Opinion
FBTCV146041365S
07-07-2016
Diane Blake v. Wilton Motiva Associates, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, Judge.
The defendant Wilton Motiva Associates, LLC (" Wilton") has filed a motion for summary judgment as to the first count of the plaintiff's four-count Revised Complaint, dated December 29, 2014. The first count alleges negligence as to this defendant, and the defendant claims there are no genuine issues of material fact that it did not owe any duty of care to the plaintiff because Wilton was not in possession or control of the premises where the incident occurred. Wilton, in support of its motion for summary judgment, has filed a memorandum of law, copies of various leases and subleases, sworn affidavits and certain interrogatory responses of the other defendant, Main Street Shell, LLC. The plaintiff has filed a memorandum of law in opposition. The plaintiff, in objecting, has also submitted excerpts from the subject lease documents and has additionally submitted a copy of the cross claim filed by Wilton against the co-defendant Main Street Shell. Wilton has filed a reply to the plaintiff's objection and the plaintiff has filed a supplemental objection. Main Street Shell has also filed an objection to Wilton's motion for summary judgment. Wilton has filed its reply to Main Street Shell's objection. The court heard the oral arguments of the parties on May 16, 2016.
The Revised Complaint contains four counts. Counts One and Three allege negligence as to Wilton and Main Street Shell, LLC. Counts Two and Four of the Revised Complaint state no cause of action. These counts state that " this count was stricken by court order dated December 18, 2014 and is subject to a Notice of Intent to Appeal. The Plaintiff, therefore, reserves her appellate rights accordingly." The original complaint in this action brought only against Wilton Motiva contained two counts alleging negligence and public nuisance. Thereafter Main Street Shell was added as a defendant and the plaintiff filed an amended complaint containing four counts which alleged negligence and public nuisance as to each defendant. Count Two and Four alleging public nuisance were stricken by the court (Gilardi, J.) Thereafter, the operative Revised Complaint was filed by the plaintiff. In sum, the only two operative counts allege negligence as to each defendant, Wilton and Main Street Shell, LLC.
The revised complaint, dated December 29, 2014, alleges that on or about July 7, 2012, the plaintiff slipped and fell on the premises located at 2613 Main Street, Bridgeport, Connecticut. The plaintiff alleges she was caused to fall because the defendants Wilton and Main Street Shell created a dangerous and defective condition consisting of a gas storage tank cover that did not have a nonskid surface. The lack of the non-skid surface is alleged to be in violation of the Connecticut State Building Code. The plaintiff further alleges that the defendants failed to inspect, correct or remedy the dangerous and defective condition; failed to use reasonable care to maintain the area; failed to warn pedestrians of the defective and dangerous condition; and failed to provide a safe route between the plaintiff's motor vehicle and the gas pump, all of which caused her to slip and fall and to sustain serious injuries.
I
Standard of Law
" A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. " The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. " A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
" The party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Hryniewicz v. Wilson, 51 Conn.App. 440 at 443-44, 722 A.2d 288 (1999). " To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) § § 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Norse Systems, Inc. v Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law " when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, " issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, " [t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997).
II
Discussion
In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). Although the determination of whether a duty exists is ordinarily a question of law; Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); although, under some circumstances, the question involves elements of both fact and law. Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000).
" The term 'owner' is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right . . . but also applies to a person who has possession and control . . ." (Citations omitted; internal quotation marks omitted.) Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972). " Liability for a claimed injury due to . . . defective premises depends on possession and control and not on title." Fernandez v. Estate of Ayers, 56 Conn.App. 332, 335, 742 A.2d 836 (2000). " The word 'control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Citation omitted.) Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969). " [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question." State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987). " Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury" for its determination. Darling v. Burrone Bros., Inc., 162 Conn. 187, 192, 292 A.2d 912 (1972).
Wilton does not dispute that it was the owner of the subject property at all relevant times, but does not admit to possession and control of the area where the plaintiff fell on the subject date.
Liability for injuries caused by defective premises, however, does not depend on who holds legal title, but rather on who has possession and control of the property. Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). Thus, the dispositive issue in deciding whether a duty exists is whether the landlord has any right to possession and control of the property. LaFlamme v. Dallessio, 261 Conn. 247, 252, 802 A.2d 63 (2002).
The general rule regarding premises liability in the landlord-tenant context is that " landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . ." Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). " [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant." (Internal quotation marks omitted.) Id. " The issue of whether the landlord retained control over a specific area of the premises is " essentially a matter of intention to be determined in the light of all the significant circumstances." (Citation omitted.) LaFlamme v. Dallessio, supra, 261 Conn. 257. " Thus, unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue." Id.; see also, Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969). " In other words, if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." Id.
