Stephanie O'Sullivan v. Noah Brodbar et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BACKGROUND:

This action concerns a slip and fall on ice which occurred in a parking lot outside 268 Boston Post Road in Madison.   In her four-count amended complaint, the plaintiff alleges she sustained injuries and damages as a result of the fall and has brought her action against defendants Noah Brodbar,¹ Old School House Deli, LLC and OLB Motorworks, LLC (tenants) as well as Dipika Patel, LLC (landlord).   Brodbar, Old School House Deli and OLB Motorworks have filed a motion for summary judgment, alleging they had no duty to maintain the parking lot and, therefore, they are entitled to summary judgment on the first, second and fourth counts.   The plaintiff has filed an objection to the motion.   The parties presented argument on December 5, 2011.   At oral argument, it was conceded by the plaintiff that Old School House Deli, LLC was dissolved prior to the incident and that summary judgment may be granted as to the Second Count of the amended complaint.

LEGAL STANDARD:

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.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․ (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2d 777 (2006).

“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, 567 A.2d 829 (1989).   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).

Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)   Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS

In this matter, these litigants agree as to the location of the plaintiff's fall.   The issue here is whether the tenants had possession and control of that area.  “Liability for an injury due to defective premises does not depend on title, but on possession and control”.  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).

The defendants assert that they had no duty to maintain the area where the plaintiff fell, relying on the language contained in a lease between them and the defendant landlord which was in effect at the time of the incident.   In support of their motion, the defendants submitted an uncertified deposition transcript and an unauthenticated copy of the lease agreement.   In support of her objection, the plaintiff referred to uncertified excerpts of deposition transcripts and an unauthenticated copy of the lease agreement.²  Both sides failed to comply with P.B. § 17–45.   The court will, nevertheless, in its discretion consider the submissions as the parties have mutually agreed that the submissions are accurate and have requested that the court give them consideration.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Significant portions of the plaintiff's objection assert facts unsupported by affidavit or other documents and have been disregarded by the court.   Practice Book § 17–46.  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).

Curiously, neither side submitted a copy of “schedule A,” an attachment to the lease which describes the demised premises.   Section five of the lease states, in relevant part,

The Tenant shall keep the demised premises in good condition, and shall redecorate, paint and renovate the same premises as may be necessary to keep them in repair and good appearance ․ The Tenant further agrees to keep said premises and all parts thereof in a clean and sanitary condition and free from trash, inflammable material and other objectionable matter.   If this lease covers premises, all or a part of which are on the ground floor, the Tenant further agrees to keep the sidewalks in front of such ground floor portion of the demised premises clean and free of obstructions, snow and ice.

Although the tenants argue that they are responsible solely for sidewalks in front of the demised premises, section five does not explicitly limit the tenants' responsibility to the sidewalks.   Particularly as to the area where the plaintiff fell, described as the parking lot, this section is silent.   Because the defendants' submissions do not include the description of the demised premises, the court cannot determine if it includes or excludes the area where the plaintiff fell.

Section eight of the lease contains both an exculpatory clause and an indemnification clause.   It states, in relevant part,

The Landlord shall not be responsible for the loss of or damage to property, or injury to persons, occurring in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are part, or for the acts, omission or negligence of other persons or tenants in about the said property.   The Tenant agrees to indemnify and save the Landlord harmless from all claims and liability for loss of or damage to property, or injuries to persons occurring in or about the demised premises ․

Again, the court does not have the description of the demised premises for its consideration.   What is meant by “occurring in or about the demised premises ” is a question unresolved by the defendants' submissions.   Further, there is a question as to whether the tenants have contracted to indemnify or hold the landlord harmless for the plaintiff's claim.

In summary, the scope of the demised premises is unknown.   The area of the property of which the premises are a part is unknown.   Whether the tenants must maintain the area where the plaintiff fell is unknown.   Whether the tenants must indemnify the landlord for the plaintiff's claimed injuries and damages is unknown.   It cannot be ascertained from the documents and evidence presented that these defendants did not have control of the area where the plaintiff fell or that they did not have a duty to the plaintiff.   This is because there remain genuine issues of unresolved material fact making summary judgment inappropriate.

ORDER:

The defendant's motion for summary judgment (122.00) is granted by consent as to the second count of the amended complaint and denied as to the first and fourth counts.   The objection to same (125.00) is sustained as to the first and fourth counts.

Robert E. Young, J.

FOOTNOTES

FN1. Brodbar is alleged to do business as Old School House Deli. In his affidavit, Brodbar states he is the principal of defendant OLB Motorworks, LLC, which operated Old School House Deli..  FN1. Brodbar is alleged to do business as Old School House Deli. In his affidavit, Brodbar states he is the principal of defendant OLB Motorworks, LLC, which operated Old School House Deli.

FN2. The plaintiff's objection makes reference to attachments of deposition excerpts, the lease agreement, photographs and case law.   However, no attachments were filed with the objection.   This oversight is of no moment.   The full transcript of the deposition and the lease agreement were provided by the defendants.   The photographs would not be of use to the court had they been submitted and the court has access to the cited case law..  FN2. The plaintiff's objection makes reference to attachments of deposition excerpts, the lease agreement, photographs and case law.   However, no attachments were filed with the objection.   This oversight is of no moment.   The full transcript of the deposition and the lease agreement were provided by the defendants.   The photographs would not be of use to the court had they been submitted and the court has access to the cited case law.

Young, Robert E., J.