Opinion
No. CV09-6000516-S
November 16, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #149
In this case, the plaintiff, Rajanikant Patel, has brought suit against Flexo Converters U.S.A., Inc. (Flexo USA) for injuries he allegedly suffered while in Flexo USA's employment. The plaintiff alleges that he was injured while he was operating a bag making machine (machine no. five) on the premises used by Flexo USA. These premises were leased from Flexo Converters Meriden, Inc. (Flexo Meriden) by Flexo USA and the plaintiff has also sued Flexo Meriden.
Flexo Meriden has moved for summary judgment on the ground that it was only the landlord of the property and not in possession and control of the premises upon which the plaintiff's alleged injury occurred. The plaintiff has filed an objection.
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 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." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "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.) Id.
"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." (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 (2010). "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." (Internal quotation marks omitted.) Id. 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").
" 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." (Emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. 308. "[I]f the issue of control is expressed definitively in the lease, [however] it becomes, in effect, a question of law." Id., 309.
"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. "[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).
Flexo Meriden argues that the lease between it and Flexo USA gave possession and control of the premises to Flexo USA, and thus Flexo Meriden should be granted summary judgment. After a review of the lease, and other applicable documents, this court agrees with Flexo Meriden.
Section 5.2 of the lease obligates Flexo USA to "pay directly all costs and expenses of ownership and operation of the Premises, including, without limitation, all costs and expenses in connection with the maintenance, repair, capital improvement, management, security and operation of the Premises . . ." Section 8.1 obligates Flexo USA to maintain all parts of the premises "in good and sanitary order." It is clear from the foregoing lease that it gave the tenant, Flexo USA, full and exclusive possession of the premises at issue.
The plaintiff argues, however, that Flexo Meriden is liable under 2 Restatement (Second), Torts § 379A (1965). That provision, however, plainly applies to injuries that occur outside of a leased premises. See Contreras v. 455 Pacific Street, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5006917 (March 3, 2010, Pavia, J.). Inasmuch as the alleged injuries at issue here occurred on the premises, § 379A is inapplicable.
The plaintiff also argues that summary judgment should not be granted because a subsequent amended lease went into effect which stated: "This lease is what is commonly called a `modified net lease,' it being understood that Landlord shall receive the rent set forth as Base Rent free and clear of any and all impositions, personal property taxes, liens, charges or expenses of any nature whatsoever in connection with the ownership and operation of the Premises except for real estate taxes, utilities (except telephone and cable), and maintenance which the landlord shall pay. This provision shall be effective retroactive to January 1, 2007. In all other respects, the terms of The Lease are hereby ratified and confirmed." Specifically, the plaintiff argues that, under the amendment, Flexo Meriden was now responsible for "maintenance of the premises" which, coupled with the fact that machine no. five was on the premises prior to the first lease and constituted a dangerous condition, Flexo Meriden should be held liable under § 379A. This court disagrees.
Sections 5.2 and 8.1 of the lease, as noted above, were ratified and confirmed. The fact that Flexo USA received a discount or set off in its rent for maintenance does not put Flexo Meriden in physical control of the premises or machine no. five, nor does it change the fact that the alleged injuries occurred on the premises.
This court concludes that there are no genuine issues of material fact that Flexo Meriden did not have possession and control of the premises. Therefore, the motion for summary judgment is granted.