Matthew Czaplinski, Executor Estate of Bogdan Czaplinski v. LLC (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT

The plaintiff has filed a negligence action and a wrongful death action pursuant to General Statutes § 52-550 by way of a complaint dated November 12, 2009.   The First and Second Counts allege negligence and wrongful death as against the defendant Stratford Boardwalk Marina, LLC. (“Stratford”).  The Third and Fourth Counts allege negligence and wrongful death as to the defendants UB Dockside, LLC (“UB Dockside”) and Urstadt Biddle Properties, Inc. (“Urstadt Biddle”).

The complaint alleges that the decedent, Bogdan Czaplinski, was injured on or about June 28, 2008, when he was struck on the head by a large piece of fence that broke off a gate through which the decedent was passing.   The plaintiff attributes the decedent's injury to a dangerous and defective condition existing in the gate and fence structure due to the negligence of the defendants.   The plaintiff has named Stratford Boardwalk Marina, LLC as a defendant who maintained, operated and controlled the marina in question.   The plaintiff has further named UB Dockside, LLC, a limited liability company, which is owned by Urstadt Biddle Properties, Inc., a real estate investment trust.   The plaintiff claims these two defendants, as well as, Stratford, maintained, operated and/or controlled the marina, including the gate in question, by way of their lease agreement with the Stratford Boardwalk Marina, LLC.

The defendants UB Dockside and Urstadt Biddle have filed a motion for summary judgment arguing that neither defendant was in possession or control of the gate that caused the decedent's injuries.   In support of their position they have submitted a sworn affidavit of Thomas Myers, Vice President, Counsel and Secretary of Urstadt Biddle affirming that pursuant to a lease agreement with Stratford Boardwalk Marina, neither UB Dockside or Urstadt Biddle were in control of the gate on the date of the plaintiff's injuries, nor were these entities responsible for the maintenance and/or repair of the gate.   These defendants have submitted a copy of the lease agreement for the court to review.

In opposition to the motion for summary judgment, the plaintiff has also submitted a copy of the subject lease and argues that the defendants had a responsibility pursuant to the lease terms to make repairs and to undertake maintenance of the leased premises if the tenant failed to make repairs or if after commencing repairs the tenant failed to complete them with reasonable diligence.   The tenant, in question, is the defendant Stratford Boardwalk Marina, LLC.

I

Standard of Law:  Summary Judgment

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.  “A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”   Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998).

In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   The moving party has the burden of demonstrating the absence of any genuine issue of material fact.  Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381.  “The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Id. “A material fact is a fact which will make a difference in the result of a case.”  Suarez v. Dickinont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994);  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”  (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).

“[I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Precision Mechanical Services, Inc. v. T.J.P Fund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).   The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial.  Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).   A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed.  Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).

The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law “when the mind of a fair and reasonable person could reach only one conclusion.”  Id. Accordingly, “issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner.”  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact.”  Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979).   Nonetheless, “[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.”  Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).

II

Discussion

“Under the common law, a possessor of land owes an invitee two separate duties:  the duty to inspect and maintain the premises to render them reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be expected to discover.”  Gargano v. Azpiri, 110 Conn.App. 502, 510, 955 A.2d 593 (2008).   The defendants, therefore owed a duty of care to the decedent to make sure that the premises are reasonably safe;  a duty to warn or guard the decedent “visitor” from being injured;  and the duty that activities on the premises will be conducted in a way so as not to injure the “visitor.”   The “standard of care or duty, imposed by law on those in control of the premises, owed to an invitee such as the decedent, includes keeping and maintaining the premises in a reasonably safe condition, reasonably inspecting the premises, and warning the invitee of dangers that the invitee could not reasonably be expected to discover.”  DiPietro v. Farmington Sports Arena, 123 Conn.App. 583, 601-02, 2 A.3d 963 (2010).

