Opinion
No. FST CV 08 5006917 S
March 3, 2010
MEMORANDUM OF DECISION RE RECONSIDERATION ON MOTION FOR SUMMARY JUDGMENT #111
This matter comes before the court on reargument pursuant to the defendant's motion for summary judgment as to count three of the plaintiff's complaint alleging premises liability. The issue presented is whether a landlord, who does not possess, control or maintain a premises, has a legal duty to an injured third party. For the reasons set forth below, the defendant's motion for summary judgment is granted.
FACTUAL HISTORY
On March 10, 2008, the plaintiff, Victor M. Contreras, commenced this action by service of process against the defendants, 455 Pacific Street, LLC (Pacific), Carranza, LLC, Daniel D. Carranza (collectively the tenants), Jose M. Nieves (Nieves) and Kain Bonilla (Bonilla). The plaintiff filed a four-count complaint in which he alleges the following facts. Pacific was the owner and operator of a building located at 455 Pacific Street in Stamford. The tenants were doing business as Manhattan Cafe, a bar located at the premises owned by Pacific. The tenants were under a lease agreement with Pacific for the operation of the Manhattan Cafe. Nieves was the liquor permittee and manager of the Manhattan Cafe and was responsible for the safety and security of the bar.
On the evening of March 12, 2006, the plaintiff, an invitee of the bar, had been inside the Manhattan Cafe for about an hour when he heard several people behind him arguing. Bonilla, another invitee, pushed the plaintiff. The plaintiff turned to see what was happening and was struck in the face with a glass beer bottle by Bonilla.
In count three of his complaint, the plaintiff claims that the injuries he received as a result of being struck by Bonilla were caused in part by the carelessness and negligence of Pacific. The plaintiff alleges that Pacific: failed to properly and adequately provide security for the Manhattan Cafe despite actual and constructive knowledge of previous criminal and violent activity occurring on and near the premises; failed to warn the plaintiff of this activity; failed to ensure the safety of invitees on the premises; failed to provide adequate lighting and security guards despite knowing of prior criminal and violent activity there and having knowledge that the lighting and security were inadequate; failed to provide adequate security equipment; and failed to restrict the tenants from selling liquor while it had a suspended license.
On August 8, 2008, the defendant, Pacific, filed this motion for summary judgment as to count three of the plaintiff's complaint on the ground that Pacific, as the Landlord, did not possess, control or maintain the premises in this matter at the time of the alleged incident, and, therefore, had no legal duty to the plaintiff from which negligence could arise. In a decision dated June 30, 2009, this court denied the defendant's motion for summary judgment. On July 7, 2009, the defendant filed a motion to reargue. The motion was granted and argument was heard on August 24, 2009. At that time, the court granted leave for the parties to file supplemental briefs on the limited issue of whether any applicable exception applies under the facts of this case warranting departure from the general rule that a lessor is not liable to third parties for injuries occurring on premises under the control of the lessee. Both parties filed supplemental briefs thereafter.
LEGAL DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) CT Page 6573 Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).
"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 . . . [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 . . . 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." (Citations omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002). "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 . . . Under normal circumstances, possession by the tenant is tantamount to control, however, a landlord may by his actions or by contract retain or assume control of the premises." (Citation omitted; internal quotation marks omitted.) Smith v. State, Superior Court, judicial district of Danbury, Docket No. CV 03 0348805 (January 7, 2005, Shay, J.).
The plaintiff contends that a question of fact exists regarding whether Pacific retained control of the premises in this instance. This court has already determined that Pacific did not possess, control or maintain the premises at the time of the alleged incident. Contreras v. 455 Pacific Street, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5006917 (June 30, 2009, Pavia, J.). Thus, reargument on this motion for summary judgment is limited to the issue of whether any applicable exception applies in this case to the general rule that a lessor is not liable to third parties for injuries occurring in demised premises under the control of the lessee.
