Opinion
No. CV-08-5004973-S
March 5, 2010
MEMORANDUM OF DECISION
This action was brought by the plaintiff Loretta Tringali against the city of Middletown and other defendants alleging that she was injured when she fell on a public sidewalk in front of D'Angelo's Funeral Home in Middletown (the "funeral home") that was in an unsafe and defective condition when she left such funeral home after attending a wake.
On December 21, 2009, the defendants Della Vecchia Sarno Realty Partnership, Louis J. Sarno, David Della Vecchia and Arthur Della Vecchia ("the movants") filed a motion for summary judgment as a matter of law on the ground that no duty was owed by them to the plaintiff under the regulations of the city of Middletown because there was no city ordinance that transferred liability for a defective and unsafe sidewalk to abutting landowners.
In their memorandum of law the movants cite in support of their motion Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829 (1989); Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937); and Ryszkiewicz v. New Britain, 193 Conn. 589, 594 (1984) (see also Moleske v. MacDonald, 109 Conn. 336, 341 (1929)); General Statutes § 7-148; and General Statutes § 13a-99.
On November 30, 2009, defendant the city of Middletown filed its objection and a memorandum in support of such objection to such motion for summary judgment, and on December 3, 2009, the plaintiff filed a memorandum opposing such motion for summary judgment for the reasons set forth by the city of Middletown.
There is no dispute that the plaintiff was a business invitee of the funeral home. A "business invitee" is generally defined in Connecticut law pursuant to 2 Restatement (Second) Torts, § 332:
In the present case, there is no dispute that the plaintiff was invited onto the land by DePalma to assist him in performing electrical work and, therefore, was directly or indirectly connected with the business dealings relevant to the property. The uncontroverted deposition testimony submitted by the parties supports this conclusion. As a matter of law, on the basis of undisputed facts, the plaintiff fell into the category of a business invitee, in that she was invited to enter the land for a purpose directly or indirectly connected with business dealings with the possessor of land. See 2 Restatement (Second), Torts § 332(3) (1965), and comment (e) ("a workman who comes to make alterations or repairs on land used for residence purposes [is also a business invitee]"). As a result, we conclude that the court properly concluded as a matter of law that the plaintiff was a business invitee in the present case.
Gargano v. Azpiri, 110 Conn.App. 502, 507, 955 A.2d 593 (2008). See also See Monk v. Temple George Associates, 273 Conn. 108, 117-18, 869 A.2d 179 (2005) and Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687-88, 849 A.2d 813 (2004).
In Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 138, 147-49, 727 A.2d 219 (1999), the Appellate Court explored the duty of a tenant to a business invitee in the context of such business invitee's use of property leased by but not under the primary control of such tenant:
The following facts are necessary for a proper resolution of this appeal. The plaintiff commenced this negligence action against Waldbaum's after he slipped and fell on a plastic bag in a parking lot leased by Waldbaum's and used by its business invitees. The one count complaint alleged that Waldbaum's, the owner of the supermarket in the shopping center where the plaintiff fell, was negligent in keeping the parking lot in an unsafe and dangerous condition by allowing the accumulation of plastic bags.
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The question to be resolved here — whether a tenant who has actual or constructive knowledge of a dangerous condition in a leased area, which the landlord has contractually agreed to maintain, may be liable to the tenant's business invitees who use the leased area — is a matter of law. The trial court believed the answer to be no, based on the contractual commitment of Heyman to Waldbaum's to keep the premises reasonably free of debris and, accordingly, granted summary judgment in favor of Waldbaum's. The issue is not one of construction of the lease between Heyman and Waldbaum's, which would have been the issue to be resolved if we were deciding whether the defendant Waldbaum's should prevail on its complaint against the third party defendant, Heyman, in the event the plaintiff obtained a judgment against Waldbaum's. Ordinarily, a cause of action for indemnification must await a final judgment against the defendant. See W.S. Rockwell Co. v. Lindquist Hardware Co., 143 Conn. 684, 687, 125 A.2d 173 (1956).
The plaintiff has alleged that the defendant Waldbaum's was negligent. To prevail, he must establish that the defendant owed a duty to him and that that duty was breached. The existence of a duty is a legal conclusion. See Ciarlelli v. Romeo, 46 Conn.App. 277, 282, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997). The defendant Waldbaum's leased premises owned by the third party defendant, Heyman. The lease included the parking lot used by its business invitees. Waldbaum's had a duty to exercise reasonable care to protect its invitees from dangers that might reasonably be anticipated to arise from the condition of the parking lot. Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).
