Jean Swan v. 502 LTD (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 122)

FACTS

The plaintiff, Jean Swan, commenced the present action against the defendant, 502 Sawmill Associates Limited Partnership, by service of process on November 7, 2007.   The operative version of the complaint was filed on May 13, 2009.   It alleges the following relevant facts.   On November 11, 2005, the plaintiff was injured when she fell on the sidewalk in front of a Dunkin' Donuts located at 502 Sawmill Road in West Haven (the premises).   The plaintiff's fall was caused by “a raised ridge between the individual blocks making up the sidewalk.”   Both counts of the complaint sound in negligence.   The first count of the complaint is against the defendant, the owner of the premises.   The second count of the complaint was against Millennium Donuts, Inc. (Millennium Donuts), the tenant who occupied the premises at the time of the incident.   On May 6, 2011, the court, Robinson, J., granted Millennium Donuts' motion for summary judgment on statute of limitations grounds.

The defendant filed the present motion for summary judgment on June 20, 2011.   The plaintiff in turn filed an objection to the present motion on September 26, 2011.   The defendant then filed a reply memorandum on November 14, 2011.   The plaintiff subsequently filed two affidavits in support of her objection:  one given by a private investigator who has examined the premises, filed on February 3, 2012, and one for which she was the affiant, given to the court during oral argument on the matter.   Oral argument was held during short calendar on February 6, 2012.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“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).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).   “[T]he issue of whether a defendant owes a duty of care,” however, “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.   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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant moves for summary judgment on the ground that it is entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether it owed a duty of care to the plaintiff at the time of the incident.   The defendant argues that it owed no such duty because the lease for the premises, in effect at the time of the incident, provides that Millennium Donuts has possession and control over the adjacent sidewalk.   The defendant specifically relies upon the lease provisions that task Millennium Donuts with the responsibility of keeping and maintaining the sidewalk.   The defendant's reply memorandum repeats and elaborates upon these arguments.   The defendant has submitted the following exhibits in support of the present motion:  the lease (Exhibit A);  two affidavits given by Gloria Zerdy, the defendant's agent (Exhibits B and E);  its April 3, 2009 reply to the plaintiff's interrogatories and requests for production (Exhibit C);  and Schedule A of the lease, which is a map of the premises (Exhibit D).

The plaintiff opposes the motion on the ground that genuine issues of material fact exist with respect to which party had possession and control of the sidewalk at the time of the incident.   She specifically argues that the defendant owed her a nondelegable duty of safely maintaining the sidewalk;  that Millennium Donuts does not have exclusive possession and control of the sidewalk, because the sidewalk is also used by customers of neighboring businesses;  and that the lease is ambiguous, making the issue of possession and control one of fact rather than law.   In support of her opposition, the plaintiff relies upon photographs of the premises and the sidewalk and three affidavits, two of which she gave and one of which was given by David Smarz, a private investigator who has examined the premises.

“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).  “Possession involves not only the exercise of acts of ownership over the land but also the exclusion of such acts by others.”   (Internal quotation marks omitted.)  State v. Schaffel, 4 Conn.Cir.Ct. 234, 247, 229 A.2d 552 (1966).  “[T]he 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.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).  “Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property.”  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).

“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 of 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 ․ In other words, if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances.”  (Citations omitted;  internal quotation marks omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002).

Section seventeen of the lease, entitled “Repairs and Maintenance of Premises,” provides in relevant part:  “(a) Maintenance of improvements.   Tenant shall, throughout the term of this Lease, at its own cost, and without any expense to Landlord, keep and maintain the premises, including all buildings and improvements of every kind which may be a part thereof, and all appurtenances thereto, including sidewalks adjacent thereto, in good, sanitary, and neat order, condition and repair, and, except as specifically provided herein, restore and rehabilitate any improvements of any kind which may be destroyed or damaged by fire, casualty, or any other cause whatsoever.”   The defendant argues that this provision demonstrates its lack of possession and control over the sidewalk.

The following lease provisions are also relevant to the resolution of the present motion.   The beginning of the lease specifies “502 Sawmill Road, West Haven, Connecticut as more specifically described in Schedule A attached hereto and made a part hereof.   As used herein, the term ‘Demised Premises' refers to the real property above described and to any improvements thereto located thereon from time to time during the term hereof.”   Def.'s Ex. A. Schedule A is a map of the shopping center in which the premises are located.   Def.'s Ex. D. The part of the shopping center under consideration consists of three commercial spaces.   The premises occupy the middle space, which is forty feet wide.   A one-hundred-ten-foot-long sidewalk runs in front of all three commercial spaces.

