Allison Hoffman v. LLC (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 111)

FACTS

On July 14, 2010, the defendant, Maynard, LLC, filed a motion for summary judgment on the ground that it did not have possession and control of the property where the plaintiff, Allison Hoffman, was injured.   The motion is addressed to the second count of the complaint and is accompanied by a memorandum of law.   The defendant filed a supplemental memorandum in support of its motion on April 29, 2011.   On August 9, 2011, the plaintiff filed a memorandum in opposition to the defendant's motion.   On August 30, 2011, the defendant filed a reply to the plaintiff's memorandum.   This matter was heard on the short calendar on November 21, 2011.

On December 21, 2009, the plaintiff filed a two-count complaint against the defendant and JKS Enterprises, LLC (JKS), individually and doing business as Shantok Motors, for injuries the plaintiff suffered.   Count one of the complaint is addressed to JKS. In count two, which is addressed to the defendant, the plaintiff alleges the following facts.   JKS is a limited liability company operating an automobile sale and repair business under the trade name “Shantok Motors” at 2246 Norwich–New London Turnpike in Uncasville, Connecticut (the premises).   At all relevant times, JKS occupied the premises under a lease with the defendant, who “owned, controlled and/or maintained that certain real estate, and the improvements thereupon.”   JKS paid compensation to the defendant for the right to use the premises, and the defendant was obligated to maintain the premises.

The plaintiff alleges that on November 30, 2007, at approximately 9 p.m., she was on the premises to retrieve her vehicle, which had been serviced by JKS, when she “was caused to trip, stumble and/or fall in the parking area of the premises” due to the defendant's negligence.   The plaintiff's fall was caused or contributed to by the negligence of the defendant “in constructing, maintaining and/or allowing a defective and/or dangerous area and/or condition within the parking area of the premises, to wit, the base of a light fixture which had serviced the area, but had collapsed, deteriorated and/or been modified and/or removed in such a way that it posed a risk” to individuals in the parking area.   The plaintiff alleges that the defendant was negligent in various ways, in that the defendant permitted the condition to exist on the premises, failed to provide adequate lighting, failed to maintain the area in a reasonably safe condition, failed to remedy the condition, failed to warn the plaintiff of the condition, failed to exclude the plaintiff from the area, failed to repair the fixtures and/or improvements at the premises, permitted JKS to park the plaintiff's vehicle in a manner that required the plaintiff to walk through the area, failed to mark the area as hazardous and failed to supervise JKS's use of the premises.   The plaintiff suffered injuries as a result of the fall.

In support of its motion, the defendant submits as evidence (1) a copy of the lease agreement between the defendant and JKS, (2) a signed and sworn affidavit of Patricia Maynard and (3) a certified deposition of Jeffrey Mehlenbacher, a partner of JKS. In support of its opposition to the defendant's motion, the plaintiff submits as evidence (1) a certified deposition of the plaintiff, (2) a certified deposition of Mehlenbacher, (3) a signed and sworn affidavit of Thor Holth, the plaintiff's attorney, attached to a document from the Office of the Connecticut Secretary of State's Corporate Information System, (4) the plaintiff's requests for admissions directed to the defendant and (5) a copy of the lease agreement.

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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “[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).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant argues that the lease between it and JKS unambiguously shows that JKS was in sole possession and control of the parking lot area where the plaintiff allegedly fell.   The defendant specifically points to paragraph seven of the lease, which provides that JKS shall be responsible for repairs, replacements and maintenance of the property.   The defendant also points to paragraph twelve, which requires JKS to “maintain the grounds and parking lots in a good and safe condition at no cost to” the defendant.   Further, the defendant argues that JKS had exclusive control over repairs and improvements and did not need permission from the defendant to make changes to the property.

