***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
REBECCA BISSON v. WAL-MART STORES, INC.
(AC 39965)
DiPentima, C. J., and Sheldon and Prescott, Js.
Syllabus
The plaintiff, a business invitee of the defendant company, brought this
premises liability action against the defendant, seeking to recover dam-
ages for personal injuries she sustained when she allegedly slipped and
fell on an accumulation of water while walking in the main aisle of the
defendant’s store. The plaintiff alleged that her fall was caused by, inter
alia, the defendant’s negligence and carelessness in creating the alleged
dangerous and hazardous condition on the floor, and failing to properly
inspect its premises to detect and remedy that condition. The defendant
filed a motion for summary judgment on the ground that there was no
factual basis on which a reasonable jury could find that the defendant
had actual or constructive notice of the alleged defect. In support, the
defendant attached an excerpt from the plaintiff’s deposition and an
affidavit of its employee, C. The plaintiff claimed that a genuine issue
of material fact existed as to whether the defendant had constructive
notice of the alleged defect and, in support of her objection, submitted
a copy of C’s deposition and a copy of a video recording of the events
leading up to, and including, the plaintiff’s fall. The trial court granted
the defendant’s motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court. On appeal, the
plaintiff claimed, inter alia, that the trial court improperly concluded
that she failed to present evidence demonstrating the existence of a
disputed factual issue as to the matter of constructive notice. Specifi-
cally, she claimed that C’s deposition contained contradictions regarding
whether she actually performed a safety sweep of the main aisle prior
to the plaintiff’s fall and that C’s deposition testimony regarding the
time that had elapsed from her safety sweep of the main aisle to the
plaintiff’s fall was inconsistent. Held:
1. The trial court properly concluded that the defendant met its initial burden
of establishing the absence of a genuine issue of material fact with
respect to the constructive notice element of a premises liability action
for a business invitee; the defendant’s evidence, particularly C’s affidavit,
established a forty second maximum time period between the creation
of the defect and the plaintiff’s fall, and that brief period of time in
which the defect could have existed did not create a genuine issue of
material fact with respect to the constructive notice element, as the
defendant, acting through its employees’ exercise of due care, did not
have sufficient time to discover and remedy the alleged defect, a puddle
of water on the floor of its store.
2. The trial court properly concluded that the plaintiff failed to present
evidence demonstrating the existence of a disputed factual issue as to the
constructive notice element: the plaintiff’s attempt to inject a question
of untruthfulness into C’s deposition regarding whether she had per-
formed a safety sweep was unsupported by the record, as the plaintiff’s
argument failed to appreciate the distinction between two different types
of safety sweeps performed at the defendant’s store, the plaintiff’s claim
that the surveillance video showed that C never looked down or directly
in the area of the plaintiff’s fall amounted to nothing more than specula-
tion on behalf of the plaintiff because it was not possible to discern
where C’s gaze was directed when she performed her safety sweep due
to the low quality of the video recording, and although C’s deposition
testimony regarding the time that had elapsed from her safety sweep
of the main aisle to the plaintiff’s fall included isolated references to
both a five and ten minute time frame, C’s deposition, when read as a
whole, demonstrated that the plaintiff’s fall occurred in the area where,
approximately forty seconds prior, C had conducted a safety sweep,
and that time period was confirmed by the video recording; moreover,
the plaintiff’s claim that the presence of snow on the ground on the day
of the plaintiff’s fall increased the defendant’s duty to keep its premises in
a reasonably safe condition was inadequately briefed and not reviewable.
Argued March 12—officially released September 11, 2018
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the court,
Tyma, J., granted the defendant’s motion for summary
judgment and rendered judgment thereon; thereafter,
the court denied the plaintiff’s motion to reargue and
for reconsideration, and the plaintiff appealed to this
court. Affirmed.
Ryan K. Miller, for the appellant (plaintiff).
Michael P. Kenney, with whom, on the brief, was
Kate J. Boucher, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. In this premises liability action,
the plaintiff, Rebecca Bisson, challenges the summary
judgment rendered in favor of the defendant, Wal-Mart
Stores, Inc.,1 in which the trial court determined that
(1) the defendant met its burden of establishing that
no genuine issue of material fact existed regarding con-
structive notice of the defect alleged and (2) that the
plaintiff’s own evidence did not establish the existence
of a genuine issue of material fact. We affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our consideration of the plaintiff’s appeal. The
plaintiff commenced this premises liability action on
November 13, 2013. In the amended complaint, dated
March 4, 2014, the plaintiff alleged that on February 12,
2013, she entered the defendant’s store in Naugatuck
with her aunt. While walking in the main aisle of the
store, the plaintiff slipped and fell on an accumulation
of water. The plaintiff suffered immediate pain in her
left knee, and an employee of the defendant quickly
offered her assistance.
The plaintiff claimed that her fall was caused by the
defendant’s negligence and carelessness in creating the
dangerous and hazardous condition on the floor, failing
to remedy the condition, failing to warn the plaintiff of
the condition, failing to properly inspect its premises to
detect and correct the condition and failing to exercise
reasonable care under the circumstances. The plaintiff
also claimed to have suffered a variety of injuries in
the fall as a result of the defendant’s negligence and
carelessness.2 The defendant filed an answer, denying
the allegations of negligence and carelessness, and
raised the special defense of comparative negligence.
