Mattie Hooks v. Thermospas, Inc. et al. (2010)

ISSUE AND SUBMISSION

The issue is whether the court should grant the defendant's motion for summary judgment as to count two of the plaintiff's April 29, 2009 complaint and the intervening plaintiff's complaint on the ground that there is no genuine issue of material fact that the defendant did not control or possess the stairway at the time of the incident.   It is submitted that the defendant has not met its burden of showing that there is no genuine issue of material fact as to the control and possession of the stairway at the time of the incident.   It is submitted, therefore, that the motion for summary judgment should be denied.

FACTS

On May 20, 2009, the plaintiff, Mattie Hooks, filed a three-count complaint against the defendants, William Scotsman, Inc., ICR Associates, Inc. and Thermospas, Inc. The plaintiff alleges the following facts.   Thermospas, Inc. is located at 155 East Street, Wallingford, Connecticut and conducts its business out of trailers with attached stairways that are leased from Scotsman, Inc. The plaintiff was employed by Thermospas, Inc. as a telemarketer and worked in the trailers.

On June 14, 2007, at approximately 10:00pm, while at work, the plaintiff was caused to fall due to the unsteady condition of a metal staircase that was attached to a trailer.   She was injured as a result of the fall.   In the complaint, the plaintiff claims that the injuries she received were caused in part by the carelessness and negligence of the Scotsman, Inc., ICR Associates, Inc. and Thermospas, Inc.

After the plaintiff withdrew her complaint against Thermospas, Inc. on June 26, 2009, Thermospas, Inc. filed a one-count intervening complaint against Scotsman, Inc. on July 8, 2009 and a motion to intervene on August 4, 2009 that was granted.¹  The intervening plaintiff alleges in the intervening complaint that it may be obligated to pay sums due to the plaintiff's injuries in accordance with the Workers' Compensation Act and that it is entitled to reimbursement under General Statutes § 31-293 from the defendant.²

On May 3, 2010, the defendant filed a motion for summary judgment on count two of the plaintiff's complaint and count two of the intervening plaintiff's complaint on the ground that there is no genuine issue of material fact that the defendant was not in possession or control of the stairway at the time of the incident.³  In support of its motion, the defendant filed a memorandum of law and submitted a copy of the lease agreement between the defendant and the intervening plaintiff as well as an affidavit of Marvin Gilbert, an employee of the defendant.

The intervening plaintiff objected to the motion for summary judgment on July 19, 2010 and included in support of its objection, a memorandum of law and a certified copy of the transcript from the plaintiff's March 3, 2010 deposition.   The plaintiff also objected to the defendant's motion for summary judgment on September 29, 2010.   The defendant filed a single reply to the plaintiff and intervening plaintiff's objections on October 8, 2010.   The plaintiff filed a reply to the defendant's reply on October 12, 2010.   The matter was heard at short calendar on October 12, 2010.

DISCUSSION

“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.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17-45.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).  “To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”   (Internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 599, 2 A.3d 963 (2010).

The defendant argues that, pursuant to the lease agreement between the intervening plaintiff and the defendant, the intervening plaintiff became the party with exclusive control and possession of the trailer and stairway at the time of delivery and, thus, was the party in control and possession at the time of the incident.   The intervening plaintiff argues that there is a genuine issue of material fact as to two points:  (1) “whether the defects complained of by the [p]laintiff, the adequacy of the lighting, the loose railing, and the design of the staircase, including the ‘cheese grater’ steps and incorporation of only one hand rail were defects that could have been discovered upon a reasonable inspection” by the intervening plaintiff and (2) “whether the defect complained of here constituted a structural or mechanical defect over which [the defendant] retained control.”   The plaintiff argues that it is not clear from the language of the lease agreement that the intervening plaintiff retained exclusive control and possession of the trailer and stairway, thus creating a genuine issue of material fact.   She also argues, in the alternative, that even if the defendant was not in control or possession of the stairway at the time of the incident, there is still a question of fact as to whether the defendant should have known that there was a latent defect in the trailer.   The defendant responds that the language of the lease places control with the intervening plaintiff.   In rebuttal, the plaintiff contends that the language of the leases places some control with the defendant.

