argues that "[a]t 6:22:10 p.m., the surveillance video depicts a Wal-Mart employee, wearing a Wal-Mart vest with a name tag, walking from the checkout area, to the main travel path in front of aisles 9 and 10. This same employee walks directly over the area where the yogurt was spilled and the Plaintiff later falls." Pl.’s Mem. Opp’n. Mot. Summ. J., p. 4. The plaintiff states that this employee walks directly over and ignores the spilled yogurt. See Pl.’s Mem. Opp’n. Mot. Summ. J., p. 5. Although the defendant states on multiple occasions that the plaintiff cannot prove that it had actual or constructive notice of the defective condition, the plaintiff explains that she must only raise a genuine issue of material fact at this stage of the proceedings, and that the surveillance video illustrates these genuine issues of material fact as to the identity of the unknown employee, whether he saw the spilled yogurt, and if it was within his scope of employment to clean up the spilled yogurt. See Pl.’s Mem. Opp’n. Mot. Summ. J., pp. 6-7. Additionally, in response to the defendant’s argument and the Rodriguez affidavit maintaining that the person depicted on the surveillance video was not an employee of the defendant, the plaintiff filed her own affidavit, whereby she explains that she spoke with a manager at the premises after the fall and filled out an incident report. See Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶5. She attests that, during their conversation, "an unknown African-American male employee of Wal-Mart was called to the desk by the manager," and said employee "stated that he saw the spilled yogurt on the floor when he walked by and was going to ‘deal with it.’" Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶¶6-7. Moreover, the fact that Rodriguez stated in her affidavit that she did not recognize the individual on the surveillance video does not eliminate the possibility that the individual depicted was actually an employee of the defendant, acting within the scope of his employment, and saw the spilled yogurt in time to clean it prior to the plaintiff’s fall because Rodriguez’ affidavit simply states that she does not "recognize" the person as an employee, but not that such individual is definitively not an employee. See Def.’s Reply Obj. Mot. Summ. J., Rodriguez Aff., ¶¶3, 5-7.
The defendant challenges the plaintiff’s affidavit as a "wholly self-serving affidavit" that provides insufficient evidence that the individual that spoke to the manager is the same person on the surveillance video. See Def.’s Reply Suppl. Obj. Mot. Summ. J., p. 1. "[A]ffidavits containing self-serving allegations need not be viewed as persuasive by the court." Paranto v. Piotrkowski, Superior Court, judicial district of New Haven, Docket No. CV-07-5013627-S (September 22, 2010, Zoarski, J.T.R.). "A number of decisions of the Superior Court have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment ... In these cases, however, the self-serving affidavits typically contain conclusory statements that, in and of themselves, form the sole basis for the movant’s motion for summary judgment." (Internal quotation marks omitted.) American Express Centurion Bank v. Eldridge, Superior Court, judicial district of New Haven, Docket No. CV-11-6020750-S (August 2, 2012, Wilson, J.) (54 Conn.L.Rptr. 488, 490).
Although the defendant does not argue in its motion for summary judgment or reply briefs that the plaintiff’s affidavit is a "sham affidavit," this concern was raised during oral argument on February 4, 2019. The sham affidavit rule does not apply in this case because the affidavit submitted by the plaintiff does not directly contradict any previous testimony. See Kenneson v. Eggert, 176 Conn.App. 296, 310, 170 A.3d 14 (2017) ("[t]he sham affidavit rule refers to the trial court practice of disregarding an offsetting affidavit in opposition to a motion for summary judgment that contradicts the affiant’s prior deposition testimony" [internal quotation marks omitted]).
Here, the plaintiff’s affidavit does not merely assert legal conclusions but, instead, presents specific facts. She states that, after her fall, "an unknown African-American male employee of Wal-Mart was called to the desk by the manager," and said employee "stated that he saw the spilled yogurt on the floor when he walked by and was going to ‘deal with it.’" Supp. Pl.’s Suppl. Obj. Mot. Summ. J., Pue Aff., ¶¶6-7. This additional information about the defendant’s employee, what he saw and what he said, does not contradict or undermine the claims being alleged by the plaintiff in her complaint or being argued in her objections to the motion for summary judgment but, rather, supplements these statements. Thus, the court will consider Pue’s affidavit.
More importantly, by the defendant questioning the genuineness of the statements made in the plaintiff’s affidavit, the defendant raises a genuine issue of material fact regarding the plaintiff’s credibility. Indeed, in the defendant’s reply to the plaintiff’s supplement to the objection to the motion for summary judgment, the defendant states that the plaintiff’s affidavit raises a "significant question of credibility of this alleged statement now coming to light." Def.’s Reply Suppl. Obj. Mot. Summ. J., p. 1. "In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). "Issues of credibility are uniquely within the province of the jury and therefore [the court] will not endorse the testimony of one witness over another." PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 312, 838 A.2d 135 (2004). Notwithstanding that the statements made in the plaintiff’s affidavit raise a genuine issue of material fact regarding whether the defendant had notice of the spilled yogurt prior to the plaintiff’s fall, the defendant challenging the credibility of the affidavit, consequently, creates a genuine issue of material fact as well. In light of these genuine issues of material fact, the defendant’s motion for summary judgment is denied.
The court also notes that the defendant relies heavily on and quotes from sections of Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 411-14, to support its arguments regarding notice. The defendant fails to recognize that Hellamns, procedurally, differs substantially from the present action. In Hellamns, it was the plaintiff’s burden to prove that the defendant had actual or constructive notice of the specific defect because the case was being tried to the court. Id., 406-07, 412. In the present action, it is the defendant’s burden to show that there are no genuine issues of material fact regarding actual or constructive notice of the spilled yogurt. See State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 573. Moreover, the plaintiff, by way of her affidavit, has sufficiently raised genuine issues of material fact. Although the plaintiff’s affidavit alone may not be sufficient to prove actual or constructive notice at trial, at this stage in the proceeding, it is not the plaintiff’s burden to prove the defendant’s liability unequivocally. See State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 573; Mason v. Wal-Mart Stores, Inc., supra, 53 Conn.L.Rptr. 882-83 (finding plaintiff’s testimony concerning unidentified employee’s statement regarding cause of fall, standing alone, does not prove actual notice).
"So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried ... A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." (Citations omitted; internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 39 Conn.App. 618, 631, 57 A.3d 391 (2012). Plaintiff’s case, whatever its infirmities and no matter how skeptical one might be as to her chances at persuading a jury to find in her favor, is not yet dead on arrival.
CONCLUSION
For the foregoing reasons, there is a genuine issue of material fact as to whether the defendant had actual or constructive notice of the spilled yogurt prior to the plaintiff’s fall and, therefore, the defendant’s motion for summary judgment is denied.