On July 6, 2016, the defendant filed a motion for
summary judgment. Specifically, it argued that ‘‘[t]he
plaintiff’s negligence claim against [the defendant] fails
as a matter of law because there is no factual basis upon
which a reasonable jury could find that [the defendant],
through its agents, servants and/or employees, had
actual or constructive notice of the alleged defect at
issue.’’ Attached to the defendant’s memorandum of
law in support of the motion for summary judgment
were an excerpt of the plaintiff’s deposition and an
affidavit of Jennifer Card, an employee of the defendant,
who had offered assistance to the plaintiff after her fall.
Card’s affidavit stated: ‘‘[The plaintiff’s] fall occurred
in the exact area where I had performed a safety sweep
less than one minute ([forty] seconds) prior . . . [and]
I did not observe any water, or other liquid, on the area
of the floor where [the plaintiff] fell during my safety
sweep . . . .’’
On August 18, 2016, the plaintiff filed an objection
to the defendant’s motion for summary judgment. She
argued that ‘‘contradictory pieces of evidence . . .
bring about a material fact as to the length of time
the water, which caused the [p]laintiff to slip and fall,
existed.’’ Specifically, the plaintiff argued that Card’s
affidavit, which she labeled as ‘‘self-serving,’’ was con-
tradicted by Card’s deposition. Additionally, the plain-
tiff contended that a surveillance video, provided by
the defendant, disproved Card’s statements contained
in her affidavit and deposition.3
On September 16, 2016, the defendant replied to the
plaintiff’s objection. The defendant noted in its reply
memorandum that the plaintiff had failed to produce
the surveillance video for the trial court’s inspection
and, therefore, that video was not part of the record
before the court on the summary judgment proceeding.
It did note, however, that if the surveillance video were
to be considered, it would support Card’s deposition
testimony and her affidavit.
On September 30, 2016, the plaintiff filed a surreply
memorandum, in which she argued that ‘‘[t]he surveil-
lance video depicts a different version of what is stated
in . . . Card’s deposition and affidavit. The [d]efen-
dant’s counsel gave this video to the undersigned, with-
out any objection or disagreement, several months ago.
It is hereby enclosed for the court’s review as an adden-
dum.’’ Attached to the surreply was an affidavit from
the plaintiff’s counsel stating that he had submitted a
USB flash drive to the court containing a true copy
of the February 12, 2013 surveillance video from the
defendant’s Naugatuck store that the defendant’s coun-
sel previously had mailed to him on August 28, 2015.
The court, Tyma, J., held a hearing on the motion
for summary judgment on November 21, 2016. At the
start of the hearing, the court noted that it had watched
the surveillance video twice in chambers with both
counsel present. The defendant’s counsel argued that
the video demonstrated that the claimed defect, water
on the floor, had existed for no more than one minute,
and more likely forty-two seconds. Specifically, the
defendant relied on Card’s affidavit and the surveillance
video to support its contention that she had scanned
the area of the plaintiff’s fall approximately forty sec-
onds prior to that event and did not see any water
on the floor. Such a minimal time period could not
constitute a sufficient length of time for constructive
notice of the defect, according to the defendant’s coun-
sel. Further, the defendant’s counsel also directed the
trial court to our decision in Hellamns v. Yale-New
Haven Hospital, Inc., 147 Conn. App. 405, 82 A.3d 677
(2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014)
(appeal withdrawn May 9, 2014), in support of the defen-
dant’s argument for summary judgment.
The plaintiff’s counsel challenged the defendant’s
claim that there was no genuine issue as to the duration
of the defect. Specifically, he argued that, given the fact
that there was snow on the ground outside on the day
of the plaintiff’s fall in the store, a genuine issue of
material fact existed as to whether the defendant had
‘‘taken reasonable steps to make sure that [its] invitees,
[its] customers, were safe under the circumstances.’’
The plaintiff’s counsel also claimed that inconsistencies
between Card’s affidavit and her deposition regarding
the nature and details of her ‘‘safety sweep’’ precluded
the granting of summary judgment in favor of the
defendant.
The court iterated that it had watched the surveil-
lance video twice and commented that it showed Card
walking down one of the main aisles of the defendant’s
store.4 Specifically, it noted that Card traversed the area
where the plaintiff’s accident would occur. The court
then stated: ‘‘And approximately forty to forty-two or
forty-three seconds later, we see the plaintiff come and
slip and fall in the spot where there’s allegedly water.
So we do know from the surveillance video that you
got that it’s consistent with [Card’s] deposition testi-
mony, that was about forty seconds.’’ The plaintiff’s
counsel subsequently claimed that the video supported
the claim that a reasonable person could conclude that
water had been on the floor for a longer period of time.
The court then rendered an oral decision5 granting the
defendant’s motion for summary judgment. It expressly
based its decision on Card’s affidavit, her deposition
testimony and the surveillance video.6 It concluded that
the defendant had met its initial burden of demonstra-
ting that there was no genuine issue of material fact
that the defendant did not have constructive notice of
the water on the floor.7 It then determined that the
plaintiff had failed to meet her burden of offering con-
trary evidence demonstrating the existence of a genuine
issue of material fact.8 The court subsequently denied
the plaintiff’s motion for reconsideration or reargu-
ment. This appeal followed.
We begin with our standard of review and the relevant
legal principles. The fundamental purpose of summary
judgment is to prevent unnecessary trials. Stuart v.
