Robert Maraj et al. v. Paul Morrisette et al. (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 134)

Papan M. Maharaj died on May 19, 2007, as the result of an automobile accident.   The plaintiffs are the executors of his estate.   The named defendants are:  Paul Morrisette, the driver of the parked tractor trailer that Maharaj collided with;  Poultry Products Company, Inc., Morrisette's employer and the lessee of the tractor trailer;  Penske Truck Leasing Corporation, the lessor of the tractor trailer; ¹  and finally, Golden Hawk, LLC, a franchisee operating a McDonald's on Interstate 95 North where the accident occurred.   The operative complaint was filed by the plaintiffs on November 13, 2009.   On February 16, 2010, Golden Hawk, the defendant for the purposes of this memorandum of decision, filed its motion for summary judgment as to count five of the plaintiff's amended complaint.   The plaintiffs filed their opposition on March 19, 2010.   The defendant filed its reply on March 26, 2010.

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).   Furthermore, “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

The defendant argues that, as a tenant occupying property owned by the State of Connecticut and located off of Interstate 95, it has no duty to police the right shoulder of the interstate for illegally parked vehicles.   Further, the defendant argues that it was not the proximate cause of the accident.   For these reasons, the defendant argues that it is entitled to summary judgment as to count five.   The plaintiffs counter that there exists genuine issues of material fact as to whether the defendant owed a duty under the circumstances presented by this case.

“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 ․ 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 ․ 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.”  (Internal quotation marks omitted.)  Fiorelli v. Gorsky, 120 Conn.App. 298 (2010).

The defendant presents the following in support of its motion for summary judgment:  the police report of the accident;  the deposition of Paul Morrissette;  the lease agreement entered into by McDonald's and the State of Connecticut;  and the affidavit of the owner of Golden Hawk. The police report states that Paul Morrissette was asleep in a tractor trailer parked on the right shoulder of Interstate 95, between exits 40 and 41, approximately 400 feet from the entrance to the northbound Milford rest area.   Maharaj was traveling in the center lane when, for unknown reasons, he changed lanes to the right, going across all lanes into the right shoulder, where he struck the tractor trailer from behind.   Morrissette was issued an infraction at the scene for improper parking in violation of General Statutes § 14-251.²  The police report also cites to the Code of Federal Regulations, § 392.22(b), which states that whenever a commercial vehicle is stopped on the shoulder of a highway for a cause other than traffic stops, the driver shall, within ten minutes, place warning devices behind his vehicle in the direction of approaching traffic.

The police report concluded that Maharaj was at fault for the accident, for failure to drive in an established lane in violation of General Statutes § 14-236,³ but also indicated that Morrisette's improper parking and failure to put warning devices behind the tractor trailer were contributing factors to the accident.   Morrisette's deposition confirms that on the date of the accident he parked in the breakdown lane on the right shoulder of Interstate 95 because he could not find a space in the rest area.   Morrissette stated that he had never parked in that position prior to the date of the accident, but that on that particular night, he was too tired to continue his drive and had no choice but to park there.   He also admitted that he did not place warning triangles behind the tractor trailer.

Roger Facey, the owner of Golden Hawk, attested to the following.  “Golden Hawk, LLC, operates the McDonald's franchise located in the service plaza located on Interstate-95 North in Milford, Connecticut.   Golden Hawk, LLC is a tenant at the service plaza.   Golden Hawk, LLC leases space at the service plaza from McDonald's Corporation.   McDonald's leases the space at the service plaza from the State of Connecticut.   The responsibilities of Golden Hawk, LLC, relative to the exterior of the property are snow and ice control, mowing the grass, and repairing the pavement such as potholes and cracks.   Golden Hawk, LLC does not and has never had the responsibility or authority to determine the amount of parking spots at the service plaza for tractor trailers.   Golden Hawk, LLC does not and has never had the responsibility or authority to monitor and police the shoulder/breakdown lane of Interstate 95 for vehicles which may be illegally parked.   Golden Hawk, LLC does not and has never had the responsibility or authority to place any signs, including warning signs, on Interstate 95.”

Finally, the court considers the agreement that McDonald's entered into with the State of Connecticut titled:  “The State of Connecticut Department of Transportation Specifications for the Food and Beverage Facilities Concessions Agreement to Operate Ten Service Plazas on the Connecticut Turnpike and The DOT Cafeteria in Newington.”   The agreement sets forth the responsibilities of McDonald's, which includes certain aspects of maintenance such as snow and ice control, litter control and pothole and pavement repair.   Section 35 is titled “Zone or Area of Responsibility” and states:  “The State has delineated zones of responsibility as they pertain to the respective Restaurant and Gasoline Station portions of each Service area.   Exhibits J1 through J6 delineate respective Lessee zones of responsibility ․”. This section goes on to describe the interplay between the food lessee and fuel lessee of each service area.   As part of the lease, exhibit J4 is an aerial view of the northbound Milford rest area.   It clearly shows that the food lessee is not responsible for the right shoulder of Interstate 95.