“[L]iability in a premises liability case is based solely on control and possession, not title.”  Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n.10, 889 A.2d 798 (2006).  “[A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords 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.”  Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995).  “The generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the property over which he reserves control.”   See Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968).  “Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances.”  Id. at 434.  “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 ․” (Citations omitted.)  Panaroni v. Johnson, 158 Conn. 92, 98, 56 A.2d 246 (1969).

“Whether control of the premises has been retained by the lessor is determined by examining the terms of the lease.”  Martel v. Malone, 138 Conn. 385, 388, 85 A.2d 246 (1951).  “A lease is contract ․ and its construction presents a question of law for the court.”  (Citations omitted.)  Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976).  “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.”  (Citations omitted.)  (Emphasis added;  internal quotation marks omitted.)  Fiorelli v. Gorsky, 120 Conn.App. 298, 305, 308-09, 991 A.2d 1105 (2010).

These two defendants and the plaintiff each rely upon the written lease to support their respective arguments that the defendants, as landlords, did not retain possession and control of the premises leased to Stratford Boardwalk Marina, or, in the alternative, the defendants did retain possession and control of the leased premises.   Specifically, the parties direct the court's attention to Article XV of the written lease agreement dated December 2, 2005, to be effective on January 1, 2006.¹  Article XV is titled “Maintenance and Repairs.”

Section 15.01 of Article XV relates to repairs and maintenance by the landlord.   It reads in relevant parts, as follows:

Landlord shall keep the structural portions of the Premises ․ parking lot and other Common Areas in good condition and repair, subject to Article X hereof, provided however, if the need for such repair is attributable to or results from the act, or failure to act or negligence of the tenant ․ or is the Tenant's responsibility, then in such case Tenant does hereby agree to and shall reimburse Landlord for all reasonable costs and expenses incurred by Landlord with respect to such repairs within ten (10) days after Landlord's written demand ․ Landlord shall not be obligated to make any repairs, replacements or improvements to, or upon the Premises or the utility lines and mechanical equipment exclusively serving the Premises.   Landlord shall not be liable to the Tenant for failure to make repairs as herein specifically required of the Landlord unless Tenant has previously notified Landlord in writing of the need for such repairs and Landlord has failed to commence such repairs within a reasonable period of time following receipt of Tenant's written notification or has not diligently pursued said repairs to completion.2

Section 15.02 of Article XV relates to repairs and maintenance by the Tenant.   It reads in relevant parts, as follows:

It shall be the Tenant's sole responsibility to keep and maintain the interior of its premises in good condition and repair.   All maintenance, repairs and replacements relating to the Premises or any installation, equipment or facilities therein or thereabout, other than those repairs required to be made by the Landlord pursuant to Section 15.01, shall be made by the Tenant at its sole cost and expense and shall include but not be limited to all necessary maintenance, repair and replacement of the electrical, sprinkler, plumbing and sewer systems which exclusively service the Premises and any other mechanical or operational installations exclusively serving the Premises.   All repairs made by the Tenant shall be done in a good and workmanlike manner.   If the Tenant shall fail to make such repairs or if after commencing they shall fail to complete them with reasonable diligence, such repairs may be made or completed by Landlord in a good and workmanlike manner at Tenant's expense ․ (Emphasis added.)

“In 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 clear 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.”  (Internal quotation marks omitted.)  Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998);  Fiorelli v. Gorsky, supra, 120 Conn.App. 309.  “Unless it is definitively 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 interpretation in the light of all the significant and attendant which on facts which bear on the issue ․” Panaroni v. Johnson, supra, 158 Conn.98.

The plaintiff in opposing these defendants' motion for summary judgment claims that a genuine issue of material fact exists as to whether these defendants retained possession and control of the premises on which the accident occurred.   Specifically, the plaintiff contends that certain provisions of the lease between the defendants and Gardella evidence the defendants' retention of control over the leased premises.   The lease, when read as a whole, creates sufficient issues of fact as to possession and control of the subject premises and the location where the decedent's injuries occurred.

