Ciullo v. USA

Filing 21

ORDER: The Motion for Summary Judgment (Doc. No. 18 ) is hereby GRANTED. The Clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 08/14/2014. (Bowers, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------X
:
VITA CIULLO,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
------------------------------X

Civ. No. 03:12CV1772 (AWT)

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Vita Ciullo (“Ciullo”) brings this negligence
action grounded in premises liability against defendant United
States of America (“United States”) pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
moved for summary judgment.

The defendant has

For the reasons set forth below,

the defendant’s motion for summary judgment is being granted.
I.

FACTUAL BACKGROUND
On June 1, 2010, Robert Boroczky (“Boroczky”), the

Supervisor of the Oakville Post Office (the “Post Office”) in
Oakville, Connecticut, arrived at work at 8:00 a.m.

Boroczky

entered the Post Office through the employee entrance in the
back of the building.

He was the second employee to arrive, and

was preceded by Lee Vinca (“Vinca”), a letter carrier at the
Post Office, who also entered through the employee entrance.
Vinca was responsible for opening the Post Office in the

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morning, which included unlocking the front entrance to the Post
Office.

On June 1, 2010, Vinca checked the Post Office lobby

for debris and then “looked outside the front entrance checking
the entrance area and steps for trash.”
18-5) ¶ 5).

(Vinca Aff. (Doc. No.

Vinca did not see any debris or trash and was not

notified by anyone that there was any debris or trash in either
area.
On that same morning, the plaintiff arrived at the Post
Office at 8:50 a.m.

The plaintiff parked in a small parking lot

directly across from the Post Pffice, and as she approached the
Post Office, she did not notice anything on the exterior stairs
leading into the Post Office.

While the garbage pail in front

of the Post Office had some trash hanging out of it, there was
no trash on the ground, and the plaintiff did not have to step
over any trash to enter the Post Office.
The plaintiff proceeded up the right side of the stairs and
did not see anything out of the ordinary about the stairs.

When

she entered the Post Office, the plaintiff saw that although the
lobby was open, the customer counter was closed and would not
open until 9:00 a.m.

The plaintiff turned around and left the

Post Office.
The plaintiff began descending the stairs on the side
opposite which she had entered the Post Office, but when she
reached the second step from the top, she slipped on a dowel

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that was on the step and fell backwards.

The plaintiff had not

seen the dowel when she walked into the Post Office.

The

plaintiff picked up the dowel, which she described as ten inches
long and the width of a pencil, and went back into the Post
Office lobby.

She banged on the metal door at the closed

customer service window, and Boroczky exited from the back room.
The plaintiff told Boroczky that she had fallen, and Boroczky
wrote down the plaintiff’s name and phone number.

Prior to the

plaintiff informing him of her fall, Boroczky was not aware that
there was a dowel on the front stairs.
The plaintiff left the Post Office and called her husband
to tell him that she had fallen.

Her husband told her that she

should go back to the Post Office and fill out an incident
report.

After running an errand, the plaintiff returned to the

Post Office to file an incident report, but she was told that
she would have to go to the Watertown Post Office instead to
file the report.

She did so.

The plaintiff went to work the night of June 1, 2010, at
5:30 p.m. and worked until 11:30 p.m.

She did not seek medical

attention related to her fall until two weeks after the
accident.
The day prior to the plaintiff’s fall at the Post Office,
there was a Memorial Day parade held in Oakville, Connecticut.
According to a flyer describing the parade, the parade route

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began at the Watertown Plaza, proceeded on Route 63 South to
Route 73, and ended at the Oakville Green, where a ceremony was
conducted.

While the parade route was in the vicinity of the

Post Office, it did not pass in front of the Post Office.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

Rule 56(a) “mandates the entry

of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”

Celotex Corp., 477 U.S. at

322.
When ruling on a motion for summary judgment, the court
must respect the province of the jury.
may not try issues of fact.

The court, therefore,

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v.
Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.
1975).

It is well-established that “[c]redibility

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determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of the judge.”

