Michael Stein v. Nancy Tong (2011)

MEMORANDUM OF DECISION

This case was tried after being remanded for a new trial by the Appellate Court.   See Stein v. Tong, 117 Conn.App. 19 (2009).   The complaint alleges that the plaintiff, Michael Stein, was a tenant in a house which was owned by the defendant, Nancy Tong. It further alleges that “[d]ue to the failure of the defendant to maintain and repair the sidewalk which serves the plaintiff's home, the plaintiff was cause to trip and fall on January 31, 2005.”   Complaint, ¶ 2.

After trial to the court, the court finds the following facts.   On October 22, 1996 the plaintiff entered into a written lease as the tenant of 171 Colby Street in Hartford, Connecticut (the “Premises”) for the one-year period from October 1, 1996 through September 31, 1997.   The written lease provided that Nancy Tong was the landlord.

The plaintiff continued to reside at the Premises after the term of the written lease had expired.   Over the years the plaintiff wrote many letters to the defendant complaining about various problems with the Premises.   The plaintiff repaired various items at the Premises such as replacing several windows, replacing the front door, and the front storm door, and removing the cast iron railing on front steps.   Although the parties had no specific agreement allowing the plaintiff to deduct the amount of the repair cost from his rent, he made such deductions.   The defendant's husband repaired the rear steps to the Premises prior to the date of the plaintiff's fall.

The evidence included ten letters from the plaintiff to the defendant spanning a period of July 2, 2002 to January 5, 2005 in which the plaintiff complained about various aspects of the Premises.   All of the letters included a complaint about the sidewalk in front of the front stoop as constituting a trip hazard because it was above the level of the rest of the sidewalk.   In the letter dated January 5, 2005, the plaintiff stated:  “Since you have decided to not to (sic) complete any of these repairs I must find some way to get them completed.”

At one or more times during his tenancy at the Premises, the defendant had responded to the plaintiff's numerous complaints by saying something along the lines of:  if things are so bad, why don't you leave?   However, notwithstanding all his complaints, the plaintiff enjoyed living at the Premises.   The defendant attempted to evict the plaintiff on various occasions.   A notice to quit for nonpayment of rent was served on the plaintiff on January 4, 2005, 27 days prior to the date the plaintiff claims to have fallen at the Premises.

The plaintiff testified that on January 31, 2005, he was returning to the Premises after visiting a friend in Enfield.   His right foot caught on the portion of the sidewalk which was elevated about 11/4 inches above the contiguous sidewalk and about 12 inches from the first stair of the stoop.   The plaintiff's left foot struck the first step and he fell.   The plaintiff telephoned the ambulance and was taken to the Hartford Hospital Emergency room where he complained of left leg pain, burning and numbness.   He was given medication and discharged.

The defendant testified that the first time she was aware that the plaintiff claimed to have fallen at the Premises was when she received the summons and complaint in this action.   The plaintiff testified that he orally advised the defendant about his fall.   However, there are no letters from the plaintiff to the defendant advising her of the fall.   In light of the plaintiff's penchant for writing letters to his landlord, the absence of any letter advising her about his fall is quite surprising.

On February 3, 2005 the plaintiff underwent a left femoral embolectomy to remove an embolus from his left femoral artery.   The plaintiff introduced no medical opinion that the embolectomy was caused by the fall.   The plaintiff relies on the temporal proximity of the fall and the development of the embolus to establish a causal connection between the two.

“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;  internal quotation marks omitted.) [citing LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002) ];  see also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him).

Baldwin v. Curtis, 105 Conn.App. 844, 848–49, 939 A.2d 1249 (2008).

In Bentley v. Dynarski, 150 Conn. 147, 186 A.2d 791 (1962), the plaintiff was a tenant in a three-family house.   She slipped and fell on a stairway that led only to her apartment.   The trial court set aside a verdict in favor of the plaintiff and the Supreme Court affirmed, stating:

In the absence of an express or implied agreement to the contrary, the lessee of a tenement such as the one involved in this case acquires an exclusive occupancy and control of the tenement and, as incidental thereto, the parts of the structure which form an integral part of the tenement.  Torre v. DeRenzo, supra;  Central Coat, Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 237, 70 A.2d 126;  Aprile v. Colonial Trust Co., 118 Conn. 573, 579, 173 A. 237.   Whether the stairway here was included in the plaintiffs' lease and thus was under their control as tenants or was reserved to the defendant and so was under her control is essentially a question of intention, to be determined, in the absence of an expression in the lease, in the light of all of the significant circumstances, such as the location of the stairway and the use actually made of it.  Miller v. Mutual Mortgage Co., 112 Conn. 303, 305, 152 A. 154 ․ “The appurtenances of ingress and egress, essential to use and reasonably within the contemplation of the parties at the time of the leasing, are as much a part of the room conveyed as the room itself.”   3 Thompson, Real Property (Perm. Ed.) p. 229;  Mayer v. Hazzard, 10 Cal.App.2d 1, 3, 51 P.2d 189.   Under the circumstances, there can be no doubt that the stairway was a part of the premises included in the plaintiffs' lease.

Bentley v. Dynarski, supra, at 150–51.

On the issue of whether a landlord making other repairs to the premises evidenced control by the landlord, the court stated:

It is true that repair by a landlord of a condition within demised premises may serve to corroborate other evidence indicating a reservation by him of the right of control.  Masterson v. Atherton, supra, 311.   Standing alone, however, testimony regarding such repairs is open to too many explanations besides an assumption of control and is too much outweighed by the implications growing out of the nature of the estate created by the leasing to afford a basis on which to find a reservation of control.  Shegda v. Hartford Connecticut Trust Co., 131 Conn. 186, 190, 38 A.2d 668.

Id., at p. 152.

In this case, as in Bentley, the stairway leading to the front door and the sidewalk immediately adjacent thereto were part of the Premises included in the plaintiff's oral lease because the plaintiff was the only one who used the Premises and the front sidewalk and stairs provided ingress to and egress from the Premises.   The defendant's husband had done repairs to the back stairway.   However, this did not establish control of the front stairs and sidewalk by the landlord.   It was so clear to the plaintiff that the landlord would not repair the sidewalk and stairs on which he slipped that he advised the defendant in his January 5, 2005 letter that, “Since you have decided to not to (sic) complete any of these repairs I must find some way to get them completed.”

The issue of control, however, is somewhat academic.   The court finds that the difference in heights between the two slabs on the sidewalk and the height of the front stairway did not constitute a dangerous condition.   Moreover, even if the sidewalk and stairs were dangerous, the court finds that the plaintiff was very well aware of the danger and that his negligent conduct in failing to use due care in traversing what he claimed to be a dangerous condition was more than 50% responsible for causing his fall.

Based on the foregoing, judgment enters in favor of the defendant.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.