Opinion
HHDCV186093344S
07-10-2019
Lindsay STROMFIELD v. SAKE CAFÉ BLOOMFIELD, LLC et al.
UNPUBLISHED OPINION
OPINION
MATTHEW DALLAS GORDON, J.
This is a personal injury action in which the plaintiff, Lindsay Stromfield, alleges that she was injured, on June 5, 2017, at Sake Café in Bloomfield, Connecticut when a Sake Café employee placed a flammable liquid on her hand, causing her hand to be engulfed in flames. The property where the incident occurred was owned by the defendant, Levy Properties, LLC (Levy), and leased to the defendant, Sake Café Bloomfield, LLC (Sake Café). Levy has moved for summary judgment as to count three, claiming that it did not owe the plaintiff a duty of care because it did not possess, control, maintain, or operate the premises where the plaintiff was injured. The plaintiff responds that summary judgment is inappropriate because Levy had a nondelegable duty to maintain the property in a reasonably safe condition. For the reasons explained in this decision, the court concludes that there are no genuine issues of material fact and that Levy is entitled to summary judgment in its favor as a matter of law.
FACTS AND PROCEDURAL HISTORY
Levy leased the premises where the plaintiff was injured to Sake Café pursuant to a lease agreement dated September 18, 2008. Article III, Section 3.1 of the lease provides that Sake Café "covenants and agrees that during the term of this Lease, the Leased Premises shall only be used and occupied as an Asian style restaurant serving Japanese, Chinese and Thai foods with the right to sell liquor as permitted by a full service restaurant liquor permit Issued by Department of Liquor Control for the State of Connecticut ..."
The plaintiff’s complaint contains three counts. Count three, the only count at issue, is directed to Levy and alleges that Levy "managed, possessed and/or controlled" Sake Café and was negligent in that it (1) caused, and/or permitted the plaintiff’s hand to become engulfed in flames; (2) permitted a dangerous condition to exist upon the premises; (3) failed to stop and/or prevent its agent from creating said dangerous condition; (4) failed to have appropriate fire suppression equipment or procedures immediately available for patron use; (5) failed to timely extinguish the fire that was set to the plaintiff’s hand; (6) failed to restrain the dangerous activities of its agent although it could and should have done so; and (7) "otherwise failed to exercise due care in maintaining the premises."
Count one alleges that the plaintiff’s injuries were caused by the negligence of Sake Café in several respects. Count two incorporates the same facts as count one, and alleges that the plaintiff’s injuries were caused by Sake Café ’s wanton and/or willful conduct and/or its reckless disregard for the safety of others.
The lease between Levy and Sake Café provides, in pertinent part, in Article IV (Quiet Enjoyment) that, "[t]he Tenant shall, upon paying the rent reserved hereunder and observing and performing all of the terms, covenants and conditions on the Tenant’s part to be observed and performed, peaceably and quietly, have and hold the Leased Premises, without hindrance or molestation by any person or persons lawfully claiming by, through or under the Landlord ..." Sake Café has admitted that it possessed and controlled the premises at the time the plaintiff was injured, whereas Levy has denied possession and control. The court entertained oral argument regarding Levy’s motion for summary judgment on June 17, 2019, and both parties were given a full opportunity to present their respective positions.
ANALYSIS
A
Standard of Review
"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." (Internal quotation marks omitted.) Lewis v. Alves, 190 Conn.App. 580, 582 (2019), quoting Lamar v. Brevetti, 173 Conn.App. 284, 288-89, 163 A.3d 627 (2017).
B
Possession and Control of the Premises
"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 ... 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)." (Citations omitted; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 848-49, 939 A.2d 1249 (2008).
"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 ... Thus, the dispositive issue in deciding whether a duty exists is whether ... [the defendant] has any right to possession and control of the property." (Citation omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002). "The implication which necessarily flows from the tenant’s control and possession is that it is the tenant, not the landlord, who has the final word as to the person or persons who may enter upon the demised premises. The landlord has neither the power of exclusion nor the power of selection. To be sure, he may enter for the avowed purpose of inspection and supervision. But this is far from control. Said Lord Atkinson: ‘(T)he power of control ... implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them. But this power and this right belong to the tenant, not to the landlord ...’" State v. Schaffel, 4 Conn.Cir.Ct. 234, 247-48, 229 A.2d 552 (1966), cert. denied, 154 Conn. 752, 228 A.2d 560 (1967).