Anderson, 477 U.S. at 255.

Thus, the

trial court’s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248 (internal quotation marks omitted).

A material fact is

one that would “affect the outcome of the suit under the
governing law.”

Id.

As the Court observed in Anderson: “[T]he

materiality determination rests on the substantive law, [and] it
is the substantive law’s identification of which facts are
critical and which facts are irrelevant that governs.”

Id.

Thus, only those facts that must be decided in order to resolve
a claim or defense will prevent summary judgment from being
granted.

When confronted with an asserted factual dispute, the

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court must examine the elements of the claims and defenses at
issue on the motion to determine whether a resolution of that
dispute could affect the disposition of any of those claims or
defenses.

Immaterial or minor facts will not prevent summary

judgment.

See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d

Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).

Because

credibility is not an issue on summary judgment, the nonmovant’s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence.

“[M]ere speculation and

conjecture is insufficient to defeat a motion for summary
judgment.”

Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315

(2d Cir. 1997) (internal quotation marks omitted) (quoting
Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121
(2d. Cir. 1990)).

Moreover, the “mere existence of a scintilla

of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which [a] jury could

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reasonably find for the [nonmovant].”

Anderson, 477 U.S. at

252.
Finally, the nonmoving party cannot simply rest on the
allegations in her pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists.
324.

See Celotex Corp., 477 U.S. at

“Although the moving party bears the initial burden of

establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward
with specific facts showing that there is a genuine issue for
trial.”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067,

1072 (2d Cir. 1993) (quotation marks, citations and emphasis
omitted).

Furthermore, “unsupported allegations do not create a

material issue of fact.”

Weinstock, 224 F.3d at 41.

If the

nonmovant fails to meet this burden, summary judgment should be
granted.
III. DISCUSSION
“Under the FTCA the government’s liability is determined by
the application of the law of the place where the act or
omission occurred.”

Davis v. U.S., 430 F. Supp. 2d 67, 73 (D.

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Conn. 2006) (citing 28 U.S.C. § 1346(b)).

Thus, Connecticut law

applies in the present case.
“The essential elements of a cause of action in negligence
are well established: duty; breach of that duty; causation; and
actual injury.”

Baptiste v. Better Val–U Supermarket, Inc., 262

Conn. 135, 138 (2002).

In this case, the parties do not dispute

that the plaintiff was a business invitee, and therefore the
duty owed to the plaintiff by the defendant was a duty to
maintain its premises in a reasonably safe condition.

See Kelly

v. Stop & Shop, Inc., 281 Conn. 768, 776 (2007) (“It is
undisputed that the owner of a retail store has a duty to keep
the premises in a reasonably safe condition for the benefit of
its customers.”).

Thus, to hold the defendant liable for her

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.”

Martin v. Stop & Shop

Supermarket Cos., Inc., 70 Conn. App. 250, 251 (2002) (internal
quotation marks omitted).

The defendant has moved for summary

judgment on the ground that it did not have notice, actual or
constructive, that the dowel was present on the Post Office

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stairs, and therefore it cannot be liable for the plaintiff’s
injuries.
A.

Actual Notice

Actual notice is “[n]otice given directly to, or received
personally by, a party.”
2009).

Black’s Law Dictionary 1164 (9th ed.

Thus, to show actual notice in the present case, the

plaintiff has to show that the defendant actually knew that the
dowel was on the second step of the Post Office stairs.
In support of its motion for summary judgment, the
defendant submits as evidence the statements of Boroczky and
Vinca regarding their lack of knowledge that the dowel was on
the second step.

At his deposition, Boroczky testified that

prior to the plaintiff informing him that she had fallen, he did
not know that there was a dowel on the stairs.
(Doc. No. 18-4) at 39:25-40:3).

(Boroczky Dep.

He further testified that if he

had known that there was something on the stairs prior to the
plaintiff’s fall, he would have removed it.
39:17-24).

