Michael Maddox v. Peter Piskura et al. (2010)

RULING ON MOTION FOR SUMMARY JUDGMENT (# 122.00)

On October 2, 2009, the plaintiff, Michael Maddox, on behalf of his minor daughter Keira Maddox, commenced this action against the defendants, Peter Piskura and Marie Piskura.   In his one-count complaint, dated January 7, 2010 and sounding in negligence, the plaintiff alleges the following facts.   The defendants own the property at 7 Curry Drive in Newtown, where the plaintiff's resided as tenants.   On or about May 26, 2009, Keira Maddox, who was two years old, leaned against a railing on the second floor.   A baluster on the railing gave way, causing Keira to fall through the railing.   Keira struck her head on the sidewall and the second step up from the foot of the stairs, suffering multiple injuries, including a right orbital skull fracture.   Prior to the Maddox family moving into the premises, and unbeknownst to them, the defendants or their agents, servants or employees rebuilt the railing due to a house fire.   When the railing was rebuilt, it was built in a defective condition.   Keira's injuries were a direct and proximate result of the defendants' negligence in that they knew, should have known or had constructive knowledge that the railing was in a defective condition at the time they leased the premises to the Maddox family.   The railing was defective in a number of ways, including several violations of the international residential code in that the balusters were not properly fastened to the top and bottom railings in accordance with usual and customary construction industry standards and practices.

On July 30, 2010, the defendants filed the present motion for summary judgment on the following grounds:  the defendants had neither actual nor constructive notice of the defective railing;  pursuant to the lease, the plaintiff inspected the premises and declared the property suitable for tenability;  under Connecticut law, the plaintiff took the premises as he found it.

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citation omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).  “In deciding a motion for summary judgment, the trial court must review the evidence in light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).

The defendants contend that when they lived in the premises prior to leasing the premises to the plaintiff, they did not discover the defect in the railing.   Moreover, they assert that during inspections by the town of Newtown building department after the fire, no issue was raised regarding the railing that would have put the defendants on notice of a defective condition.   Finally, the plaintiff inspected the property four times prior to occupying it and lived there six months before the incident.   During that time, the plaintiff did not put the defendant on notice of a defective railing.   The plaintiff contends that it has alleged that the defendants created the specific defect at issue and thus had actual notice of the defect.   Moreover, the nature of the defect is not one that an ordinary tenant would discover upon a reasonable inspection.  “[A]t common law, there is no implied warranty of habitability given to a tenant, but rather, he takes the premises as he finds them and bears the risk of any defective conditions which are within the area under his exclusive possession and control ․ This rule, however, does not apply to defects which are the result of faulty design or disrepair and which existed at the beginning of the tenancy, were not discoverable by the tenant on reasonable inspection, and were known, either actually or constructively, to the landlord.”  (Internal quotation marks omitted.)  Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995).

The court finds that genuine issues as to material facts concerning notice, either actual or constructive, exist.   Defendant's motion for summary judgment is therefore ordered DENIED.

Michael G. Maronich, Judge

Maronich, Michael G., J.