The plaintiff counters that the defendant did retain control over certain repairs and improvements under the lease.   The plaintiff points to paragraph seven, which allows the defendant to supervise the reasonableness of the repairs on the premises, and paragraph eight, which requires JKS to seek the defendant's approval before making improvements.   The plaintiff argues that the issue of possession and control is one of fact to be determined by the lease language and conduct of the parties.   Further, the plaintiff argues that the defendant conducted bi-monthly inspections of the property, uses the premises as its business address and receives shipments of parts and equipment at the premises.   Because the lease terms are ambiguous and do not reflect the parties' practice, the plaintiff argues that the defendant has not shown that JKS had exclusive possession and control of the premises.   The defendant replies that the remedial work performed by JKS was not an improvement, the defendant was only conditionally permitted to make repairs, the defendant does not conduct inspections of the premises, the defendant does not utilize the premises as its business address and the defendant's shipment of parts to the premises does not evidence possession and control.

“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 ․ The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances ․ Thus, [u]nless 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.”  (Citations omitted;  internal quotation marks omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002);  see also Fiorelli v. Gorsky, 120 Conn.App. 298, 309, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010) (“[a]lthough questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law”).

“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.”  (Internal quotation marks omitted.)   Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003).  “Under normal circumstances, possession by the tenant is tantamount to control, however, a landlord may by his actions or by contract retain or assume control of the premises.”  (Internal quotation marks omitted.)   Contreras v. 455 Pacific Street, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5006917 (June 30, 2009, Pavia, J.).

At the outset, the court notes that paragraph twenty-one of the lease, entitled “Liability of the Lessor,” states that JKS “shall be in exclusive control and possession of the demised premises and the [defendant] shall not be liable for any injury or damages to any person or property on or about the demised premises nor for any injury or damages to the property of [JKS].” This provision expressly indicates that JKS was in exclusive control of the premises at the time of the incident.   The court will therefore look to other provisions in determining whether the lease, read as a whole, does not definitively resolve the issue of control, thereby creating a question of fact.

Paragraph seven of the lease provides that JKS shall “at its own cost and expense, repair, replace, and maintain in good, safe and substantial condition the building fixtures, appurtenances, equipment, plumbing, electrical system, improvements, additions and alterations” on the premises “to the reasonable satisfaction” of the defendant.   Additionally, paragraph seven states that if JKS “fails to make reasonable repairs, the [defendant] shall be permitted to do so and to deduct the cost of same from [JKS's] security deposit ․” ¹

“[W]here the right of the lessor to enter the leased premises and make repairs is limited, the lessor does not retain control and possession of leased property.  Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 664–65, 368 A.2d 6 (1976);  Farrell v. McDonald's Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0491505 (February 14, 2000, Graham, J.) (26 Conn. L. Rptr. 586).   In Monarch Accounting Supplies, Inc. v. Prezioso ․ provisions in the lease agreement gave the lessor the right to enter the premises at reasonable hours to examine or make any repairs or alterations that were necessary for the safety and preservation of the premises and provided that the leased premises should be available for the inspections and necessary repairs.   In Farrell v. McDonald's Corp. ․ the lessor could only enter during reasonable business hours to inspect the premises and had the right to make repairs only in the event of fire or other casualty.   In both cases, the court found that the lessor did not reserve control and possession of the premises due to the limited right of the lessors to enter the premises.”   Hooks v. Thermospas, Inc., Superior Court, judicial district of New Haven, Docket No. CV 09 5029236 (December 2, 2010, Woods, J.).

Additionally, in Charest v. Burger King Corp., Superior Court, judicial district of Hartford, Docket No. CV 91 395749 (March 3, 1993, Aurigemma, J.) [8 Conn. L. Rptr. 756], the court considered a lease provision that provided the lessee with responsibility for repairs, but “[i]n the event that lessee fails or neglects to make all the necessary repairs or fulfill other obligations ․ lessor or its agents may enter the premises for the purpose for making such repairs ․” The court held that “[a]bsent some evidence presented by a plaintiff that the lessor ․ did, in fact, make repairs to the premises, reliance on the aforementioned language in the lease is insufficient to create an issue of material fact in the face of the evidence submitted by [the lessor] that it did not make repairs during the lease period.”  Id. Several Superior Court decisions have cited this proposition approvingly.   See, e.g., DiFranco v. Connecticut Expo Center, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5002937 (October 6, 2010, Fischer, J.);   Farrell v. McDonald's Corp., supra, Superior Court, Docket No. CV 98 0491505;  Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0263193 (July 19, 1999, Beach, J.).

