Okang et al v. Wal-Mart Stores Inc

Filing 32

ORDER denying 23 motion for summary judgment. Signed by Judge Alfred V. Covello on April 18, 2013. (Gentile, N.)

3:10cv01402(AVC). 04/18/13. The plaintiff’s motion for summary judgment is denied.
The court concludes that the defendant has presented sufficient evidence to create material issues
of fact for trial. Specifically, with respect to whether Wal-Mart customers use the plaintiffs’
property as a path to the store, the defendant cites to the store manager’s affidavit and an
Aeschliman Land Survey to demonstrate that the defendant installed a fence on the property in
2008. The land survey also opines that “no person is crossing the properties . . . to gain access to
the Wal-mart [sic] property” because the property line is heavily wooded and has dense
underbrush with steep slopes. The plaintiff further admits that “the fence has now been
completely fixed.”
With respect to whether the Wal-Mart Tire & Lube Center continuously produces too
much noise, the defendant cites to the store manager’s affidavit and an environmental sound
survey. The store manager states that Wal-Mart installed an air conditioning and exhaust
ventilation system at the Tire & Lube Center so that employees can keep the doors closed. He
further insists that “the bay doors remain closed at all times.” Furthermore, the environmental
sound survey, performed by Bennet M. Brooks of Brooks Acoustics Corporation, found that
“[t]he measured sound levels attributable to store operations at the property line test location
were compliant with both the daytime and nighttime limits as specified by the [Regulations of
Connecticut State Agencies] Section 22a-69 and the City of West Haven noise ordinance.”
With respect to whether truck drivers make late night deliveries and leave their trucks
idling for extended periods of time, the defendant cites to the store manager’s affidavit and seven
photographs of the road near the store. The affidavit states that the store “turn[s] away any
deliveries that are attempted between 9:00pm and 7:00am,” and “install[ed] two large yellow
gates on both sides of the [s]tore that prevent any trucks from making deliveries during the hours
of 9:00 p.m. to 7 a.m.” The photographs depict the concrete gates. The store manager’s affidavit
also maintains that the store strictly enforces no idling policies and has posted “No Idling” signs
in front of the Tire & Lube Center and by the loading dock.
The court concludes that the defendant has presented sufficient evidence to create issues
of material facts for trial. It is well-established that “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of the judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 390 (1986). The court
concludes there are issues of material fact and, therefore, summary judgment is not appropriate.
_____/s/________________
Alfred V. Covello
United States District Judge