Opinion
No. FBT CV 09-5024871
July 21, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#122)
Preliminary Statement
The plaintiff, Jozef Miklos, brought this premises liability action against his employer's landlord, the defendant Brookfield Industrial Development Co., LLC ("Brookfield Industrial"). The plaintiff alleges that he suffered injuries as a result of inhaling carbon monoxide released into the warehouse where he worked by the engine of a forklift. As he must, he alleges that Brookfield Industrial controlled the premises at issue. He avers that Brookfield Industrial was negligent in that it knew or should have known of the danger that carbon monoxide and other elements posed to individuals on the premises and failed to take reasonable measures to make the premises safe for all invitees. The complaint alleges that the premises had inadequate ventilation and lacked carbon monoxide detectors or signage which warned of the dangers of carbon monoxide. The defendant filed a motion for summary judgment as to both plaintiffs in which it asserts that the defendant did not control the premises and that on this issue, there is no genuine issue of material fact. He further argues that there is no genuine issue that the defendant did not have notice of the injury-causing condition. The plaintiff, Miklos filed an opposition to the motion for summary judgment. Zoltan did not file any opposition to the motion. For the reasons(set forth below, the motion is GRANTED.
The plaintiff's employer, Zoltan European Flooring, is an intervening plaintiff. Zoltan seeks to recover the workers' compensation benefits which were paid to the plaintiff.
Standard of Review
A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997).
Litigants have a constitutional right to have issues of fact decided by a jury and therefore summary judgment is generally viewed as inappropriate in negligence actions. Michaud v. Gurney, 168 Conn. 431, 434 (1975).
Discussion
In Connecticut, a person in control of premises has a duty to an invitee of the premises to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe as well as the duty to warn or guard the invitee from being injured by reason of any defects that the invitee could not reasonably be expected to discover. Fleming v. Garnett, 231 Conn. 77, 83-84 (1994); Warren v. Stancliff 157 Conn. 216, 218 (1968).
The first issue for the court in this motion for summary judgment is whether the defendant had sufficient control of the premises so as to trigger a duty to the plaintiff; an invitee therein.
"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 . . . The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances. Thus, [u]nless 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 . . . In other words if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." (Citations omitted; internal quotation marks omitted.)
LaFlamme v. Dallessio, 261 Conn. 247, 256-57 (2002). "Control" means the power or authority to manage, superintend, direct, oversee, restrict or regulate. Kirby v. Zlotnick, 160 Conn. 341, 344 (1971). Control of the leased premises by a landlord "may be reasonably supported . . . where there is evidence that the lessor was granted general access to the [premises] for the purpose of inspection and repair." Panaroni v. Johnson, 158 Conn. 92, 100 (1969).
Here, the defendant relies largely on the language of the lease and the affidavit and testimony of Robert Talarico. As indicated, if the lease expressly provides that the tenant had exclusive control of the premises, summary judgment would enter in favor of the defendant. The lease is unequivocal that the entirety of the leased premises was given over to Zoltan's possession, a provision on which the defendant relies heavily. Possession and control are not equivalent concepts however.
The lease demises the premises to Zoltan. It identifies, in detail, the respective obligations of the landlord and the tenant. At various places, it reserves in the landlord the right of access under certain circumstances and for certain purposes. Under certain circumstances, it permits the landlord to conduct inspections. It obligates the landlord to perform various maintenance and repairs. For example, paragraph 6 provides that the landlord shall be responsible for the repairs set forth in Schedule B. Schedule B obligates the landlord to maintain and repair or replace as necessary the roof of the building; make structural repairs; replace as needed major mechanical systems (with the exception of the HVAC system); maintain the well and septic systems; repair or replace as necessary, underground oil tanks, which if in need of replacement may be placed inside the premises if necessary. Paragraph 10 permits the tenant to make modifications and improvements to the premises but reserves to the landlord the right to approve any such plans. Paragraph 12 gives the landlord, upon advance notice, the right to inspect the premises and show the premises to prospective mortgagees and purchasers and during the last six months of the lease, prospective tenants.
Where, as here, the lease does not expressly address the issue of control, it is for the trier of fact to consider all of the circumstances in assessing the issue. LaFlamme v. Dallessio, 261 Conn. 247, 256-57 (2002); Panaroni v. Johnson, 158 Conn. 92, 99 (1969) (issue of control properly given to the jury where the lease read as a whole could not be said to resolve definitely or expressly the issue of control). Indeed, in determining whether the landlord controlled the premises, our juries are instructed that they may consider such things as: acts of maintenance, such as fixing, repairing, cleaning, painting, performing upkeep — or the power to direct those activities; acts of inspection such as conducting or directing inspections or surveys of the property; acts restricting or allowing entry onto the premises; acts warning others of conditions or boundaries on the property, or setting or laying out rules for conduct upon the property; using the premises or property to store things, or to receive mail, visitors, customers or deliveries. See, Kirby v. Zlotnick, 160 Conn. 341, 344 (1971); Panaroni v. Johnson, 158 Conn. 92 (1969).
In sum, the evidence conflicts as to whether the defendant maintained sufficient control over the premises so as to trigger a duty to the plaintiff. "The function of the trial court is to determine whether an issue of fact exists but not to try that issue if it does exist." Michaud v. Gurney, supra, 168 Conn. at 433.
While the lease provision does expressly require Zoltan to install and maintain an HVAC system, a provision which certainly has evidentiary value on the issue of control, the HVAC system is not equivalent to "the premises" as a whole.