Freiberg, 316 Conn. 809, 822, 116 A.3d 1195 (2015). ‘‘The
standard by which we review a trial court’s decision to
grant a motion for summary judgment is well estab-
lished. Summary judgment shall be rendered forthwith
if the pleadings, affidavits and any other proof submit-
ted show that there is no genuine issue as to any mate-
rial 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. . . . Although the party seeking summary judg-
ment has the burden of showing the nonexistence of
any material fact . . . a party opposing summary judg-
ment must substantiate its adverse claim by showing
that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue. . . . It is not enough . . . for the opposing
party merely to assert the existence of such a disputed
issue. . . . Mere assertions of fact, whether contained
in a complaint or in a brief, are insufficient to establish
the existence of a material fact and, therefore, cannot
refute evidence properly presented to the court [in sup-
port of a motion for summary judgment]. . . .
‘‘As a general rule, then, [w]hen a motion for summary
judgment is filed and supported by affidavits and other
documents, an adverse party, by affidavit or as other-
wise provided by . . . [the rules of practice], must set
forth specific facts showing that there is a genuine issue
for trial, and if he does not so respond, summary judg-
ment shall be entered against him. . . . Requiring the
nonmovant to produce such evidence does not shift the
burden of proof. Rather, it ensures that the nonmovant
has not raised a specious issue for the sole purpose of
forcing the case to trial. . . .
‘‘More specifically, [t]he party opposing a motion for
summary judgment must present evidence that demon-
strates the existence of some disputed factual issue
. . . . The movant has the burden of showing the
nonexistence of such issues but the evidence thus pre-
sented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully,
the nonmovant must recite specific facts . . . which
contradict those stated in the movant’s affidavits and
documents. . . . The opposing party to a motion for
summary judgment must substantiate its adverse claim
by showing that there is a genuine issue of material
fact together with the evidence disclosing the existence
of such an issue. . . . The existence of the genuine
issue of material fact must be demonstrated by counter-
affidavits and concrete evidence. . . . Our review of
the trial court’s decision to grant a motion for summary
judgment is plenary.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Bruno v.
Whipple, 162 Conn. App. 186, 213–15, 130 A.3d 899
(2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016);
see also Practice Book § 17-49.
The parties do not dispute that the complaint set forth
a claim of negligence based upon premises liability, that
the plaintiff was a business invitee9 and that this was
a constructive notice case. 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 (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.) Palmieri v. Stop & Shop
Cos., 103 Conn. App. 121, 123–24, 927 A.2d 371 (2007);
see also Martin v. Stop & Shop Supermaket Cos., 70
Conn. App. 250, 251, 796 A.2d 1277 (2002).
Our Supreme Court has explained that ‘‘[f]or [a] plain-
tiff to recover for the breach of a duty owed to [him]
as [a business] invitee, it [is] incumbent upon [him] to
allege and prove that the defendant either had actual
notice of the presence of the specific unsafe condition
which caused [his injury] or constructive notice of it.
. . . [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. . . . In the absence of allegations and proof of any
facts that would give rise to an enhanced duty . . . [a]
defendant is held to the duty of protecting its business
invitees from known, foreseeable dangers. . . .
‘‘Accordingly, business owners do not breach their
duty to invitees by failing to remedy a danger unless
they had actual or constructive notice of that danger.
To defeat a motion for summary judgment in a case
based on allegedly defective conditions, the plaintiff
has the burden of offering evidence from which a jury
reasonably could conclude that the defendant had
notice of the condition and failed to take reasonable
steps to remedy the condition after such notice.’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) DiPietro v. Farmington Sports Arena, LLC,
306 Conn. 107, 116–17, 49 A.3d 951 (2012); see also
Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918
A.2d 249 (2007); see generally Colombo v. Stop & Shop
Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5
(2001) (‘‘The law concerning notice in this type of case
is clear. The plaintiff bore the burden of proffering some
evidence, either direct or circumstantial, from which
the jury could infer that the defect she allegedly encoun-
tered existed for a length of time sufficient to put the
defendant on actual or constructive notice of its exis-
tence.’’), cert. denied, 259 Conn. 912, 789 A.2d 993
(2002).
‘‘The controlling question in deciding whether the
defendant had constructive notice of the defective con-
dition is whether the condition had existed for such a
length of time that the defendants’ employees should,
in the exercise of due care, have, discovered it in time
to have remedied it. . . . What constitutes a reason-
able 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, there-
after, the defect should have been remedied are matters
to be determined in light of the particular circumstances
of each case. The nature of the business and the location
of the defective condition would be factors in this deter-
mination. To a considerable degree each case must be
decided on its own circumstances.’’ (Internal quotation
marks omitted.) Hellamns v. Yale-New Haven Hospital,
Inc., supra, 147 Conn. App. 408–409; see Considine v.
Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006); see
also Gulycz v. Stop & Shop Cos., 29 Conn. App. 519,
521, 615 A.2d 1087 (whether defendant had constructive
notice of condition causing defect turns on whether
condition existed for length of time sufficient for defen-
dant’s employees, in exercise of due care, to discover
defect in time to have remedied it), cert. denied, 224
Conn. 923, 618 A.2d 527 (1992). Nevertheless, as we
will discuss in greater detail, a defect lasting under a
minute has been held to be, as a matter of law, insuffi-
cient for a defendant to have discovered and remedied
it, and thus fatal to a premises liability action. See, e.g.,
James v. Valley-Shore Y.M.C.A., Inc., 125 Conn. App.
