A Connecticut state appeals court has reversed a trial court’s decision and given new life to the premises liability claim of a junior soccer player, who became injured when her foot got caught in the artificial playing surface of an indoor soccer facility
Specifically, the panel of judges concluded that “the traditional rules of law applicable to so-called premises liability claims” should apply, which would mean that plaintiff Michelle DiPietro’s proffered expert testimony should be considered when weighing the defendants’ motion for summary judgment.
The injury occurred at the Farmington Indoor Sports Arena, located in Farmington. DiPietro named Farmington Sports Arena, LLC (Arena), Dimensional Technology Group, LLC (Dimensional Technology), DiTommaso Associates, LLC (Associates), and Paul DiTommaso, Jr., individually (DiTommaso) as defendants.
In her claim, she alleged that the defendants were negligent by installing and maintaining a carpet surface in the facility that was unreasonably dangerous for soccer.
The defendants moved for summary judgment, arguing successfully that the plaintiff had failed to establish a standard of care particularly applicable to indoor soccer. The plaintiff appealed.
The appeals court agreed with the plaintiff, finding that “her claim rests on the rules of law applicable to premises liability in which the law itself imposes the standard of care, namely, the duty to provide and to maintain premises in a reasonably safe condition. We conclude further that the affidavit of Benno M. Nigg (professor of biomechanics and director of the human performance laboratory, faculty of kinesiology, at the University of Calgary, Canada) was sufficient for the plaintiff to survive the defendants’ motions for summary judgment in this regard.”
The court elaborated on its conclusion.
“First, it must be remembered that the plaintiff’s claim by its terms rests on the nature of the premises, namely, the unsafe condition of the carpeted surface for purposes of indoor soccer. It does not rest on the nature of any particular actor’s specialized conduct.
“Second, it is salient in the present case that there are, all parties agree, no governmental standards governing the type of floor surface for indoor soccer facilities. This necessarily means that, if the operator installs and maintains a surface that is customarily used for such facilities; and if that surface is in fact dangerous, in the sense of being unreasonably unsafe, for the users of such a facility, as Nigg asserts based on his expertise; and if that danger has not, yet manifested itself by prior accidents known to or discoverable by the parties, as is the case here; then the first person to suffer from such an initial manifestation, such as Michelle, would be without a remedy; whereas perhaps the second, third or fourth person to suffer thereby would have a remedy because the danger would have sufficiently manifested itself to justify such a recovery. We think that the law should permit the first person injured by the danger to recover, rather than waiting until more persons are so injured. Put another way, the law should compensate, and not penalize, the first person to bring the unsafe condition to light. Furthermore, to the extent that there are no industry standards governing such facilities, such standards or their absence would not be determinative in any event because such standards are merely evidentiary and not conclusive of a duty of care. Considine v. Waterbury, 279 Conn. 830, 864-65, 905 A.2d 70 (2006).”
The court added that Nigg’s testimony “was sufficient to withstand the defendants’ motions for summary judgment. His opinion that the defendants’ surface was unreasonably dangerous for use as an indoor soccer facility is precisely the type of expert opinion in premises liability cases that our courts have long countenanced and deemed sufficient to prove negligence. See, e.g., Delmore v. Polinsky, supra, 132 Conn. In addition, there was evidence on which the jury could have found that there were other surfaces that were safer than that employed by the defendants. Such evidence is grist for the jury mill on the question of negligence in a premises liability case. See, e.g., id., 31. Furthermore, there was no need for the plaintiff to prove notice of the unsafe condition because the defendants were responsible for creating the unsafe condition. Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002); Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 308-309, 696 A.2d 363 (1997). Similarly, on the factual question of foreseeability, ordinarily, if a defendant was responsible for creating the unsafe condition, it is quintessentially a jury question as to whether he could foresee that harm of the general nature of that suffered was likely to result. See Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 30, 266 A.2d 370 (1969); Gutierrez v. Thorne, 13 Conn. App. 493, 500-501, 537 A.2d 527 (1988). Given the evidence that the defendants installed and maintained an unsafe surface in their facility, a jury could reasonably find that injury to an athlete who played on the surface was foreseeable.
“We emphasize, of course, that we are not deciding whether Nigg’s testimony must be believed. That will be a matter for the trier of fact at trial. We decide only that it should have been considered in full in these summary judgment proceedings and that, if believed, it, taken together with all of the other evidence supplied by the plaintiff, was sufficient for the plaintiff to withstand the defendants’ motions for summary judgment.”
Karen Dipietro et al. v. Farmington Sports Arena, LLC; App. Ct. Conn.; AC 29175, 123 Conn. App. 583; 2010 Conn. App. LEXIS 414; 9/14/10
Attorneys of Record: (for plaintiff) Ralph W. Johnson III, with whom were Coleman C. Duncan III and, on the brief, David G. Hill. (for defendant et al.) Christopher M. Vossler, with whom was Kevin M. Tighe. (for defendant Dimensional Technology Group, LLC) Jeffrey G. Schwartz.
To review the opinion, click here: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP123/123AP343.pdf
