Opinion
CV166054517S
04-24-2017
Michael Pinto v. Evelyn King et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendant Evelyn King, personally and as Executrix of the Estate of Helen Andrejeczk, has moved for summary judgment to dismiss the negligence claim of plaintiff Michael Pinto (" Pinto"), who asserts he was injured when he slipped and fell on a closed public road adjacent to defendant's property that he alleges was possessed and controlled by defendant and her sister. For the reasons stated below, the motion for summary judgment is denied.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
There Are Genuine Issues of Material Fact That Preclude Summary Judgment
1. There are Genuine Issues of Material Fact as to Whether Defendant and Her Sister Possessed and/or Controlled the Roadway at the Time of the Accident
All parties are agreed that on January 10, 2014, Pinto slipped and fell on Platts Hill Road, which belongs to the Town of Newtown. If ownership of the roadway were the test for liability then defendant would be in the clear. However, it is well-settled that it is possession and control of the premises that give rise to a duty to maintain the premises in a safe manner. See e.g., Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 (2010).
In Lin v. Nat'l RR Passenger Corp., 277 Conn. 1, 16 n.10, 889 A.2d 798 (2006), citing Rosa v. American Oil Co., 129 Conn. 585, 589, 30 A.2d 385 (1943), the Supreme Court noted that title is not a basis for liability in a premises liability case: " [w]e note that liability in a premises liability case is based solely on control and possession, not title. See Rosa v. American Oil Co., 129 Conn. 585, 589, 30 A.2d 385 (1943) ('it is upon control and possession of the premises, as distinguished from title, that a defendant's liability is predicated in [a premises liability] case'). Moreover, in our cases involving claims of premises liability, it does not appear that we have required the plaintiff to show that the defendant had exclusive possession. See Gazo v. Stamford, 255 Conn. 245, 249, 765 A.2d 505 (2001) ('premises liability . . . requires that the party to be held liable be in control of the property'); Mack v. Clinch, 166 Conn. 295, 296, 348 A.2d 669 (1974) ('liability [in premises liability cases] can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof'); Rosa v. American Oil Co., supra, at 589, 30 A.2d 385 (control and possession of premises, as distinguished from title, are basis for defendant's liability in premises liability case); compare Bernardo v. Hoffman, supra, 109 Conn. at 161, 145 A. 884 ('[i]n an action for trespass to land the plaintiff must show either an actual exclusive possession, or a title in connection with the fact that no one else had the actual possession')."
" 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 . . . 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." . . . Baldwin v. Curtis, . . . 105 Conn.App. [844] at 848-49, 939 A.2d 1249 [(2008)]; see also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him).
" 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 . . . 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." . . . Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003). Id. at 308-09.
In Millette v. Connecticut Post Limited Partnership, 143 Conn.App. 62, 70, 70 A.3d 126 (2013), the Appellate Court explained the importance of " possession" and " control" of the site at the time of the alleged injury in a premises liability case:
In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiff's status on the premises at the time of the alleged injury. See Morin v. Bell Court Condominium Ass'n, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). In the present case, the court instructed the jury that the plaintiff's status on the premises at the time of his injuries was that of a business invitee. " A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted.) Id. ; see also 2 Restatement (Second), Torts § 343 (1965).
Such a duty of care to an invitee, however, only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred. See Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966); accord 2 Restatement (Second), supra, at § 328E, p. 170 (defining " possessor of land" for purposes of premises liability as one " in occupation of the land with intent to control it"). " [L]iability 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 . . . Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property . . . 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." (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013); see also Farlow v. Andrews Corp., supra, at 225, 224 A.2d 546; Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780 (1934) (defective premises liability " ordinarily depends upon power to prevent the injury by making repairs, and therefore rests primarily upon him who has control and possession").
Moreover, as the Supreme Court noted in Lin v. Nat'l RR Passenger Corp., 277 Conn. at 16 n.10: " in our cases involving claims of premises liability, it does not appear that we have required the plaintiff to show that the defendant had exclusive possession." Therefore, whether Newtown exercised some control over the road, including periodic maintenance, would not necessarily preclude liability for defendant if defendant and her sister also possessed and controlled the roadway.