174, 183, 6 A.3d 1199 (2010) (no evidence that allegedly
defective condition existed for such length of time that
defendant’s employees should have discovered it in
exercise of due care and remedied it and, therefore,
defendant entitled to summary judgment), cert. denied,
300 Conn. 916, 13 A.3d 1103 (2011).
First, the plaintiff argues that the court improperly
concluded that the defendant met its initial burden of
establishing the absence of a genuine issue of material
fact. Specifically, she contends that Card’s affidavit10
was insufficient to demonstrate that no genuine issues
of material fact existed.11 We disagree.
The following additional facts are necessary for our
analysis. The defendant moved for summary judgment
on July 6, 2016. It attached a memorandum of law, a
portion of the plaintiff’s deposition, dated August 6,
2015, and an affidavit from Card dated August 12, 2015.
In her deposition, the plaintiff had stated that there was
snow on the ground on February 12, 2013, and that the
liquid she had slipped on looked like water, was clear
and did not have carriage track marks going through
it. She also noted that Card had approached her after
the fall and inquired if the plaintiff was okay or wanted
to speak with a manager.
Card’s affidavit set forth the following: Card was
working on February 12, 2013; she witnessed the plain-
tiff’s slip and fall; the plaintiff’s fall occurred in the
‘‘exact area’’ that Card had performed a ‘‘safety sweep
less than one minute ([forty] seconds) prior’’; during
the ‘‘safety sweep’’ Card had not observed any liquid,
water or otherwise, where the plaintiff’s fall occurred;
after the plaintiff’s fall, Card noticed, for the first time,
a small puddle of water at the site of the plaintiff’s fall;
and Card believed that the water had originated from
snow melting off the boots of several children who had
been standing in that area. The affidavit emphasized
that ‘‘[t]he water was not on the floor for more than
[forty] seconds before the fall.’’
We emphasize that the defendant, as the movant for
summary judgment, bore the burden of establishing the
nonexistence of any genuine issue of material fact and
that it was entitled to judgment as a matter of law under
the relevant principles of our premises liability law. See
Romprey v. Safeco Ins. Co. of America, 310 Conn. 304,
319–20, 77 A.3d 726 (2013); see also Capasso v.
Christmann, 163 Conn. App. 248, 258–59, 135 A.3d
733 (2016).
The defendant submitted evidence that the liquid on
the floor in the main aisle of the store at the site of the
plaintiff’s fall had been there for no more than forty
seconds following Card’s safety sweep.12 Specifically,
Card’s affidavit established this time frame. She averred
that she had performed a safety sweep in the ‘‘exact
area’’ of the plaintiff’s fall forty seconds later. At the
time of her sweep, Card observed no liquid on the floor.
Card further posited that the water on the floor had
come from snow melting off the boots of four to five
children. Additionally, as further support for this
sequence of events, the defendant had produced testi-
mony from the plaintiff’s deposition that the liquid on
the floor was clear and did not have any carriage marks
running through it. The unsullied nature of the spill
supported the time frame claimed by the defendant.13
The trial court then considered whether, under our
case law, a genuine issue of material fact existed with
respect to the issue of constructive notice. We iterate
that ‘‘[t]he controlling question in deciding whether the
defendants had constructive notice of the defective con-
dition is whether the condition existed for such a length
of time that the defendants should, in the exercise of
reasonable care, have discovered it in time to remedy
it. . . . What constitutes a reasonable length of time
is largely a question of fact to be determined in the light
of the particular circumstances of a case.’’ (Citation
omitted; internal quotation marks omitted.) Considine
v. Waterbury, supra, 279 Conn. 870; see also Hellamns
v. Yale-New Haven Hospital, Inc., supra, 147 Conn.
App. 408–409. In the absence of evidence that the
claimed defect existed for such a length of time that
the defendant, through exercise of due care by its
employees, should have discovered and remedied it,
we have affirmed the granting of summary judgment
in favor of the defendant. See James v. Valley-Shore
Y.M.C.A., Inc., supra, 125 Conn. App. 179–83.
We agree with the trial court that the defendant satis-
fied its initial burden of demonstrating that there was
no genuine issue of material fact with respect to the
element of constructive notice.14 The defendant’s evi-
dence, particularly Card’s affidavit, established a forty
second maximum time period between the creation of
the defect and the plaintiff’s fall. Under our case law,
a forty second window constitutes an insufficient
period of time for a business owner to discover and
remedy a small puddle of water on the floor in the
exercise of due care.
For example, in White v. E & F Construction Co.,
151 Conn. 110, 111–12, 193 A.2d 716 (1963), the plaintiff,
an employee of a tenant in the apartment house owned
by the defendant, removed laundry from an outdoor
clothesline due to rain. After placing the clothes into a
basket, the plaintiff proceeded to the basement stairs.
Id., 112. She slipped on the wet landing and fell to
the basement floor. Id. ‘‘About two minutes before the
plaintiff fell, her employer had noticed that the steps
were wet by reason of rain which was coming through
the open doorway. . . . Therefore, the crucial question
is whether the water had been there for such a length
of time that the defendant should, in the exercise of
due care, have discovered it in time to have removed
it.’’ (Citations omitted.) Id., 112–13.
The trial court directed a verdict for the defendant
following the presentation of evidence. Id., 111. In
affirming the judgment of the trial court, our Supreme
Court stated: ‘‘The evidence reveals no more than that
the condition which caused the plaintiff to fall had
been present for about two minutes before the time she
entered the building. This evidence would not support
a finding that the condition had existed for a sufficient
length of time to charge the defendant with constructive
notice of it.’’ Id., 113–14.
