Opinion
No. CV 05-5001356 S
August 20, 2007
MEMORANDUM OF DECISION ON DEFENDANT LANDLOR'S MOTION FOR SUMMARY JUDGMENT
(1)
This is a motion for summary judgment filed by the owner landlord, 73 Whitney Associates, of premises it rented to the defendant Jacqueline Jones d/b/a Jackie's Blue Cafe (the cafe).
The plaintiff's first count is directed against the landlord, Whitney Associates, the second count against the cafe. Both the plaintiff and Jackie's Cafe have filed objections to the motion. The plaintiff alleges that in October 2006 she was a patron of the cafe and when exiting, the front door violently and without warning closed on her hand causing injury. The plaintiff alleges in her complaint that the landlord Whitney Associates and the cafe were negligent in the same way. The claims of negligence against the landlord Whitney Associates are set forth in paragraph 7 of the Revised Complaint and read as follows:
a. They caused or allowed and permitted said door to be or become hazardous, out of sync, unsafe, and dangerous for use by its patrons;
b. They maintained said property and door in the aforesaid condition;
c. They failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances;
d. They failed to warn the Plaintiff of the aforesaid conditions;
e. They failed to make proper and reasonable inspection of said area;
f. They failed to properly repair the door;
g. They failed to properly maintain said door in its safe and proper working order when the same was reasonably necessary under the circumstances; and,
h. They knew, or in the exercise of due care and proper diligence, should have known, of the aforesaid condition."
Very generally the motion for summary judgment relies on the general statement of the law stated in Connecticut Law of Torts, 3d ed, Wright, § 54, page 139 which says: "As the possession or control of premises is the legal basis for liability, a landlord out of possession is normally not liable to persons on the demised premises. The tenant who is in possession of the premises is ordinarily the proper party defendant," see Smith v. Housing Authority, 144 Conn. 13, 16 (1956); Fernandez v. Estate of Ayers, 56 Conn.App. 332, 335 (2000); Dimoglia v. Molin, 57 Conn.App. 525, 528 (2000). The law applicable in this area is fairly uniform throughout the country and is set forth in 62 Am.Jur.2d, "Premises Liability," §§ 13-18, pp. 179-385; Restatement (2d) Torts, Vol 2 §§ 355-62, article in 60 ALR 5th 379, § 3 pp. 396-98.
(2)
The standards to be applied in deciding whether to grant a motion for summary judgment are well-known. If there is a dispute on material issue of fact on which granting of the motion depends the court cannot decide it since a litigant has a constitutional right to a jury trial. On the other hand if no such material issue exists the court should grant the motion to relieve parties of the burden and expense of unwarranted litigation.
The court will set forth the basis of each side's contentions. Both agree that possession and control of the premises is determinative of the issue before the court.
(3) (a)
The defendant Whitney Associates argues that the material facts are not in dispute and takes the position that the lease between it and the cafe is the most important material fact "because the lease establishes who had possession and control of the property, and therefore, who had a duty to the plaintiff."
It is certainly true that the terms of any lease are highly relevant in any suit against the landlord because such terms can establish whether in fact the landlord was in possession and control of the premises or any portion of it despite the fact that the premises were leased. Smith v. Housing Authority, 144 Conn. pp. 16-17; Rogers v. Great Atlantic Pacific Tea Co., 148 Conn. 104, 106-08 (1961) (court analyzed lease and determined "by virtue of the lease the defendant (lessee) was in possession and had exclusive control of the walk where plaintiff fell" — therefore it was liable to business invitee to whom it owed a duty of reasonable care, id., page 108).
The court will first set forth each side's argument based on the terms of the lease. It will quote from the plaintiff's brief where it refers to the lease which was attached as an exhibit to its brief and emphasize that language which Whitney Associates relies on.
The lease provided that " The tenant shall have exclusive use and possession of the demised premises upon the signing of the lease." (Lease, Section 3.) The lease also provides that "Tenant covenants to operate tenant's business in said leased premises to use and maintains aid lease premises in accordance with the law of the United States, the State of Connecticut, and the laws, rules and regulations and ordinances of the City of New Haven, relating to health, nuisance." (Lease, pg. 4.)
The lease also provides that:
The landlord shall have no responsibility to repair, maintain, improve or alter the leased premises as any time during the terms of this lease or any extension or renewal thereof. (Lease, Section 13.)