Section six, entitled “Extension Uses,” provides in relevant part:  “The Tenant covenants with the Landlord that the Tenant is to keep the sidewalks adjacent to The Demised Premises ․ in a clean and orderly manner at all times.”   Def.'s Ex. A. Section eleven, entitled “Repairs of Premises and Mechanic's Lien,” provides in relevant part:  “Tenant shall, throughout the term of this Lease, at its own cost, and without any expense to Landlord, keep and maintain the interior of the premises, including sidewalks adjacent thereto, in good, sanitary, and neat order, condition and repair.   Landlord shall not be obligated to make any repairs, replacements, or renewals of any kind, nature, or description, whatsoever to The Demised Premises or any buildings or improvements thereon except for repairs to the roof, structure, beams and walls as required.”   Def.'s Ex. A.

The defendant relies upon Fiorelli v. Gursky, 120 Conn.App. 298, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010), in arguing that it lacked possession and control of the sidewalk at the time of the incident.   In Fiorelli, the plaintiffs sought to recover damages for injuries sustained in an automobile accident that occurred on premises owned by the defendants and leased to Webster Bank (bank).   The court held that the defendants did not owe a duty of care to the plaintiffs, where the lease provided that the bank:  1) assumed “the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Demised Premises”;  2) “agreed to construct a bank branch with adjacent parking and all landscaping and ․ assumed possession and control of the leased property”;  and 3) “owned all of the improvements constructed on the premises ․ and [was] responsible for the maintenance and repair to the bank building and adjacent parking areas.”   (Internal quotation marks omitted.)  Id., 309.   Fiorelli is distinguishable from the present action, however, because the lease at issue does not definitely express whether the sidewalk is within the area over which Millennium Donuts has been given exclusive possession and control.   In fact, the lease repeatedly refers to the sidewalk as separate and distinct from the premises.   The court also notes that Schedule A does not depict the sidewalk as divided among the three commercial spaces, such that each space includes the part of the sidewalk that is adjacent to it.

“Why is liability imposed on a tenant in possession and control and not on the lessor-owner of land?   In Connecticut Law of Torts, Wright, Inkerman, Fitzgerald § 46 page 108, it says the basis for the rule is that the possessor is ordinarily the party responsible for the reason that the person in possession is in a position of control and is best able to prevent harm ․” (Citation omitted;  internal quotation marks omitted.)   Horner v. Harold Moffie Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 07 5009227 (July 10, 2009, Corradino, J.).   The lease in the present action is unclear on the issue of whether Millennium Donuts possessed the sidewalk at the time of the incident.

The defendant argues that the lease nonetheless establishes Millennium Donuts' possession and control of the sidewalk because it tasks Millennium Donuts with keeping and maintaining the sidewalk.   In Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008), the court held that the defendant property owner was not entitled to a judgment as a matter of law in the plaintiff's premises liability action, where the defendant's evidence only demonstrated who maintained the premises and who lacked possession over them:  “[T]he defendant attached two affidavits in support of her motion for summary judgment.   In her affidavit, the defendant attested that she did not possess the parking lot.   In addition, she attested that [another tenant] maintained the parking lot.   The defendant did not, however, attest as to who possessed the parking lot, if she did not, and her ownership of the parking lot is undisputed.   The second affidavit by [the other tenant]'s agent attested that [the other tenant] maintained the parking lot.   It did not allege that [the other tenant] possessed or controlled the parking lot.   Because the plaintiff allegedly fell in the parking lot, common to all tenants, and because it is undisputed that the defendant owns the parking lot, without evidence tending to show that someone other than the defendant possessed and controlled the parking lot, the defendant has not met her burden of proof.”   The court in Baldwin declined to equate maintaining a premises with exercising possession and control over them, for premises liability purposes;  the court in the present action does likewise.   See also Madden v. HMJ Corp., Superior Court, judicial district of Fairfield, Docket No. CV 04 5000072 (October 10, 2006, Radcliffe, J.);   but see Massaro v. Fulton Forbes, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 09 5005411 (September 23, 2010, Fischer, J.).

Again, “[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 of the significant and attendant facts which bear on the issue.”  Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).   The court has concluded that the lease does not definitely express whether the defendant has reserved control of the premises.   All of the defendant's evidence, however, pertains to the terms of the lease;  none of it addresses “the circumstances of the particular case” or “the significant and attendant facts which bear on the issue.” ¹  The defendant has therefore failed to meet its initial burden of establishing with evidence that there are no genuine issues of material fact.   Accordingly, the court denies its motion for summary judgment.

Brian T. Fischer, Judge

FOOTNOTES

FN1. Zerdy, the defendant's agent, avers that Millennium Donuts had possession and control of the demised premises and that its neighbors had possession and control of the sidewalks in front of their businesses.   Def.'s Ex. A, E. These averments, however, are legal conclusions unaccompanied by supporting facts.  “[S]ummary conclusions of law and unsupported allegations in an affidavit do not entitle a party to summary judgment.”  Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993)..  FN1. Zerdy, the defendant's agent, avers that Millennium Donuts had possession and control of the demised premises and that its neighbors had possession and control of the sidewalks in front of their businesses.   Def.'s Ex. A, E. These averments, however, are legal conclusions unaccompanied by supporting facts.  “[S]ummary conclusions of law and unsupported allegations in an affidavit do not entitle a party to summary judgment.”  Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993).

Fischer, Brian T., J.