More recently, this court considered whether a plain-
tiff had established that a defendant had constructive
notice in Hellamns v. Yale-New Haven Hospital, Inc.,
supra, 147 Conn. App. 411–14.15 In that case, the plaintiff
slipped and fell on a puddle of water while walking in
the hallway of a medical building owned by the defen-
dant. Id., 407. ‘‘A janitor, pushing a cart with cleaning
material and a warning sign, walked past the spot where
the water had accumulated just prior to the plaintiff
falling.’’ Id. Following the trial, the court, acting as the
fact finder, rendered judgment in favor of the plain-
tiff. Id.
On appeal, we agreed with the defendant that the
plaintiff had failed to establish that it had notice of
the defect. Id., 411. We noted that the only evidence
regarding the issue of notice was the plaintiff’s testi-
mony that ‘‘a janitor walked past the puddle of water
just before she fell.’’ Id., 412. We concluded that this
evidence was insufficient to support the finding that
the defendant had notice of the defect and time to
remedy it. Id., 413. ‘‘First, the plaintiff did not present
the janitor, or any other employee . . . to establish for
the court that the janitor actually saw the puddle of
water before the accident. . . . Second, the plaintiff’s
testimony established that a janitor passed the puddle
of water only seconds before the plaintiff fell. Evidence
establishing that the defective condition existed a few
seconds before the accident is insufficient to establish
that the defendant had constructive notice of that
defect. . . .
‘‘Third, the plaintiff failed to establish that notice
could be imputed to the defendant because the plaintiff
did not present any evidence to establish that cleaning
the specific hallway where the accident occurred was
within the janitor’s scope of employment.’’ (Citations
omitted; emphasis added.) Id.
For these reasons, we concluded in Hellamns that
the trial court’s finding that the defendant had notice
of the defect was clearly erroneous and remanded the
case with direction to render judgment for the defen-
dant. Id., 414; see also Correa v. Westfield America,
Inc., Superior Court, judicial district of Middlesex,
Docket No. CV-XX-XXXXXXX-S (October 2, 2014) (defen-
dant property owner entitled to summary judgment on
plaintiff’s premises liability action where undisputed
evidence demonstrated spill existed for only two
minutes prior to fall); Mason v. Wal-Mart Stores, Inc.,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX-S (May 1, 2012) (53 Conn. L. Rptr. 882,
883) (rendering judgment for defendant where plaintiff
fell one minute after water had accumulated on floor
from mulch bag and noting that ‘‘[i]t would be unreason-
able . . . to find that the defendant has constructive
notice of a hazardous condition that had been in exis-
tence for but one minute . . . [and that] [t]he defen-
dant’s store is large, and such minute-to-minute
monitoring would be unfeasible’’).
In summary, the defendant submitted evidence that
the defective condition in this case, a puddle of water,
existed for, at most, forty seconds prior to the plaintiff’s
fall. Our Supreme Court has cautioned that ‘‘[e]vidence
which goes no farther than to show the presence of a
slippery foreign substance does not warrant an infer-
ence of constructive notice to the defendant.’’ (Internal
quotation marks omitted.) Kelly v. Stop & Shop, Inc.,
supra, 281 Conn. 777. Additionally, we are mindful that,
under our law, business owners are not insurers of their
customers’ safety. Id., 790; Hellamns v. Yale-New Haven
Hospital, Inc., supra, 147 Conn. App. 410. We disagree
with the plaintiff’s statement that the defendant must
offer ‘‘evidence of exactly how long the alleged defect
was there . . . .’’16 Rather, 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
not have been expected to discover and remedy it in
the exercise of due care. James v. Valley-Shore
Y.M.C.A., Inc., supra, 125 Conn. App. 183.
Consistent with this case law, the brief period of time
in which the defect could have existed here does not
create a genuine issue of material fact with respect to
the constructive notice element of a premises liability
action for a business invitee. Stated differently, under
these facts and circumstances, the defendant, 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. Therefore, the defendant
met its initial burden of establishing that it was entitled
to summary judgment. Romprey v. Safeco Ins. Co. of
America, supra, 310 Conn. 320.
Next, the plaintiff argues that the court improperly
concluded that she failed to present evidence demon-
strating the existence of a disputed factual issue as to
the matter of notice. See, e.g., Kurisoo v. Ziegler, 174
Conn. App. 462, 468–69, 166 A.3d 75 (2017). Specifically,
she contends that the evidence attached to her objec-
tion to the motion for summary judgment and her surre-
ply established the existence of genuine issues of
material fact so as to warrant the denial of the motion
for summary judgment. We disagree.
The following additional facts will facilitate our dis-
cussion. The plaintiff filed her objection to the defen-
dant’s motion for summary judgment on August 18,
2016. In addition to her memorandum of law, the plain-
tiff filed the transcript of Card’s deposition, dated
August 3, 2016, and Card’s August 12, 2015 affidavit,
which had been attached to the defendant’s memoran-
dum. In the memorandum of law, the plaintiff referred
to the video recording of the events leading up to, and
including, her fall on February 12, 2013. The plaintiff
included a copy of the video recording as an addendum
to her surreply, dated September 30, 2016.