"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." (Emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). "Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law." Id., 309.
The plaintiff did not raise, and therefore the court does not consider, whether Levy, regardless of whether it possessed or controlled the premises, was nevertheless liable for the plaintiff’s injuries under Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939), wherein the Supreme Court determined that if a landlord knows of conditions on the premises that are likely to cause injury, that persons are likely to be invited onto the premises as customers of the tenant, and that the tenant would not take steps to remedy or guard against injury from the conditions, the landlord may be liable for injuries caused by those conditions.
"The defendant’s claim presents a question of contract interpretation because a lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts ... The standard of review for the interpretation of a contract is well established ... Ordinarily the parties’ intent is a question of fact ... Where a party’s intent is expressed clearly and unambiguously in writing, however, the determination of what the parties intended ... is a question of law ... The intent of the parties as expressed in [writing] is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] ... Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622-23, 987 A.2d 1009 (2010).
Although Article IV of the lease clearly and unambiguously gives Sake Café the right to quiet enjoyment of the leased premises, the plaintiff nevertheless contends that there is a genuine issue of material fact regarding Levy’s alleged possession and control of the premises. In support, the plaintiff points to several lease provisions, including section 1.3, which allows the lessor, inter alia, to install, maintain, use, repair and replace pipes, ducts, conduits, wires and appurtenant fixtures; Section 5.5, which permits the lessor to perform the tenant’s obligations if the tenant fails to do so; and section 11.1, which requires the tenant to permit the landlord access to the premises to make inspections and repairs. The plaintiff also asserts that Levy’s possession and control of the leased premises is evidenced by the fact that Levy’s approval is required before Sake Cafécan change the use of the premises (section 3.1); make structural alterations (section 5.4); or assign or sublet the premises (section 12.2). Finally, the plaintiff relies on Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 148, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000), for the proposition that Levy had a nondelegable duty to maintain the premises.
The court concludes that the plaintiff’s reliance on these various lease provisions, and on Tarzia, is misplaced for several reasons. First, the court finds Tarzia inapposite because although the Appellate Court held that the grocery store leasing the property where the plaintiff allegedly fell could not escape liability by hiring another entity to maintain the premises because it had a nondelegable duty to maintain the premises in a reasonably safe condition, the court stated explicitly that it was not determining whether the grocery store’s landlord owed the plaintiff a duty. See id., 149. Here, the court must determine whether the landlord, Levy, owed a duty to the plaintiff, and to that point, Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 75, 70 A.3d 126 (2013), makes clear that the nondelegable duty doctrine "applies only when the plaintiff has established that the defendant maintained possession and control of the property." Accordingly, the question remains whether Levy had possession and control of the premises where the plaintiff was injured.
The lease between Levy and Sake Café clearly and unambiguously demises the premises to Sake Café . See Wilcox v. 1354 Commonwealth, LLC, Superior Court, judicial district of New Haven, Docket No. CV-12-6034001-S, 2013 WL 5663642 (September 30, 2013, Fischer, J.) (finding that the property owner had no legal duty to the plaintiff because the lease expressed definitively that the tenant was in possession and control of the lobby where the plaintiff fell). Additionally, the lease provisions relied on by the plaintiff do not establish that the parties intended for Levy to retain possession or control of the premises. For example, Section 1.3 merely gives Levy the right to make alterations or additions to the building in which the leased premises are located or any other buildings on the land, and to change from time to time the size, location and nature of the common areas . (Emphasis added.) Moreover, although Section 1.3 does give Levy the right to install, maintain, use, repair and replace pipes, ducts, conduits, wires and appurtenant fixtures "leading through the Leased Premises," this right can be exercised only "so long as the above will not materially interfere with the Tenant’s use thereof." The court concludes that the rights afforded to the landlord under this provision, do not constitute "possession" or "control" over the leased premises sufficient to impose liability upon the landlord for an injury allegedly suffered by the tenant’s patron, especially where the alleged incident and resulting injuries are wholly unrelated to the installation, maintenance, use, repair, or replacement of pipes, ducts, conduits, wires or appurtenant fixtures.
