Sterne Baptiste v. Better Val-U Supermarket, Inc., et al.

The dispositive issue in this appeal is
whether the trial court properly determined that, under
the circumstances of this case, the named defendant,
Better Val-U Supermarket, Inc. (defendant), owed a
duty to the plaintiff, Sterne Baptiste, who, in the course
of completing the forms necessary to conduct a monetary
wire transfer through facilities owned by Western
Union Financial Services, Inc. (Western Union), which
were located on the defendant's premises, placed on
the defendant's counter an envelope containing $5000
in cash, which disappeared. The plaintiff brought an
action against the defendant1 alleging negligence for its
failure to: (1) provide a safe and secure area for the
transaction of monetary wire transfers; (2) monitor adequately
the area where monetary transfers took place
in order to discourage loss, theft and larceny; (3) use
security cameras in the area in which monetary wire
transfers took place in order to discourage loss, theft
and larceny and to assist in the investigation of loss
claims; and (4) train properly its employees in the safe
and secure transaction of monetary wire transfers. Following
a court trial, the trial court concluded that the
area of the defendant's store where the plaintiff had
gone to make his transaction was not secure and that
it should have been made secure.2 The court also found
that the plaintiff was contributorily negligent, however,
less than 50 percent negligent, and rendered judgment
awarding him $2500 in damages. The defendant
appealed3 from the judgment, claiming that the trial
court improperly had determined that: (1) the defendant
owed a duty to the plaintiff to protect against the loss
he had sustained; (2) the defendant had breached that
duty; (3) the breach of that duty proximately caused
the plaintiff's injury; and (4) the plaintiff was not contributorily
negligent for the full extent of his loss. We
agree with the defendant's first claim and, accordingly,
reverse the judgment of the trial court.4

The trial court reasonably could have found the following
facts. On March 21, 1999, at approximately 10:30
a.m., the plaintiff entered the defendant's store, located
at 469 Hamilton Avenue in Norwich, for the purpose of
conducting a monetary wire transfer. A Western Union
wire transfer facility was located inside the store. The
plaintiff had in his possession a bank envelope containing
$5000 in United States currency, which he
intended to transfer to his wife in Haiti. He had performed
such wire transfers at the defendant's store
in the past. Accordingly, he went to the counter that
serviced Western Union wire transfers and began to fill
out the forms necessary to accomplish the transaction.
When the pen he had been using ran out of ink, the
plaintiff asked one of the defendant's employees for
another pen, at which time he placed the envelope containing
the money on the counter to his left. None of
the defendant's employees watched the plaintiff fill out
the paperwork, but instead waited on other customers.
After completing the forms to effect the transfer, the
plaintiff notified one of the defendant's employees that
he had finished. Another employee, called upon to complete
the transaction, asked the plaintiff for the money,
at which time the plaintiff realized that the envelope
containing the money was missing. The police were
then notified of the incident.

‘‘We begin by setting forth the relevant parameters
under our negligence jurisprudence. The essential elements
of a cause of action in negligence are well established:
duty; breach of that duty; causation; and actual
injury. . . . Contained within the first element, duty,
there are two distinct considerations. . . . First, it is
necessary to determine the existence of a duty, and
[second], if one is found, it is necessary to evaluate the
scope of that duty. . . . Maffucci v. Royal Park Ltd.
Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998).
The issue of whether a duty exists is a question of law;
Gomes v. Commercial Union Ins. Co., 258 Conn. 603,
614, 783 A.2d 462 (2001); Petriello v. Kalman, 215 Conn.
377, 382, 576 A.2d 474 (1990); which is subject to plenary
review. We sometimes refer to the scope of that duty
as the requisite standard of care. See, e.g., Santopietro
v. New Haven, 239 Conn. 207, 226, 228–29, 682 A.2d
106 (1996); Shore v. Stonington, 187 Conn. 147, 151,
444 A.2d 1379 (1982); see also 57A Am. Jur. 2d, Negligence
§ 85 (1989).