During her deposition, Card stated that employees
of the defendant are required to perform safety sweeps
any time they walk within the store. This obligation
involves ‘‘picking up any items . . . picking up any-
thing that is on [the store’s] white tiles, putting it . . .
back on the shelves.’’ Card explained that, as a result
of this requirement, she looked for potential hazards
present on the floor any time she walked within the
store. In contrast to this type of safety sweep, which
was to be done at all times, the defendant’s employees
also conducted paged safety sweeps. At certain times,
an overhead page informed the employees to stop their
work, ‘‘walk the perimeter of [their] department, and
. . . make sure everything is safe for the customers
and [employees].’’ Card noted that she was ‘‘observant
at all times.’’
In her deposition, Card stated that on February 12,
2013, although there had been no page, she had per-
formed a safety sweep of the area where the plaintiff
fell. Card specifically indicated that she had been look-
ing down at the floor, and that there was ‘‘no chance’’
she was looking in the opposite direction, at her cell
phone, or at a customer when she passed that particular
spot. Although she initially claimed to have spoken with
a customer for ten minutes, she immediately reconsid-
ered her response and stated that it ‘‘was only like five
minutes.’’ After being reminded of the video recording,
Card stated that she had performed the safety sweep
forty seconds prior to the plaintiff’s fall. After iterating
that it was forty seconds, Card noted that it could have
been ‘‘[m]aybe under a minute.’’ Later, Card indicated
that the water which had caused the plaintiff to fall
was not present during her safety sweep. After a further
colloquy with the plaintiff’s counsel, Card resolutely
indicated that the fall occurred forty seconds after her
safety sweep.
On appeal, the plaintiff appears to argue that Card’s
deposition contains contradictions regarding whether
she ‘‘truly’’ performed a safety sweep prior to the plain-
tiff’s fall.17 We do not agree. As noted, Card stated in
her deposition that the defendant’s employees were
required to perform safety sweeps whenever they were
walking within the store. In addition, Card described a
paged safety sweep, when employees check the perime-
ters of their assigned departments for any hazards fol-
lowing an overhead page. The plaintiff’s argument fails
to appreciate the two types of safety sweeps performed
at the defendant’s store. Although Card stated that she
had not performed a paged safety sweep in the main
aisle prior to the plaintiff’s fall, her statement was con-
sistent with her testimony that safety sweeps are to be
done any time an employee walks in the store. The
plaintiff’s attempt to inject a question of untruthfulness
or incredibility into Card’s deposition regarding
whether she had performed a safety sweep is unsup-
ported by the record.
The plaintiff next argues that the surveillance video
shows that Card ‘‘never looked down or directly in [the]
area’’ of the plaintiff’s fall. She further maintains this
‘‘fact’’ contradicts Card’s deposition testimony and affi-
davit, and, therefore, creates a genuine issue of material
fact. We disagree. We have reviewed the surveillance
video recording and disagree with the plaintiff’s con-
tention that it depicts precisely where Card was looking
at the time of her safety sweep in the main aisle just
prior to the plaintiff’s fall. Due to the presence of other
shoppers, and the quality of the video, it is not possible
to discern where Card’s gaze was directed. This argu-
ment, therefore, amounts to nothing more than specula-
tion on behalf of the plaintiff, which has no place in
appellate review. See Rafalko v. University of New
Haven, 129 Conn. App. 44, 54, 19 A.3d 215 (2011) (specu-
lation and conjecture have no place in appellate
review).
The plaintiff also argues that Card’s deposition testi-
mony regarding the time that had elapsed from her
safety sweep of the main aisle to the plaintiff’s fall was
inconsistent, varying from forty seconds to five minutes
to ten minutes. As a result, the plaintiff contends that
a genuine issue of material fact exists.18 We disagree.
Despite her isolated references to a ten minute time
frame, and then to a five minute time frame, Card’s
deposition, read as a whole, demonstrates her view that
the plaintiff’s fall occurred in the area where, approxi-
mately forty seconds prior, she had conducted a
safety sweep.
Additionally, this forty second time period is con-
firmed by the video recording. When a court is pre-
sented with such evidence in deciding a motion for
summary judgment, it should view the facts in the light
depicted by the recording. Scott v. Harris, 550 U.S. 372,
378–81, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007);19 see
also Alvarez v. Building & Land Technology Corp.,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-XX-XXXXXXX-S (February 7, 2018) (video
recording used to determine that there was no material
issue of fact); Carter v. Board of Education, Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX-S (October 20, 2015) (citing Scott v. Harris,
supra, 380, and noting that when opposing parties tell
two different contradictory stories, one of which is con-
tradicted by record so that no reasonable jury could
believe it, court should not adopt that version of facts);
Sipes v. Serrano, Superior Court, judicial district of
Tolland, Docket No. CV-XX-XXXXXXX-S (July 25, 2007)
(43 Conn. L. Rptr. 832, 833) (same).
Finally, the plaintiff argues that, due to the presence
of snow on the ground on the day of her fall, the defen-
dant ‘‘should have taken steps to remedy the fact that
the snow caused a heightened dangerous condition to
the floors, where countless numbers of its invitees were
walking. If there is snow on the ground, it is foreseeable
that the snow would constitute a known and foresee-
able danger.’’ To the extent that the plaintiff suggests
that the presence of snow on the ground increased the
defendant’s duty to keep its premises in a reasonably
safe condition, we conclude that this argument is inade-
quately briefed. ‘‘We consistently have held that [a]naly-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. We do not reverse the judg-
ment of a trial court on the basis of challenges to its
rulings that have not been adequately briefed. . . . The
parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case
and the law cited. . . . It is not enough merely to men-
tion a possible argument in the most skeletal way, leav-
ing the court to do counsel’s work, create the ossature
for the argument, and put flesh on its bones.’’ (Internal
quotation marks omitted.) Cadle Co. v. Ogalin, 175
Conn. App. 1, 8, 167 A.3d 402, cert. denied, 327 Conn.
