Opinion
No. CV09 5005441-S
September 23, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #117
FACTS
On July 22, 2009, the plaintiff, Denise Massaro, filed a premises liability action against the defendant, Fulton Forbes, Inc. After the defendant filed an apportionment complaint against Pak-Am Food Store, LLC (Pak-Am), the plaintiff filed a request to amend and two-count amended complaint on November 12, 2009.
In count one of her amended complaint, the plaintiff alleges the following facts against the defendant. On January 1, 2008, the plaintiff was walking on the sidewalk located at 99 North Colony Road in Wallingford when "she was caused to slip and/or trip by the dangerous and defective conditions of the property," which included a dangerous accumulation of ice. At that time the defendant was the owner of the property and sidewalk, was in possession and/or control of the property and was responsible for the maintenance of the property with respect to the presence of snow and ice. As a result of the foregoing, the plaintiff suffered personal injuries and damages due to the negligence and carelessness of the defendant.
On November 24, 2009, the defendant filed an answer and special defense. In its answer, the defendant denied that it owned the sidewalk in question, that it was in possession and/or control of the property or that it was responsible for the maintenance of the property with respect to the presence of snow and ice.
The defendant's special defense alleges that the plaintiff was negligent herself and that her negligence was a substantial factor in causing the occurrence complained of and any injuries, losses and damages resulting therefrom.
On April 28, 2010, the defendant filed a motion for summary judgment on the ground that there is no genuine issue as to any material fact that the defendant did not have possession and control of the property and, therefore, did not owe the plaintiff a duty of care. The motion is accompanied by a memorandum of law. On June 24, 2010, the plaintiff filed an objection to the defendant's motion and memorandum of law in support thereof. The matter was heard at short calendar on August 30, 2010.
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, the defendant 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 Pak-Am are unambiguous and prescribe that the defendant did not retain possession or control of the area where the plaintiff claims to have been injured and had no duty to maintain the area. The defendant further contends that Pak-Am admitted that it was in exclusive possession and control of the property and was responsible to keep the premises free from snow and ice, pursuant to the terms of the lease agreement. In support of its motion, the defendant submitted an unauthenticated copy of the lease agreement and a copy of Pak-Am's response, filed on March 31, 2010, to the defendant's requests to admit.
In response, the plaintiff counters that, pursuant to the lease, sidewalks were not included in the description of the "demised premises" and that the defendant retained control over the use of the space, rent collection, assignment, structural changes, alterations and building improvements. The plaintiff contends that the defendant also retained the right to enter the premises at any time to inspect and/or repair, controlled the use of signs on the building and retained the right to post signs on the sidewalk. The plaintiff further contends that Pak-Am never admitted to possession and control of the sidewalk. Therefore, the plaintiff argues that the defendant shared control over the premises with Pak-Am. In support of her objection, the plaintiff submitted a copy of Pak-Am's response to requests to admit, an unauthenticated copy of what appears to be a land description and an unauthenticated map of the surrounding area.
"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, 308-09, 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").
"The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury." General Statutes § 7-163a(c)(1). The town of Wallingford has adopted § 7-163a in its entirety. See Wallingford town code § 198-22. Under the statute "[t]here are two categories of liable persons — owners or persons in possession and control." (Emphasis in original.) Hardy v. Shepard, Superior Court, judicial district of Hartford, Docket No. CV 94 0541387 (July 31, 1995, Corradino, J.) ( 14 Conn. L. Rptr. 515, 516). "Since statutes should not be interpreted in derogation of the common law this statutory language can be read as recognizing the traditional view that . . . [a]s 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 premises. The tenant who is in possession of the premises is ordinarily the property party defendant." Id. Therefore, "[a]n owner could be an owner and in possession and control and the owner can be liable. An owner can be liable if no one else is in the possession and control under a lease or under a status that would correspond to a lessee. On the other hand a tenant in possession and control as opposed to the owner landlord is liable except as to certain hidden defects." (Emphasis added; internal quotation marks omitted.) Id.
"Any town, city, borough, consolidated town and city or consolidated town and borough may, by ordinance, adopt the provisions of [ § 7-163(c)(1)]." General Statutes § 7-163a(a).
In the present case, the issue is not whether the defendant owned the sidewalk but whether the defendant was in possession and/or control of the sidewalk.
" 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. 308-09.
As noted, the defendant has submitted a copy of the lease between it and Pak-Am. "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).
It should be noted that the lease is not authenticated. A court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In her memorandum in opposition to the defendant's motion, the plaintiff noted that the defendant's copy of the lease was uncertified. The plaintiff did not object, however, and further relied upon the defendant's copy of the lease in order refute the defendant's arguments. The court, therefore, has considered this copy of the lease.
