Donald Ham v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 105)

FACTS

On March 4, 2009, the plaintiff, Donald Ham, commenced this negligence action by serving process on the defendant, Phane Realty, LLC (Phane Realty).   The complaint alleges the following facts.

On January 7, 2008, Phane Realty, its authorized agents or employees, owned, possessed, managed, controlled and were responsible for the care and maintenance of the premises located at 455 Sackett Point Road, North Haven, Connecticut (the premises).   The rear of the premises was used to load trucks and to store trailers.   The weight of the trailers put stress on the pavement and as a result, the pavement was uneven throughout the loading area.

On January 7, 2008, the plaintiff was an employee of Manfe Leasing and was lawfully on the premises as part of an ongoing construction project.   He was at the rear of the premises waiting for his trailer to be loaded.   As he approached his truck to perform a safety inspection, his foot lodged in a depression in the driveway that was concealed by rainwater, and he fell to his knees.   As a result of the fall, the plaintiff suffered injuries.

Additionally, the complaint alleges that Phane Realty, its authorized agents, servants or employees were under a duty to keep and maintain the premises in a reasonably safe condition and caused the plaintiff's injuries by, among other things, negligently failing to maintain the premises in a safe condition.   The plaintiff seeks damages and equitable relief.

On October 5, 2009, Connecticut Container Corp. (Connecticut Container) filed a motion to intervene, which the court, Lager, J., granted.   In its intervening complaint, Connecticut Container alleges that at the time the plaintiff suffered his injuries, he was employed by Connecticut Container.   It alleges that in accordance with the Workers' Compensation Act, General Statutes §§ 31–275—31–355b, it paid the plaintiff $14,086.64 for his injuries, because his injuries arose out of and in the course of his employment, which was within the scope of the Workers' Compensation Act. Connecticut Container claims that any damages the plaintiff recovers should be used to reimburse it, in accordance with the Workers' Compensation Act.

On June 29, 2010, Phane Realty filed a motion for summary judgment with respect to the plaintiff's complaint and Connecticut Container's intervening complaint on the ground that it was not in possession and control of the premises, which Phane Realty had leased to Connecticut Container.   In support of its motion, Phane Realty filed a memorandum of law, the lease agreement between Phane Realty and Connecticut Container and the affidavit of Harry A. Perkins, managing partner of Phane Realty and president of Connecticut Container.

On November 26, 2010, the plaintiff filed an objection to Phane Realty's motion for summary judgment.   In support of its objection, the plaintiff filed a memorandum of law and the deposition of Perkins.   Oral argument was heard at short calendar on January 18, 2011.

DISCUSSION

“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 for summary judgment 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.   The courts hold the 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 ․ 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 ․ 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In support of the motion for summary judgment, Phane Realty first argues that it did not owe a duty of care to the plaintiff because it did not possess or control the premises.   It argues that under section 1.1 of the lease, Connecticut Container was in possession and control of the premises, including all land and buildings, at the time of the plaintiff's injury.   Additionally, Phane Realty argues that under section 8.2 of the lease, Connecticut Container is responsible for the maintenance of the property including all necessary structural and nonstructural repairs to the premises.   It argues that Phane Realty's right to inspect any work performed by Connecticut Container under section 8.3 of the lease and its right to approve of alterations or additions under section 8.1 of the lease does not create a question of fact regarding control over day-to-day maintenance.

In response, the plaintiff counters that summary judgment is precluded because there is a genuine issue of material fact as to the possession or control of the premises.   He argues that Perkins, in his deposition, admits that Phane Realty was in possession of at least a portion of the premises.   Therefore, he argues Phane Realty's agents were present in the area of the alleged defect and the classification as to who Perkins was working for is a question of fact that the court cannot determine on a motion for summary judgment.

“Liability 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 ․ 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 ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question․  Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination.”  (Citations omitted;  internal quotation marks omitted.)   Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773–74, 881 A.2d 379 (2005).

In this case, in order to establish the liability of Phane Realty, the plaintiff must therefore prove, as a matter of fact, that Phane Realty had the power or authority to manage, superintend, direct or oversee the rear driveway of the premises that allegedly caused his injuries.   Since control of the premises is an element of the plaintiff's cause of action, it is a material fact.

Phane Realty has met its initial burden to show that there is no dispute of material fact regarding possession or control of the premises.   In his affidavit, Perkins attests to the following:  “Pursuant to the lease, Connecticut Container ․ was in possession and control of the premises ․ and was responsible for day-to-day maintenance of the premises ․ The responsibilities of Connecticut Container ․ included maintenance and upkeep of the parking lot and driveway of the premises ․ On January 7, 2008, Phane Realty ․ was not in possession or control of the premises.”   According to section 1.1 of the lease, as amended, Phane Realty leased all land and buildings on the premises to Connecticut Container from September 1, 2002 to April 30, 2011.   According to section 8.2 of the lease, Connecticut Container is responsible for all necessary structural and non-structural repairs to the premises.   Both Perkins' affidavit and the lease indicate that Connecticut Container, not Phane Realty, had possession and control of the premises at the time of plaintiff's injuries.