In essence, the defendant argues that it owes no duty of care to the plaintiff because the defendant delegated that duty and control of the leased parking lot to the third party defendant. The plaintiff was present in the parking lot as a business invitee of the defendant, having alleged that immediately preceding his fall, he had bought groceries in the defendant's store. See Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). The possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition. See Newell v. K. D. Jewelry Co., 119 Conn. 332, 334, 176 A.2d 405 (1935). Whether a duty was also owed to the plaintiff by the defendant's landlord, Heyman, is not the issue of this appeal. See DeLorenzo v. Great Atlantic Pacific Tea Co., 4 Conn.App. 560, 495 A.2d 1106 (1985).
Waldbaum's could not absolve itself of its duty to its customers, who shop in its store and use the parking lot to gain entrance and exit from its store, to keep all of the premises it uses for its business purposes in a safe condition by contracting with another. As a matter of law, Waldbaum's owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably safe condition. Whether that duty was breached and whether there is a causal connection between the breach and the plaintiff's alleged injuries are questions of fact that a trial would resolve. Waldbaum's was not entitled to summary judgment.
The defendant city of Middletown cites two decisions of Judge Corradino, Desy v. Montano, Superior Court, Judicial District of Hartford-New Britain, No. CV92 0516197 (Corradino, J., 1995) [ 13 Conn. L. Rptr. 483], and Major v. City of New London, Superior Court, Judicial District of New London, No. 550099 (Corradino, J., 2000) [ 27 Conn. L. Rptr. 217], where business invitees fell on sidewalks close to the entrance of the business. In Major Judge Corradino's lengthy discussion of the competing considerations is instructive but ultimately not determinative of the motion for summary judgment:
. . . Questions of control and maintenance do not constitute the whole universe of negligence law as it applies to premises liability. Premises liability in fact can be viewed as a subcategory of negligence law and is specialized insofar as it take account of the particular concerns raised by imposing liability on landowners.
This court had a case which raises similar issues to that raised here, Desy v. Dominick, 1995 Ct.Sup. 1398 (Hartford Sup. Ct.). There, the plaintiff brought an action for personal injuries sustained by the plaintiff as she exited the defendant's store. In fact, she had just exited from the store, she fell when her "shoe got caught in a crack in the concrete sidewalk immediately in front of the front door of the store." The defendant store filed a motion for summary judgment claiming under the terms of the lease it had with the property owners, the lessor retained control over the sidewalk. The court in denying the motion for summary judgment in effect did not let the issue of actual control of the sidewalk determine the case's outcome and said in part:
Here we have a case where the plaintiff alleges she was a patron of the defendant, a business invitee. She enters the store and immediately outside the door through which one exits from the store she is caused to fall by a defective condition in the sidewalk. It seems to me that a tenant running a business who knows customers enter and exit through a particular door should be held liable for injuries incurred by those customers immediately outside that door by a defect in the sidewalk at that location. The fact that the tenant has a lease wherein the landlord assumed repair responsibilities only for the rented premises and the tenant does not assume any obligations vis a vis the landlord for maintenance of property beyond the actual building rented does not answer the question as to whether the tenant has any duties to third party business invitees injured after stepping out the very door it provides for people to have access to its business. This case is more like Ford v. Restaurant Employee Bartenders Union, 155 Conn. 24, 35 (1967). There patrons at a dance were injured when they exited a door and fell down a stairwell exterior of the building. The defendant lessee argued it was not in control of the stairwell and parking lot exterior to the building. The court said that was irrelevant since the defendant was in control of the door "and in the exercise of reasonable care, it should have known of the existence of the dangerous condition and should have taken appropriate steps to prevent its invitees from using the door." Id., page 35. If the defendant says, if that particular door could not be used we could not operate our business that would be unfortunate but cannot be used as a device to deny liability to people who it puts at risk by inviting them into its store to do business through an entrance and exit leading directly to a defective condition. The defendant could have put up a warning or it could have requested that the landlord repair any defect.
It should not be allowed on the state of the evidence before the court to escape a determination on whether it is liable in common law negligence.
