Brian Davis v. CIL (2012)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Brian Davis, brings this action against two Defendants, CIL Realty, Incorporated (CIL Realty), and Star, Inc. Lighting the Way (Star).   He seeks to recover for personal injuries and damages sustained on June 4, 2009, when he fell on property located at 28 Toilson Avenue, Norwalk.

On the date of the incident, the Plaintiff was employed by Star as a counselor at an adult group home facility maintained at 28 Toilson Avenue.   At the time of the incident, Brian Davis was carrying boxes to the basement of the facility.   As he was descending an interior stairway leading to the basement, a step on the stairway broke, causing him to fall, and be injured.

The Plaintiff claims to have sustained injuries to his head, neck, and back and abdomen.   He maintains that the stair which collapsed was dangerous and/or defective, and that he suffered personal injuries as a result.

Star was in possession of the property, pursuant to a lease with CIL Realty, dated September 2, 1987.   It had occupied the premises pursuant to the lease for over twenty (20) years, at the time of the June 4, 2009 incident.

Paragraph 17 of the lease agreement gives to CIL Realty a right to inspect the premises following notice to Star. The clause reads:

17.  Lessor and its agents shall have the right to inspect the premises at all reasonable times and with reasonable notice to the Lessees during the term of this lease.

The September 2, 1987 lease agreement gave primary responsibility for the repair of the building during the term of the lease, to Star. Paragraph 18 reads:

18.  REPAIRS AND IMPROVEMENTS:  Lessee shall keep the premises in good condition and repair, and shall redecorate, paint and renovate the premises as may be necessary to keep them in good repair and appearance.   Lessee shall, at its own expense, make all necessary repairs and replacements to the premises and to the pipes, heating system, plumbing system, window glass, fixtures, and all other appliances and appurtenances belonging thereto, all equipment used in connection with the premises and the sidewalks, driveway and grounds appurtenant to the premises.   Such repairs or replacements, interior or exterior, structural as well as mechanical, shall be made promptly as and when necessary.   All repairs and replacements shall be in a quality and class at least equal to the original work and it shall comply with all federal, state and local statutes, ordinances, rules and regulations.   All repairs, replacements and improvements whether temporary or permanent in character, which may be made upon the premises either by the Lessor or the Lessee, shall be the property of the Lessor and shall remain upon and be surrendered with the premises as a part thereof at the termination of this Lease without compensation to the Lessee.   On default of the Lessee in making necessary repairs or replacements, the Lessor may, but shall not be required to, make such repairs and replacements for the Lessee's account and the expense thereof constitute and be collectable as additional rent ․ In no way shall the lessor be liable for any defect in such property or for any limitation on its use.

CIL Realty has moved for summary judgment.   It claims that it was not in control of the premises on June 4, 2009, the date of the Plaintiff's fall, and that it had no notice of any allegedly dangerous and/or defective condition on the premises.

Star, the Plaintiff's employer, has also moved for summary judgment.   It claims that any action by the Plaintiff is barred, pursuant to the provisions of S. 31–284(a) of the General Statutes, which is known as the “exclusivity provision” of Connecticut's Workers' Compensation statutes.  Section 31–284(a) reads:

Section 31–284—(a) An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees ․ are abolished other than rights and claims given by this chapter ․

Brian Davis applied for and received benefits pursuant to the Workers' Compensation Act, following his fall of June 4, 2009.

SUMMARY JUDGMENT—STANDARD OF REVIEW

A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law.  Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986).   A material fact has been defined as one which will make a difference in the result.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

Connecticut Practice Book Section 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”

The party moving for summary judgment has the burden of showing the absence as to any genuine issue of all material facts.   The burden is upon the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded.  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984);  Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).

In deciding a motion for summary judgment, a trial court must view the evidence in the light most favorable to the nonmoving party.  Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309 (1978).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts.  Batik v. Seymour, 186 Conn. 632, 647 (1982).

NO GENUINE ISSUE OF FACT IS PRESENT CONCERNING CONTROL OF 28 TOILSON AVENUE ON JUNE 4, 2009

Although Star had been a tenant in possession for over two decades, the Plaintiff claims that a genuine issue of material fact exists, concerning whether CIL Realty was in control of 28 Toilson Avenue, Norwalk, on June 4, 2009.

This claim fails to resonate.

A person or entity in control of property owes to an invitee the duty to warn of dangers of which it knows, or should have known.   One in possession or control must warn an invitee of dangers that the invitee could not reasonably be expected to discover.  Morin v. Bell Court Condominium Assn., Inc., 233 Conn. 323, 327 (1992).