Given this evidence that Phane Realty was not in possession of the premises, the plaintiff must present some evidence that puts this material issue of fact in dispute.   The plaintiff has presented evidence that demonstrates the existence of a dispute regarding the possession and control of the premises.   In his deposition ¹ on pages 15 and 16, Perkins admits that Phane Realty has possession of a portion of the premises in the following exchange:

“Q. You as a representative of Phane [Realty] do work at the premises, correct?

“A. Correct.

“Q. And Phane [Realty] has its offices at the premises?

“A. Phane [Realty] doesn't have any formal office, no.

“Q. Are the books of Phane [Realty]—

“A. The books of Phane [Realty] are at Connecticut Container.

“Q. And any documents as far as mailing address are contained [at the premises], correct?

“A. Correct.

“Q. So Phane Realty has possession of a portion of [the premises]?

“A. Yeah.”

This testimony contradicts the lease and Perkins' affidavit in which he says that Phane Realty was not in possession or control of the premises.   Viewing the evidence in favor of the nonmoving party, the plaintiff, a question of material fact exists regarding whether Phane Realty had possession or control over the portion of the premises where the plaintiff's injury occurred.

The defendant argues that Capitol Idea v. Sciarra, Superior Court, judicial district of Hartford, Docket No. CV 92 0512497 (October 24, 1994, Sheldon, J.), aff'd, 40 Conn.App. 927, 927, 670 A.2d 337 (1996), should lead the court to the opposite conclusion.   In Capitol Idea, the plaintiffs, which leased commercial space in the defendant's building, suffered damages when an explosion occurred inside the building.   The plaintiffs alleged that the defendant caused their damages by, among other things, “his negligent failure to oversee and control the inherently dangerous activities of one of his other commercial tenants ․” Id. The defendant moved for summary judgment arguing, among other things, that “as the lessor of the subject premises, he had no control over those premises ․” Id. One of the plaintiffs submitted an affidavit in which he attested that the defendant was “a ‘hands-on’ owner who frequently visited the building and would not allow tenants to make interior renovations within their premises without first consulting him.”

In granting summary judgment for the defendant, the court said the following:  “The affidavits of [the defendant] and [the lessee] clearly support the defendant's claims that he exercised no control whatsoever over the portion of his building where the explosion occurred and the plaintiffs claim to have suffered their injuries and losses.   Their direct representations that [the defendant] neither exercised such control nor had the power to do so under the terms of his lease agreement with [the lessee] are fully consistent with the prevailing view that landlords typically retain no such control and, more importantly, is in no way contradicted by [the plaintiff's] own affidavit.   The fact that [the defendant] is a ‘hands-on’ owner who permits no structural renovations within his building without his approval does not even suggest, much less tend to prove, that at the time of the explosion he exercised control over that portion of the building where the explosion occurred and the plaintiffs suffered their injuries and losses.   Indeed, there is nothing at all inconsistent between taking an active interest in one's commercial property and leaving one's tenants entirely alone in the control of their leased premises as long as they make no attempt to change or rebuild those premises.”  Id.

Capitol Idea is distinguishable from the present case.   In Capitol Idea, there was clear evidence that the defendant lessor did not control the leased portion of his building where the explosion and damage occurred.   In the present case, Perkins, a representative of both Phane Realty, the lessor, and Connecticut Container, the lessee, has made contradictory statements regarding the possession of the premises.   In his affidavit, submitted by Phane Realty, Perkins attests that Phane Realty was not in possession of the premises at the time of the plaintiff's injuries, while in his deposition, submitted by the plaintiff, he testified that Phane Realty conducts business on the premises and is in possession of a portion of the premises.   A jury must resolve this conflicting evidence.

CONCLUSION

Accordingly, a question of material fact exists regarding whether Phane Realty had possession or control over the portion of the premises where the plaintiff's injury occurred.   Thus, for the foregoing reasons, the court denies Phane Realty's motion for summary judgment.

Wilson, J.

FOOTNOTES

FN1. The plaintiff submitted excerpts from Perkins' deposition that were neither dated nor certified.   Phane Realty has not objected to this deposition evidence.   Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. The plaintiff submitted excerpts from Perkins' deposition that were neither dated nor certified.   Phane Realty has not objected to this deposition evidence.   Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

Wilson, Robin L., J.