That the Town may have a nondelegable duty to maintain and repair the public road, as defendant contends citing Machado v. City of Hartford, 292 Conn. 364, 371, 972 A.2d 724 (2009), would not relieve defendant and her sister of responsibility for their failure to warn and protect third parties if they are found to have also possessed and controlled the road at the time of the accident. The Town closed the road to the public according to the evidence submitted on this motion; a jury could conclude that the only traffic on the road was in connection with defendant's farm and they were in de facto possession and control of the road used in connection with access and egress to the farm.
The parties have submitted competing affidavits. Both parties have submitted photographs of Platts Hill Road, which appears to be an unpaved, unimproved and uneven dirt road with dips, ruts and rocks in the roadway. Defendant submitted a surveyor's affidavit with a map that located the road where the fall occurred, and showed it was owned by Newtown and bounded on both sides by defendant's property with a stone boundary wall on each side of the road. Plaintiff has submitted an affidavit of a title searcher that Platts Hill Road has been closed to the public for some time. Plaintiff also submitted an affidavit from a caretaker employed by defendant and her sister to operate the farm and to care for defendant's sister while she lived on the property. The caretaker averred that he maintained the roadway for defendants in various ways including leveling the roadway, removal of trees, debris and snow from the roadway; he states the road was closed to the public and was not used by the public or Newtown, and was not regularly maintained by the town, but used only in connection with defendants' farm and maintained by him. On the date of the accident, according to the caretaker, the roadway was in disrepair and covered with an accumulation of ice and snow. Based on the evidence presented a reasonable jury could find that defendant and her sister possessed and controlled Platts Hill Road at the time of the accident.
2. There are Genuine Issues of Fact Concerning Plaintiff's Status as a Visitor to the Property on the Date of the Accident
Defendant argues that plaintiff was a trespasser and invokes the rule announced in Morin v. Bell Court Condominium Ass'n, 223 Conn. 323, 328, 612 A.2d 1197 (1992), that distinguishes between the greater duties to warn and keep safe owed to an invitee and the lesser duties owed to a mere licensee and/or trespasser:
" In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971); see D. Wright, J. FitzGerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 109. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. Id. ; see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 49. " The duty that a . . . [possessor of land] owes to a licensee, [however, ] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them. Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971)." Furstein v. Hill, 218 Conn. 610, 624, 590 A.2d 939 (1991); see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 48. In general, however, with respect to active operations that the occupier engages in, as opposed to passive conditions on the land, " there is an obligation to exercise reasonable care for the protection of a licensee. He must . . . [for example], run his train, operate his machinery, or back his truck with due regard for the possibility that the licensee may be present. The obligation is higher than that owed to a trespasser, because the possessor may be required to look out for licensees before their presence is discovered; but reasonable care will of course be affected by the probability that the licensee will come, whether he may be expected to follow a particular path, the time of day, and the nature of the danger." W. Prosser & W. Keeton, Torts (5th Ed.) § 60, p. 416. Additionally, as with trespassers, there is a duty to refrain from injuring a licensee " intentionally, or by willful, wanton or reckless conduct." W. Prosser & W. Keeton, supra, p. 415. As a general rule, " the possessor of real estate owes no duty to trespassers . . . to keep the property in a reasonably safe condition for their use . . ." D. Wright, J. FitzGerald & W. Ankerman, supra, § 47, p. 110; see Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921)." Id. at 327-28.
Defendant states in her affidavit that plaintiff did not have permission or an invitation from her or her sister, who resided at the property, to enter the property. Defendant states that plaintiff was injured while operating an all-terrain vehicle (" ATV") and defendants never permitted him to operate an ATV on their property. Unlike her sister, defendant did not reside at the property so her statements about what her sister knew or permitted is hardly conclusive. Defendant seeks to bolster her case by citing plaintiff's deposition testimony that he did not have explicit permission of defendant's sister to enter or remain on the property on the date of the accident. However, both plaintiff and the caretaker employed by defendants submitted affidavits that plaintiff was a frequent visitor to the property, with the status the caretaker characterized " as an invited guest"; plaintiff was permitted to operate his ATV that was stored on the premises, a fact known to both the caretaker and defendant's sister, according to the caretaker. A reasonable jury could conclude plaintiff's status was as an invitee, not a trespasser, with the greater duty to care for Pinto's safety and warn him of hazards owed by defendant and her sister, assuming they were found to be the possessors and/or controllers of the roadway. See Morin, 223 Conn. at 328.
Conclusion
There are genuine issues of material fact to be tried so the motion for summary judgment is denied.