“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.’   “ (Citation omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002).  “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.”  (Citation omitted.)   Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).

The Connecticut Supreme Court has held that “if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law.”  Fiorelli v. Gorsky, 120 Conn.App. 298, 309, 991 A.2d 1105 (2010).   In Fiorelli v. Gorsky, supra, 120 Conn.App. 309, and Mazzella v. Reed, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 02 0190929 (August 14, 2003, Rogers, J.), a provision in the lease stated that the lessee assumed “full and sole responsibility for the condition, operation, repair, replacement, maintenance and management” of the leased premises.   In those cases, the court held that the leases explicitly placed control of the premises with the lessees.  Fiorelli v. Gorsky, supra, 309-10;  Mazzella v. Reed, supra, Superior Court, Docket No. CV 02 0190929.

Additionally, where the right of the lessor to enter the leased premises and make repairs is limited, the lessor does not retain control and possession of leased property.  Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 664-65, 368 A.2d 6 (1976);  Farrell v. McDonald's Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0491505 (February 14, 2000, Graham, J.) (26 Conn. L. Rptr. 586).   In Monarch Accounting Supplies, Inc. v. Prezioso, supra, 170 Conn. 664, provisions in the lease agreement gave the lessor the right to enter the premises at reasonable hours to examine or make any repairs or alterations that were necessary for the safety and preservation of the premises and provided that the leased premises should be available for the inspections and necessary repairs.   In Farrell v. McDonald's Corp., supra, Superior Court, Docket No. CV 98 0491505, the lessor could only enter during reasonable business hours to inspect the premises and had the right to make repairs only in the event of fire or other casualty.   In both cases, the court found that the lessor did not reserve control and possession of the premises due to the limited right of the lessors to enter the premises.  Monarch Accounting Supplies, Inc. v. Prezioso, supra, 665;  Farrell v. McDonald's Corp., supra, Superior Court, Docket No. CV 98 0491505.

In contrast, if the issue of control is not expressly defined, “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.”  Panaroni v. Johnson, supra, 158 Conn. 98.   Under those circumstances, when “construing a written lease, which constitutes a written contract, ‘three elementary principles must be kept constantly in mind:  (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.’  “ Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998).   In Meyhoefer v. Tatoian, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176971 (July 1, 2004, Matasavage, J.) (37 Conn. L. Rptr. 319), the court noted that the lease agreement placed on the lessee the burden of keeping and maintaining the premises in good repair, but also granted the lessor the right to enter the leased premises at any time to perform alterations, improvements, repairs or inspections.   In Windecker v. The Roscoe Family, L.P., Superior Court, judicial district of New Britain, Docket No. CV 00 05040235 (June 14, 2002, Quinn, J.) (32 Conn. L. Rptr. 354), the court found that, when reading the lease as a whole, it created a shared right to repair that gave rise to a question about exclusive control and possession.   One provision required the lessee to repair broken glass and windows as well as maintain the premises in good order.  Id. Another provision gave the lessor the right to enter at all reasonable times to inspect and repair and demand that the lessee make repairs required pursuant to the lease agreement.  Id. If the lessee refused, the lessor reserved the right to make the repairs and charge the costs to the lessee.  Id. In both cases, there was neither a disclaimer that the right to enter did not impose responsibility on the lessor nor language of express control in the lease.   The court in those cases found that it could not conclude, as a matter of law, that one party had exclusive control and possession.  Meyhoefer v. Tatoian, supra, Superior Court, Docket No. CV 03 0176971;  Windecker v. The Roscoe Family, L.P., supra, Superior Court, Docket No. CV 00 05040235.