The plaintiff initially argues landlord liability pursuant to section 379A of the Restatement (Second) of Torts. Restatement (Second) of Torts § 379A (1965) provides as follows: "A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if, (a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and (b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken." In the present case, the injury allegedly sustained by the plaintiff occurred within the confines of the leased building and not on an outside parcel. Accordingly, the exception set forth in Restatement (Second) of Torts § 379A, is inapplicable in this case. See Mazzella v. Reed, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 020190929 (August 14, 2003, Rogers, J.) (declining to extend landlord liability for an employee's injury sustained on the leased premises).
The plaintiff similarly cites Restatement (Second) of Property § 18.4 (1977), which states that "[a] landlord is subject to liability for physical harm to persons outside the leased property caused by activities of the tenant or others on the leased property after the landlord transfers possession only if: (1) the landlord at the time of the lease consented to the activity or knew it would be carried on; and (2) the landlord knew or had reason to know that it would unavoidably involve an unreasonable risk, or that special precautions necessary to safety would not be taken." Restatement (Second) of Property § 18.4 (1977). In the instant case the injury occurred on the leased property. As such, the exception set forth in Restatement (Second) of Property § 18.4 (1977) is inapplicable in this case.
The plaintiff alternatively argues that Pacific is liable under a nuisance theory and cites the Restatement (Second) of Torts § 837 (1979). The Restatement (Second) of Torts § 837 provides: "A lessor of land is subject to liability for a nuisance caused by an activity carried on upon the land while the lease continues and the lessor continues as owner, if the lessor would be liable if he had carried on the activity himself, and (a) at the time of the lease the lessor consents to the activity or knows or has reason to know that it will be carried on, and (b) he then knows or should know that it will necessarily involve or is already causing the nuisance." There is no evidence that, in this instance, Pacific consented to or knew about any of the alleged activities at the commencement of the lease. "A common element of §§ 379A and 837 is the requirement that liability hinges on the landowner's knowledge, at the inception of the lease, regarding the existence of a dangerous activity." Stokes v. Lyddy, 75 Conn.App. 252, 264, 815 A.2d 263 (2003).
The essential element of a nuisance claim is a continuing inherent or natural tendency to create danger and inflict injury. Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001). Our Supreme Court has repeatedly stated that "a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).
Nuisances fall into two categories: public and private. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land." (Internal quotation marks omitted.) Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432 (1986). Private nuisance law is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Pestey v. Cushman, supra, 259 Conn. 357. "Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . ." Ganim v. Smith Wesson Corp., supra, 258 Conn. 369. Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety. Pestey v. Cushman, supra, 259 Conn. 357. Thus, the plaintiff's claim of liability under a theory of nuisance is unavailing as neither a public nor a private nuisance is applicable to the facts of this case.
Nonetheless, the plaintiff asserts that the "public use" doctrine as enunciated in Webel v. Yale, 125 Court 515, 7 A.2d 215 (1939) permits a finding of liability in this instance. 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., 523.
In the court's original memorandum of decision the court denied the motion for summary judgment on the basis that there was a genuine issue of material fact regarding the landowner's knowledge of the defendant's ongoing conduct, based upon the requirements of proof for a public or private nuisance, however, the court finds that any such knowledge is not a material fact for purposes of deciding the current motion.
In Webel, however, our Supreme Court clearly held that an invitee of a tenant, not upon the premises by exercise of any public right, if injured upon the premises, cannot assert his claim of recovery upon the existence of a public right. Webel v. Yale, supra, 125 Conn. 524-25.
"One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance." Id. The courts have recognized a distinction between premises which are open for the general public to enter such as a store, a restaurant or a bar, and a public thoroughfare such as a sidewalk of public place. While members of the general public might be welcomed into a business establishment, they are not entitled to entrance by virtue of any public right enjoyed by citizens as part of the public. Londen v. Mt. Southington Ltd. Partnership, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 09 5004717 (June 23, 2009, Fischer, J.).
In the present case, while members of the general public were invited and welcome to enter the Manhattan Cafe, there was no right, generally enjoyed by the public at large, which entitled them to access. Accordingly, the public use exception is inapplicable in this instance and the plaintiff may not seek recovery under a claim of nuisance.
For the foregoing reasons, the court finds that there is no genuine issue of material fact as to Pacific's liability. Accordingly, the court grants Pacific's motion for summary judgment as to count three.