Opinion
FBTCV146040441S
05-06-2016
Alvin Correano v. Tiago's Restaurant and Bar, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, J.
The defendant, 211 Main Street, LLC, has filed a motion for summary judgment, as to Count Two of the plaintiff's amended complaint, arguing that there are no genuine issues of material fact that the defendant did not have possession and control of that area where the defect is located that allegedly caused the plaintiff's injury, and therefore, cannot be liable as a matter of law. The defendant has filed a memorandum of law, excerpts from deposition testimony, copies of a Commercial Lease Agreement, dated August 29, 2007, an Assignment of Lease, which include a floor plan and a sworn affidavit from the property management company representative in support of its position. The plaintiff filed an objection, a memorandum of law and a reply memorandum of law in opposition to the motion for summary judgment. The plaintiff has also submitted copies of deposition testimony and a sworn affidavit and report from a consulting engineer. Oral argument on the motion was heard before the court on February 8, 2016.
The defendant also filed a reply memorandum of law in response to the plaintiff's objection. The court has rejected the reply memorandum totaling 27 pages pursuant to Practice Book § 4-6 and § 11-10(b), limiting reply briefs to 10 pages unless the court grants permission to exceed that amount.
The plaintiff has alleged that on or about January 22, 2013, 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 alleges 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 alleges 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 alleges were the result of his slip and fall. In Count One, the plaintiff alleges Tiago's was in possession of the restaurant and bar and was responsible for his injuries and damages. In Count Two, he alleges that 211 Main was in possession and control of the same restaurant and bar and is responsible for his injuries and damages. Count Two is the subject of 211 Main's motion.
The defendant, 211 Main, argues 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 concludes that the evidence will 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 addresses the deposition testimony of Jose Tiago, the principal of the defendant Tiago's Restaurant and Bar. Mr. 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.
The plaintiff, in opposing summary judgment, argues there are 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 provides 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 provides 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 argues that a stairway is a common area under the lease agreement and is the precise location on the premises where he sustained his injuries. Additionally, the Lease provides that there is a genuine issue of material fact as to whether 211 Main only granted Tiago's non-exclusive right to the stairway and 211 Main retained the right to close the stairway for maintenance purposes. Also, the plaintiff argues that pursuant to the Lease, 211 Main, as the landlord, had free access to the " Service Facilities, " which are defined as the mechanical, electrical, sanitary and other service systems within the building. Regarding the electrical systems, there is a question of fact as to whether Cablevision cable television equipment is part of the " Service Facilities" as the Cablevision equipment which services the entire building is located in that portion of the basement where the alleged defective stairway leads. The Lease also provides that 211 Main shall provide janitorial services for the common area only on a Monday through Friday basis at times chosen by 211 Main. The plaintiff argues that there are material issues of fact as to whether the subject staircase and basement were common areas. Lastly, the plaintiff argues 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, one of the plaintiff's allegation of negligence against the defendants is 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.
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 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).
Discussion
The defendant, 211 Main, argues it that it did not possess or control the subject stairway at the time the plaintiff fell, and, therefore, it owed no duty to the plaintiff. " 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." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). " The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). " [L]iability in a premises liability case is based solely on control and possession, not title." Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n.10, 889 A.2d 798 (2006). " Possession involves not only the exercise of acts of ownership over the land but also the exclusion of such acts by others." (Internal quotation marks omitted.) State v. Schaffel, 4 Conn.Cir.Ct. 234, 247, 229 A.2d 552 (1966). " [T]he 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." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000). " Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property." Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).
" Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances." Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). However, whether control of the premises has been retained by a lessor is best " determined by the intent of the parties as expressed in the terms of the lease." Martel v. Malone, 138 Conn. 385, 388-89, 85 A.2d 246 (1951). Thus, unless it is definitely expressed in the lease, the circumstances of the case determine whether the landlord has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact. In considering control of the premises, the court can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property, and the use of the premises. Panaroni v. Johnson, 158 Conn. 92, 98-100, 256 A.2d 246 (1969).
In examining the lease, the lease assignment provisions, and the deposition testimony, the court concludes 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. Nothing in 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. CV116003495S (Oct. 31, 2013, Fischer, Jack, J.) . Per 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. Pursuant to the lease agreement between the 211 Main and the tenant, Tiago's, the tenant assumed responsibility for properly maintaining the area in which the plaintiff fell. " In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998).
In making this finding the court has examined the terms of the original Commercial Lease Agreement dated August 29, 2007 and an Assignment, Assumption and Amendment to the Commercial Lease Agreement that was subsequently executed on November 30, 2009. More particularly, see, Lease Articles 2.03, 5.03, 6.04, 7.01, 7.04 and Article VIII. See also, Assignment of Lease, Article 5.09.
Moreover, Tiago's 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, 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.
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. 310-11.
In support of his position 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, the plaintiff has submitted a sworn affidavit and a report from Douglas A. Fisher, P.E., a consulting engineer. In his report, Fisher states in detail his conclusions that the stairs lacked sufficient tread depth and the stairs were not sufficiently slip-resistant. He also noted a lack of dimensional uniformity in the riser heights and tread depths. It is his opinion that the subject staircase did not conform to standards set forth in minimum standards and fire and building codes for stair safety. The plaintiff argues that this presents a question of fact as to whether the stairway as it existed at the time of Fisher's inspection 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 creates 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. 515. " 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).
Fisher's report is dated May 22, 2014 and is based on his observations and inspection of the alleged defective staircase on April 30, 2014.
There are genuine issues of material fact as to: (1) any defective condition of the stairs; (2) the existence of any defect at the time 211 Main leased the premises to Tiago's; (3) 211 Main's actual and/or constructive knowledge of the alleged defect and whether invitees upon the premises would likely be invited to use the stairs to access the basement area; and (4) whether 211 Main had reason to expect that Tiago's would not take steps to remedy or guard against injuries, which might be incurred by using the alleged defective stairway. For the reasons stated herein, the court finds there are genuine issues of material fact and accordingly, the motion for summary judgment is denied.