(Boroczky Dep. at

Vinca submitted an affidavit in which he stated that

when he unlocked the front entrance to the Oakville Post Office
on June 1, 2010, he “did not see any debris or trash on the
steps or at the entrance of the Post Office” and that he “was
not notified by anyone that there was a dowel[], debris or any
trash on the steps or at the entrance of the Post Office.”
(Vinca Aff. ¶ 6).

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The plaintiff argues that there is a genuine issue of
material fact as to whether the defendant had actual notice that
the dowel was on the second step.

However, she presents no

evidence that anyone at the Post Office knew about the dowel.
Instead, she argues that the court should not credit the
statements of either Boroczky or Vinca and that a jury should
evaluate their credibility.
As to Vinca’s affidavit, the plaintiff argues that “Mr.
Vinca’s claim that he properly policed the exterior stairway but
did not see the round dowel[] flies in the face of the testimony
of Mr. Boroczky who specifically stated that no postal employee
is tasked with inspecting the exterior premises before the Post
Office opens for business in the morning.”
Mot. Summ. J. (Doc. No. 19) at 9).

(Pl.’s Mem. Opp.

It appears that the

plaintiff is asking the court to conclude that Vinca lied about
“polic[ing] the exterior stairway.”

While the plaintiff has

proffered no evidence in support of such an assertion, even if
the court were to conclude that Vinca did not actually police
the exterior stairs of the Post Office on the morning of June 1,
2010, such a fact would mean that Vinca did not have actual
notice that the dowel was on the second step, because he would
not have seen it.

Thus, there is no genuine issue of material

fact as to whether Vinca had actual notice that the dowel was on
the Post Office stairs.

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As to Boroczky’s deposition testimony, the plaintiff argues
that Boroczky’s testimony that he was not aware of the presence
of the dowel on the stairs is “not sufficient evidence to
warrant summary judgment because Mr. Boroczky acknowledged that
he did not inspect the premises that day . . . .”
Opp. Mot. Summ. J. at 9).

(Pl.’s Mem.

However, the fact that Boroczky did

not inspect the stairs, and therefore did not see the dowel,
shows that he did not have actual notice that the dowel was on
the stairs.

Therefore, there is no genuine issue as to the fact

that Boroczky did not have actual notice that the dowel was
located on the second step of the Post Office stairs.
The plaintiff has not proffered any evidence to show that
Vinca, Boroczky, or any other employee of the Post Office
actually knew that the dowel was located on the second step of
the Post Office stairs.

At her deposition, the plaintiff

testified that she does not know if anyone at the Post Office
knew that there was a dowel on the stairs before she fell.
Thus, in the absence of any evidence that anyone at the Post
Office knew that there was a dowel on the exterior stairs before
the plaintiff fell, there is no genuine dispute as to the fact
that the defendant did not have actual notice of the defect.1

1

Throughout the actual notice section of the plaintiff’s memorandum in
opposition to the motion for summary judgment, the plaintiff refers to the
defendant’s burden on a motion for summary judgment. She appears to argue
that the plaintiff’s failure to come forward with evidence showing actual
notice is not grounds for granting summary judgment because the defendant has

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B.

Constructive Notice

“The controlling question in deciding whether the
defendant[] had constructive notice of the defective condition
is whether the condition 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.

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.”

Riccio v. Harbour Vill. Condo. Ass’n, Inc., 281 Conn.

160, 163-64 (2007) (internal quotations marks and citation
omitted).

“To establish constructive notice, [the plaintiff]

must adduce some evidence, either direct or circumstantial, that
establishes the length of time the defect was present.”

Navarro

v. Kohl’s Dep’t Stores, Inc., No. 3:05CV00843(DJS), 2007 WL
735787, at *4 (D. Conn. Mar. 8, 2007).

However, “[a]n inference

[of constructive notice] must have some definite basis in the
facts and the conclusion based on it must not be the result of
speculation and conjecture.”