In the present case, the evidence presented by the defendant shows that JKS was responsible for the repairs on the premises.   In addition to the relevant provisions of paragraph seven quoted above, paragraph twelve of the lease provides that JKS “shall maintain that grounds and parking lots in a good and safe condition at no cost to [the defendant].”   Mehlenbacher, a JKS partner, states in his deposition that he would repair anything that needed repairing on the premises.   Additionally, although George Maynard, a representative of Maynard LLC, would come to the premises two to four times a month, Maynard would not conduct repairs or direct JKS to conduct repairs.   Rather, Mehlenbacher states in his deposition that Maynard “[j]ust hangs around” and drinks coffee, as he “misses the garage stuff.”   Thus, the lease provisions giving the defendant a limited right to repair, along with the evidence showing that only JKS conducts repairs, show that the defendant did not retain control of the premises under paragraph seven.²

Paragraph eight of the lease states that “[a]ll alterations, additions and improvements to the premises of any kind whatsoever shall be made only with the express written consent” of the defendant, who “reserves the right to require [JKS] to submit plans for any such improvements.”   Our “Appellate Court has expressly considered provisions that require a tenant to obtain approval from the landlord in order to take certain actions and rejected the argument that such provisions establish that the landlord retained possession and control over the property.”   Massaro v. Fulton Forbes, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 09 5005441 (September 23, 2010, Fischer, J.), citing Fiorelli v. Gorsky, supra, 120 Conn.App. 309 (“The plaintiffs presented no evidence contrary to [the defendant's evidence] or the lease terms.   They merely referred to sections of the contract under which the lessor needed the defendants' approval prior to taking some action.”).   Consequently, paragraph eight of the lease does not establish the defendant's control over the premises.

The terms of control are express between the parties and the lease, read as a whole, does not give the defendant control over the area where the plaintiff fell.   The court will next look to the defendant's conduct in order to determine whether there is a genuine issue regarding the defendant's control.   “No matter what the written lease may say and even if it clearly does not reserve the offending portion of the premises for the landlord's control, the landlord could still be found to be in possession and control of that portion of the premises if in fact it did actually engage in activities regarding such an area which made clear it possessed control.”   Nicholas v. Stop & Shop Corp., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 97 0058784 (December 3, 1998, Corradino, J.).

The plaintiff raises two arguments with respect to the defendant's conduct at the premises establishing its control.   First, the plaintiff argues that the defendant retained the premises as its business address.   The evidence submitted by the plaintiff, however, shows the defendant's business address as 150 Dudley Street in Norwich, Connecticut, not 2246 Norwich–New London Turnpike in Uncasville, Connecticut, where the premises is located.

Second, the plaintiff argues that the defendant receives shipments at the premises.³  This does not establish control on the defendant's part, as it does not evidence the defendant's “power or authority to manage, superintend, direct or oversee” the premises.  Stokes v. Lyddy, supra, 75 Conn.App. 261.   Accordingly, neither the lease nor the defendant's activities at the premises create a genuine dispute as to whether it retained control over the area where the plaintiff was injured.⁴

CONCLUSION

The defendant's motion for summary judgment as to count two is granted, as there is no genuine dispute of material fact regarding the defendant's control over the area where the plaintiff was injured.

Cosgrove, J.

FOOTNOTES

FN1. Paragraph seven further provides that the defendant “shall remain responsible for repairs and maintenance to all structural elements of the building ․” Assuming this establishes the defendant's control over structural elements, it is insufficient ‘to establish liability in the present case, as “control must relate to the condition and location of the injury.”  (Emphasis added;  internal quotation marks omitted.)   DiFranco v. Connecticut Expo Center LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5002937 (October 6, 2010, Fischer, J.).   Here, the plaintiff's alleged injury occurred in the parking lot, and did not concern the structural elements of the building..  FN1. Paragraph seven further provides that the defendant “shall remain responsible for repairs and maintenance to all structural elements of the building ․” Assuming this establishes the defendant's control over structural elements, it is insufficient ‘to establish liability in the present case, as “control must relate to the condition and location of the injury.”  (Emphasis added;  internal quotation marks omitted.)   DiFranco v. Connecticut Expo Center LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5002937 (October 6, 2010, Fischer, J.).   Here, the plaintiff's alleged injury occurred in the parking lot, and did not concern the structural elements of the building.