‘‘[O]ur threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable to
the defendant. . . . By that is not meant that one
charged with negligence must be found actually to have
foreseen the probability of harm or that the particular
injury which resulted was foreseeable, but the test is,
would the ordinary [person] in the defendant's position,
knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered
was likely to result? . . . Gomes v. Commercial Union
Ins. Co., supra, 258 Conn. 615; Jaworski v. Kiernan,
241 Conn. 399, 405, 696 A.2d 332 (1997); see also 57A
Am. Jur. 2d 216, supra, § 154 (ordinary care has reference
to probabilities of danger rather than possibilities
of peril). The idea of risk in this context necessarily
involves a recognizable danger, based upon some
knowledge of the existing facts, and some reasonable
belief that harm may possibly follow. W. Prosser &
W. Keeton, Torts (5th Ed. 1984) § 31, p. 170; see also
Schiavone v. Falango, 149 Conn. 293, 298, 179 A.2d 622
(1962) ([r]easonable care does not require that one must
guard against eventualities which, at best, are too
remote to be reasonably foreseeable). Accordingly, the
fact finder must consider whether the defendant knew,
or should have known, that the situation . . . would
obviously and naturally, even though not necessarily,
expose [the plaintiff] to probable injury unless preventive
measures were taken. Bonczkiewicz v. Merberg
Wrecking Corp., 148 Conn. 573, 579, 172 A.2d 917
(1961).'' (Internal quotation marks omitted.) LePage v.
Horne, 262 Conn. 116, , A.2d (2002). Finally,
‘‘[i]f a court determines, as a matter of law, that a defendant
owes no duty to a plaintiff, the plaintiff cannot
recover in negligence from the defendant.'' (Internal
quotation marks omitted.) Gomes v. Commercial Union
Ins. Co., supra, 614–15; accord Neal v. Shiels, Inc., 166
Conn. 3, 12, 347 A.2d 102 (1974).

It is undisputed that the plaintiff in this case was a
business invitee of the defendant and that, consequently,
the defendant owed the plaintiff a duty to keep
its premises in a reasonably safe condition. Martin v.
Stop & Shop Supermarket Cos., 70 Conn. App. 250, 251,
796 A.2d 1277 (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). Typically, ‘‘[f]or the
plaintiff 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.'' (Citations omitted.) Monahan v.
Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966);
accord Meek v. Wal-Mart Stores, Inc., 72 Conn. App.
467, 474, 806 A.2d 546 (2002). In the absence of allegations
and proof of any facts that would give rise to an
enhanced duty; cf. Furstein v. Hill, 218 Conn. 610, 624,
590 A.2d 939 (1991) (noting that ‘‘under certain circumstances
a heightened duty to the licensee can arise'');
the defendant is held to the duty of protecting its business
invitees from known, foreseeable dangers.
On the basis of our review of the record in this case,
the plaintiff neither pleaded nor proved that the incident
that occurred on March 21, 1999, was foreseeable. The
plaintiff did not offer any evidence to demonstrate that
the defendant reasonably should have anticipated and,
accordingly, protected against a theft.5 There was no
evidence that the store was located in a high crime area
or that any crime ever had occurred in the defendant's
store. Cf. Stewart v. Federated Dept. Stores, Inc., 234
Conn. 597, 601, 662 A.2d 753 (1995) (noting such evidence
in wrongful death action). Consequently, in the
absence of any notice or reason to believe that such a
crime could occur, there was no basis upon which to
conclude that the defendant should have anticipated
this particular danger.

Nor was it alleged or proven that the defendant knew
or should have known that any customer entering the
defendant's store would place cash on the countertop
without maintaining visual or physical contact with it
or that the customer would lose track of the money.
No evidence of any such similar pattern of behavior
was offered in the present case. Indeed, had any such
evidence been offered, it would not have established
the defendant's negligence because the defendant had
no duty to protect the plaintiff from his own carelessness.
See Meek v. Wal-Mart Stores, Inc., supra, 72
Conn. App. 478–79 (‘‘‘a store owner is not an insurer
of its customers' safety' '').
In the present case, the defendant had no reason to
know of the likelihood of the type of danger to which
the plaintiff was exposed, indeed, a danger that the
plaintiff could not even specifically identify.6 See footnote
5 of this opinion. Accordingly, in the absence of
any knowledge by the defendant that its arrangement
of the wire transfer facility ‘‘ ‘would obviously and natu-
rally, even though not necessarily, expose [the plaintiff]
to probable injury unless preventive measures were
taken' ''; LePage v. Horne, supra, 262 Conn. ; Bonczkiewicz
v. Merberg Wrecking Corp., supra, 148 Conn.
579; the defendant was under no special duty to protect
the plaintiff from the loss of his money.

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The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.

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