The plaintiff presents the following in opposition to summary judgment:  three motions to serve preliminary non-standard interrogatories and requests for production directed to the defendant Golden Hawk, LLC, each which are accompanied by the plaintiffs' request for preliminary interrogatories and production;  and a request for leave to file an amended complaint.⁴  The court is satisfied that the defendant has met its burden of showing that there is no genuine issue of material fact that it owes no duty to the plaintiffs under the terms of its lease with the State of Connecticut and therefore, is entitled to judgment as a matter of law.   The police report confirms that the accident occurred on the right shoulder of Interstate 95, between exits 40 and 41, approximately 400 feet from the entrance ramp to the rest area.   The affidavit of Roger Facey and the lease agreement between McDonald's and the State of Connecticut indicate that the defendant has neither the responsibility nor the authority to monitor and police the right shoulder of Interstate 95 for illegally parked vehicles.   The plaintiffs presented no evidence contrary to Facey's affidavit or the lease terms.   Given that the court finds that the defendant owed no duty to the plaintiffs as a matter of law, it need not address the parties' remaining arguments as to whether the “mode of operation” rule applies ⁵ or whether the defendant was the proximate cause of the accident.

Conclusion

For all of the foregoing reasons, the defendant's motion for summary judgment as to count five of the plaintiffs' amended complaint is hereby granted.

Maureen M. Keegan, J.

FOOTNOTES

FN1. Summary judgment was granted as to the claims of the plaintiffs against Penske by the court, Wilson, J., on February 26, 2010..  FN1. Summary judgment was granted as to the claims of the plaintiffs against Penske by the court, Wilson, J., on February 26, 2010.

FN2. Section 14-251, in pertinent part, states:  “No vehicle shall be permitted to remain stationary ․ upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed;  and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb ․ No vehicle shall be permitted to remain stationary upon the traveled portion of any highway at any curve or turn or at the top of any grade where a clear view of such vehicle may not be had from a distance of at least one hundred and fifty feet in either direction ․ No vehicle shall be permitted to remain stationary upon the traveled portion of any highway within fifty feet of the point where another vehicle, which had previously stopped, continues to remain stationary on the opposite side of the traveled portion of the same highway.   No vehicle shall be permitted to remain stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon, provided a vehicle which has become disabled to such an extent that it is impossible or impracticable to remove it may be permitted to so remain for a reasonable time for the purpose of making repairs thereto or of obtaining sufficient assistance to remove it ․ Violation of any provision of this section shall be an infraction.”.  FN2. Section 14-251, in pertinent part, states:  “No vehicle shall be permitted to remain stationary ․ upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed;  and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb ․ No vehicle shall be permitted to remain stationary upon the traveled portion of any highway at any curve or turn or at the top of any grade where a clear view of such vehicle may not be had from a distance of at least one hundred and fifty feet in either direction ․ No vehicle shall be permitted to remain stationary upon the traveled portion of any highway within fifty feet of the point where another vehicle, which had previously stopped, continues to remain stationary on the opposite side of the traveled portion of the same highway.   No vehicle shall be permitted to remain stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon, provided a vehicle which has become disabled to such an extent that it is impossible or impracticable to remove it may be permitted to so remain for a reasonable time for the purpose of making repairs thereto or of obtaining sufficient assistance to remove it ․ Violation of any provision of this section shall be an infraction.”

FN3. Section 14-236 states:  “When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety and (2) the State Traffic Commission may erect, on state highways, and local traffic authorities, in accordance with standards approved by the State Traffic Commission, may erect on highways under their jurisdiction, signs directing slow-moving traffic to use a designated lane or, with signs, signals or markings, may designate those lanes to be used by traffic moving in a particular direction regardless of the center of the highway, and drivers of vehicles shall obey the directions of each such sign, signal or marking.   Violation of subdivision (1) of this section shall be an infraction.”.  FN3. Section 14-236 states:  “When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety and (2) the State Traffic Commission may erect, on state highways, and local traffic authorities, in accordance with standards approved by the State Traffic Commission, may erect on highways under their jurisdiction, signs directing slow-moving traffic to use a designated lane or, with signs, signals or markings, may designate those lanes to be used by traffic moving in a particular direction regardless of the center of the highway, and drivers of vehicles shall obey the directions of each such sign, signal or marking.   Violation of subdivision (1) of this section shall be an infraction.”

FN4. It is well established that “[o]nce the moving party has met its burden [of establishing that there is no genuine issue of material fact] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006)..  FN4. It is well established that “[o]nce the moving party has met its burden [of establishing that there is no genuine issue of material fact] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).

FN5. The court notes that application of the “mode of operation” rule is predicated on whether the defendant owns or maintains control over the premises upon which the alleged dangerous condition exists.   Here, the defendant has presented ample and undisputed evidence that it did not own and had no control over the right shoulder of Interstate 95.   See Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007) (adopting the rule, which states that a business invitee injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition, if the business' chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it)..  FN5. The court notes that application of the “mode of operation” rule is predicated on whether the defendant owns or maintains control over the premises upon which the alleged dangerous condition exists.   Here, the defendant has presented ample and undisputed evidence that it did not own and had no control over the right shoulder of Interstate 95.   See Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007) (adopting the rule, which states that a business invitee injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition, if the business' chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it).

Keegan, Maureen M., J.