Fuller v. First National Supermarkets, Inc.

661 A.2d 110, 38 Conn. App. 299, 1995 Conn. App. LEXIS 308
CourtConnecticut Appellate Court
DecidedJune 27, 1995
Docket13485
StatusPublished
Cited by37 cases

This text of 661 A.2d 110 (Fuller v. First National Supermarkets, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller v. First National Supermarkets, Inc., 661 A.2d 110, 38 Conn. App. 299, 1995 Conn. App. LEXIS 308 (Colo. Ct. App. 1995).

Opinion

Landau, J.

In this negligence action, the defendant appeals from the judgment of the trial court rendered on a jury verdict in favor of the plaintiff. The defendant claims (1) that the trial court improperly instructed [300]*300the jury on the issue of notice of the existence of a defective condition and (2) that there was insufficient evidence to support the verdict.

The jury could have reasonably found the following facts. On January 14,1990, while shopping for groceries at the defendant’s supermarket, the plaintiff slipped on something sticky and fell, sustaining personal injuries. While on the floor, she observed a number of pricing stickers scattered around her and found one sticker on the heel of her shoe. The plaintiff instituted this negligence action against the defendant, claiming that the accumulation of pricing stickers had caused her fall and injuries.

I

The defendant first claims that the trial court improperly instructed the jury on the issue of notice of the existence of a defective condition. It asserts that the allegations set forth in the plaintiff’s complaint support a claim that the defendant was negligent only in not discovering and remedying a defective condition on its floor. To prevail on such a claim, the plaintiff was required to prove that the defendant had either actual or constructive notice of the defective condition. Consequently, the defendant argues, the trial court’s charge was improper for two reasons. First, the court failed to instruct the jury that the plaintiff had the burden of proving actual or constructive notice of the specific condition causing the injury. Also, the court improperly submitted to the jury the issue of whether the defendant created the defective condition, which theory of liability does not require the plaintiff to prove notice.

It is the plaintiff’s position that her entire case was tried on the premise, as alleged broadly in her com[301]*301plaint,1 that the defendant created the condition that resulted in her injuries and therefore had actual notice of the existence of the condition. Consequently, the plaintiff asserts, she did not need to prove notice and the trial court correctly instructed the jury.

For the plaintiff to recover for the breach of a duty owed to her as a business invitee, she had to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall. LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984); see Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). “Either type of notice 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.” LaFaive v. DiLoreto, supra, 60. If the plaintiff, however, alleges an affirmative act of negligence, i.e., that the defendant’s conduct created the unsafe condition, proof of notice is not necessary. Holody v. First National Supermarkets, Inc., 18 Conn. App. 553, 556, 559 A.2d 723 (1989).

The defendant’s claim hinges on the premise that the allegations in the plaintiff’s complaint support a claim [302]*302that the defendant was negligent for not discovering and remedying the accumulation of pricing stickers on its floor, rather than for creating the defective condition. In fact, the defendant concedes in its appellate brief that if the issue at trial was whether the defendant caused the defective condition, “the plaintiff would not have needed to prove notice.”

“ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [her] complaint.’ (Internal quotation marks omitted.) Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). However, ‘[t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.’ (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992); Giulletti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987); see also Web Press Services Corf. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987); see also Practice Book §§ 108 and 109.2

[303]*303“Furthermore, ‘a judgment ordinarily cures pleading defects . . . .’ Tedesco v. Stamford, supra, 215 Conn. 458. 'The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.’ (Citation omitted; internal quotation marks omitted.) Id., 457 Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994).

We are satisfied that the complaint, read broadly and realistically, provided the defendant with sufficient notice that the plaintiff was claiming that the defendant caused pricing stickers to accumulate on the floor of the supermarket. Moreover, the evidence presented at trial by the plaintiff supported such a claim. For example, the defendant’s store manager testified that store employees regularly apply pricing stickers to merchandise and that customers do not have access to pricing stickers.

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Bluebook (online)
661 A.2d 110, 38 Conn. App. 299, 1995 Conn. App. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-first-national-supermarkets-inc-connappct-1995.