Paragraph five of the complaint alleges that the decedent, on the date in question, was a business invitee at the marina facility operated by Stratford Boardwalk Marina, LLC, when he was struck on the head by a large piece of fence that “broke off the gate through which the Decedent was proceeding.”   From the materials submitted, the court is unable to discern the location of the site where the injuries occurred.   Article XV, Section 15.02 of the lease states that Tenant has the sole responsibility to keep and maintain the “interior ” of its premises in good condition and repair.   This is then followed by lease language regarding maintenance and repairs relating to the Premises and “any installation, equipment or facilities therein or thereabout.”  Does this language relate to the interior of the leased Premises or exterior equipment, facilities and installations?

The court also assumes that the fencing and the subject gate is an exterior location.   Additionally, the exterior location where the injury occurred may be adjacent to, adjoined to, or part of, the Common Area and parking lots, which pursuant to Article XV, Section 15.01 and Article X of the lease, may be the responsibility of the Landlords, as it relates to maintenance and repairs.   This especially true, when a gate implies access to the leased Premises and conditions regarding access are discussed in Article X regarding Common Areas.

“In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction ․ We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract ․ Where the language is unambiguous, we must give the contract effect according to its terms ․ Where the language is ambiguous, however, we must construe those ambiguities against the drafter ․”A contract is unambiguous when its language is clear and conveys a definite and precise intent ․ The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ․ Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ [A]ny ambiguity in a contract must emanate from the language used by the parties ․ The contract must be viewed in its entirety, with each provision read in light of the other provisions ․ and every provision must be given effect if it is possible to do so ․ If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”  (Citations omitted;  internal quotation marks omitted.)  Catonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734-35, 873 A.2d 898 (2005).

The court finds that there is ambiguity in the language of the lease when applied to the circumstances of this case.  Tallmadge Brothers, Inc., v. Iroquois Gas Transmissions Systems, L.P., 252 Conn. 479, 495 (2000) A fact finder must discern the intent of the parties at the time the lease agreement was signed.   The court cannot determine the intent of the parties as a matter of law, due to the ambiguity of the lease language.  Id., 498.   As there are factual issues, summary judgment is precluded.  Practice Book § 17-44.   The motion for summary judgment filed by defendants UB Dockside, LLC and Urstadt Biddle Properties, Inc. is denied.

THE COURT

By Judge Richard E. Arnold

FOOTNOTES

FN1. The lease lists the landlords as UB Dockside, LLC and UB Railside, LLC and the tenant as James R. Gardella, “an individual.”   The defendant Stratford Boardwalk Marina, LLC is not a named party in the lease and is not a signatory on the lease.   The listed tenant, James A. Gardella, individual, is not a named defendant in the case.   A review of the lease reveals that Gardella did not sign the lease as an authorized representative of the Stratford Boardwalk Marina, LLC..  FN1. The lease lists the landlords as UB Dockside, LLC and UB Railside, LLC and the tenant as James R. Gardella, “an individual.”   The defendant Stratford Boardwalk Marina, LLC is not a named party in the lease and is not a signatory on the lease.   The listed tenant, James A. Gardella, individual, is not a named defendant in the case.   A review of the lease reveals that Gardella did not sign the lease as an authorized representative of the Stratford Boardwalk Marina, LLC.

FN2. Article X is titled “Common Areas.”   Common areas is defined in the lease as that portion of the adjacent Shopping Center, excluding the leased premises, which may be used in common by the Landlord and tenants of the Shopping Center for vehicular parking and vehicle and pedestrian access to and from the Shopping Center to the public roadways.   The Landlord retains exclusive rights and control over the common areas, so long as reasonable access to the leased Marina premises and the Marina Parking area is not materially impaired..  FN2. Article X is titled “Common Areas.”   Common areas is defined in the lease as that portion of the adjacent Shopping Center, excluding the leased premises, which may be used in common by the Landlord and tenants of the Shopping Center for vehicular parking and vehicle and pedestrian access to and from the Shopping Center to the public roadways.   The Landlord retains exclusive rights and control over the common areas, so long as reasonable access to the leased Marina premises and the Marina Parking area is not materially impaired.

Arnold, Richard E., J.