In support of its argument that it did not possess or control the area where the plaintiff is alleged to have fallen, the defendant Wilton requests the court to take judicial notice of Main Street Shell's answer to the Third Count of the plaintiff's Revised Complaint, which alleges negligence by Main Street Shell. Main Street Shell admits that the premises at 2613 Main Street, Bridgeport, Connecticut were leased, controlled and/or maintained by Main Street Shell, including the area where the plaintiff fell. Main Street Shell also admits the allegation that it was charged with the duty to keep and maintain the property in a reasonably safe condition. Wilton also directs the court to Main Street Shell's answer in response to the cross claim filed against it by Wilton. In its answer to the cross claim, Main Street Shell admits it was a tenant that leased, controlled and maintained the property. Additionally, in its January 30, 2015, responses to the plaintiff's interrogatories and production, Main Street Shell responded that it had a possessory interest in the subject property, as a tenant, at the time of the plaintiff's fall and that it was responsible for the maintenance and inspection of the premises at the time and place of the plaintiff's fall.
Wilton Motiva is the owner of the subject property. It was formerly known as Wilton Associates, LLC. As Wilton Associates it entered into a " triple net" lease with Connecticut Dealer Stations, LLC. That lease provided that the tenant was responsible for maintenance, including repair and replacement of blacktop surfaces. Thereafter, Connecticut Dealer Stations entered into a sublease with Wholesale Fuel Distributors Ct., LLC. This sublease provided that the landlord was not responsible for costs in connection with ownership, operation or maintenance of the demised premises, including blacktop surfaces. Thereafter, on or about July 7, 2012, Wholesale Fuel Distributors entered into a sublease with the defendant, Main Street Shell, LLC. This sublease provided that it was subject to all conditions and restrictions affecting the underlying lease. In this sublease Main Street Shell acknowledged that as a lessee it had the primary obligation and responsibility to keep the premises safe for all persons. If a portion of the premises were in need of maintenance, Wholesale Fuel Distributors was to be notified. Main Street Shell had the obligation to preform interim maintenance until Wholesale Fuel was able to do so. Main Street also had the maintenance obligation to maintain all paths of travel on the premises free of obstruction including compliance with the American Disabilities Act.
Wilton Motiva concludes that based on the submission of the foregoing documents, responses to interrogatories and answers filed by Main Street Shell, there is no genuine issue of material fact that it did not have possession and control of the premises where the plaintiff fell; nor was it responsible for maintenance of the subject premises and area where the plaintiff fell. Those responsibilities belonged to Main Street Shell, LLC. Accordingly, Wilton argues it had no duty of care to the plaintiff and is entitled to summary judgment on the first count against it, wherein the plaintiff alleged negligence.
The plaintiff, in opposing summary judgment, argues there is a genuine issue of fact regarding which defendant had control of the area containing the alleged defect. In support of this argument the plaintiff questions the validity of the lease between Wilton and Main Street Shell. The plaintiff notes there are three lease documents in question; the original lease between Wilton Motiva and Connecticut Dealer Stations; a sublease between Connecticut Dealer Stations and Wholesale Fuel Distributors; and the sublease, dated June 1, 2012 between Wholesale and the defendant, Main Street Shell. The plaintiff argues that according to the allegations contained in the cross claim filed by Wilton against Main Street Shell, Main Street Shell was in breach of its sublease with Wilton Motiva, as Main Street Shell failed to procure third-party liability insurance to Wilton's detriment and Main Street Shell was/is " contractually obligated to indemnify and defend Wilton Motiva . . . from the claims asserted by the plaintiff [Blake] . . ." The plaintiff claims that if the lease between Wilton and Main Street Shell is in breach, there is a question of fact as to whether Wilton, the landlord, can escape liability by claiming it is not in control. The plaintiff cites LaFlamme v. Dallessio, supra, 261 Conn. 247, for the proposition that if there was no lease between Wilton and Main Street Shell, there is a question of possession and control over the subject area at the premises where the plaintiff fell.
Further, the plaintiff points to paragraph 23(b) of the original lease between Wilton and the Connecticut Dealer Stations, LLC, which provides as follows:
[I]f by reason of the occurrence of any such default, the Lease shall end before the date originally fixed herein for the expiration thereof . . . Landlord is authorized and empowered to make such repairs, alterations . . . for the reletting of the Demised Premises as Landlord shall deem advisable without in any way releasing Tenant from any liability hereunder, as aforesaid.
Plaintiff claims that this original lease provision, to which the sublease was subject, establishes a question of control once the sublease was alleged to have been breached by Wilton due to Main Street Shell's failure to have third-party liability insurance.