Gulycz v. Stop & Shop Cos., Inc.,

the initial burden on a motion for summary judgment of showing that there is
no genuine issue of material fact. (See Pl.’s Mem. Opp. Mot. Summ. J. at 8
(“The Defendant’s argument that Ms. Ciullo has not produced evidence to prove
actual notice is misguided because the initial burden is on the Defendant and
the Defendant has failed to meet its burden.”)). However, here the defendant
met its initial burden, which means the burden shifts to the plaintiff to
proffer evidence establishing the existence of a genuine issue of material
fact. Rule 56(a) “mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322. The plaintiff
has failed to do so.

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29 Conn. App. 519, 522 (1992) (internal quotation marks and
citation omitted).

The defendant argues that summary judgment

should be granted because the plaintiff has offered no evidence
establishing how long the dowel had been on the Post Office
stairs before she slipped on it.
The plaintiff contends that the dowel came from the parade,
and therefore the defect existed from the time of the parade
until the plaintiff slipped on the dowel.

In support of her

contention, the plaintiff repeatedly states that she has
“adduced evidence that establishes the length of time the dowel
was present on the Post Office’s exterior stairway,
specifically, from Memorial Day, May 31, 2010, until the morning
of the subject incident, June 1, 2010.”
Summ. J. at 18).

(Pl.’s Mem. Opp. Mot.

However, the evidence to which the plaintiff

cites shows that the plaintiff’s theory that the dowel was
present from the time of the parade to the time that she slipped
on it is based only on speculation.
The plaintiff has submitted evidence that the parade took
place in the vicinity of the Oakville Post Office on May 31,
2010.2

However, that is the only evidence she has adduced that

2

In her opposition to the motion for summary judgment, the plaintiff appears
to suggest that the parade route went past the Post Office. She cites to
Boroczky’s deposition in which, when first asked about the parade, he
testified that he believed that the path of the parade went by the Post
Office and that while he “ha[d] no idea exactly,” people most likely stood on
Post Office grounds to watch the parade. (Boroczky Dep. at 28:1). However,
after consulting a flyer containing the parade route, Boroczky was asked
“[D]o you believe that the parade went in front of the Oakville Post Office

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the dowel came from the parade.

While the plaintiff testified

at her deposition that it “was a dowel from the parade” (Ciullo
Dep. (Doc. No. 18-3) at 69:25), the undisputed evidence shows
that her conclusion was based only on her own speculation.3

In

describing the dowel, the plaintiff testified that “It was a
dowel that at the parade children can buy them.

There’s an

elastic band with a toy hanging off of the dowel, and that’s
what that was.”

(Ciullo Dep. at 26:13-16).

However, when she

was asked whether the dowel she slipped on had a toy on it, she
stated, “No.
a toy on it.”

It did not.

I’m assuming. . . .

(Ciullo Dep. at 26:23-25).

It did not have

The plaintiff

additionally testified that she did not attend the May 31, 2010
Oakville Memorial Day Parade and that she had “never” attended
the Oakville Memorial Day Parade.

(Ciullo Dep. at 37:9).

The

plaintiff has not presented any evidence that the dowel toys she
referred to were sold or present at the parade.

However, even

if she had, the plaintiff has also failed to present any
evidence showing that the dowel on which she slipped was of the
same size and color as the dowels attached to the toys and that
there were markings on the dowel showing that a toy had
previously been attached to it.

on May 31st, 2010?” (Boroczky Dep. at 42:23-25). Boroczky replied, “No.
No, I don’t.” (Boroczky Dep. at 43:1).
3
When asked at her deposition whether she knew for sure that the dowel came
from the parade, the plaintiff answered “No.” (Ciullo Dep. at 70:3).
Additionally, the plaintiff has admitted that she does not know when the
dowel was left on the stairs. (56(a)(1) Stmt. ¶ 33). 

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Additionally, the plaintiff does not provide any evidence
as to how or when a dowel from the parade would have ended up on
the second step from the top of the exterior stairs of the Post
Office.

The evidence presented by the parties shows that the

parade route did not go past the Post Office.

Thus, for the

dowel to end up where the plaintiff slipped on it, someone would
have had to either climb the stairs and drop the dowel there or
throw the dowel onto the stairs.

