Kevin Kennedy v. Carlos Aguinaga, Jr. et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [# 183]

FACTS

On February 15, 2011, the plaintiff, Kevin Kennedy, filed a twenty-eight-count third amended complaint against the defendants, Carlos Aguinaga, Jr., James C. Condict, Steven A. Franchino, Ricky T. Gray, Michael C. Cavaleuzza, Justin W. Schwartz, Wendell of Preston, LLC (Wendell) and JAWS, LLC, seeking damages for personal injuries allegedly sustained as the result of a physical altercation.¹  In his complaint, the plaintiff alleges the following facts.   On June 28, 2009, the plaintiff was a patron at the Brookside Café in Preston, Connecticut, where he was attacked by the individual defendants, Aguinaga, Condict, Franchino, Gray, Cavaleuzza and Schwartz.   As a result, the plaintiff sustained serious injuries and damages.   Count twenty-eight, which is at issue here, alleges a claim against the defendant sounding in reckless misconduct for service of alcohol to the individual defendants involved in the altercation.

On April 11, 2012, the defendant filed a motion for summary judgment as to count twenty-eight of the plaintiff's third amended complaint on the ground that no genuine issues of material fact exist, and therefore, the defendant is entitled to summary judgment as a matter of law.   The defendant filed a memorandum in support of its motion.   On July 18, 2012, the plaintiff filed an objection to the defendant's motion accompanied by a memorandum in support.

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.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).

“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.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

The defendant argues that its motion for summary judgment as to the plaintiff's reckless misconduct claim should be granted because the defendant is not in the business of selling or dispensing alcohol to the public.   The defendant further argues that it did not owe the plaintiff a duty of care as the landlord of the premises on which the Brookside Café is located because the defendant did not have control or possession of the premises at the time of the altercation.   The plaintiff counters that the defendant had control over the premises at all relevant times because the defendant's members are also the members of Wendell, a limited liability company that leased the premises from the defendant and is in the business of selling alcohol to the public as the owner and backer of the Brookside Café, and therefore the defendant can be held liable for the plaintiff's reckless misconduct claim.

“As a matter of well settled common law, [i]t is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control.”  (Internal quotation marks omitted.)  Giacalone v. Housing Authority of Wallingford, 306 Conn. 399, 407, 51 A.3d 352 (2012).  “Although the determination of whether a duty exists is ordinarily a question of law ․ under some circumstances the question involves elements of both facts and law ․ Whether the defendant retained a sufficient amount of control over the property is a question of fact ․ Control, over the area, is defined as the authority to manage, direct, superintend, restrict or regulate.”  (Citations omitted, internal quotation marks omitted.)   Stafford v. Roadway, Superior Court, judicial district of New London, Docket No. CV 09 5013225 (February 22, 2012, Martin, J.).

In the present case, the evidence submitted to the court includes copies of inquiry reports regarding the defendant and Wendell from the Connecticut Commercial Recording Division.   The inquiry reports identify Helen Santaniello and Alice Fusco as the sole members of both the defendant and Wendell.   Pursuant to the foregoing case law, and in light of the factual circumstances present here, whether the defendant retained control over the premises, thereby owing the plaintiff a duty of care, constitutes a genuine issue of material fact not proper for determination on summary judgment.   As a result, the defendant is not entitled to judgment as a matter of law, and the defendant's motion for summary judgment as to count twenty-eight of the plaintiff's complaint must be denied.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion for summary judgment as to count twenty-eight of the plaintiff's complaint.

Martin, J.

FOOTNOTES

FN1. Aguinaga, Condict, Franchino, Gray, Cavaleuzza, Schwartz and Wendell are not parties to the present motion.   Hereinafter the term the defendant refers to JAWS, LLC..  FN1. Aguinaga, Condict, Franchino, Gray, Cavaleuzza, Schwartz and Wendell are not parties to the present motion.   Hereinafter the term the defendant refers to JAWS, LLC.

Martin, Robert A., J.