The plaintiff's next argument is that the original lease requires that Wilton as the landlord and owner of the premises, provide its written consent for a lessee to sublease or transfer the property. However, Connecticut Dealer Stations entered into a sublease with Wholesale Fuel Distributors without this written consent document. Thereafter, Wholesale entered into the subject sublease with Main Street Shell, also lacking written consent from Wilton Motiva. Plaintiff argues that his written consent from Wilton Motiva for subleases was a condition precedent for valid subleases. Therefore the subject sublease, which contains an indemnity clause and seeks to establish control over the subject premises has questions as to its validity.
Next, the plaintiff argues that the Revised Complaint alleges a violation of the Connecticut State Building Code § § 1104.1 and 1103.2.14, 402.2 and/or 302.1, and that it is not a defense that the owner was not in possession and control because violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence. Thus if the plaintiff's injury comes within the purview of the ordinance or statute and the injury has a direct and proximate connection with the violation, the lack of possession and control by the owner-landlord is no defense.
Connecticut courts have found that a state building code violation is negligence per se. See Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 24-25, 60 A.3d 222 (2013); Gore v. People's Savings Bank, 235 Conn. 360, 372, 665 A.2d 1341 (1995). It is proper for the court to conclude that a jury might properly consider relevant, though unbinding, building codes as evidence of the standard of care for ordinary negligence. Compliance with a statute, code, or regulation does not prevent a finding of negligence where a reasonable man would take additional precautions. See Restatement (Second) of Torts § 288C (1965); see also Josephson v. Meyers, 180 Conn. 302, 308, 429 A.2d 877, 880 (1980).
In Considine v. Waterbury, 279 Conn. 830, 858-59, 905 A.2d 70 (2006), our Supreme Court considered whether a building code could be used as some evidence of the standard of care in ordinary negligence actions. The Supreme Court in Considine concluded that testimony regarding the building code can be used as evidence of the standard of care for ordinary negligence. Id., at 867-68. " From this it follows that these safety provisions may appropriately be held competent, not in and of themselves as evidence of negligence, but as evidence of a standard by which the jury must measure the conduct of the defendants in determining whether they exercised that due care the law required in the situation." Id., at 862. The fact that a defendant was in compliance with codes, statutes and/or regulations is evidence of the standard of care for the jury to consider, but would not necessarily prevent a jury from finding negligence by the defendant, if the jury were to conclude that a reasonable person or owner of the premises would take additional precautions at the subject premises. Compliance with the relevant codes and regulations is just one of the facts and pieces of evidence for the trier of fact to consider when determining the standard of care in a negligence actions such as this . . . " [I]ssues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, supra, 193 Conn. at 446. " [T]he conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. at 374.
In determining the question of possession and control and the impact of the plaintiff's allegations that Wilton Motiva violated sections of the state building code the court reviews its recent decision in Correano v. Tiago's Restaurant & Bar, LLC, Superior Court, judicial District of Fairfield, No. FBTCV146040441S (May 6, 2016, Arnold, J.) [62 Conn.L.Rptr. 271, ].
In Correano, supra, the plaintiff alleged that the defendant, 211 Main Street, LLC (" 211 Main"), owned, possessed and/or controlled the premises at 211 State Street, Bridgeport, Connecticut. At that time and location, the plaintiff, an employee of Cablevision, was at the premises for a service call, when he alleged he was caused to slip and fall while descending a staircase leading from the kitchen of Tiago's Restaurant, located within a building at 211 State Street (" Premises"), to the basement beneath the restaurant. The plaintiff alleges that the defendant(s) " caused or allowed and permitted the stairs to remain in a greasy and wet condition making the stairs dangerous to walk on." The plaintiff further alleged that the two defendants, 211 Main, the building owner, and Tiago's Restaurant and Bar, LLC (" Tiago's"), the property lessee, were negligent in their maintenance of the staircase and caused the injuries and damages the plaintiff alleged were the result of his slip and fall. In Count One, the plaintiff alleged Tiago's was in possession of the restaurant and bar and was responsible for his injuries and damages. In Count Two, he alleged that 211 Main was in possession and control of the same restaurant and bar and is responsible for his injuries and damages.