The plaintiff has presented no

evidence of when between the time of the parade and her fall
this would have happened.

At her deposition, the plaintiff

testified that the dowel could have been left on the stairs on
May 31, 2010.

When asked if it could have been left there on

the morning of June 1, 2010, the plaintiff answered, “Perhaps.”
(Ciullo Dep. at 70:12).

Furthermore, when asked whether the

dowel could have been left on the Post Office steps while she
was in the Post Office lobby on June 1, 2010, the plaintiff
responded that it was “possible.”4

(Ciullo Dep. at 71:6).

Even

if the plaintiff thought that it was unlikely--as her deposition

4

The plaintiff originally testified that the dowel could not have been left
on the steps while she was in the Post Office lobby. However, after
testifying that she was not looking out at the stairs while she was in the
lobby and that when she was banging on the window in the lobby she could not
see the stairs, the plaintiff testified that it was possible that the dowel
could have been left on the stairs while she was inside the Post Office. In
her affidavit, the plaintiff states “I dispute that it is possible the dowel
was left on the stairs while I was in the Oakville Post Office lobby on June
1, 2010.” (Ciullo Aff. (Doc. No. 19-7) ¶ 12). However, “a party may not
create an issue of fact by submitting an affidavit in opposition to a summary
judgment motion that contradicts the affiant’s previous deposition
testimony.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999).

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responses seem to suggest--that the dowel would have been left
on the steps while she was inside, “[s]peculation as to the
probability or improbability of the timing of an occurrence is
not . . . evidence of when the occurrence took place.”

Navarro,

2007 WL 735787 at *5.
Because the plaintiff’s theory that the dowel came from the
parade, and thus was on the stairs from that time until she fell
is based on speculation and conjecture rather than a definite
basis in the facts, the only evidence the plaintiff has as to
the amount of time the dowel was on the stairs is that it was
there just before she fell.

The mere fact that the dowel was

present and that the plaintiff slipped on it, however, is not
sufficient to establish the amount of time that the defect
existed.

See Gomes v. U.S., No. 3:11-CV-01825(VLB), 2012 WL

5869801, at *7 (D. Conn. Nov. 19, 2012) (“[T]he Court finds that
[the plaintiff] has failed to establish constructive notice
because he has not presented any evidence to prove how long the
leaves were present on the steps. . . .

[T]he only evidence

that the wet leaves on which Plaintiff fell existed prior to his
fall is Plaintiff’s assertion that he fell and noticed the
leaves upon falling.”); Navarro, 2007 WL 735787, at *6 (stating
that where a plaintiff slipped on a puddle in the defendant’s
store and the plaintiff had not presented any evidence as to the
amount of time the puddle had been there, “[t]he sole fact that

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the liquid was in a puddle approximately one to three feet in
diameter fails, as a matter of law, to demonstrate that the
spill was in place for a length of time sufficient to put [the
defendant] on constructive notice of the spill.”); Gulycz, 29
Conn. App. at 521-22 (holding that the plaintiff had not
presented any evidence establishing the amount of time that a
protruding hinge and screw on which he was injured had existed
in that condition where the plaintiff’s only argument as to the
length of time was that he was injured by it and “the defect was
structural in nature and therefore must have existed for a
sufficient length of time so as to enable an inference of
constructive notice.”).
Because the plaintiff has not proffered evidence to show
the amount of time that the dowel on which she slipped was
present on the exterior stairs of the Post Office, the plaintiff
cannot establish that the defendant had constructive notice of
the defective condition.

Therefore, because the plaintiff

cannot show that the defendant had actual or constructive
notice, the defendant is entitled to judgment on the plaintiff’s
claim as a matter of law.
IV.

CONCLUSION
For the reasons set forth above, the defendant’s Motion for

Summary Judgment (Doc. No. 18) is hereby GRANTED.

Judgment

shall enter in favor of defendant United States of America.

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The Clerk shall close this case.
It is so ordered.
Dated this 14th day of August, 2014, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

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