The Tenant acknowledges that it has been afforded the full opportunity to inspect the leased premises and is fully satisfied with the condition thereof and accepts the same in "as is" condition. The Tenant acknowledges that neither the Landlord nor any agent or representative of the Landlord has made any representations with respect to the lease premises or to induce the Tenant to enter into the written lease upon which Tenant has relied or is relying. (Lease, Section 14A.)
Tenant agrees that during the term of this Lease it shall be responsible for the maintenance of the Leased Premises and repair or restoration of any damage occurring in or about the leased premises including, but not limited to, the maintenance and repair of the interior floors and interior walls and all improvements located in the leased premises. The Tenant shall keep all fixtures in said premises in good working order and repair; shall keep the plumbing, heating and electrical systems in good order and repair and shall, at the Tenant's expense, make all required repairs to the plumbing or electrical systems. Tenant agrees to keep the demised premises in good condition and repair, subject only to reasonable wear and tear, fire and other casualty. (Lease, Section 14B.)
These provisions, according to Whitney Associates, make clear that the defendant cafe had possession and control of the property in question and it owed a duty to the plaintiff and not Whitney Associates.
Also, the defendant Whitney Associates has attached an affidavit from John Mihalakos who identifies himself as a member of 73 Whitney Associates, LLC. The lease originally was entered into between the Mihalakos partnership and the cafe; the partnership owned the property on that date. The property was then transferred to the present defendant Whitney Associates after which the lease remained in effect. Mihalakos refers to the lease as giving Ms. Jones the proprietor of the cafe "exclusive use and possession." She accepted the premises in as-is condition under the lease. Also apparently giving his own interpretation of the lease, Mr. Mihalakos says the defendant Whitney Associates had "no responsibility to repair, maintain, improve or alter the leased premises at any time during the term of the lease.
(b)
The court will now try to set forth the basis of the defendant Jackie's' Blue Cafe's objection to the motion for summary judgment.
The defendant cafe disputes the lessor Whitney Associates interpretation of the lease and argues the lease does not contain definitive language to allow the court to conclude that Whitney Associates had relinquished possession and control of the premises and therefore had no duty to repair or otherwise ensure the safe operation of the door which allegedly caused injury. Section 3 and 13 of the lease have been quoted above and do contain broad language concerning exclusive control of the premises being in the tenant; Section 14B uses similar general language as to the tenant's responsibility to maintain the premises or restore any damage. But the defendant cafe points to the last sentence of Section 14B which says: "Tenant agrees to keep the demised premises in good condition and repair, subject only to reasonable wear and tear, fire and other casualty. The defendant points out that in conjunction with the motion no affidavits, documents or other material has been submitted by Whitney Associates to establish what in fact caused the door to malfunction injuring the plaintiff which certainly could have been done under Practice Book § 17-45. That is, the door could have been defective due to ordinary wear and tear and we would then have a lease that put no explicit obligation to repair the door rendered defective or dangerous on the landlord or the tenant. But the object of tort law in this area is not to resolve abstract contract disputes about the duty to repair between two contracting parties, lessor and lessee. The object is to protect the public from injury especially in light of the fact that the subject premises is open to the public who have to use doors to get in and get out. It is true that "ordinarily where there is no agreement to repair, the landlord is not liable for defective conditions within a tenement (or other property) he (she/it) has rented," Fogarty v. M.J. Beucher Son, Inc., 124 Conn. 325, 331 (1938), Smith v. Housing Authority, 144 Conn. 13, 16 (1956). But where a lease absolves the tenant of a duty to repair in certain situations — here wear and tear — but does not explicitly impose that duty on the landlord then, if the public is to be protected the landlord should be subject to liability when injury is caused by the very defect that the tenant has no obligation to address. Otherwise the landlord who presumably created the lease agreement and reaps the monetary benefits of the rental invites a situation which encourages the tenant not to take steps to protect its patrons. By way of analogy § 359 of the Restatement (2d) Torts states a lessor, who leases land for purposes involving the admission of the public, is liable where a person is injured by a condition existing when the lessee takes possession. Two of the predicates for this exception to the rule of non-liability of lessors after the lessee takes possession are (1) that the lessor has reason to expect the public will be admitted before the land is put in a safe condition (2) the lessor fails to exercise reasonable care to discover or remedy the unsafe condition. Logic and public policy would seem to dictate that where a lease absolves the tenant of an obligation vis-à-vis the landlord to repair a condition resulting say from wear and tear which can cause injury to the public and the lessor retains a right to inspect the premises to discover defects of this type (see § 17 of lease) then the lessor should not be absolved from liability. And this should be so even if the dangerous condition was not present, as required by § 359, when the premises was first transferred under the lease for the same policy underlying § 359.