The facts in the present case more closely align with those in Windecker and Meyhoefer.   Unlike in Fiorelli and Mazzella, the lease agreement between the intervening plaintiff and the defendant has no provisions that provide the intervening plaintiff express authority to control the equipment.   Nor, as in Farrell and Monarch, is the right to enter and repair significantly limited.   Instead, examining paragraphs three and four of the lease agreement, the intervening plaintiffs are limited in their use of the trailer while the defendant is granted unlimited access to the trailer and stairway under paragraph three of the lease agreement.⁴

Moreover, reading the provisions of the lease together, it creates a shared right of repair.⁵  The intervening plaintiff has the responsibility of maintaining the equipment, but its control over the manner in which the trailer is maintained is restricted.   Furthermore, though the defendant places upon itself the obligation of making repairs of structural or mechanical defects if notified by the intervening plaintiff within two business days, it reserves the right to make such repairs even if not given timely notice and to charge the intervening plaintiff for costs associated with those repairs.   Taking all of the provisions together, it is submitted that the lease does not expressly grant exclusive control and possession to the intervening plaintiff and the provisions of the lease agreement create a question of fact regarding control and possession.   Thus, it is submitted that the defendant has failed to meet its burden that there is no genuine issue of material fact as to the issue of control and possession of the trailer and stairway at the time of the incident.

CONCLUSION

For the foregoing reasons, it is submitted that the defendant has not satisfied its burden of showing the absence of a genuine issue of material fact as to the issue of control and possession.   It is therefore submitted that the court should deny the defendant's motion for summary judgment.

Woods, J.

FOOTNOTES

FN1. From hereon, Thermospas, Inc. will be referred to as “the intervening plaintiff.”.  FN1. From hereon, Thermospas, Inc. will be referred to as “the intervening plaintiff.”

FN2. From hereon, Scotsman, Inc. will be referred to as “the defendant.”.  FN2. From hereon, Scotsman, Inc. will be referred to as “the defendant.”

FN3. The intervening complaint does not include multiple counts.   It is submitted that the court should consider the defendant's motion to apply to the entire intervening complaint..  FN3. The intervening complaint does not include multiple counts.   It is submitted that the court should consider the defendant's motion to apply to the entire intervening complaint.

FN4. Paragraph three states:  “Lessee shall not alter the manner of installation or location of the Equipment without written consent of Lessor.   Lessor shall have the right to inspect the Equipment during the term of this Agreement.”   Paragraph four states:  “Lessee has the right to peaceably and quietly hold, use and enjoy the Equipment, subject to the terms and conditions of this Agreement.”.  FN4. Paragraph three states:  “Lessee shall not alter the manner of installation or location of the Equipment without written consent of Lessor.   Lessor shall have the right to inspect the Equipment during the term of this Agreement.”   Paragraph four states:  “Lessee has the right to peaceably and quietly hold, use and enjoy the Equipment, subject to the terms and conditions of this Agreement.”

FN5. Paragraph four states:  “Lessee shall maintain and keep the Equipment in good repair and safe operating condition during the term of the Agreement in accordance with the William Scotsman Service Guide ․ Lessee shall not, without Lessor's prior written consent, make any changes, alterations or improvements in or to the Equipment or remove any parts, accessories or attachments from it.”   Paragraph fourteen states:  “Lessor warrants throughout the term of this Agreement that it will repair structural or mechanical defects in the Equipment ․ provided that the Lessee notifies Lessor in writing of any defects, malfunctions or leaks within two (2) business days of the occurrence thereof.   Lessor shall have no liability for the repair of any defect or condition resulting from Lessee's relocation of the Equipment ․ alteration of the Equipment ․ or for which timely notice is not provided to Lessor.   The repair of Equipment by Lessor, due to a defect or condition resulting from any of the preceding causes shall result in additional charges to Lessee.”.  FN5. Paragraph four states:  “Lessee shall maintain and keep the Equipment in good repair and safe operating condition during the term of the Agreement in accordance with the William Scotsman Service Guide ․ Lessee shall not, without Lessor's prior written consent, make any changes, alterations or improvements in or to the Equipment or remove any parts, accessories or attachments from it.”   Paragraph fourteen states:  “Lessor warrants throughout the term of this Agreement that it will repair structural or mechanical defects in the Equipment ․ provided that the Lessee notifies Lessor in writing of any defects, malfunctions or leaks within two (2) business days of the occurrence thereof.   Lessor shall have no liability for the repair of any defect or condition resulting from Lessee's relocation of the Equipment ․ alteration of the Equipment ․ or for which timely notice is not provided to Lessor.   The repair of Equipment by Lessor, due to a defect or condition resulting from any of the preceding causes shall result in additional charges to Lessee.”

Woods, Glenn A., J.