The defendant, 211 Main, argued that the stairway that the plaintiff alleges was in a defective condition was within the leasehold demised to the tenant, Tiago's, possession and control, and the lease between 211 Main and Tiago's, placed the responsibility for maintenance of the stairway on the tenant, Tiago's. Therefore, 211 Main concluded that the evidence would not support a finding that it had such possession and control of the stairway as would be necessary to find liability against it. In support of its position, besides, the Lease, Assignment of the Lease, and the property managers' affidavit, the defendant 211 Main presented the deposition testimony of Jose Tiago, the principal of the defendant Tiago's Restaurant and Bar. Tiago testified that under the terms of the lease, the responsibility the maintenance and cleaning of the interior staircase, at issue, was that of the restaurant staff, and as the tenant, Tiago's was obligated to, and did, clean and maintain the staircase on a daily basis. Tiago testified that he did not rely upon the building owner, the property management company or any other entity to maintain and clean the stairway.
In Correano the plaintiff, in opposing summary judgment, argued there were numerous issues of material fact to whether 211 Main had control of the portion of the subject premises where the plaintiff slipped and fell. The lease between 211 Main and Tiago's provided that the landlord, 211 Main granted the tenant, Tiago's, the " non-exclusive right to the Common Areas in common with the Landlord." Additionally, the lease provided that the " Landlord reserves the right from time to time to (I) close temporarily any of the Common Areas for maintenance purposes . . . (ii) to make changes or revisions to the Common Areas . . . (iii) relocate . . . Wires, conduits and appurtenant meters and equipment included in the Premises, which are located in the Premises or located elsewhere outside the Premises." The plaintiff argued that a stairway is a common area under the lease agreement and is the precise location on the premises where he sustained his injuries. Lastly, the plaintiff argued that pursuant to the Assignment of the Lease Agreement the tenant, Tiago's, had a duty to keep and maintain the premises in a safe condition, but if Tiago's did not maintain the premises in a safe condition, then 211 Main retained the right to enter and undertake the required maintenance.
Lastly, the plaintiff also alleged that the steps on the subject stairway were defective due to their non-uniform height and lack of tread in violation of applicable building codes. Therefore, Tiago's did not create that specific defect, and that defective condition existed at the time 211 Main leased the subject premises to Tiago's.
In Correano, supra, this court examined the lease, the lease assignment provisions, and the deposition testimony, and concluded that 211 Main, the commercial landlord, was not responsible for patron's slip and fall injuries by way of the terms of the lease and assignment. The court found that nothing in the lease or the assignment of the lease suggested that landlord maintained possession or control over the stairways leading to the basement area of the leased premises where the plaintiff fell. While landlord maintained right to enter the premises and to make repairs or to do maintenance, 211 Main was not obligated to examine the premises, nor was it obligated to make any repairs, additions, or alterations. See Mariani v. Ruzzier, Superior Court, judicial district of New Haven, No. CV 116003495 S (Oct. 31, 2013, Fischer, Jack, J.) [57 Conn.L.Rptr. 95, ]. Pursuant to the lease and assignment terms the tenant Tiago's was in possession and control of premises at the time patron fell, and it was therefore Tiago's duty to maintain the premises in a clean and safe condition and to make reasonable inspections thereof.
Moreover, Tiago's had agreed to indemnify and save 211 Main harmless from all claims and liability arising from the Tenant's use of the premises, including the common areas, including any such claims or liabilities arising from any breach or default in the performance of any obligation contained in the lease on the Tenant's part. Nothing in the lease agreement suggests that the 211 Main maintained possession or control over the area of the property where the plaintiff fell.
However, the Correano this court determined that although 211 Main surrendered possession and control of the premises to its tenant, Tiago's, 211 Main could still be liable for the plaintiff's injuries under an exception to the general rule that landlords have no duty to properly maintain any portions of the premises leased to and in the exclusive possession and control of the tenant. Fountain v. D'Addario Industries, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV-89-0261424-S, (December 17, 1991, Spear, J.). " [A] visitor to business premises which have been leased by the owner may recover against him upon proof (1) that there existed at the time of the leasing conditions on the leased premises likely to cause injury to persons entering the premises; (2) that the landlord has knowledge, actual or imputable, of the existence of these conditions; (3) that the landlord had knowledge, actual or imputable, that persons were likely to be invited upon the premises as customers of the tenant; [and] (4) that the landlord had reason to expect that the tenant would not take steps to remedy or guard against injury from the conditions." Fiorelli v. Gorsky, 120 Conn.App. 298, 310, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). Thus, under the exception to the general rule, " [i]n order for the defendant Landlord to be held liable for injuries sustained by virtue of [a dangerous] condition, that condition must have existed at the time the premises were put into the possession and control of the Tenant . . . or, alternatively, the condition must have been created by the defendant at some time subsequent to the commencement of the tenancy." Fountain v. D'Addario Industries, Inc., supra .
