Opinion
HHDCV186088760S
12-13-2018
Tonya LANIER v. PROSPERITY HOLDINGS I, LLC et al.
UNPUBLISHED OPINION
Dubay, J.
FACTS
The plaintiff, Tonya Lanier, allegedly slipped and fell on commercial property causing her injuries. From this incident, the plaintiff alleges the following facts. The defendant, Prosperity Holdings I, LLC (Prosperity Holdings), owned, possessed, controlled and maintained the parking lot located at 581 Poquonock Avenue, Windsor, Connecticut. It was the duty of Prosperity Holdings to keep the parking lot safe. On December 15, 2016, the plaintiff slipped and fell in the parking lot due to the accumulation of ice and snow. The plaintiff alleges that this incident occurred due to Prosperity Holdings’ failure to alleviate, inspect, and warn against the conditions. The plaintiff amended her complaint to include claims against Countryside Landscaping of CT, LLC (Countryside). On June 11, 2018, Prosperity Holdings requested the court’s permission to file a motion for summary judgment, and following the granting of permission, filed this motion before the court on June 12, 2018. In support of its motion, Prosperity Holdings submits the following evidence: (1) a signed and sworn affidavit of Stanley Snow, President of Prosperity Holdings; (2) a copy of the lease agreement between Windsor Health and Rehabilitation Center, LLC (Windsor Health) and Prosperity Holdings; (3) a deposition of the plaintiff from her workers’ compensation claim; (4) a payment history of the plaintiff; (5) a copy of a contract between Countryside and Windsor Health for snow removal services from 2008; (6) an 2016 e-mail updating the payment details and confirming snow removal services for the twelfth season for Windsor Health; and (7) an invoice from Windsor Health for snow removal services as of December 27, 2016. The plaintiff filed an objection on August 30, 2018, and Prosperity Holdings countered with a reply on August 31, 2018.
DISCUSSION
A motion for summary judgment shall be granted when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "[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." (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).
Prosperity Holdings moves for summary judgment on the issue of control of the property in which the plaintiff allegedly fell. Prosperity Holdings argues that the possession and control of the property had been completely demised to Windsor Health by the lease. Prosperity Holdings states that article 2.4 establishes that the lease is a "net lease," pursuant to which the "Landlord shall not, under any circumstances or conditions ... be required to make any payment or expenditure of any kind whatsoever or be under any other obligation or liability whatsoever, except as expressly set forth herein, in connection with the Premises." Prosperity Holdings also cites article 9.1, which states in relevant part that the "Tenant shall (a) keep and maintain the Facility in good appearance, repair, and condition ... (b) promptly make all repairs ... necessary to keep the Facility in good and lawful order and condition" and that (c) the "Landlord shall under no circumstances be required ... to make any repairs ... of any nature or description to the Facility ... or to make any expenditure whatsoever with respect thereto, or to maintain the Facility in any way." Prosperity Holdings further cites article 9.3, which states in relevant part that "[n]othing contained in this Lease and no action or inaction by Landlord shall be construed as (a) constituting the consent or request of Landlord ... to any contractor to or for the performance of any labor or services ... for the ... repair ... of or to the Facility ... (b) giving Tenant any right ... to contract for ... any labor or services ... as would permit the making of any claim against Landlord ..." Prosperity Holdings also submits evidence of a snow removal contract between Windsor Health and Countryside covering the period in which the accident allegedly occurred and an invoice reflecting that Windsor Health paid for snow removal services for December 2016.
The plaintiff claims that numerous articles in the lease create a genuine issue of material fact regarding possession and control. Notably, the plaintiff cites article 9.2, which states in relevant part that the "Landlord may ... at Tenant’s sole expense ... cause an engineer ... to inspect the Facility and issue a report" and the "Tenant shall, at its own expense, make any and all repairs ... that are specified ..." Other articles, inter alia, concern Prosperity Holdings’ right to retain possession of its personal property on the premises (article 6.3), a requirement that Prosperity Holdings be named in any governmental penults (article 9.4.1), and Prosperity Holdings’ right to impose a commercially reasonable condition in connection with the approval of any capital or material alterations requested by the plaintiff (article 9.5).
"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 ..." (Internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 256, 802 A.2d 63 (2002). "[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." (Internal quotation marks omitted.) Gore v. People’s Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). "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 ..." (Internal quotation marks omitted.) Albarran v. 305 Wilson Avenue, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-15-6050493-S (August 23, 2016, Kamp, J.).
"[W]here the right of the lessor to enter the leased premises and make repairs is limited, the lessor does not retain control and possession of leased property ... Judges of the Superior Court have found the right of the landlord to enter or repair has been sufficiently limited when the lease gave the lessor the right to enter the premises at reasonable hours to examine or make any repairs or alterations necessary for the safety and preservation of the premises and provided that the leased premises should be available for the inspections and necessary repairs or when the lessor could only enter during reasonable business hours to inspect the premises and had the right to make repairs only in the event of fire or other casualty." (Citations omitted; internal quotation marks omitted.) Davis v. CIL Realty, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-11-6011101 (December 4, 2012, Roche, J.). "[T]he right to inspect does not mean and is not equivalent to the right to control." Contreras v. 455 Pacific Street, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-08-5006917-S (June 30, 2009, Pavia, J.). A lease provision obligating the tenant to "keep the grounds in good order and repair" was held to encompass snow removal. Murphy v. Sullivan, Superior Court, judicial district of Waterbury, Docket No. CV-04-5000073-S (August 10, 2007, Gilligan J.); see also Davis v. CIL Realty, Inc., supra (lease giving tenant exclusive responsibility for maintenance held to include snow removal).