930, 171 A.3d 454 (2017).
Having considered and rejected the plaintiff’s sundry
arguments, we conclude that the court properly deter-
mined that the defendant met its initial burden of pro-
ducing evidence that there was no genuine issue of
material fact with respect to the constructive notice
element of the plaintiff’s claim. Additionally, the plain-
tiff failed to set forth evidence demonstrating a genuine
issue of material fact regarding that issue. Accordingly,
the court properly granted the defendant’s motion for
summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff named ‘‘Wal-Mart Stores, Inc.’’ as the defendant in her initial
complaint. Thereafter, the plaintiff amended the complaint to include the
proper legal name of the defendant, that is, ‘‘Wal-Mart Stores East I, L.P.’’
2
Specifically, the plaintiff alleged various injuries to her left knee, heart
palpitations, stomach pains and nausea, difficulty sleeping, headaches and
physical and emotional pain and suffering.
3
The plaintiff attached Card’s entire deposition and affidavit to her memo-
randum of law opposing the defendant’s motion for summary judgment.
The plaintiff did not, however, include a copy of the video with her memoran-
dum of law.
4
Specifically, the court stated: ‘‘We watched the video and we timed it.
So, the video shows that this store employee, Ms. Card, is walking down a
Wal-Mart, in one of the main aisles in Wal-Mart, and there’s people milling
about. And she walks, we watched it twice, she walks by the place where
allegedly water is. And approximately forty to forty-two or forty-three sec-
onds later, we see the plaintiff come and slip and fall in the spot where
there’s allegedly water. So, we do know from the surveillance video that
you got that it’s consistent with her deposition testimony, that was about
forty seconds. . . . It was forty seconds, forty-two, forty-three. It’s less
than a minute, no doubt about that.’’ Later, the court noted that the video
established a time frame of approximately forty seconds from the time that
Card walked in the main aisle to the plaintiff’s fall at that location.
5
The court, in lieu of issuing a written memorandum of decision, signed
a copy of the transcript on December 5, 2016. See Practice Book § 64-1 (a).
6
As noted, the court and the parties referred to the surveillance video at the
November 21, 2016 hearing regarding the defendant’s motion for summary
judgment. On appeal, the parties discussed this video in their respective
appellate briefs. At oral argument before this court, however, the defendant’s
counsel commented that the surveillance video was not part of the appel-
late record.
Subsequent to oral argument, we issued an order, sua sponte, instructing
the trial court and counsel for the parties to rectify the record and to provide
this court with a copy of the February 12, 2013 surveillance video on a USB
flash drive. On May 7, 2018, the parties filed, and the trial court accepted,
a stipulation that the attached USB flash drive contained a copy of the
requested video. We have reviewed the surveillance video provided by
the parties.
7
Specifically, the court stated: ‘‘So based upon the evidence, particularly,
the affidavit of . . . Card, and the surveillance video that I’ve seen . . .
the defendant . . . has met its burden, initial burden of proof showing that
there’s no genuine issue of material fact that [the defendant] did not have
constructive notice of this water on the floor. This is not an actual defect,
actual notice case.’’
8
Specifically, the court stated: ‘‘The plaintiff has not met [her] burden to
offer contrary evidence from which a jury reasonably can conclude that
[the defendant] had notice of the water on the floor and failed to take
reasonable steps to remedy it after the notice. The plaintiff’s entire argument,
in view of the evidence, is based upon the plaintiff, in essence, making [the
defendant] an insurer of the safety of all its business invitees on the premises.
There’s absolutely no evidence as to how long the water existed on the
floor prior to the plaintiff’s fall. And to find otherwise would be to inject
speculation into the case.’’
9
‘‘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.’’ (Internal quotation marks omitted.) Gargano v.
Azpiri, 110 Conn. App. 502, 506, 955 A.2d 593 (2008). As a result of this
status, the defendant owed the plaintiff the duty to keep its premises in a
reasonably safe condition. Baptiste v. Better Val-U Supermarket, Inc., 262
Conn. 135, 140, 811 A.2d 687 (2002); Gulycz v. Stop & Shop Cos., 29 Conn.
App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
10
The plaintiff describes Card’s affidavit as ‘‘self-serving.’’ We disagree
with this description. Card is not a party to this action; she is an employee
of the defendant. Additionally, employees of businesses frequently provide
such affidavits in preparation for litigation. See, e.g., Webster Bank v. Flana-
gan, 51 Conn. App. 733, 749, 725 A.2d 975 (1999). Additionally, Card made
a sworn statement before a notary public, subjecting her to penalty for giving
false information. See id. Finally, we note that Card’s affidavit comports
with the requirements of Practice Book § 17-46, and the plaintiff failed to
file a motion to strike her affidavit. See, e.g., Doe v. West Hartford, 328
Conn. 172, 178, 177 A.3d 1128 (2018).
11
The plaintiff also contends that the court ‘‘flipped the burden of proof,
[reading] the facts in the light most favorable to the [d]efendant, the moving
party, rather than in the light most favorable to [the] [p]laintiff.’’ The plaintiff
offers no support for the bald assertion that the court improperly viewed
the facts in a light most favorable to the defendant. Absent evidence to the
contrary, we presume that the court acted properly. LeSueur v. LeSueur,
172 Conn. App. 767, 785–86, 162 A.3d 32 (2017); see also Magsig v. Magsig,
183 Conn. App. 182, 196, A.3d (2018) (this court will presume trial
court acted properly in performance of its duties). Accordingly, we reject
this meritless contention.
