Eyhab Hatab v. Avalon Bay Communities, Inc. (2013)

MEMORANDUM OF DECISION

The present motion asks the court to determine whether the defendants, Avalon Bay Communities, Inc. (Avalon Bay) and Gates Financing, LLC (Gates Financing), owed the plaintiff, Eyhab Hatab, a duty to install a nonskid bath mat or other nonslip surface in the bathtub located within the plaintiff's apartment, which he rented from the defendants.   In a two-count complaint, filed on August 19, 2011, the plaintiff alleges the following facts.   Avalon Bay is a foreign corporation authorized to do business in Connecticut, and controlled the premises located at 100 Avalon Gates, Trumbull, Connecticut.   Avalon served in this capacity as an agent of Gates Financing, a foreign corporation authorized to do business in Connecticut.

On December 15, 2009, the plaintiff executed a lease of the apartment known as 3234 Avalon Gates, Trumbull, Connecticut (premises), which was part of 100 Avalon Gates, Trumbull, Connecticut.   On January 24, 2010, the plaintiff was using the shower in his apartment when he slipped without warning.   The plaintiff attempted to grab a ceramic soap dish installed in the tub, which then broke, creating a sharp edge on which the plaintiff was injured, sustaining a deep laceration to his left wrist and fingers.

Count one alleges that the plaintiff's injuries were caused by the negligence of Avalon Bay in that it:  (a) failed to install handholds in the shower;  (b) failed to install soap dishes that had handles;(c) failed to install grab bars in the shower;  (d) failed to install self-stick tread strips on the bathtub floor;  (e) failed to install bathtubs or showers with nonskid surfaces;  (f) failed to provide or mandate the use of bath mats in its units;  (g) knew or should have known that residents in its apartments would lean on soap dishes when slipping;  and (h) knew or should have known of the serious risk of falls and injuries posed by the bathtubs in its units.   Count two restates the same allegations against Gates Financing.   The plaintiff seeks damages for, inter alia, medical costs, pain and suffering.

On January 7, 2013, the defendants filed a motion for summary judgment as to all counts of the plaintiff's complaint on the ground that they did not possess and control the premises and, therefore, did not owe the plaintiff a duty.¹  The motion was accompanied by a supporting memorandum, the affidavit of Michael Pasick, the community manager of the plaintiff's apartment complex, and a copy of the lease agreement between the plaintiff and Avalon Bay. On April 17, 2013, the plaintiff filed an objection to the defendants' motion for summary judgment.   It was accompanied by a memorandum in opposition, the plaintiff's deposition;  a copy of the lease agreement;  the affidavit of Mark Tebbets, the plaintiff's expert;  the deposition of Michael Pasick and a copy of an incident report prepared by Avalon Bay in relation to the plaintiff's injury.

The court originally heard oral argument on April 22, 2013.   During the argument, the plaintiff contended that the testimony of his expert witness,² who at the time had yet to be deposed by the defendants, would create a dispute of fact such that the case should proceed to trial.   Accordingly, the court ordered the parties to take the deposition of the plaintiff's expert and return for a supplemental oral argument on May 13, 2013.

On May 10, 2013, the plaintiff filed a supplemental memorandum in which he argues, on the basis of the expert's deposition testimony, that there is a genuine issue of material fact such that summary judgment is not appropriate for the present dispute.   Subsequently, on May 13, 2013, the court heard supplemental oral argument on the motion.

“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).  “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).

“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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The defendants argue that summary judgment is appropriate because the issue of duty in a premises liability action turns upon whether a party possesses and controls the premises on which the injury occurred.   The defendants argue further that they did not owe the plaintiff a duty to install a nonskid bath mat, handlebars, or other nonslip surface in the plaintiff's bathtub because they did not possess and control the plaintiff's apartment.   More specifically, they reason that the terms of the lease completely demised the plaintiff's apartment to the plaintiff and, further, that the defendants were under no duty to inspect or repair the premises because the terms of the lease obligated the plaintiff, not the defendant, to maintain the premises in a good state of repair.   The defendants contend that to the extent they did retain the obligation to make some repairs under the terms of the lease, this obligation related only to common areas and did not include the plaintiff's bathtub.   Finally, the defendants argue, the terms of the lease did not require the installation of a nonskid surface or handlebars, the plaintiff inspected and accepted the condition of the premises prior to taking possession of it and the plaintiff never notified the defendants that a nonskid surface or set of handlebars was required.