The word “control” has no legal or technical meaning.   It refers to the power or authority to manage, superintend, direct or oversee.  Panaroni v. Johnson, 158 Conn. 92, 98 (1969);  Doty v. Shawmut Bank, 58 Conn.App. 427, 432 (2000).   Where the evidence is such, that only one conclusion as to the identity of the person exercising control of the premises is possible, it is a question of law, to be determined by the court.  Darling v. Burrone Bros., Inc., 162 Conn. 187, 192 (1972);  Mozeleski v. Thomas, 76 Conn.App. 287, 294 (2003).

In this instance, the Plaintiff fell on an interior stairway, which had been used repeatedly, even on the day of the incident, to transport materials to the basement.   The stairway was part of the premises leased to Star, and under its control, for an extended period of time.

The applicable lease documents demonstrate that the primary responsibility for performing all repairs and maintenance, including those involving fixtures, rested with the Lessee, pursuant to paragraph 18 of the Lease.   Although the Lessor had a right to make repairs to the property, that authority could only be exercised if the Lessee defaulted on its obligations.   If repairs were made by the lessor, the cost of the repairs were to be charged to the Lessee as additional rent, thus retaining the “net/net” character of the instrument, concerning repairs.

Although CIL Realty retained a right to enter the premises to make reasonable inspection, that right was expressly conditioned upon the consent of Star. Furthermore, although authorized to make repairs, the lease instrument specifically provided that the Lessor “shall not be required” to undertake repairs.

It is clear that the Lessor was not in possession or control of the premises on June 4, 2009, and owed no duty of care to the Plaintiff.

Nor can the Plaintiff claim the benefit of an exception to the rule that a tenant in possession bears the risk of any dangerous and/or defective condition on the premises in the area under his exclusive dominion or control.   No creditable claim can be made that the allegedly dangerous and/or defective condition existed twenty years previous when the lease was entered into, or that the alleged defect was known to CIL Realty at the outset of the tenancy, and could not have been discovered by the tenant based upon reasonable inspection.  Johnson v. Fuller, 190 Conn. 552, 558 (1983);  Thomas v. Roper, 162 Conn. 343, 350 (1972).

Since, as a matter of law, the Defendant, CIL Realty, was not in control of the premises on June 4, 2009, it owed no duty of care to the Plaintiff, Brian Davis.   Nor is there any evidence to support the claim that CIL Realty, acting through its agents and employees, had either actual or constructive notice of the allegedly dangerous, and/or defective condition.

Therefore, the motion for summary judgment, as the Defendant, CIL Realty, Inc., must be granted.

PLAINTIFF'S CLAIMS AGAINST STAR, INC. LIGHTING THE WAY ARE BARRED BY THE EXCLUSIVITY PROVISION OF THE WORKERS' COMPENSATION ACT

The Plaintiff acknowledges that he was acting within the scope of his employment as a counselor at an adult group home operated by Star, at the time he sustained injury.

He insists, however, that he may maintain an action against Star, his employer, based upon the Supreme Court decision in Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (1994).   In that case, the court held that the exclusivity bar did not apply, where it could be shown 1) that the employer actually intended to injure the employee, or 2) the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur.  Suarez v. Dickmont Plastics Corp., supra, 108–13.

This claim is not well taken.

The exception to the exclusivity bar recognized in Suarez is a narrow exception, which permits suit based upon an intent to injure the employee, either actually entertained, or discernable from the circumstances.   Mingachos v. CBS, Inc., 196 Conn. 91, 99 (1988).

In Suarez, the injured party was assigned to remove hot plastic materials from machines which were still operating.   He was told by a supervisor not to turn off the machines, because production would be slowed.

Subsequent to that directive, the worker lost two fingers, when he was cleaning a machine which remained in operation.

The court, while expressing some trepidation concerning the use of its precedent in future cases, permitted the action to proceed, based upon a “very narrow exception” to the Workers' Compensation Act. Suarez v. Dickmont Plastics Corp., supra, 117–18.

Use of the Suarez exception, based upon the facts of this case, would serve to validate the apprehension which the Supreme Court expressed when fashioning the narrow exception in that case.

The Plaintiff's attempt to transform an accidental fall on an interior staircase, into a situation in which an employer either intended to injure an employee, or knew that injury was substantially certain to occur, has not been successful.

Therefore, summary judgment must be granted as to the Defendant, Star, Inc. Lighting the Way.

CONCLUSION

Summary judgment is GRANTED, as to both the Defendant CIL Realty, Inc. and the Defendant, Star, Inc., Lighting the Way.

By the Court,

RADCLIFFE, J.

Radcliffe, Dale W., J.