Mary Anne Norkin v. Abercrombie and Fitch Stores, Inc. et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 123)

FACTS

The plaintiff, Mary Anne Norkin, filed this four-count complaint on May 7, 2008 against the defendants, Abercrombie & Fitch Incorporated (Abercrombie) and Macerich Danbury Adjacent LLC (Macerich).   The first, third and fourth counts allege negligence, negligent infliction of emotional distress and intentional infliction of emotional distress, respectively, against both defendants;  the second count alleges an invasion of privacy against only Abercrombie.

After a request to revise was filed by the defendants, the plaintiff revised the complaint on August 11, 2008, removing the fourth count.¹  The plaintiff alleges the following facts in the operative revised complaint.   On October 21, 2007, the plaintiff was shopping at the Abercrombie in the Danbury Fair Mall (the store), which is owned and operated by Macerich.   The plaintiff was disrobing in the store's dressing room when “she noticed a hand emerge under the dressing room door holding a cellular phone that contained a camera.  [She] observed the camera flash, taking a picture of her while she was wearing only her underwear.   The plaintiff immediately got dressed and told Abercrombie employees about the incident that had taken place ․ Abercrombie eventually conducted an investigation of this incident, but did not take reasonable or appropriate steps to secure and preserve evidence in a timely manner.”

The plaintiff further alleges that “Macerich had a duty to protect its patrons from this obscene and illicit activity and took no action to protect its patrons or warn them that such behavior had been taking place in their establishment ․ [Macerich was] negligent in that [it] failed to undertake reasonable and appropriate measures to protect persons using dressing rooms in the store from invasions of their privacy.   In the exercise of due care the defendants would have known that such conduct would cause the plaintiff and any person of ordinary sensibilities to suffer emotional distress so severe that it could result in physical illness.”   The plaintiff seeks monetary damages, punitive damages, and attorneys fees and costs.

Macerich filed the present motion for summary judgment on August 5, 2009, on the grounds that there are no genuine issues of material fact as to Abercrombie's “control and possession” of the premises where the plaintiff was injured and, therefore, it is entitled to judgment as a matter of law.   The plaintiff filed a memorandum of law in opposition to the motion on September 2, 2009, asserting that Macerich failed to promptly and thoroughly investigate her claim.   Subsequently, Macerich filed a reply memorandum of law on October 19, 2009.   The matter was argued before the court at short calendar on November 30, 2009.

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 removed.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

In the memorandum of law in support of its motion for summary judgment, the defendant argues that Macerich, as owner of the mall, had no control or possession of the store where the plaintiff's alleged injury occurred, and therefore owed no duty to the plaintiff at the time of the injury.   The defendant further argues that, pursuant to the lease agreement, Abercrombie, as the tenant, was in sole possession of the store.   In support of its motion, Macerich submitted a copy of the lease agreement between it and Abercrombie, a copy of an excerpt from the plaintiff's deposition and an affidavit of its vice president and risk manager.   The plaintiff counters in her memorandum of law in opposition to the motion that Macerich, “failed to promptly and thoroughly investigate an incident of stalking and voyeurism which was reported by the plaintiff to their security office on October 23, 2007.”   In addition, the plaintiff argues that she “had a reasonable expectation that when she reported a crime, the mall security personnel would investigate in order to protect other customers from repeated incidents.”   In its reply memorandum, Macerich contends that the plaintiff has not submitted any evidence that would demonstrate the existence of a genuine issue of material fact as to the issue of its control over the store.

“The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).  “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 citation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 848-49, 939 A.2d 1249 (2008);  See also LaFlamme v. Dallessio, 261 Conn. 247, 802 A.2d 63 (2002) (landlords owe a duty of care over the parts of property to which they have retained control).  “In construing a written lease ․ three elementary principles must be [considered]:  (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 ․ Furthermore, when the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms.”  (Citation omitted;  internal quotation marks omitted.)   Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 8, 931 A.2d 837 (2007).  “Unless it is definitely expressed in the lease ․ whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant ․ 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 added.)  Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).

In the present case, Macerich has provided a copy of the lease agreement with Abercrombie, which covers the time period surrounding the plaintiff's alleged injury.   Article II Section V of the lease states:  “[T]enant reserves the right to operate its business, whether on the demised premises or elsewhere, as it sees fit, and Landlord shall have no express or implied right to interfere in the operation of Tenant's business.”   Additionally, Article IX Section 1 of the lease states, “[S]ubject to the provisions of the sentence next preceding, the demised premises shall be deemed to be an ‘Abercrombie & Fitch Concept Store’ so long as Tenant shall have control over all of the operation is within the demised premises.”   The lease also includes a covenant of quiet enjoyment that enables Abercrombie, the tenant, to “lawfully, peaceably, and quietly have, hold, occupy, and enjoy the demised premises during the term hereof without hindrance or ejection by Landlord.”   Accordingly, because the language of the lease unequivocally grants control of the store to the tenant, Abercrombie, Macerich has met the initial burden of showing that there are no genuine issues of material fact.

In opposition, the plaintiff failed to demonstrate the existence of any disputed facts to refute Macerich's contention that it lacked possession and control over the store at the time the plaintiff was allegedly injured.   As discussed above, the lease submitted in support of Macerich's motion for summary judgment is clear and unambiguous in giving control of the store to Abercrombie, and there have been no additional facts presented to dispute Abercrombie's control.   Without control over the store, Macerich had no duty to ensure the plaintiff's privacy from third parties or their electronic devices in the dressing rooms.

CONCLUSION

For the reasons stated, the court grants Macerich's motion for summary judgment.

Marano, J.

FOOTNOTES

FN1. The court granted Abercrombie's motion for nonsuit on December 8, 2008, leaving Macerich as the sole defendant..  FN1. The court granted Abercrombie's motion for nonsuit on December 8, 2008, leaving Macerich as the sole defendant.

Marano, Richard M., J.