In response, the plaintiff first argues that summary judgment is generally ill suited as a method of disposition in a negligence case.³  In addition, the plaintiff argues that a factual dispute exists as to control because the lease states that the defendants inspected the premises prior to the plaintiff's taking possession and the lease grants the defendants the right to enter the premises for reasonable business purposes.   The plaintiff also argues that the defendants prepared an incident report following the accident and ultimately repaired the soap dish.   Finally, in the alternative, the plaintiff contends that the defendants did owe the plaintiff a duty because they violated applicable building safety codes and regulations by not installing a nonskid surface or handlebars.

“The law is clear that [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.)  Mills v. Solution, LLC, 138 Conn.App. 40, 59, 50 A.3d 381 (2012).  “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 ․” (Internal quotation marks omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256, 802 A.2d 63 (2002).  “Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property.”  (Internal quotation marks omitted.)  Mills v. Solution, LLC, supra, 138 Conn.App. 60.

“Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ․ The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power of authority to manage, superintend, direct or oversee.”  (Internal quotation marks omitted.)  Id. “[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.”  (Citation omitted;  internal quotation marks omitted.)   LaFlamme v. Dallessio, supra, 261 Conn. 257.   Finally, several judges of the Superior Court have held that, to give rise to a duty, the control possessed by a landlord “must relate to the condition and location of the injury.”   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, 588);  see also Massaro v. Fulton Forbes, Inc., Superior Court, Judicial District of New Haven, Docket No. CV 09 5005441 (September 23, 2010, Fischer, J.) (“The control must relate to the condition and location of the injury.”  [Emphasis in original] );  Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 263193 (July 19, 1999, Beach, J.) (“the notion of possession and control must relate to the condition that caused the injury and not merely the premises where the injury occurred”).

In Fiorelli v. Gorsky, 120 Conn.App. 298, 991 A.2d 1105 (2010), the appellate court found that the defendant did not maintain possession and control of the premises where a lease unambiguously provided otherwise.   There, the plaintiff was injured while exiting the parking lot of the defendant's tenant.   The plaintiff brought an action sounding in premises liability on the theory that the design of the parking lot created a dangerous condition that caused the plaintiff's injury, the defendant controlled the design and layout of the parking lot and, therefore, the defendant owed the plaintiff a duty.   The trial court granted the defendant's motion for summary judgment on the issue of duty after concluding that the undisputed facts before it established that the defendant did not possess and control the premises.

The Appellate Court affirmed.   It reasoned:  The plaintiffs presented no evidence contrary to ․ the lease terms.   They merely referred to sections of the contract under which the lessor needed the defendants' approval prior to taking some action.   In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind:  (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument;  (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended;  [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.”  (Internal quotation marks omitted.)  Id., 309.

Here, in a section entitled “APARTMENT LEASE AGREEMENT—SUMMARY OF KEY LEASE TERMS,” the lease identifies the property leased by the plaintiff as “3234 Avalon Gates, Trumbull, Connecticut 06611.”   Section two of the main body of the lease provides further, in pertinent part:  “APARTMENT.   In consideration for your paying Rent and complying with all other provisions of this Lease, we agree to lease you the apartment home ․ at the Apartment address specified in the Summary.   In this Lease it is called ‘your apartment’ or ‘the apartment.’ “

Section ten of the lease continues, in relevant part:  “ACCEPTANCE AND CARE OF APARTMENT.   At the time you first occupy your apartment or within five (5) business days thereafter, you agree to itemize in a Move–In Inspection Report (the form will be provided by us) all damages to your apartment existing at the time of your initial occupancy ․ If you do not provide to us the itemization within five (5) business days after your Move-in date, the apartment will be deemed accepted by you and to not have any damages or defects ․ You will use reasonable diligence in caring for the Premises and agree to maintain the apartment ․ in as good a condition as they were in at the start of the Lease except for ordinary wear and tear.”   Section ten of the lease provides further, in pertinent part:  “It is our goal to maintain the highest quality living environment for our residents.   Therefore, you should know that we have inspected your apartment prior to the lease Effective Date and know of no damp or wet building materials and know of no mold or mildew contamination.”   Furthermore, section nineteen of the lease provides, in part:  “MANAGER'S OBLIGATIONS.   We will maintain all common areas of the Community in a clean and sanitary condition, make all reasonable repairs, and comply with all applicable state and local laws with respect to such areas.”   Finally, section twenty-nine of the lease provides, in pertinent part:  “RIGHT OF ENTRY.   We may enter your apartment for any reasonable business purpose.”

