Opinion
No. CV 03 0524313 S
June 1, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On January 16, 2003, the plaintiff, Deanna Pinette, caused a complaint to be served on the defendants, Casey and Maura McLaughlin, arising from a fall the plaintiff had on the property owned by the defendants on January 24, 2000.
For all times pertinent hereto the defendants, Casey and Maura McLaughlin owned controlled and maintained both two seventy-six (276) and two seventy-eight (278) Farmington Avenue.
At the time of the fall that is alleged in the complaint, the plaintiff lived in an apartment located at 278 Farmington Avenue in Bristol, Connecticut, which was owned by the defendants.
The plaintiff alleges that after visiting her neighbor, Darcy McNelly, at 276 Farmington Avenue, she slipped on ice while descending the front steps. The plaintiff further alleges that she sustained injuries resulting from the defendants' failure to properly maintain the drainage system, thereby causing the ice to build up on the steps of 276 Farmington Avenue.
Two seventy-six (276) and two seventy-eight (278) Farmington Avenue are in a single building structure with one apartment unit existing over the other. The two units are separate rental units and have separate ingress and egress. The area of the alleged fall is not an ingress or egress to the plaintiff's rental unit.
The original complaint alleged an absolute private nuisance, a breach of contract, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., and wilful and intentional conduct.
On June 17, 2003, the defendants filed a motion to strike all counts of the plaintiff's original complaint.
On July 7, 2003, the court (Cohn, J.), granted the defendants' motion to strike as to counts one and four, alleging absolute private nuisance and wilful and intentional conduct, but denied the motion to strike as to counts two and three, alleging breach of contact and violation of CUTPA.
On July 15, 2003, the plaintiff filed a substitute complaint containing the only breach of contract and CUTPA counts.
On October 3, 2003, the defendants filed a motion for summary judgment with respect to both counts of the substitute complaint, accompanied by a memorandum in support of their motion.
On December 29, 2003, the plaintiff filed a memorandum in opposition to the motion for summary judgment.
On January 22, 2004, the defendants filed a memorandum in response to the plaintiff's memorandum in opposition to the motion for summary judgment.
Discussion
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the plaintiff's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted:
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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999). CT Page 8668
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
"Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "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). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).
Count One: Breach of Contract
In the first count of her substitute complaint the plaintiff alleges that the defendants' failure to properly maintain the drainage system is a violation of a contract the plaintiff had with the defendants for the rental of 278 Farmington Avenue. The defendants move for summary judgment on the ground that there is no issue of material fact and the defendants are entitled to a judgment as a matter of law because the plaintiff has failed to establish all of the required elements for a claim of breach of contract.
In their memorandum in support of the motion for summary judgment, the defendants argue that Count One is actually a negligence claim that is barred by the applicable statute of limitations to negligence actions.
Additionally the defendants assert that the plaintiff was not a party to a contract or a third-party beneficiary of a contract that required maintenance of the steps of 276 Farmington Avenue.
In response to the defendants' arguments, the plaintiff asserts that the court (Cohn, J.), has already ruled that she could sue on a breach of contract theory based on the covenant to keep the premises in repair. In addition, she argues that she is a third-party beneficiary to McNelly's lease with the defendants because the lease between the defendants and McNelly gave McNelly a right to have visitors in her apartment.
The court notes that the plaintiff does not dispute the fact that she was not a tenant at 276 Farmington Avenue, instead she argues that she is a third-party beneficiary to her neighbor's lease.
In support of their motion for summary judgment, the defendants submitted a copy of the lease between the defendants and McNelly, the affidavit of Casey McLaughlin and a portion of the deposition of Maura McLaughlin. In opposition to the motion for summary judgment, the plaintiff submitted copies of previously filed pleadings and the lease between the defendants and McNelly.
"Where a person leases premises to another and covenants or agrees in the lease or otherwise to keep the premises in repair, he is liable in damages to the lessee if he fails to exercise reasonable care to make the repairs . . . Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty . . . In these circumstances, negligence, not the breach of the agreement, is the gist of the action, and it follows that the necessary elements to establish negligence on the part of the defendant must be proven if the plaintiff is to be entitled to recover." (Citations omitted.) Youngset, Inc. v. Five City Plaza, Inc., 156 Conn. 22, 25, 237 A.2d 366 (1968). "[P]utting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading." Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001). "[When] the plaintiff's allegations of both liability and damages sound in tort, and the only practical effect of permitting a contract claim to lie would be to extend the tort statute of limitations, and common sense strongly counsels otherwise, the plaintiff may not be permitted to transform his tort claim into a contract claim merely by alleging that it is such a claim." Id., 266.
The statute of limitations for a negligence claim is governed by General Statutes § 52-584 and requires that a negligence action be brought within two years of when the injury was sustained. "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). In the present case, it is undisputed that the cause of action arose on January 24, 2000, and the plaintiff served the complaint on the defendants on January 16, 2003, almost an entire year beyond the expiration of the statute of limitations. It is well-settled law in this State that a lawsuit is commenced when a proper officer serves a writ of summons and complaint on the defendant. Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990), cited in Altfeter v. Naugatuck, 53 Conn. App. 791, 803 (1999).
