Opinion
No. CV-09-5013200
February 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 113)
This motion for summary judgment asserts that the defendant condominium association did not control the stairways complained of and thus owed no duty to the plaintiff. For reasons stated, below the motion is denied.
FACTS
The plaintiff, Patricia Moody, commenced this suit for negligence in maintaining stairs to a condominium unit by service of process on the defendant, Soundview Condominium Association, on September 18, 2009. On September 10, 2009, the plaintiff also brought a complaint against Russell Sharp and John R. Sharp, owners of the condominium unit attached to the stairs, in a separate action which the court consolidated with this action on January 12, 2010. The defendant then served Russell Sharp and John R. Sharp each with a request for admissions on February 19, 2010; neither Russell Sharp nor John R. Sharp responded to the requests. The plaintiff filed an amended complaint on June 15, 2010. In her amended complaint, the plaintiff alleges that on September 11, 2007, she slipped, fell and injured her spine on a dangerous outdoor stairway located at 41-1 Swan Avenue in Old Lyme, Connecticut. The stairs on which she allegedly fell are outdoor stairs that lead to the second floor condominium unit. The plaintiff alleges that the stairs are owned, maintained, supervised, managed, repaired, inspected and controlled by the defendant. She alleges that she slipped and fell on the stairs because the defendant negligently failed to inspect the stairs regularly, and failed to repair and properly maintain the stairs which caused them to be shaky and slippery. The defendant filed an answer and special defenses on March 3, 2010, in which it denied all allegations made in the complaint and alleged as a special defense that the stairway in question was assigned to the unit owners.
On August 27, 2010, the defendant filed the present motion for summary judgment and attached the following documents as supporting evidence: the requests for admission served on Russell Sharp and John R. Sharp; an affidavit from Donna Kosiorowski, president of the defendant association, to which is attached the public offering statement for the condominium; and the deposition of the plaintiff. The plaintiff filed an objection to the defendant's motion for summary judgment and a supporting memorandum on October 29, 2010. Oral argument was heard on November 1, 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). Further, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 234 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
In its memorandum of law in support of its motion for summary judgment, the defendant relies heavily on its requests for admissions served on both Russell Sharp and John R. Sharp, to which neither Russell Sharp nor John R. Sharp responded. Normally, "[a] party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment . . . Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). "An admission [however] may be introduced only against the party who made the admission." State v. John, 210 Conn. 652, 682, 557 A.2d 93, cert. denied 493 U.S. 824 (1989); see also Palombizio v. Murphy, 146 Conn. 352, 356, 150 A.2d 825 (1959) (holding any admission of defaulted defendant inadmissable in trial against remaining defendant). Therefore, any admissions made by Russell Sharp and John R. Sharp cannot be considered as evidence in support of the defendant's arguments against the plaintiff.
The defendant argues in its memorandum that the plaintiff's negligence claim cannot succeed because there is no dispute that the defendant did not owe any duty of care to her. The defendant argues that in order for a duty to exist the plaintiff must show that the defendant had possession and control over the premises where the incident occurred, and the undisputed facts show that the defendant did not have possession or control over the stairs. The plaintiff counters that there is a genuine issue of material fact as to whether the defendant did have possession and control of the stairs at the time of the incident.
"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." LaFlamme v. Dallesio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 318, 819 A.2d 844 (2003). In general, "liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallesio, supra, 251. "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.) Doty v. Shawmut, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
When analyzing the issue of control in the context of "common elements" in a condominium complex, the Appellate Court has held that a condominium association's relationship with unit owners is analogous to a landlord's relationship with a tenant. See Sevigny v. Dibble Hollow Condominium Ass'n, Inc., supra, 76 Conn.App. 322-23. The present case concerns an incident that allegedly occurred in a "limited common element" rather than a "common element," and there is no binding legal authority that discusses the duties a condominium association may have specifically in regard to "limited common elements." The Appellate Court, however, has held that "[i]n determining whether to impose a landlord's duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether the association conducts itself as would a landlord in the traditional landlord tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally." Id., 323. Further, General Statutes § 47-202 and Article I § 1.17 of the declaration of the public offering statement for the Soundview Condominiums define limited common elements as "a portion of the Common Elements allocated by Declaration or by the operation of [subsection (2) or (4) of Section 22] of the Act for the exclusive use of one or more but fewer than all of the Units." Since "limited common elements" are a subset of "common elements," the same analogy to landlords can be extended to "limited common elements," as some Superior Court decisions have already done. See, e.g., McKenna v. Willow Springs Condominium Ass'n., Superior Court, judicial district of Litchfield, Docket No. CV 05 5000050 (June 28, 2006, Pickard, J.); Gardner v. Woodland Heights Condominium Ass'n, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 04 5000083 (July 26, 2005, Gallagher, J).