Reading the above provisions, together with the remainder of the lease as a whole, the court concludes that the lease demised the entire apartment to the plaintiff and, accordingly, the lease unambiguously and unequivocally gave possession and control of the entire apartment, including the bathtub, to the plaintiff.   The fact that the lease also states that the defendants inspected the apartment prior to the lease term does not create an ambiguity or otherwise establish possession and control because the inspection occurred prior to the demise of the premises.   It cannot, therefore, support the position that the defendants maintained possession and control after the demise of the premises.

Similarly, although the court is unable to locate any cases directly on point, other courts that have addressed similar issues have concluded that the fact that the terms of a lease permit a lessor to retain certain rights with respect to leased property does not, without more, establish that the apartment was within the lessor's possession and control.   See, e.g., Mills v. Solution, LLC, supra, 138 Conn.App. 40 (fact that defendant took steps to protect property did not establish possession and control of premises);  Farrell v. McDonald's Corp., supra, 26 Conn. L. Rptr. 586 (in commercial context, mere right to inspect property did not raise issue of fact as to possession and control in unambiguous lease);  Hobart v. McDonald's Restaurant of Connecticut, supra, Superior Court, Docket No. CV 263193 (standard reservation of rights by lessor does not establish possession and control);  Delorenzo v. Conntenn Associates, Superior Court, judicial district of Hartford, Docket No. CV H 7910113 (November 12, 1981, O'Donnel, J.) (landlord did not possess duty to inspect and repair absent agreement;  if agreement present, duty to repair requires notice of necessity of repair).   The court finds the reasoning of these cases to be persuasive in the present context.

In addition, the court concludes that the mere facts that the defendant prepared an incident report subsequent to the accident and, additionally, later repaired the soap dish, do not create a genuine issue of fact as to possession and control because, “in the absence of an agreement, by lease or otherwise, there is no duty to repair totally demised premises.”  Delorenzo v. Conntenn Associates, supra, Superior Court, Docket No. CV H 7910113.   The terms of the lease are silent as to the landlord's duty to repair the premises and the present record does not disclose a separate agreement that would establish such a duty.   Even if a duty to repair did exist, it is well settled that “notice of the necessity of repairs is required ․” Id., citing Rumberg v. Cutler, 86 Conn. 8, 84 A. 107 (1912);  Stevens v. Yale, 101 Conn. 683, 690–91, 127 A. 283 (1925).   This is so because, “[a] landlord cannot be held liable for injuries resulting from a defect where he knew only of conditions naturally productive of the defect, but did not know of the defect itself.”  Delorenzo v. Conntenn Associates, supra, Superior Court, Docket No. CV H 7910 113, citing Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822 (1971).   The undisputed record before the court, in particular the Pasick affidavit, reveals that the plaintiff did not make any request for repairs of any kind to the premises prior to the incident in which he was injured.   The repair that the defendants did perform was made after the plaintiff was already injured and, accordingly, does not give rise to a presumption of control such that the defendant owed a duty to the plaintiff prior to the injury.

As a final matter, the court addresses the plaintiff's contention that his expert's testimony establishes a genuine issue of material fact.   Specifically, the plaintiff claims that his expert's testimony establishes that the defendants owed a duty to the plaintiff to install a nonskid surface in the plaintiff's bathtub because such a surface was required by applicable building codes.⁴  Testimony from the deposition of the plaintiff's expert reveals that he bases this opinion upon Section P–1206.1 of the Building Officials & Code Administrators International, Inc. (BOCA) Plumbing Code that was in effect in 1990, the time the bathtub was installed.⁵  That section provides:  “Bathtubs shall conform to ASME/ANSI A112.19.1, ANSI Z124.1 or ASME/ANSI A112.19.4 listed in Appendix A.” (Emphasis added.).   Section ASME/ANSI A112.19.4 of the American Society of Mechanical Engineers (ASME) provides, in subsection 3.3.6:  “Slip Resistence.   If a slip-resisting product is furnished or specified, the bathing surface shall comply with the requirements of ASTM F 462 starting 1 in. [inch] in from all radii centerlines.   See Fig. 2.” ⁶ Figure two of that standard is a diagram that depicts the appropriate placing of slip-resistant material in a bathtub.