The lease is clear and unambiguous when read as a whole. The defendant did not retain possession and/or control of the property and/or the sidewalk in question. Article one states in relevant part: "Landlord hereby demises and leases unto [t]enant, and [t]enant does hereby hire and take from [l]andlord, certain premises at 99 North Colony Road." Article twenty-four states in relevant part: "Tenant shall quietly enjoy the demised premises." Article nine states that "[t]enant shall, at [t]enant's own cost and expense, keep and maintain in thorough repair and good order and safe condition the building and improvements standing upon the demised premises at the commencement of the term hereof or thereafter erected upon the demised premises . . . and shall repair the whole and each and every part thereof in order to keep the same at all times during the term hereof in the same condition as at the commencement of the [l]ease term or, for later made improvement, at the time of making." Most importantly, however, paragraph nine states that "[t]enant shall also, at [t]enant's own cost and expense, keep and maintain in thorough repair and good order and safe condition, and free from dirt, snow, ice, rubbish and other obstructions or encumbrances, the sidewalks . . . of the demised premises."
The plaintiff refers to a number of provisions in the lease in order to raise a genuine issue of material fact as to whether the defendant reserved some level of control over the property and/or sidewalk. Specifically, the plaintiff argues that sidewalks were not included within the description of the "demised premises," and therefore the defendant retained control of the sidewalks. Article one describes the "demised premises" as "consisting of a building, together with a certain parcel of land." Nevertheless, paragraph nine makes express reference to "the sidewalks . . . of the demised premises" and establishes that Pak-Am was responsible for the maintenance thereof with respect to the removal of snow and ice.
In particular, the plaintiff refers to Schedule A and articles four, seven, eight, nine, twelve, seventeen, eighteen, twenty-six and thirty-one of the lease. Schedule A, however, was not attached to the copy of the lease submitted with the defendant's memorandum of law and the plaintiff failed to submit her own copy of the lease. Therefore, there is no description of the property beyond that recited in article one of the lease.
With regard to the defendant's control of the property, the plaintiff points to a number of provisions which allegedly show the defendant reserved some level of control over the property. 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 the defendant over the sidewalk in question or refute article nine which expressly reserves the obligation for maintenance of the sidewalks to Pak-Am. "[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. The plaintiff argues that article eighteen would give the defendant the right to place signs on the sidewalk, but to the extent that this right may be inferred from the lease, it does not consider any responsibility on the part of the defendant with respect to maintenance of the sidewalk and removal of snow and ice.
Indeed, a number of Superior Court decisions have expressly considered the lease provisions in article seventeen. See 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; 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 subletting premises is standard reservation common in commercial leasing context). The Appellate Court in Fiorelli noted, however, that the lease specified that the defendants did not own all of the improvements constructed on the premises while, in the present case, the lease specified that any improvements become the property of the defendant. Nevertheless, Pak-Am retained the right to remove the improvements and, more importantly, there is no evidence that any improvements have been made by Pak-Am.
The defendant has also submitted a copy of Pak-Am's response to requests to admit in which Pak-Am admitted that it "was in exclusive possession [and control] of the [property]," admitted that the lease was in full force and effect on January 1, 2008, and admitted that the language concerning its maintenance of the sidewalks was contained within the lease. The plaintiff notes, however, that Pak-Am denied possession and/or control of the sidewalk in its answer to the plaintiff's amended complaint. Nevertheless, Pak-Am filed a special defense with its answer in which it alleges that "[t]he sidewalk being newly poured, was not in the exclusive control [o]f . . . Pak-Am, since the sidewalk was [n]ewly poured by the [t]own, and further, the accident, if one occurred, [h]appened on [t]own of Wallingford [p]roperty."
Therefore, the defendant has presented sufficient evidence to establish that there is no genuine issue of material fact that it was not in possession and control of the sidewalk or responsible for the maintenance thereof with respect to the removal of snow and ice. From the terms of the lease, the intention of the parties is clear and unambiguous. The lease expressly states that "[t]he tenant shall also, at [t]enant's own cost and expense, keep and [m]aintain in thorough repair and good order and safe condition, and free from dirt snow, ice, rubbish and other obstructions or encumbrances, the sidewalks and parking areas of the demised premises." Furthermore, Pak-Am admitted that it was in exclusive possession and control of the property. The provisions of the lease referenced by the plaintiff fail to raise a genuine issue of material fact with respect to whether the defendant retained possession and control over the sidewalk. While the description of the "demised premises" is lacking from the defendant's submissions, and therefore cannot be examined to determine whether it included the sidewalk, the lease does expressly state that Pak-Am was responsible for maintenance of "the sidewalks . . . of the demised premises" with respect to snow and ice. The plaintiff notes that control need not be exclusive; see Madden v. HMJ Corp., Superior Court, judicial district of Fairfield, Docket No. CV 04 5000072 (October 10, 2006, Radcliffe, J.); but the defendant did not retain any control of the sidewalk. Therefore, there is no genuine issue of material fact that the defendant did not owe a duty to the plaintiff with respect to maintenance of the sidewalk. For the foregoing reasons, the defendant's motion for summary judgment is granted.