Sheri Latchum v. Graham Thompson dba Stash's Cafe et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, No. 126

FACTS

On June 15, 2009, the plaintiff, Sherri Latchum, filed a three-count complaint sounding in negligence against the defendants, Graham Thompson d/b/a Stash's Cafe, Shub, LLC, Steven Schiavone and Laura Schiavone arising out of an alleged slip and fall incident on a stairway at a restaurant in New London, Connecticut.   The plaintiff alleges that all of the defendants owned, operated, controlled, possessed and maintained the restaurant and that her injuries were the result of their negligence and carelessness.   The Schiavones moved for summary judgment with respect to count three, the count directed against them, on December 29, 2010, supported by a memorandum of law, photos of the restaurant, copy of the lease agreement and affidavits from each of them.   The plaintiff filed an objection and memorandum of law in support of her objection on May 27, 2011, and the Schiavones filed a reply memorandum on June 10, 2011.

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.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “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 such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

In the present case, the Schiavones argue that, as landlords of the subject premises, there are no genuine issues of material fact that they were not in control or possession of the premises pursuant to the lease agreement and are thus entitled to judgment as a matter of law.   In response, the plaintiff contends that genuine issues of material fact exist in the lease regarding whether the Schiavones retained possession and control over the subject premises to some degree;  she further argues that there is an independent legal duty based upon their creation and/or maintenance of an allegedly defective and dangerous stairway.

“Retention of control is essentially a matter of intention to be determined in the 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.”  (Emphasis in original;  internal quotation marks omitted.)   Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).

Here, the four defendants in this case entered into a lease agreement where Shub, LLC and Graham Thompson d/b/a Stash's Cafe were the tenants and the Schiavones were the landlords.   The plaintiff alleges she was injured on a staircase on the subject property.   After a careful review of the lease agreement between the defendants, it is clear that a question of fact exists that is material to the plaintiff's negligence claim.   A trier of fact could reasonably reach different conclusions as to who retained control over the area in question.   Paragraph eleven of the lease states that the Schiavones specifically retained the right to inspect the premises for necessary repairs.   Paragraph thirteen provides that the tenants must seek the Schiavones' written approval before making any alterations and improvements to the interior of the property, which necessarily includes the subject staircase.   Paragraph fifteen states that the Schiavones “shall bear the expense of all structure repairs, capital repairs, structural maintenance including the roof.”

As previously discussed, the court's role in deciding a motion for summary judgment is not to decide questions of fact but, rather, to determine if such questions exist.   The aforementioned lease provisions are subject to multiple reasonable interpretations regarding whether the Schiavones retained a possessory interest in and a measure of control over the subject premises.   This renders the granting of summary judgment to be inappropriate at this time.   Because the court concludes that genuine issues of material fact exists as to whether the Schiavones retained control over the subject premises, the court need not address the plaintiff's second argument in her opposition to the defendants' motion for summary judgment.

CONCLUSION

Based on the foregoing, the court hereby denies the defendants Steven Schiavone and Laura Schiavone's motion for summary judgment.

Martin, J.

Martin, Robert A., J.