Linda Johnson v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 113)

FACTS

On April 12, 2011, the plaintiff, Linda Johnson, commenced this premises liability suit against the defendant, Fork & Spoon Trading Co., LLC. The plaintiff alleges the following facts in her complaint.   The defendant was in possession and control of the premises located at 271 Crown Street in New Haven.   The plaintiff normally parks her car in the defendant's parking lot pursuant to an agreement between the defendant and the plaintiff's employer, who is the landlord of the premises.   On October 21, 2009, the plaintiff attempted to drive out of the parking lot through a driveway adjacent to the defendant's business.   The exit, however, was blocked by various parked automobiles and the defendant's open basement doors.   The plaintiff attempted to close the basement doors in order to open a path and exit the parking lot.   As she was closing the door, however, it landed suddenly and without warning on her right hand, causing her various injuries.

On January 25, 2013, the defendant filed a motion for summary judgment accompanied by a memorandum in support and the plaintiff's deposition.   In response, on March 1, 2013, the plaintiff filed an objection to the motion accompanied by a memorandum in support, the plaintiff's deposition and the defendant's lease agreement.   This matter was argued at short calendar on May 6, 2013.

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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under 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.”  (Internal quotation marks omitted.)   Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711, 59 A.3d 207 (2013), quoting DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).  “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.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).   The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

The defendant first argues that the court should grant its motion for summary judgment on the ground that it did not violate any duty of care.   Specifically, the defendant argues that the plaintiff was a trespasser and that there was no defect even if she was an invitee or licensee.   The plaintiff counters by arguing that she was not a trespasser and that the defendant breached its duty of care to her as either a licensee or invitee.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).  “The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property.”  Salaman v. Waterbury, 246 Conn. 298, 304–05, 717 A.2d 161 (1998).  “In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.”  Morin v. Bell Court Condominium Ass'n, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct.”   (Internal quotation marks omitted.)  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998).   In contrast “[a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Internal quotation marks omitted.)   Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 48, 58 A.3d 293 (2013).

“The law regarding the definition of an invitee is well established.   Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.   The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land.  (Citations omitted;  internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2008).   By contrast, “[a] trespasser is a person who enters or remains upon land in another's possession without privilege to do so.”   65A C.J.S., Nuisance § 463 (2010).

“Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact ․ Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented.”  (Internal quotation marks omitted.)  Id. In the present case, facts essential to the determination of whether the plaintiff was a trespasser, invitee or licensee at the time of the incident are in dispute.   Specifically, the plaintiff claims that she was either an invitee or a licensee because she had permission from the defendant's landlord to park in the lot behind the defendant's premises and use the adjacent driveway where the incident occurred.   Conversely, the defendant argues that it controls the basement and that the plaintiff trespassed because it did not give her permission to close the basement doors.   Based on these arguments, an issue of fact exists as to the plaintiff's status at the site of the incident.   Notably, the defendant has not submitted sufficient evidence to support its claim that the plaintiff was a trespasser.

For instance, it remains unclear whether the landlord retained some form of control in the area where the incident occurred.   The defendant cites to the plaintiff's deposition where she believed that the defendant controlled the basement doors.  (Defendant's Ex., pp. 46, 54.)   There is no evidence, however, that explains why the plaintiff would be in a position to know the details of the lease.   The actual lease agreement between the defendant and the landlord states that the “[t]enant hereby leases from [l]andlord the premises ․ known by street address as 271 Crown Street consisting of approximately 2,180 square feet and comprising approximately 33.333% of the building's total rentable space ․ with the full basement in a building owned by the [l]andlord ․” (Plaintiff's Ex. B, p.1.) Based on the language of the lease, it is unclear which part of the total rentable space was actually leased to the defendant.   Moreover, the plaintiff's injury did not occur inside the basement.   Rather, the plaintiff sustained her injuries outside of the building, while on property that was either controlled by the defendant or the landlord.  “Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination.”  (Internal quotation marks omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 774, 881 A.2d 379 (2005).   It is also noted that defendant's lease agreement requires “[a]ll delivery doors [to] be kept locked by [t]enant when not in use.”  (Plaintiff's Ex. B, p. 5.) The open basement doors were at least partially blocking the driveway that the plaintiff had permission to use.   Although the defendant did not grant permission to the plaintiff for operating the basement doors, the defendant's landlord may have granted the plaintiff either implied or express permission to close the door as part of her right to use the driveway.   Thus, the defendant has not met its burden in proving that the plaintiff was a trespasser and the evidence is insufficient to establish that the plaintiff was either an invitee or licensee when closing the basement door.   Accordingly, the plaintiff's status must first be determined by a trier of fact before the court may proceed to decide whether the defendant violated its appropriate duty of care.