FN2. The parties disagree as to whether Maynard's visits were “inspections” of the premises.   Under the lease, the defendant is “permitted to enter and inspect the demised premises to insure that [JKS] is in compliance with the terms and conditions [of the lease] and to allow the [defendant] to make repairs that [JKS] has failed to make.”   Even if these visits were inspections, however, they do not establish the defendant's control over the premises, as is clear under Connecticut law ․ that ‘[t]he right to inspect does not mean and is not equivalent to the right to control.’  “ Contreras v. 455 Pacific Street, LLC, supra, Superior Court, Docket No. CV 08 5006917, quoting Murphy v. Sullivan, Superior Court, judicial district of Waterbury, Docket No. CV 04 5000073 (August 9, 2007, Gilligan, J.)..  FN2. The parties disagree as to whether Maynard's visits were “inspections” of the premises.   Under the lease, the defendant is “permitted to enter and inspect the demised premises to insure that [JKS] is in compliance with the terms and conditions [of the lease] and to allow the [defendant] to make repairs that [JKS] has failed to make.”   Even if these visits were inspections, however, they do not establish the defendant's control over the premises, as is clear under Connecticut law ․ that ‘[t]he right to inspect does not mean and is not equivalent to the right to control.’  “ Contreras v. 455 Pacific Street, LLC, supra, Superior Court, Docket No. CV 08 5006917, quoting Murphy v. Sullivan, Superior Court, judicial district of Waterbury, Docket No. CV 04 5000073 (August 9, 2007, Gilligan, J.).

FN3. In his deposition, Mehlenbacher states that Maynard “did order parts.   He had his motorcycle delivered there.   He'll order parts and have them sent there.”.  FN3. In his deposition, Mehlenbacher states that Maynard “did order parts.   He had his motorcycle delivered there.   He'll order parts and have them sent there.”

FN4. The plaintiff also asserts that the light fixture that caused her fall was in disrepair at the time JKS assumed occupancy.  “[A] visitor to business premises which have been leased by the owner may recover against him upon proof (1) that there existed at the time of the leasing conditions on the leased premises likely to cause injury to persons entering the premises;  (2) that the landlord had knowledge, actual or imputable, of the existence of these conditions;  (3) that the landlord had knowledge, actual or imputable, that persons were likely to be invited upon the premises as customers of the tenant;  (4) that the landlord had reason to expect that the tenant would not take steps to remedy or guard against injury from the conditions.”  (Internal quotation marks omitted.)  Fiorelli v. Gorsky, supra, 120 Conn.App. 310.   Here, the plaintiff has not alleged that the defendant had reason to expect that JKS would not take steps to remedy the condition;  thus, the fact that the condition existed at the beginning of the tenancy is inconsequential..  FN4. The plaintiff also asserts that the light fixture that caused her fall was in disrepair at the time JKS assumed occupancy.  “[A] visitor to business premises which have been leased by the owner may recover against him upon proof (1) that there existed at the time of the leasing conditions on the leased premises likely to cause injury to persons entering the premises;  (2) that the landlord had knowledge, actual or imputable, of the existence of these conditions;  (3) that the landlord had knowledge, actual or imputable, that persons were likely to be invited upon the premises as customers of the tenant;  (4) that the landlord had reason to expect that the tenant would not take steps to remedy or guard against injury from the conditions.”  (Internal quotation marks omitted.)  Fiorelli v. Gorsky, supra, 120 Conn.App. 310.   Here, the plaintiff has not alleged that the defendant had reason to expect that JKS would not take steps to remedy the condition;  thus, the fact that the condition existed at the beginning of the tenancy is inconsequential.

Cosgrove, Emmet L., J.