In the present case, the lease unambiguously gives Windsor Health the responsibility for snow removal. Article 9.1 states that Windsor Health, inter alia, must "keep and maintain the Facility in good appearance, repair, and condition" and states that the Landlord is not required to make repairs or "to make any expenditure ... to maintain the Facility." Moreover, article 2.4 generally provides that the landlord is not required to make any expenditures. Though article 9.2 permits the landlord to authorize an inspection and requires Windsor Health to make any attendant repairs, such a limited right to inspect and repair does not amount to possession or control.
The plaintiff reliance upon Doty v. Shawmut Bank, 58 Conn.App. 427, 755 A.2d 219 (2000), is misplaced. Doty is readily distinguishable because first, there was no lease at issue. In Doty, the mortgagee bank had received a judgment of strict foreclosure against the record owner of the property, and at the time of the accident, the property was controlled by a court-appointed receiver while the bank was waiting for the law day to expire. Id., 428-29. Second, the Doty court held there was a genuine issue of material fact as to possession and control by the mortgagee bank because the receiver needed the bank’s permission for numerous activities involving the property, such as making repairs costing over $1, 500, and also because the bank held a liability insurance policy for the property. Id., 433-44. In contrast, the lease here expressly limits Prosperity Holdings’ role, particularly regarding maintenance.
Nevertheless, the lease is ambiguous as to whether Windsor Health’s maintenance responsibility extends to the parking lot. Exhibit B of the lease describes the leased property by latitude and longitude rather than state directly whether it includes the parking lot. The word "Premises," which is used throughout the lease, is defined in Exhibit A to include "Leased Improvements," which in turn is defined to include "parking areas." Windsor Health’s maintenance provision, article 9.1, uses the term "Facility," not "Premises." "Facility" is defined as including "Leased Improvements," and by extension, parking areas, but only "where the context requires." It is unclear, in the case of article 9.1, whether "the context requires" the word "Facility" to include the parking area. Consequently, the lease is ambiguous in that respect.
Such an ambiguity can be resolved by evidence of actual possession and control. "[U]nless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control ... 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." (Internal quotation marks omitted.) LaFlamme v. Dallessio, supra, 261 Conn. 257. Where "[t]he written lease read as a whole cannot be said to resolve definitely or expressly the issue of control ... the actual use of the [area], the circumstances attending its use, and the evidence as to repairs become relevant to the issue of actual control." Panaroni v. Johnson, 158 Conn. 92, 99, 256 A.2d 246 (1969). "In considering control of the premises, one can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property and the use of the premises." Davis v. CIL Realty, Inc., supra, Superior Court, Docket No. CV-11-6011101; see also Albarran v. 305 Wilson Avenue, LLC, supra, Superior Court, Docket No. CV-15-6050493-S. Courts have granted summary judgment to property owners in the context of possession and control where there was undisputed evidence that the tenant actually contracted for snow removal. Albarran v. 305 Wilson Avenue, LLC, supra, Superior Court, Docket No. CV-15-6050493-S (lease in which the tenant was responsible for maintenance coupled with evidence that the tenant handled snow plowing); Murphy v. Sullivan, supra, Superior Court, Docket No. CV-04-5000073-S (same).
Prosperity Holdings has submitted evidence that Windsor Health had contracted with Countryside for snow removal services for the parking area. Prosperity Holdings submits the 2008 general contract between Countryside and Windsor Health, which provides in Addendum A the description of services as "snow removal, shoveling, sanding of all driveways, walkways, including all emergency exits," as well as a 2016 e-mail from Countryside indicating that this was its twelfth year of plowing for Windsor Health. Prosperity Holdings also submits the 2016 estimate for snow plowing expenses and an invoice marked "paid" for December 2016, the month of the alleged incident. The plaintiff does not submit evidence to the contrary. Prosperity Holdings has met its burden of proof due to this undisputed evidence of actual possession and control of the parking lot by Windsor Health. Accordingly, the court grants the motion for summary judgment.
The contract and the other evidence involving Windsor Health and Countryside is unauthenticated, but the plaintiff has not objected, and the trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of a motion for summary judgment.
Additionally, Prosperity Holdings submits an affidavit of its president concerning the issue of possession and control, but it consists mainly of legal conclusions regarding the interpretation of the lease.
Not only does the evidence resolve the ambiguity regarding the parking lot, it also would have resolved any ambiguity regarding the Windsor Health’s responsibility for snow removal, if the court had found any. ---------
Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012).