The defendant also argues that it did not violate the duty to ‘inspect, maintain or warn of any dangers because no defect or dangerous condition existed.   Specifically, it argues that the mere fact that the basement doors were open cannot be considered a defect or a dangerous condition.   Therefore, the defendant contends that there is no duty, regardless of the plaintiff's status, without the requisite existence of a defect or dangerous condition.   On the other hand, the plaintiff argues that a dangerous condition did exist because the doors were susceptible of closing suddenly and without warning.   Furthermore, the plaintiff testified at her deposition that the basement doors were rusty.  (Plaintiff's Ex. A, p. 63.)   Based on these arguments, it is clear that genuine issues of material fact are in dispute and “[i]t is within the province of the trier of fact to determine whether a defective condition existed.”  (Internal quotation marks omitted.)  Palmieri v. Stop and Shop Cos., 103 Conn.App. 121, 124, 927 A.2d 371 (2007).   Moreover, the defendant did not present any evidence that addresses the plaintiff's allegations that the defendant allowed a dangerous condition to exist because the doors were susceptible of closing suddenly and without warning.  “To prevail on a motion for summary judgment ․ the defendant ha[s] an obligation to negate the factual claims as framed by the complaint.   To that end, it [is] incumbent on the defendant to provide the court with more than its belief that it was ‘readily evident’ that the plaintiff ultimately would be unable to meet his obligation at trial to produce evidence to prove that the defendant had actual or constructive notice of the alleged defect.”  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 628, 57 A.3d 391 (2012).   Here, the defendant has not met its burden by failing to provide any evidence that shows the basement doors were not dangerous.   Consequently, the existence of a defect or dangerous condition remains an issue of fact.   See Fink v. Bailey, Superior Court, judicial district of New Britain, Docket No. CV 06 5001859 (September 9, 2008, Pittman, J.) (genuine issues of material fact present as to the existence or non-existence of the alleged problems);  Telerent Leasing Corp. v. Morgan Inn, LLC, Superior Court, judicial district of New London, Docket No. CV 565197 (January 24, 2005, Hurley, J.T.R.) (“[w]hether the equipment was defective is a genuine issue of material fact ․ because it is a factor to be considered in determining whether the defendants are liable to the plaintiff”).

The defendant next argues that the court should grant summary judgment in its favor because the plaintiff's injuries were the result of an act of God. The plaintiff argues that an act of God defense is available only when it is the sole cause of the plaintiff's injuries and that the issue of causation is one for the trier of fact.

An act of God “comprehend[s] all misfortunes and accidents arising from inevitable necessity, which human prudence could not foresee or prevent;  and ․ its significance as a defense being that when a sole cause of the damage, it exempts a defendant from liability for negligence.”  (Citation omitted;  internal quotation marks omitted;  emphasis added.)  Pleasure Beach Park Co. v. Bridgeport Dredge & Dock Co., 116 Conn. 496, 502, 165 A. 691 (1933).   Thus, an act of God defense is available only when a force of nature is the sole cause of the plaintiff's damage.   See Beauton v. Connecticut L. & P. Co., 125 Conn. 76, 81, 3 A.2d 315 (1938) (“[i]f the damage is caused directly and exclusively by an act of God, it could not be due to negligence”);  Star Silk and Woolen Co. v. Palmer, 6 Conn.Sup. 186, 188 (“the defendants will not be relieved of liability by the defense of an act of God if their own lack of care concurs and contributes to plaintiff's damage”).   In the present case, it is unclear whether the gust of wind that the defendant claims was an act of God was the sole cause of the door falling onto the plaintiff's finger.   Thus, the defendant's act of God defense clearly presents an issue of fact.   For instance, the rust on the door may also have contributed, along with the gust, to the door suddenly falling on the plaintiff's hand.   Without any evidence to the contrary, the defendant has not met its burden of showing that the gust of wind was the sole proximate cause of the plaintiff's injuries.

Finally, the defendant argues that it cannot be liable for the plaintiff's injuries because the accident was the result of her own negligence.   Specifically, the defendant cites to General Statutes § 52–572h(b), which provides, in relevant part:  “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person ․ to recover damages resulting from personal injury ․ if the negligence was not greater than the combined negligence of the person ․ against whom recovery is sought ․” Thus, the plaintiff could be barred from recovery if she was negligent in closing the basement doors and her negligence was greater than the defendant's alleged negligence for leaving the door open and not maintaining it.   The determination of whether the plaintiff's own negligence was greater than the defendant's negligence, however, is an issue of fact.   See Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975) (“[t]he conclusion of negligence is necessarily one of fact”).  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).   Therefore, it would be inappropriate, in the present case, for the court to determine whether the plaintiff's negligence was greater than the defendant's negligence.   Instead, a finder of fact must decide the extent of the plaintiff's own negligence versus that of the defendant.   Accordingly, the defendant's contributory negligence argument must also fail at the summary judgment phase of the proceedings.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied because genuine issues of material fact remain.

Wilson, J.

Wilson, Robin L., J.