Opinion
No. CV 03 0089605
March 23, 2004
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANTS LJ PROPERTIES COMPANY LLC'S MOTION FOR SUMMARY JUDGMENT
The apportionment defendant LJ Properties Company LLC, ("LJ Properties") has moved for summary judgment on the Second Count of the intervening plaintiff Lakeville Journal Company LLC ("Lakeville") complaint dated June 16, 2003 and on the defendant Leno's Lawn Care Services ("Leno's") apportionment complaint dated May 2, 2003. This case arises out of slip and fall on the property at 22 Bissell Street, in Lakeville, Connecticut on February 8, 2001. The plaintiff, who was an employee of the intervening plaintiff Lakeville, alleges she was injured when she slipped and fell on a handicap ramp covered with ice and snow. The apportionment defendant LJ Properties is the owner of the property and the intervening plaintiff Lakeville is the tenant, the defendant Leno's is the entity hired by Lakeville to maintain the property. The basis for LJ Properties' motion is that under its Lease agreement with Lakeville it had no duties, obligations, or control over the property.
Pursuant to Connecticut Practice Book Section 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that that is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law." A material fact is one that will make a difference in the outcome of the case. Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). Summary judgment should be granted if the "moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80 (1989). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Id. at 279.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitled [that party] to a judgment as a matter of law." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 (1994). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 12 (1983). Further, "[i]ssues of negligence are ordinarily not susceptible of summary adjudications but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
The crux of the defendant LJ Properties' argument is paragraph 6.A. of the lease, which states, "Landlord shall have no obligation whatsoever to repair or maintain the Premises." Paragraph 6.B. states "Tenant shall take good care of the premises . . . promptly make all repairs, interior and exterior, structural and non structural necessary to keep said buildings and improvements in good and lawful condition . . . [and] shall keep and maintain all portions of the premises." LJ Properties argues that under the lease it had no control over the premises and thus no liability.
The defendant Leno's argues that by the fact LJ Properties reserved the right in Paragraph 6.C. of the lease agreement to go onto the property to make inspections and to make repairs to the premises which may be necessary to comply with any laws, ordinances, rules, regulations or other governmental requirements, or that may be necessary to prevent waste in the premises, which Tenant is obligated, but has failed, to make, prevent or perform, as the case may be. That this reservation is enough to make it a question of facts as to whether LJ Properties had some control over the premises.
It is well established in Connecticut that liability for an injury due to defective premises depends on possession and control. Panaroni v. Johnson, 158 Conn. 92, 99 (1969). Control is an issue of fact for the trier of fact only where the written lease cannot be said to resolve definitively or expressly the issue of control. Charest v. Burger King Corp., Superior Court Judicial District of Hartford/New Britain at Hartford Docket No. CV 91 395749 (March 3, 1993) (Aurigemma, J.) 8 Conn.L.Rptr. 756, 8 C.S.C.R. 369, 370.
The lease in question here clearly places control of the entire premises with the Lakeville Journal Company LLC. In support of this position the defendant LJ Properties points to the deposition of Ms. Janet Manko publisher of the Lakeville Journal who testified she was the one who hired Leno's, that Leno's was paid by the Lakeville Journal and that LJ Properties had no involvement in the running of the property.
The court finds Leno's argument that by reserving the right to inspection this is equivalent to control unavailing. In Panaroni, supra, the Connecticut Supreme Court stated, "Responsibility for the care over portions of the premises within the leased area may rest with the lessor if, with the acquiescence of the lessee, he retains control and an agreement between the parties as to the landlord's right to inspect the premises together with his exclusive right to make repairs therein and the tenant's total abstention from making any repairs would be the equivalent of retention of control of the leased premises. Panaroni, supra, at 98. In this case there is clearly no such agreement. The lease unequivocally places the burden for all maintenance and repair on Lakeville.
Although it is true that issues of negligence are generally ill-suited for summary judgment, the opposing party must present a factual basis for their argument in order to raise a genuine issue of fact. D'Errico v. Stop Shop Co., Superior Court, Judicial District of New Haven, Docket No. CV 95 0368612 (November 10, 1997) (Zoarski, J.T.R.).
It is clear that LJ Properties did not owe the Plaintiff any duty to maintain the handicap ramp. The court finds the apportionment plaintiff and defendant have not set forth any facts that would create a genuine issue of fact. The motion for summary judgment is granted.
BY THE COURT,
Brunetti, J.