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered."
For all of the foregoing reasons, the defendants' motion for summary judgment is granted as to this Count.
Count Two: CUTPA
In the second count of her substitute complaint, the plaintiff alleges that the defendants were obliged under General Statutes § 47a-7(a)(2) to do whatever is necessary to put and keep said premises on 276 Farmington Avenue, Bristol, Connecticut in a fit and habitable condition." (Substitute Complaint, Count Two, Five.) The plaintiff alleges that the defendants failed to fulfill this obligation by failing to maintain properly the drainage system, thereby causing ice to accumulate on the steps. The plaintiff alleges that this failure resulted in a violation of the Landlord Tenant Act specifically, General Statutes § 47a-7(a)(2), and "offended public policy and amounted to an unfair trade act or practice in violation of [CUTPA]." (Substitute Complaint, Count Two, Five.) The defendants move for summary judgment on the ground that there is no genuine issue of material fact and they are entitled to a judgment as a matter of law.
The defendants argue that a violation of the Landlord Tenant Act may be a violation of CUTPA, but that the plaintiff has not shown that the premises were uninhabitable and therefore does not establish that there was in fact a violation of the Landlord Tenant Act. The defendants also argue that in order for a violation of the Landlord Tenant Act to constitute a violation of CUTPA, the plaintiff must also show that the defendants' conduct was immoral, unethical or oppressive because the defendants knew of the problem and refused to fix it and that the plaintiff was a consumer, creditor or other business person.
The plaintiff argues that a violation of housing safety and habitability standards offends public policy and that the plaintiff is not required to establish any other requirements. The defendants argue that this case can be distinguished from the cases that say a violation of housing safety and habitability standards is a violation of CUTPA because the plaintiff has not submitted any evidence to show that the premises were uninhabitable and the plaintiff was not a tenant of the premises, she was merely a visitor.
CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). "It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise C whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695-96, 804 A.2d 823 (2002).
It is clear that "CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury." (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 215, 680 A.2d 1243 (1996). The plaintiff has not alleged that she is the defendants' competitor or that she has a business relationship with the defendants. Therefore, it must be determined whether the plaintiff can be characterized as a consumer. "Connecticut courts recognize CUTPA claims arising out of landlord-tenant transactions for alleged property detects"; De Valle v. Goggins, Superior Court, judicial district of Waterbury, Docket No. 0128043 (October 11, 1996, Peck, J.) ( 18 Conn. L. Rptr. 32); however, the plaintiff in the present case has not alleged such a relationship to the premises. Although she alleges that she was the defendants' tenant living in the apartment next to 276 Farmington Avenue, the only relationship she established relevant to 276 Farmington Avenue is that she was the tenant's visitor. A CUTPA claim cannot be premised on such a relationship. De Valle v. Goggins, supra.
The plaintiff argues that she does not have to establish such a relationship because a violation of the Landlord Tenant Act offends public policy; therefore the other elements of the cigarette rule do not have to be established. A plaintiff may be able to recover for personal injuries resulting from a violation of the Landlord Tenant Act. See Simms v. Candela, 45 Conn. Sup. 267, 273, 711 A.2d 778, 21 Conn. L. Rptr. 479 (1998). Simms can be distinguished from the present case because the plaintiff in Simms lived in the premises in which the injury was sustained. The issue in the present case is whether the Landlord Tenant Act extends to situations where the injured party does not reside in the premises where the injury was sustained. A tenant is defined under the Landlord Tenant Act as "the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law." General Statutes § 47a-1(1). In the present case, the plaintiff is not alleging that she is the lessee, sublessee or that she is entitled to occupy the premises to the exclusion of others. She argues that she is a tenant by virtue of a third-party beneficiary relationship of the lease between the defendants and McNelly.
"[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001). It is true that a landlord owes a duty of ordinary care to his tenant's visitors; see Mitchell v. Covone, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089070 (July 17, 2002, Shapiro, J.); however, this duty is one in tort. It does not follow that the landlord intended that every one of his tenants' visitors would be a party to the lease. See Gazo v. Stamford, 255 Conn. 266.
Furthermore, there is no language in McNelly's lease to indicate that the defendants intended to assume a direct obligation to her visitors. Paragraph thirteen of the lease states, in relevant part, "[m]ajor maintenance and repair of the leased premises, not due the Lessee's misuse waste, or neglect or that of his employee, family, agent, or visitor, shall be the responsibility of Lessor or his assigns." This language contemplates that McNelly will have visitors, but it does not show that the defendant intended to assume a direct obligation to McNelly's visitors.
The defendants' motion for summary judgment as to Count Two is granted.
Conclusion CT Page 8673
For all of the foregoing reasons, the defendants' motion for summary judgment is granted.
Richard A. Robinson, J.