Similarly, neither section 5.5, which gives the landlord the option of entering the premises to make repairs that the tenant has failed to address for a period of more than thirty days, nor section 11.1, which provides the landlord with a right of entry for specific purposes, are sufficient to impose an affirmative duty on the landlord to maintain the premises in a reasonably safe condition. See Argintaru v. RPL Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV-15-6062369-S, 2017 WL 1239922 (March 1, 2017, Shapiro, J.) (noting that the landlord’s "right to inspect or right to reenter within the limited circumstances provided in the lease do not constitute control. The limited provisions allowing [the landlord] to reenter are not indicative of the authority to manage, superintend, direct or oversee"); see also Burney v. Tap Petroleum Corp., Superior Court, judicial district of New Haven, Docket No. CV-08-5024206-S, 2011 WL 590395 (January 13, 2011, Lager, J.) (holding that the lease provision retaining the owner’s right of entry does not raise material factual issue regarding the parties’ intent to give the tenant full possession and control of the premises); see also State v. Scheel, supra, 4 Conn.Cir.Ct. 247 (noting that "[u]nder the terms of the lease ... the landlord was entitled to possession only upon breach of one or more of the covenants contained in the lease, and then only upon reentry or by statutory summary process. The landlord has not reentered or acted by summary process. Moreover, under the terms of the lease, the landlord’s right of entry was limited to two specific purposes: (1) ‘for the purpose of inspection, ’ and (2) ‘to see that the covenants on the part of the tenant are being kept and performed.’ It must follow, therefore, that the tenant retained control and possession of the demised premises").
Specifically, this provision, entitled "Tenant’s Failure to Repair," provides that "[i]f the Tenant falls to perform, for a period of thirty (30) days after written notice from the Landlord, any obligation required to be performed by the Tenant under this Lease at the Tenant’s cost, the Landlord, on the expiration of such thirty (30) days, may, but shall not be obligated to, enter on the Leased Premises to perform such obligation of the Tenant, charging the Tenant reasonable cost and expenses thereof, and the Tenant shall pay the Landlord such charges, as Additional Rent ..."
This provision, entitled, "Entry by Landlord," provides that "[t]he Tenant will permit the Landlord and/or its authorized representatives to enter the Leased Premises at all reasonable times for the following purposes: (1) Inspecting the same; (2) making any necessary repairs thereto, and performing any work therein that may be necessary by reason of the Tenant’s failure to make any such repairs or perform any such work or to commence the same after written notice from the Landlord; (3) showing the building to prospective buyers; or (4) during the last six (6) months of this Lease, showing the Leased Premises to prospective tenants ..." Section 11.1 also provides that "[n]othing herein shall be deemed or construed as a duty upon the part of the Landlord to do any such repairs upon the Tenant’s default in failing to perform the same ." (Emphasis added.)
The lease also contains a provision clarifying Levy’s liability, or lack thereof, for any damages suffered by third parties as a result of the condition of the premises. See section 5.7, entitled "Landlord’s Liability," which provides that "[t]he Landlord shall not be liable for any damage or injury to the Leased Premises, or to any property of the Tenant or of any other person thereof, from water, rain, snow, ice, sewage, steam, gas or electricity which may leak into or issue or flow from any part of said Leased Premises, or from the bursting, breaking, obstruction, leaking or any defect of any of the pipes or plumbing appliances or from electric wiring or other fixtures on the Leased Premises, or from the condition of the Leased Premises or from the street or subsurface unless caused by the gross or willful negligence of the Landlord or its agents."
The court concludes that these lease provisions, and several others relied on by the plaintiff, are unavailing. Specifically, the fact that Sake Café was required to obtain the landlord’s permission to undertake certain activities, such as using the demised premises for some purpose other than as an Asian style restaurant serving Japanese, Chinese and Thai foods (Section 3.1); making changes, alterations or additions (Section 5.4); or assigning or subletting the premised (Section 12.2), does not mean that the landlord was in possession or control of the premises.
Absent evidence that Levy had possession or control of the premises, Levy did not owe the plaintiff a duty of care. Levy has therefore met its burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 49-51, 58 A.3d 293 (2013); see also Fiorelli v. Gorsky, supra, 120 Conn.App. 310.
CONCLUSION
Having carefully considered Levy’s motion for summary judgment and the plaintiff’s opposition thereto, and having entertained oral argument, at which both parties had a full opportunity to present their respective positions, the court concludes that Levy has satisfied its burden of proving that there is no genuine issue of material fact that it was not in possession or control of the premises where the plaintiff was allegedly injured, and that it, therefore, owed the plaintiff no duty of care. Accordingly, Levy’s motion for summary judgment as to count three is granted.