The defendant argues in the alternative that even if Brookfield owed a duty to the plaintiff; which it does not concede, there is no evidence that it breached that duty because there is no evidence that Brookfield had notice of the presence of carbon monoxide from the use of the gas powered forklift in the premises. There can be no breach of a duty to maintain the premises in a safe condition unless Brookfield Industrial had actual or constructive notice of the unsafe condition. Kirby v. Zlotnick, 160 Conn. 341, 344 (1971). "The knowledge, whether actual or constructive, must be of the specific defective condition which caused the injury and not merely of conditions naturally productive of that defect . . ." Id. "On the question of notice the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." Id. 160 Conn. at 344-345.
Because the issue of notice was not briefed by the plaintiff, the court scheduled additional oral argument on July 18, 2011 to address the issue. Counsel were advised that the court would be seeking argument as to the evidence in dispute regarding actual or constructive notice of the alleged defective condition.
Zoltan admits, and Talarico confirms, that at no time did Zoltan advise the defendant of its intended or actual use of a gas powered forklift in the premises. Zoitan admits and Talarico confirms that Zoltan was under no obligation to give any such notice or seek any permission for use of the gas powered forklift in the premises. Talarico testified that the defendant did not know that Zoltan was using a gas powered forklift. Further, the defendant offers testimony that prior to May 11, 2007, the defendant was never apprised of any concerns regarding the ventilation at the premises. Under the terms of the lease, the defendant did not have the authority to restrict or otherwise regulate the manner in which Zoltan conducted its business operations.
Further, the lease does not obligate the defendant to conduct inspections of the premises and the defendant's right of access for inspection was limited to particular hours and required advance notice. (Lease, ¶ 12.) Thus the defendant argues, there is no evidence from which notice, actual or constructive, of the alleged defective condition — the presence of carbon monoxide from the gas powered forklifts — could be found.
In its opposition, the plaintiff identifies the "defect" to be the lack of an HVAC system. This issue was clarified somewhat at oral argument. Although at paragraph 4 of the complaint, the plaintiff avers that there was "not sufficient ventilation for the premises to insure a safe premises," the unsafe or defective nature of the premises is contained in paragraph 7 and its subparts. Paragraph 7 establishes that the defective condition about which the defendant "knew or should have known" and which rendered the premises unreasonably dangerous or unsafe, was the presence of carbon monoxide from the gas powered forklifts. It is this defective condition which, plaintiff avers, makes negligent the defendant's failure to post warnings; failure to provide carbon monoxide detectors; and failure to provide an adequate ventilation or HVAC system. Complaint, ¶ 7. In this court's view, any reading of the plaintiff's complaint upon which liability could be assessed against Brookfield would require a finding that Brookfield had notice of the presence of carbon monoxide through the use of the gas powered forklifts.
The plaintiff counters with a single paragraph of the plaintiff's affidavit which reads in its entirety: "The defendants and/or their agents knew about said forklifts because they knew that the forklifts had damaged ceiling lights located inside the premises." From this statement, the plaintiff argues that a reasonable inference can be drawn that the defendant was actually or constructively on notice as to Zoltan's use of gas powered forklifts and the emanation of carbon monoxide therefrom.
It bears repeating that supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997). "[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).
The affidavit purports to be competent testimony that Brookfield Industrial knew two things; (1) that Zoltran was using forklifts and (2) that the forklifts had damaged ceiling lights. Generally, a witness is not permitted to testify as to a third party's state of mind or the extent of a third party's knowledge. A witness must testify as to facts that are within his or her personal knowledge but may not offer an opinion concerning those facts. Johnson v. Newell, 160 Conn. 269, 277 (1971). Thus, the plaintiff is not a competent witness as to what Brookfield Industrial "knew" at the time of the incident. To the extent that he holds an opinion as to what was known by Brookfield Industrial, only facts which would support such a view would be admissible. Id. There is no factual foundation for these otherwise inadmissible statements. The plaintiff does not describe any acts or conduct by the defendant or its agents which he may have observed from which such purported knowledge might be inferred. The plaintiff offers no statement by a defendant's agent made to him or in his presence regarding the ceiling lights or their damage due to the use of forklifts. There is no evidence that the defendant or its agents even repaired the ceiling lights. The deposition testimony provided to the court is silent on this issue.
At oral argument, plaintiff's counsel stated that the inference of knowledge arises out of the fact that the landlord was required to make structural repairs under the lease, the implication being that it must have therefore repaired the ceiling lights and thereby became aware of the use of the forklifts. Such an argument is speculative at best. This court has no evidence that the landlord repaired the ceiling lights or was even made aware of the broken ceiling lights or the cause therefore.
Based upon the allegations in the complaint, the plaintiff must establish that the defendant had actual or constructive notice of the presence of carbon monoxide in the premises from the use of the gas powered forklift. The defendant's evidence, which includes the admissions of intervening plaintiff Zoltan, establishes that Brookfield had no notice of the use of the forklifts and the resulting release of carbon monoxide gas. The evidence submitted to rebut the defendant's evidence is not competent. Based upon the body of evidence before this court, this issue would not go to a jury and therefore the defendant would be entitled to a directed verdict on the evidence presented. Batick v. Seymour, 186 Conn. 632, 647 (1982).
It is noteworthy that Zoltan filed no opposition to the motion for summary judgment and has offered no evidence on the issue of whether Brookfield had notice of the use of forklifts or the resulting presence of carbon monoxide. Indeed, Zoltan's admissions wholly support Brookfield's position that it did not have any notice of these matters.
Although the court is mindful of the constitutional right to have a jury decide issues of fact, the court also recognizes that 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. City of New Haven, 213 Conn. 277, 279 (1989).
The motion for summary judgment is granted as to both plaintiffs.
SO ORDERED.