"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 light of all the significant circumstances . . . In the context of a landlord-tenant relationship, one significant circumstance is the lease, if any, between the parties . . . 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, supra, 261 Conn. 257-58.
In the context of a condominium, the public offering statement is but one of several documents that create the relationship between a condominium association, a unit owner and potentially third parties. The parties here rely on the Public Offering Statement which may create rights between a declarant and a purchaser of a unit. In fact the operation of the condominium association is articulated by the Condominium Declaration as it may have been amended and Bylaws or rules that are adopted in accordance with the procedures spelled out in the Declaration. Thus in order to determine the allocation of duties one must refer to the Declaration or Bylaws and regulations rather than the Public Offering Statement. These documents provide information as to how the Association operated and may indicate or identify a significant circumstance, much like a lease in a rental context. See Gardner v. Woodland Heights Condominium Assn., Inc., supra, Superior Court, Docket No. CV 04 5000083 (analyzing the language of the condominium bylaws as relevant circumstances); see McKenna v. Willow Springs Condominium Assn., supra, Superior Court, Docket No. CV 05 5000050 (holding that whether the condominium rules and regulations applied to a plaintiff who was a renter created a genuine issue of material fact as to whether a duty of care existed).
Here, the defendant has presented the public offering statement as evidence that the defendant did not have control over the stairs where the plaintiff fell. Article V(c) of the declaration to the public offering statement defines outside stairs as "limited common elements" which are assigned to the unit owners for their exclusive use. In Article VI § 6.1, the document goes on to state that "[t]he Association shall maintain, repair and replace all of the Common Elements, except the portions of the Limited Common Elements which are required by this declaration to be maintained, repaired or replaced by the Unit Owners." (Emphasis added.) Further, declaration article VI § 6.3 states that "each Unit owner shall be responsible for removing all snow, leaves and debris from all patios and balconies which are Limited Common Elements appurtenant to his or her Unit." Article VI § 6.4 provides, "[a]ny person authorized by the Executive Board shall have the right of access to all portions of the Property for purposes of correcting any condition threatening a Unit or the Common Elements, and for the purpose of performing installations, alterations or repairs . . ." (Emphasis added.) Although this clause suggests that the defendant has some authority to enter and manage the stairs, the extent of that authority is not specified. This article does not state who is responsible for repairs or maintenance of stairs that are "Limited Common Elements," other than the fact that unit owners are responsible for debris removal. The declaration specifically puts the responsibility to repair and replace space heating and water heating systems, which are "limited common elements" defined in Article V(e), on the unit owners, but stairs are included in section (c), not section (e). Given this language, the public offering statement does not explicitly show whether control over the area in question has been entirely transferred to the unit owner, or whether the defendant has retained control over the staircase at issue here. It is clear that the unit owners must clear the outdoor stairs of debris and that the unit owners must repair their heating systems, but there is no language stating who must repair outdoor stairways. Consequently, the question of control remains a genuine issue of fact to be determined in light of the intentions of the parties and surrounding circumstances.
At oral argument the defendant stated it was not arguing that the public offering statement was in effect at the time of the slip and fall, yet paragraph 5 of the affidavit of Donna Kosiorowski states it was in effect at the time of the fall. Further the defendant argues in its memorandum that there is no dispute that the public offering statement was in full effect at the time of the slip and fall, and the plaintiff does not challenge this assertion. In fact, she also relies on the language of the public offering statement to support her arguments.
The other evidence presented by the defendant does not provide any clarification. The defendant cites the deposition testimony of the plaintiff, in general, as proof that the defendants did not have control over the stairs. In her deposition, the plaintiff testified to seeing Russell Sharp and John R. Sharp replace the staircase after they bought the unit some time before she fell, but she did not know who funded the replacement. The plaintiff also testified that she would sometimes clear some of the stairs of snow or debris in order to keep her stoop below clear, but she did not know who was responsible for clearing the stairs. The plaintiff's testimony only demonstrates that the plaintiff did not know who had control over the stairs, or who had a responsibility to repair the stairs. Therefore, there remains a genuine issue of material fact as to whether the defendant had control over the stairs.
CONCLUSION
For the foregoing reasons a genuine issue of material fact exists as to whether the defendant had control over the staircase where the plaintiff fell, and, therefore, a genuine issue of fact exists as to whether the defendant owed a duty of care to the plaintiff. Accordingly, the defendant's motion for summary judgment is denied.