Our Supreme Court " repudiated" the general rule of non-responsibility of a landlord for the condition of demised premises as to injuries suffered by members of the public who are invited by the tenant to use the premises. Webel v. Yale University, 125 Conn. 515, 519, 7 A.2d 215 (1939). Under Webel a landlord may be liable to a third party if " the landowner leases premises on which he knows' or should know that there are conditions likely to cause injury to persons entering on them, that the purpose for which the premises are leased involves the fact that people will be invited upon the premises as patrons of the tenant, and that the landowner knows or should know that the tenant cannot reasonably be expected to remedy or guard against injury from the defect." Id., at 523, 7 A.2d 215.
In Webel v. Yale University, supra, the plaintiff fell on premises leased by Yale University for a beauty shop. The floor of a room from which the plaintiff was leaving was seven inches higher than that of the room she was entering. Id. Our Supreme Court adopted and applied a doctrine relating to the situation in which a landowner leases premises for a purpose that will result in people entering them as invitees of the tenant. Id. In Webel, " [t]he court determined that if there are conditions on the premises that are likely to cause injury to such persons and the landowner knows or should know that the tenant cannot reasonably be expected to remedy these conditions or guard against danger from them, the landlord may be liable for injuries suffered by reason of those conditions." Fiorelli v. Gorsky, supra, 120 Conn.App. at 310-11, 991 A.2d 1105.
In Correano the plaintiff argued that the subject premises were in a defective condition and such defect existed at the time 211 Main leased the premises to the defendant Tiago's. Specifically, the plaintiff argued that the stairs on which the plaintiff fell lacked sufficient tread depth and the stairs were not sufficiently slip-resistant. Therefore, the subject staircase did not conform to standards set forth in minimum standards and fire and building codes for stair safety.
In Correano, this court in denying summary judgment found there were sufficient issues of fact as to whether the stairway as it existed at the time of the fall, was in the same defective condition when 211 Main entered into a landlord and tenant relationship with Tiago's, by virtue of the lease assignment agreement. It additionally created issues of fact as to whether 211 Main had knowledge, actual or imputable of the existence of the alleged defective stairway condition and that the landlord had reason to expect the tenant would not take steps to remedy or guard injuries due to the defective condition of the stairway. Brenner v. Central Realty Co., 130 Conn. 666, 667, 37 A.2d 230 (1944), citing Webel v. Yale University, supra, 125 Conn. at 515, 7 A.2d 215. " Under Connecticut law, the existence of both actual and constructive notice is a question of fact." Vendrella v. Astriab Family Ltd. P'ship, 133 Conn.App. 630, 659, 36 A.3d 707, (2012), aff'd, 311 Conn. 301, 87 A.3d 546 (2014).
The plaintiff in this present matter has submitted copies of photos showing the alleged defective gas storage tank cover, which appears to be embedded in the ground. It cannot be definitively discerned from the photos how long this storage tank cover has been at this location, but the photos sufficiently raise a question of fact is valid as to whether or not its present location and condition predates the applicable leases or subleases, including the subject sublease between Wholesale Fuel Distributors and Main Street Shell. The subject storage tank cover, which is alleged to be defective and in violation of the state building codes is located in an area where anyone pumping gas might be expected to step on it or cross over it when crossing from their vehicle to the gas pump. There is a question of fact as to whether this defective condition existed prior to the subject leases and subleases, including the Main Street Shell sublease. There are questions of fact as to whether the tank cover was, indeed defective and whether the defendant-owner Wilton should have been aware of the alleged defect.
III
Conclusion
The court is not convinced that the subleases are invalid as the plaintiff suggests. The court also acknowledges that Wilton Motiva makes a strong argument that it did not retain possession and control over the location at the subject premises where the plaintiff fell. However, the issue of possession and control, in and of itself, is not dispositive of the motion for summary judgment. The court concludes, consistent with its decision in Correano v. Tiago's Restaurant & Bar, LLC, Superior Court, judicial District of Fairfield, No. FBTCV146040441S, (May 6, 2016, Arnold, J.), that there are genuine issues of material fact as to: (1) the allegations of violations of the state building code; (2) whether such defective condition existed at the time the property was leased; and (3) whether or not Wilton Motiva knew of the alleged defective condition, consisting of a storage tank cover that did not have a non-skid surface, which was located in a direct path of travel for customers wishing to pump gas. Accordingly for the reasons discussed herein, the motion for summary judgment is denied.
The co-defendant Main Street Shell also filed a memorandum of law in opposition, Main Street Shell argued that it did not control; nor was responsible for the maintenance of the underground storage tank covers. It also argued issues regarding the subject of indemnity. As the court has denied summary judgment taking into consideration the issues raised by Wilton Motiva and the plaintiff, the court need not determine the merits of Main Street Shell's arguments.