Opinion
No. CV08-5002937-S
October 6, 2010
MEMORANDUM OF DECISION
The plaintiff, Susan DiFranco, filed a premises liability action by way of a two-count amended complaint, dated June 25, 2008. The defendant, Osborne Jenks Productions, Inc. (OJ), has moved for summary judgment as to count two.
In count two, the plaintiff has alleged that on January 29, 2006, the plaintiff, pursuant to her employment with the Hawthorne Inn, was an exhibitor in a bridal show being put on by OJ at the Connecticut Expo Center, which was owned by Connecticut Expo Center, LLC (Expo Center). OJ had a leasing agreement with Expo Center for use of the facilities from January 27, 2009 through January 29, 2009. The lease called for a "move out period" on January 29 from 5 p.m. until 10 p.m. The plaintiff admits that she closed down her exhibit prior to 5 p.m. and alleges that she was pushing her cart across the gravel parking lot when it became stuck and caused her to fall and sustain injuries. She alleges that OJ was careless and negligent in its failure to have a better exiting plan and its failure to keep the premises in a reasonably safe condition.
OJ argues that its motion for summary judgment should be granted because, pursuant to the lease agreement, it did not have any possession or control over the parking lot where the plaintiff fell. OJ further contends that there is nothing to show that its conduct caused the plaintiff's alleged injuries. The plaintiff has filed an objection to the motion for summary judgment with an accompanying memorandum of law, and Expo Center has joined that objection. For the reasons that follow, this court agrees with OJ and grants the motion for summary judgment as to count two.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "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 such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Moreover, "the . . . court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 284 Conn. 791.
In its memorandum of law in support of its motion for summary judgment, OJ argues that there is no genuine issue of material fact that it did not owe a duty to the plaintiff because the terms of the lease agreement between itself and Expo Center are unambiguous and prescribe that OJ did not retain possession or control of the parking area where the plaintiff claims to have been injured and that OJ had no duty to maintain the area. OJ further contends that there is nothing to show that its conduct caused the plaintiff's alleged injuries.
In response, the plaintiff counters that although the parking lot was not included in the description of the "demised premises," pursuant to the lease, OJ retained control over the use of the space, rent collection, assignment, structural changes, alterations and building improvements. The plaintiff also contends that OJ was responsible because it had paid for the plaintiff's parking fee, the lease called for a "walk through inspection" of the parking lot, and the plaintiff might have been "directed" to the parking lot by an employee of OJ. Furthermore, the plaintiff argues that it was foreseeable that due to the lack of lighting, the gravel nature of the parking lot and the inability of the plaintiff to safely load and unload her vehicle, that she would be injured. This court is not persuaded.
"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 . . . 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 . . . In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows." (Citations omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 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 . . . [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 . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . 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." (Citations omitted; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 (2010). Furthermore, "control must relate to the condition and location of the injury." Farrell v. McDonald's Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0491505 (February 14, 2000, Graham, J.) ( 26 Conn. L. Rptr. 586, 588); see also Smith v. Housing Authority, 144 Conn. 13, 16-17, 127 A.2d 45 (1956) (holding that agreement that landlord had exclusive right to make repairs "would be the equivalent of retention by the landlord of control of the leased premises for the purpose of making repairs"). " 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 . . . [I]f the issue of control is expressed definitively in the lease, [however] it becomes, in effect, a question of law." (Citation omitted; emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. 308-09.
"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.) Id., 309. "[W]hen the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party's subjective perception of [its] terms." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 8, 931 A.2d 837 (2007).
With regard to OJ's control of the property, the plaintiff points to a number of provisions which allegedly show that OJ reserved some level of control over the parking lot. The court has reviewed these arguments and provisions and is not persuaded. Most importantly, none of these provisions refer to any retention of possession and/or control by OJ over the parking lot in question or refute those portions of the lease which define the licensed space as consisting of "approximately 88,000 square feet of gross area of the [h]all" and state that OJ had "no right, title, estate, or interest in the [h]all, its facilities or equipment or the land under and around the [h]all."
In the analogous situation of landlord-tenant law, it's held that "[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." (Emphasis added; internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. 308. "The control must relate to the condition and location of the injury." (Emphasis added.) Farrell v. McDonald's Corp., supra, 26 Conn. L. Rptr. 588.
Indeed, a number of Superior Court decisions have considered similar lease provisions. See Guercia v. Connecticut Post, LLP, Superior Court, judicial district of New Haven, Docket No. CV 03 0474056 (January 5, 2005, Thompson, J.) (under lease, co-defendant did not possess, control or manage area where plaintiff allegedly was injured and therefore was granted summary judgment); Charest v. Burger King Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0395749 (March 3, 1993, Aurigemma, J.) ( 8 Conn. L. Rptr. 756, 757-58) (holding that absent evidence that lessor made repairs to premises, reliance on language in lease permitting lessor to enter premises to make repairs in event that lessee failed to do so was insufficient to create genuine issue of material fact); see also Farrell v. McDonald's Corp., supra, 26 Conn. L. Rptr. 588 (same). Moreover, "[t]he right to inspect in this context does not mean and is not equivalent to the right to control." Farrell v. McDonald's Corp., supra, 588; see also Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0263193 (July 19, 1999, Beach, J.) (right to enter and inspect premises is standard reservation common in commercial leasing context).
Moreover, the Appellate Court has expressly considered provisions that require a tenant to obtain approval from the landlord in order to take certain actions and rejected the argument that such provisions establish that the landlord retained possession and control over the property. See Fiorelli v. Gorsky, supra, 120 Conn.App. 309 ("The plaintiffs presented no evidence contrary to [the defendant's evidence] or the lease terms. They merely referred to sections of the contract under which the lessor needed the defendants' approval prior to taking some action"); see also Hobart v. McDonald's Restaurant of Connecticut, supra, Superior Court, Docket No. CV 98 0263193 (requirement of consent before altering or sub letting premises is standard reservation common in commercial leasing context).
It is clear under the plain terms of lease at issue here that OJ did not possess, manage or control the area where the plaintiff allegedly sustained her injuries, nor did it require the plaintiff to park in the lot in question, and therefore OJ is entitled to summary judgment on this basis.
The foregoing analysis is also fatal to the plaintiff's allegations that OJ's actions during the move out period were the proximate cause of the plaintiff's injuries because there was no "operational plan" and she was forced to leave early. These allegations, however, do not rise to being material facts because the injuries did not occur in the leased premises but in the parking lot where the plaintiff left her vehicle. The plaintiff does not allege that anything that happened while she was in the leased premises was the proximate cause of what happened in the parking lot nor does she cite any authority supporting such a contention. Therefore, the time and manner of her departure are not genuine issues of material fact.
The motion for summary judgment is granted.