The depositions submitted in this case from the plaintiff and two witnesses offer little on the issue of control but do indicate that the plaintiff fell right after she exited the entrance — Mrs. Major said she was walking out the door and tripped although she could not estimate how many steps she took. Ms. Atkins testified the plaintiff took two quick steps and fell; Montgomery, in his deposition, made a similar observation.
The test on summary judgment is whether the moving party would be entitled to a directed verdict, Batick v. Seymour, 180 Conn. 632, [ 186 Conn. 632], (1982) and the evidence before the court is to be viewed in the light most favorable to the non-moving party Connell v. Connell, 214 Conn. 242 (1990).
Given the fact that there is evidence to believe that the defect causing the fall was very close to the entrance, under the reasoning of Desy the court is not prepared to take the issue of negligence from a jury. An establishment cannot invite patrons to enter and exit its business when it knew or should have known of a defect that could cause injury by use of that entry or exit. And there is reason to assume such knowledge given the statutory and ordinance requirements referred to even though they say nothing on the issue of control as such.
In other words, it can be said, at common law, interested as it is in property ownership, that liability will not be imposed on abutting landowners or landlords in general when a person trips on a defect the landowner did not create or where the defect exists on property adjacent to the landowner's property but over which he or she has no control. It is entirely something else to preclude liability when a store owner or business invite people to enter and exit a particular location, use of which presents a danger. To the court at least this is the only way to reconcile, Ford v. Restaurant Employee and Bartenders Union, 155 Conn. 24 (1967) with the general duty of law in this area.
The motion for summary judgment is denied.
(Footnote omitted.)
In a decision concerning a business invitee who fell on an exterior stairwell on private property, Nedley v. Artistic Mill, LLC, MMX CV CV09 5006430 S, Superior Court, Judicial District of Middlesex at Middletown (Bear, J., March 3, 2010), this court applied the principles Judge Corradino set forth in the Major and Desy decisions and denied the defendant tenant's motion for summary judgment. However, the law of this state concerning the responsibility of abutting landowners for falls on sidewalks not caused by ice or snow is clear — such abutting landowners, even those who depend on business invitees, cannot be held liable for such incidents in the absence of specific legislative authorization. In Dreher v. Joseph, 60 Conn.App. 257, 259, 261-63, 759 A.2d 114 (2000), the Appellate Court explained the limitations of a town's authority to shift such liability from itself to an abutting landowner or tenant:
The following facts are relevant to a resolution of this appeal. On October 19, 1995, the plaintiff slipped and fell on a raised and uneven portion of the public sidewalk adjacent to a building owned by the defendant. Thereafter, the plaintiff brought a three count complaint asserting negligence against Joseph, his tenant, Charlene Schultz, and the borough of Jewett City for injuries allegedly sustained as a result of the fall, claiming that the defendants failed to keep the sidewalk in proper repair.
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In 1981, the legislature enacted General Statutes § 7-163a, which not only permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks, but also empowers the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance. We are not aware, however, of any statutory counterpart that specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners.
"[W]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent." (Internal quotation marks omitted.) State v. Anderson, 220 Conn. 400, 404, 599 A.2d 738 (1991). Nothing in the language of § 21 of the charter shifts the liability for injuries caused by defective sidewalks to abutting landowners. We assume that the drafting of the ordinance and its enactment by the municipality was done within the framework of § 7-163a, which authorizes towns to impose an obligation on abutting owners of adjacent sidewalks for injury caused by the presence of ice and snow. The fact that the municipality in this case did not expressly shift liability to the landowner suggests that the municipality may have concluded that it had no power to do so and that the draftees were aware of this limitation. We cannot assume that the municipality acted in violation of its authority.
The plaintiff claims that the Superior Court, in Dumas v. Schumanski, Superior Court, judicial district of New London at Norwich, Docket No. 105155 (May 23, 1996) ( 16 Conn. L. Rptr. 613), interpreted § 21 of the charter in the context of § 13a-149 to mean that an abutting property owner can be held liable for injuries caused by a defective sidewalk. Id., 614. In Dumas, the court concluded that the language of § 13a-149, which provides that "[a]ny person injured . . . by means of a defective road or bridge may recover damages from the party bound to keep it in repair;" (emphasis added); clearly and unambiguously places liability for injuries caused by a defective road, including a sidewalk, on the party primarily responsible for its maintenance which, under § 21, is the abutting property owner. Id., 614.
