Randall Mason v. ING (2010)

MEMORANDUM OF DECISION RE CO-DEFENDANT ING'S MOTION FOR SUMMARY JUDGMENT, # 130

The plaintiff, Randall Mason, brings this action against ING Life Insurance and Annuity Company (ING) and Aetna Life Insurance Company (Aetna).   The plaintiff alleges that he tripped and fell while working at the premises at 151 Farmington Avenue, Hartford, Connecticut, which premises are owned by Aetna and leased by ING. The plaintiff was an employee of IBM, and was assigned to work at ING at the premises in August 2007, when he was injured.   The premises is owned by Aetna and leased by ING.

The co-defendant, ING, moves for summary judgment as to count one against it on the ground the undisputed material facts established that it did not own, possess, control, or have the responsibility to maintain the area where the plaintiff fell.   In addition to the memorandum of law filed with the motion, ING provided the court with an affidavit of an employee of ING (Exhibit A), the Lease Agreement (Exhibit B), and portions of the plaintiff's deposition transcript (Exhibit C).  The plaintiff and the co-defendant, Aetna, have filed objections to the motion for summary judgment.¹

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.   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.)  Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).  “The courts hold the [summary judgment] movant to a strict standard.   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 ․ 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.)  Zielinski v. Kotsorisi, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

ING contends that the lease between ING and Aetna conclusively provides that Aetna had exclusive control over all aspects of the maintenance and repairs of structural and non structural portions of the premises at issue, and specifically over the area where the plaintiff fell.   ING argues that the area where the plaintiff tripped and fell was a depression in the floor underneath a loose carpet, and was a hidden defect in the structure which was under the control of Aetna to repair and maintain.   Therefore, there was no duty of care owed by ING to the plaintiff for this incident.   The plaintiff and Aetna counter that there is a genuine issue of material fact as to which party-ING and/or Aetna-had control of the area where the fall occurred, and that provisions in the lease agreement ceded control of the entire premises to the tenant, ING.

“[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 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.)   Murillo v. Seymour Ambulance Ass'n., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003).

“[L]iability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property.”  LaFlamme v. Dallessio, 261 Conn. 246, 251, 802 A.2d 63 (2002).   “Retention of control is essentially a matter of intention to be determined in 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.”  (Internal quotation marks omitted.)  Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003).  “In cases where there is an agreement in which one party agrees to perform maintenance and repairs, it becomes a question of fact whether notice of the need for repair was given to the landlord.”  Des Marchais v. Daly, 135 Conn. 623, 625, 67 A.2d 549 (1949).

The Lease Agreement, Article 7, Section 7.1(1) which ING entered into with Aetna, provides that:  “Landlord shall maintain, repair and replace, consistent with those levels of maintenance provided to the Rogers Building, and keep in good order and condition, all structural and non structural portions of the Tower Building, and all service systems for the same, including, without limitation ․ (iii) the exterior and interior of the Building including the roof, exterior walls, bearing walls, support beams, foundation, columns, exterior doors and windows and lateral support to the Building and the Interior Commons Areas.”  (ING's Exhibit B, Lease Agreement.)

ING ignores the other provisions of the lease agreement, wherein pursuant to Article 1, Aetna cedes control over the entire premises to ING;  pursuant to Article 8.3, ING must give Aetna permission to enter the premises;  and most importantly, that while pursuant to Article 7, Aetna was to provide maintenance services to ING, Article 7.4 provides that ING must give Aetna written notice of the need for repair.   These lease provisions would indicate that there is a question of fact as to the possession and control over the area of the premises where the plaintiff was injured.

Moreover, the deposition testimony by the plaintiff indicates that he informed his manager at ING, Anne Marie Hunter, of the alleged defect in the floor.   She responded to him that she's aware of this area, she's stripped [sic] on it herself.  (Aetna's Exhibit A, Deposition Tr., 80.)   He also testified that he and other co-workers had tripped numerous times in the area alleged to be the cause of his injuries, and that such incidents were reported verbally to a prior manager at ING. See, id., 135.²  If ING had knowledge of the alleged defect, then an issue of material fact exists as to (1) whether the defect was hidden;  and (2) whether ING did or did not give notice to Aetna of the alleged dangerous condition, thereby triggering Aetna's contractual obligation as to repairs and maintenance.

CONCLUSION

Viewing the evidence in the light most favorable to the nonmoving parties, the court finds that factual issues exists.   ING has failed to exclude any doubt as to the existence of any genuine issue of material fact.   Accordingly, the motion for summary judgment is denied.

Swienton, J.

FOOTNOTES

FN1. Aetna and the plaintiff also provided portions of the plaintiff's deposition transcript..  FN1. Aetna and the plaintiff also provided portions of the plaintiff's deposition transcript.

FN2. ING argues that plaintiff testified that Balin is not an employee of ING, but an “IBMer,” but it is not clear whether Hunter is an employee of IBM or ING, or the relationship with ING. Needless to say, enough questions exist to deny the motion for summary judgment..  FN2. ING argues that plaintiff testified that Balin is not an employee of ING, but an “IBMer,” but it is not clear whether Hunter is an employee of IBM or ING, or the relationship with ING. Needless to say, enough questions exist to deny the motion for summary judgment.

Swienton, Cynthia K., J.