This is not to say that the tenant could not also be liable to the injured patron, see Desy v. Montano (CV92-0516197, Corradino, J., 1995). cf Ford v. Restaurant Employee Bartenders Union, 155 Conn. 24, 35 (1967).
See of this is underlined when we juxtapose the just discussed language in § 14B and that in § 12A of the lease. As noted, § 14B seems to try to absolve the tenant of a duty to repair "subject only to reasonable wear and tear, fire, and other casualty." Section 12A kicks in a duty to repair on the landlord's part "if the leased premises are partially damaged by fire or other casualty during said term (of the lease) and the cause thereof is other than the fault or neglect of the tenant or its agents, employees, customers, or licensees, the landlord shall repair the same with reasonable dispatch . . ."
But note that § 12A leaves out "wear and tear." So under § 14B the tenant has no duty to repair what may be a defective condition cause by "wear and tear, neither does the landlord, Whitney Associates under § 12A. Yet the absence of repair in this circumstance can lead to injury to the public and the landlord knew by the language of the lease that the premises would be open to the public, see § 1 of lease — leased premises, to be "nightclub and cafe."
The immediately foregoing discusses policy reasons why the landlord here should not be held to have no duty to repair the door insofar as its malfunction may have been due to wear and tear.
But even if the foregoing analysis misses the point, it is also true that as a matter of strict interpretation of § 12A, the court cannot conclude the landlord had no duty to repair what might have been the cause of injury here. Thus, § 12A imposes on the landlord a duty to repair damage to the premises caused by "casualty." Ballentine's Law Dictionary, 3d Ed, defines "casualty" as "a disastrous occurrence by chance or accident, a serious mishap or misfortune . . ." Black's Law Dictionary says a "casualty" is (1) "serious or fatal accident (2) a person or thing injured, lost, or destroyed." In a legal context, Webster's Third New International Dictionary defines "casualty insurance" as "insurance (as automobile, burglary, liability, accident and health and workman's compensation insurance and corporate suretyship) consisting in the U.S. of all forms of insurance and the forms of property insurance written by fire and marine companies." Random House Dictionary defines "casualty insurance" as "insurance providing coverage against accident and property damages . . ." In Vol. 1 Couch on Insurance, 3d says "as general rule `casualty insurance' covers accidental injury both to persons and to property." The point is that given these possible definitions of "casualty" the court cannot say that under the lease the landlord had no duty to repair this door given the fact that its malfunction may have been due to some "casualty" which has not been factually defined by any party to this motion.
Given the court's reading of the lease as a whole the court concludes the language of Panorini v. Johnson, 158 Conn. 92, 98 (1969), applies to the effect that: "Unless it is definitively 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 become as question of fact and is a matter of intention in light of all the significant and attendant facts which bear on the issue," quoted in LaFlame v. D'Allesio, 261 Conn. 247, 257 (2002); Kriz v. Coldwell Banker Real Estate, 67 Conn.App. 688, 693 (2002). Applying the general to the particular the Panorini court said that "The written lease as a whole cannot be said to resolve definitely or expressly the issue of control. Thus, the actual use of the stairway (defect in which allegedly caused injury), the circumstances attending its use, and the evidence as to repairs become relevant to the issue of actual control. Martel v. Malone, 138 Conn. 385, 391 . . ." Panorini at 158 Conn. page 99.
For policy reasons as to § 14B and as a matter of linguistic interpretation as to § 12A of the lease, the court cannot say that this lease can be or should be interpreted in such a way as to recognize exclusive control of the entire premises to the tenant so as to absolve the lessor, 73 Whitney Associates, of a duty of repair. That leaves the court with the obligation in ruling on a motion for summary judgment by the lessor to examine the facts and circumstances of the case at hand. No factual information has been provided as to the presence or absence of repair activities by the landlord or tenant, frequency of inspections and toward what end, the way the parties in an operative sense might have interpreted "casualty" obligations under the lease, the actual cause of the door malfunction, etc. Mr. Mihalakos's affidavit merely purports to interpret the implications of the lease.
Therefore the court cannot grant the motion for summary judgment based on what is before it, the written lease. The lessor's, 73 Whitney Associates, motion for summary judgment is denied.