Dumas, however, is not binding precedent, and, for the reasons previously stated, it also is not persuasive. Neither § 21 of the charter nor § 13a-149 explicitly makes abutting landowners liable for injuries caused by defective sidewalks; see Willoughby v. New Haven, supra, 123 Conn. 454; and it is the general rule of construction that even where an ordinance imposes on property owners a duty normally performed by the municipality, there is no private right of action unless plainly expressed in the ordinance. Id.
We conclude that the court acted properly and in accordance with applicable law when it granted the defendant's motion for summary judgment. See H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 57 Conn.App. 43.
The judgment is affirmed.
See Rivers v. City of New Britain, 288 Conn. 1, 950 A.2d 1247 (2008), and see Materazzo v. City of Middletown, 2009 Ct.Sup. 17235, No. CV 095006828, Superior Court, Judicial District of Middlesex at Middletown (Jones, J., October 26, 2009):
The present action arises from plaintiff Anita Materazzo's fall on a sidewalk on August 1, 2008 on Main Street in Middletown, Connecticut. On May 4, 2009, the plaintiff filed a complaint against the city of Middletown, Neil Dinemman and LEKA, LLC, respectively. On May 20, 2009, the defendant for this present motion, LEKA, LLC, filed a motion for summary judgment. The motion was granted by the court, Taylor, J., on June 23, 2009. The court's order stated: Maintaining a fenced-in area on the municipal sidewalk is not an affirmative act sufficient to be within the holding of Gambardella v. Kaoud, 38 Conn.App. 355, [ 660 A.2d 877] (1995), in which the defendant was alleged to have negligently concealed a defect in the sidewalk. Therefore, the general rule of Dreher v. Joseph, 60 Conn.App. 257, [ 759 A.2d 114] (2000), is applicable. Further, as the plaintiff has failed to raise a material fact sufficient to meet her burden, the motion for summary judgment is granted. See Larobina v. McDonald, 274 Conn. 394, [ 876 A.2d 522] (2005).
In Howard v. Stonebridge Restaurant, 2009 Ct.Sup. 7457, 7461-62, No. CV08-5005249-S, Superior Court, Judicial District of Ansonia-Milford at Derby (Radcliffe, J., April 21, 2009), the court applied the holding in Dreher:
No provision of the General Statutes authorizes a municipality, by ordinance, to shift its statutory duty to keep a sidewalk in repair to the person in possession or control of land abutting a sidewalk, and to render that person liable for personal injuries sustained as a result of a dangerous and/or defective condition. Dreher v. Joseph, 60 Conn.App. 257, 262 (2000). If any such statute existed, § 7-163a, C.G.S. would have been unnecessary, redundant, and superfluous.
Liability for damages sustained in sidewalk accidents is potentially formidable, given the serious consequences which may flow to an injured person. Statutory authorization for liability must be clear and unambiguous. It cannot be supplied by inference. Willoughby v. New Haven, 123 Conn. 446, 455-56 (1937). No court should by implication or conjecture, supply such authorization, when the General Assembly has declined to specifically supply the authority to a municipal legislative body.
As a general rule, those owning or occupying land abutting a public street or sidewalk are under no obligation to keep the street or sidewalk in front of the property reasonably safe for public travel. Perkins v. Weibel, 132 Conn. 50, 52 (1948).
An abutting landowner, absent express legislative authorization, may only be liable if he places something on the highway, and injury is sustained thereby. An abutting owner or occupier is under a duty to use his land, in a manner that does not injure travelers in their lawful use of the highway, and may be liable for a breach of that duty. Calway v. William Schaal Son, Inc., 113 Conn. 586, 591 (1932) (water coming off a roof and forming on a sidewalk); Hanlon v. Waterbury, 108 Conn. 197, 201 (1928) (gasoline spilling onto a sidewalk). Where an abutting owner has not, by his own act, created a condition on a highway or sidewalk dangerous to travelers, the municipality bears the burden of keeping the highway in reasonably safe condition. Stevens v. Neligon, 116 Conn. 307, 310 (1933).
In Washington v. Blackmore, 119 Conn.App. 218, 220-21 (2010), the Appellate Court set forth requirements for the entry of summary judgment:
We first note the well established standard of review. "Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000).
As a matter of law, the movants owed no duty to the plaintiff with respect to the public sidewalk in front of its premises except to keep it free of ice and snow, which is not claimed by the plaintiff to be an issue in this case. Such defendants' motion for summary judgment is hereby granted.