12
At the hearing before the trial court, defense counsel relied on Card’s
affidavit, Card’s deposition testimony and the video recording from the
store, to support the argument that the water had been on the floor for less
than one minute.
13
But see Colombo v. Stop & Shop Supermarket Co., supra, 67 Conn. App.
62–65 (trial court properly directed defendant’s verdict where plaintiff’s only
evidence as to length of time that milk was on floor was fact that it was dirty,
and this court noted that to conclude otherwise would permit conclusion
regarding time of defect’s existence solely on conjecture and speculation).
14
During the hearing on the motion for summary judgment, the plaintiff’s
counsel argued that the defendant had not provided enough evidence regard-
ing the question of constructive notice. The trial court disagreed: ‘‘[The
defendant has] shown plenty of evidence. My question is now the burden
shifts to you. You have to come forth with what evidence do you have that
the water existed for a sufficient length of time such that the defendant
should have been on notice of that and remedied it. What is it? The burden
is on you now. [The defendant has] met [its] burden.’’ The plaintiff’s counsel
disagreed that the defendant had met its initial burden of submitting evidence
that there was no genuine issue of material fact as to the element of construc-
tive notice. The court responded: ‘‘But assume [the defendant] has because
I’m telling you [it] has.’’
15
The plaintiff contends that the trial court improperly relied on our
decision in Hellamns due to the procedural posture of that case. We acknowl-
edge that that appeal stemmed from a judgment for the plaintiff following
a court trial. Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.
App. 407. In that case, we agreed with the defendant that the trial court
had applied a standard of care contrary to law and that the plaintiff had
failed to establish that the defendant had notice of the defect. Id., 407–14.
For these reasons, we reversed the judgment of the trial court and remanded
the case with direction to render judgment for the defendant. Id., 414.
Despite the procedural differences between Hellamns and the present
case, we conclude that the guidance that the former provides regarding the
matter of constructive notice informs our analysis in the latter. Specifically,
the principle that ‘‘[e]vidence establishing that the defective condition
existed a few seconds before the accident is insufficient to establish that
the defendant had constructive notice of that defect’’ applies whether at
the summary judgment stage or a judgment for a party subsequent to trial.
Id., 413. Accordingly, we disagree with the plaintiff that the court erred in
relying on Hellamns.
16
We have held that if a plaintiff fails to present any evidence as to the
duration of the existence of a defect, the court properly may dismiss the
action for failing to make out a prima facie case. Gulycz v. Stop & Shop
Cos., supra, 29 Conn. App. 521–23; see also McCrorey v. Heilpern, 170 Conn.
220, 221–22, 365 A.2d 1057 (1976) (Supreme Court reversed judgment in
favor of plaintiff and remanded with direction to render judgment for defen-
dant where plaintiff produced no evidence regarding length of time hole in
floor outside plaintiff’s apartment had existed); Drible v. Village Improve-
ment Co., 123 Conn. 20, 23–24, 192 A. 308 (1937) (trial court properly set
aside jury verdict and rendered judgment for defendant where plaintiff
provided no evidence as to length of time snow and ice had been on steps
of building where plaintiff fell).
17
Specifically, the plaintiff argues in her brief that ‘‘[t]he fact that . . .
Card says she was on a safety sweep, because she is always on a safety
sweep during her entire shift, but it was not a called safety sweep by Wal-
Mart, brings up a big question as to the truthfulness and credibility of those
statements, which should be weighed by the trier of fact.’’
18
In its oral decision, the trial court acknowledged that Card’s deposition
testimony regarding the time between her safety sweep and the plaintiff’s
fall got ‘‘a little bit muddied.’’
19
In Scott v. Harris, supra, 550 U.S. 374–75, the petitioner, a Georgia
county police deputy, employed a certain technique to stop the respondent,
an individual who had led law enforcement on a high speed pursuit for
nearly ten minutes. As a result, the respondent crashed his vehicle and was
rendered a quadriplegic. Id., 375. The respondent filed an excessive force
action, and the petitioner moved for summary judgment on the basis of
qualified immunity. Id., 375–76. The United States District Court for the
Northern District of Georgia denied the petitioner’s motion, and the United
States Court of Appeals for the Eleventh Circuit affirmed that judgment.
Id., 376.
In reversing the judgment of the Court of Appeals, the United States
Supreme Court first noted that the parties had presented vastly different
versions of the events that resulted in the respondent’s injuries. Id., 378–79.
It then stated that, generally, a court was obligated to view the facts in the
light most favorable to the nonmoving party, the respondent in this case.
Id., 378. ‘‘There is, however, an added wrinkle in this case: existence in the
record of a videotape capturing the events in question. There are no allega-
tions or indications that this videotape was doctored or altered in any way,
nor any contention that what it depicts differs from what actually happened.
The videotape quite clearly contradicts the version of the story told by
respondent and adopted by the Court of Appeals.’’ Id.
The United States Supreme Court further noted that ‘‘[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary
judgment. . . . Respondent’s version of events is so utterly discredited by
the record that no reasonable jury could have believed him. The Court of
Appeals should not have relied on such visible fiction; it should have viewed
the facts in the light depicted by the videotape.’’ Id., 380–81.