October 3, 2018
In every Connecticut premises liability action, the plaintiff must establish that the defendant had “actual” or “constructive” notice of the alleged defect. In order to establish “constructive” notice of the defect, the plaintiff must prove that the alleged defect existed for a “reasonable length of time” so that the defendant should have both discovered and remedied it. In Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619 (2018), the Connecticut Appellate Court held that forty seconds is not a “reasonable length of time” to establish “constructive notice.”
The plaintiff in Bisson allegedly slipped and fell on an accumulation of water while shopping inside a Wal-Mart. Thereafter, the plaintiff sued Wal-Mart for personal injuries. Wal-Martsubsequently filed a motion for summary judgment arguing that there was no genuine issue of material fact that it did not have “actual” or “constructive notice” of the alleged defect. In support of its motion, Wal-Mart submitted an affidavit from a store employee attesting that she had performed a “safety sweep” in the area where the plaintiff slipped and fell forty second before the accident. In addition, Wal-Mart submitted the surveillance footage of the incident in support of its motion. The trial court, Tyma, J., granted Wal-Mart’s motion.
On appeal, the plaintiff argued that there was a genuine issue of material fact as to whether Wal-Mart had “constructive” notice of the alleged defect. The Connecticut Appellate Court affirmed the decision of the trial judge. In doing so, the Connecticut Appellate Court observed that “to prevail on its motion for summary judgment, the defendant had to establish that the time period in which the defect could have existed was of such a minimal duration that its employees could have been expected to discover and remedy it in the exercise of due care.” Accordingly, the Connecticut Appellate Court held that Wal-Mart “acting through its employee’s exercise of due care, did not have enough time to discover and remedy a puddle of water on the floor of its store.”
The Bisson decision is encouraging for defense counsel seeking to dispose of a case on summary judgment on the issue of “constructive notice.” As Bisson makes clear, exactly what constitutes “a reasonable length of time” depends in part on the location and circumstances of the accident.