The court is unable to conclude on the basis of the building code provisions provided by the parties that those provisions placed the defendants under a duty to install a nonskid surface or handle bars in the plaintiff's bathtub.   In the first instance, the plaintiff has not provided the court with any authority upon which it can conclude that either the BOCA code or the ASME code were required by Connecticut law at the time of the installation of the bathtub.   Assuming, arguendo, that either code did apply, the court notes that the ASME code states “[i ]f a slip-resisting product is furnished or specified ․” The code does not require the installation of a slip-resistant surface unless one is “furnished” or “specified.”   The undisputed facts before the court establish that no slip-resistant surface was “furnished.”   Similarly, the plaintiff has provided the court with no basis upon which to conclude that a slip-resistant surface was “specified” in the present context.   Accordingly, the court rejects the plaintiff's argument that his expert testimony establishes a genuine dispute of material fact as to the issue of duty sufficient to avoid summary judgment.

The defendants' motion for summary judgment is granted.

GILARDI, J.T.R.

FOOTNOTES

FN1. Prior to the defendants filing their motion for summary judgment, a trial in this matter had been scheduled for April 18, 2013.   Accordingly, pursuant to Practice Book § 17–44, the defendants sought the court's permission to file their motion.  Practice Book § 17–44 provides, in relevant part, “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”   On January 17, 2013, the court Bellis, J., granted the defendant permission to file its motion..  FN1. Prior to the defendants filing their motion for summary judgment, a trial in this matter had been scheduled for April 18, 2013.   Accordingly, pursuant to Practice Book § 17–44, the defendants sought the court's permission to file their motion.  Practice Book § 17–44 provides, in relevant part, “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”   On January 17, 2013, the court Bellis, J., granted the defendant permission to file its motion.

FN2. Also at the April 22, 2013 argument, the defendants raised a previously filed motion to strike the plaintiff's expert on the grounds that (1) the plaintiff's expert's opinion was not based upon scientific knowledge that would satisfy the standard contained in Daubert v. Merrell Dow Pharmacueticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), and (2) the expert's testimony was not based upon personal knowledge.   The court, Gilardi, J., denied the defendants' motion to strike via a written order issued on May 28, 2013..  FN2. Also at the April 22, 2013 argument, the defendants raised a previously filed motion to strike the plaintiff's expert on the grounds that (1) the plaintiff's expert's opinion was not based upon scientific knowledge that would satisfy the standard contained in Daubert v. Merrell Dow Pharmacueticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), and (2) the expert's testimony was not based upon personal knowledge.   The court, Gilardi, J., denied the defendants' motion to strike via a written order issued on May 28, 2013.

FN3. Although the plaintiff is generally correct that negligence cases are ill suited for disposition on summary judgment;  see, e.g., Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984) (“[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner” [internal quotation marks omitted] );  the plaintiff's argument is misplaced because “[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006)..  FN3. Although the plaintiff is generally correct that negligence cases are ill suited for disposition on summary judgment;  see, e.g., Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984) (“[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner” [internal quotation marks omitted] );  the plaintiff's argument is misplaced because “[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

FN4. The parties provided bench copies of all codes upon which the plaintiff relies..  FN4. The parties provided bench copies of all codes upon which the plaintiff relies.

FN5. The parties have not presented the court with an evidentiary basis upon which it may conclude that the bathtub was installed at the time that this version BOCA code was applicable.   Nevertheless, at oral argument on May 13, 2013, counsel for both parties represented their agreement that the 1990 BOCA code was the code applicable to this case..  FN5. The parties have not presented the court with an evidentiary basis upon which it may conclude that the bathtub was installed at the time that this version BOCA code was applicable.   Nevertheless, at oral argument on May 13, 2013, counsel for both parties represented their agreement that the 1990 BOCA code was the code applicable to this case.

FN6. The court has been unable to determine the meaning of the abbreviation “ASTM” and neither party has made a representation as to its meaning..  FN6. The court has been unable to determine the meaning of the abbreviation “ASTM” and neither party has made a representation as to its meaning.

Gilardi, Richard P., J.T.R.