DiPietro v. Dimensional Technology Group, LLC
Business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger; and the affirmative act rule, rather than acting as an alternative to notice, allows an inference of notice when circumstantial evidence shows that the defendant knew or should have known of the dangerous condition because it was a foreseeably hazardous one that the defendant itself created. Karen DiPietro, brought these actions on behalf of her minor daughter, Michelle DiPietro against the defendants, Farmington Sports Arena, LLC, Dimensional Technology Group, LLC and Paul DiTommaso, Jr., alleging that Michelle injured her ankle while playing at the defendants' indoor soccer facility because the defendants negligently installed a playing surface inherently dangerous for indoor soccer. The trial court granted summary judgment to the defendants finding a lack of expert testimony on the applicable standard of care and no evidence that the defendants had notice of the allegedly hazardous condition. The Appellate Court reversed the judgment finding no need for expert testimony or notice because the defendants were responsible for creating the unsafe condition. The defendants appealed. The Supreme Court reversed the Appellate Court's judgment. The plaintiff failed to produce evidence demonstrating a genuine issue of material fact as to the essential element of notice. The defendants produced uncontroverted evidence that they were not on notice of the carpet's alleged dangerousness and could not have foreseen that it was inherently defective absent scientific testing. The results of scientific tests the plaintiff's expect conducted did not provide a basis for charging the defendants with constructive notice. The expert's testimony only addressed cause of injury. Absent visually discoverable hazards, previous indications of danger, or industry and government standards, the defendants' duty did not extend to the type of scientific testing required to uncover the carpet's alleged inherent defects. The plaintiff alternatively contended that her claim was exempt from the usual notice requirements because the defendants affirmatively created the allegedly dangerous condition by choosing the carpet as a playing surface. The Supreme Court disagreed. Analysis of the affirmative act rule as it has been applied, shows that it permits the inference of actual notice only when the defendant or its employees created an obviously hazardous condition. The rule did not apply here.