James Masciangioli v. LLC (2013)

MEMORANDUM OF DECISION

This motion for summary judgment (# 148) was argued at the short calendar on June 24, 2013 as was the objection (# 152).   For the reasons stated briefly below, the motion will be denied and the objection will be sustained.

The plaintiff, James Masciangioli, has sued several defendants including Sunsational Dreams Tanning Salon, LLC (“tenant”) and William Drayton, Brian Drayton and Sandra Dunn (“landlord”) for injuries allegedly sustained in a slip and fall on ice on a public sidewalk in front of the tenant's place of business in Thomaston, Connecticut.   The landlord owns the storefront property abutting the sidewalk where the tenant conducts its business.   It is one of several storefronts in the landlord's building.   The tenant has moved for summary judgment on two grounds:  1) the tenant did not have a duty to clear the sidewalk of ice and snow, and 2) the tenant did not have notice of the alleged condition of the sidewalk.   The landlord opposes summary judgment on the first ground but not the second.   Each ground will be discussed in turn.

Control

The tenant agrees with the plaintiff that Thomaston has an ordinance which shifts the duty to care for public sidewalks to the owner of the abutting land.   The tenant argues that this duty is nondelegable but concedes that a tenant may also assume the duty to care for the sidewalk if the landlord relinquishes control of the sidewalk.   But, the tenant will have no duty to care for the sidewalk if the landlord retains control of it.   The tenant argues that there are no genuine material facts that show that the landlord relinquished control to the tenant.

The tenant presents evidence that there was no written lease which contracted out control of the sidewalk to the tenant.   The affidavit of the tenant's owner indicates that she had a month-to-month verbal tenancy, that the sidewalk was used as a common approach by several other tenants as well, and that she never contracted to clear the sidewalk of ice and snow.

Not surprisingly, the landlord agrees with the plaintiff that the tenant has not shown that there is no genuine issue of material fact as to control of the sidewalk.   The landlord submitted an affidavit from William Drayton that each of the tenants in the storefronts in the landlord's building were responsible for the snow and ice on the sidewalk in front of their business;  that the tenant began its occupancy of the building in the fall of 2006 through the date of the plaintiff's fall in January 2009 and that during this entire time it was responsible for the ice and snow in front of its business.   The plaintiff and the landlord point to portions of the deposition of the tenant's owner that the owner of the adjoining business advised her that each business was responsible for snow and ice maintenance in front of his or her storefront.   The tenant's owner also testified that 90% of the time the tenant cleared the snow in front of its business and that 10% of the time a neighboring owner did it.   The landlord never did it.   The plaintiff and the landlord argue that this evidence is enough to create a genuine issue of material fact as to the issue of control.

I agree with the plaintiff and the landlord that a genuine issue of material fact exists.   The issue of control is one of fact which should be decided by the jury unless there is no evidence supporting the plaintiff's position.   “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 or authority to manage, superintend, direct or oversee ․ unless 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.”  (Citation omitted;  internal quotation marks omitted.)  La Flamme v. Dallessio, 65 Conn.App. 1, 14–15 (2001), rev'd on other grounds, 261 Conn. 247 (2002).

Viewing the evidence in the light most favorable to the non-moving parties, there is some evidence that the tenant controlled the sidewalk.   The landlord says that the tenant had control and the tenant acted as if it had control by clearing the sidewalk rather than demanding that the landlord do it.  “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.”  (Citation omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116 (2012).   There is a genuine issue of material fact concerning control of the sidewalk where the plaintiff allegedly fell.

Notice

The tenant also argues that it had no notice of the defective condition of the sidewalk before the plaintiff slipped and fell.   The landlord agrees with the tenant on this issue.   However, there is evidence from which a reasonable trier of fact could conclude that the tenant had constructive notice of the defective condition.   In her deposition, the tenant's owner admitted that she had seen black ice conditions on the sidewalk before and that she had arrived at work in the morning to find ice on the sidewalk which she would have to treat.   She did not deny that she had on occasion seen wet areas on the sidewalk which might freeze overnight.   Photographs of the store taken on the day of the fall show snow on the pitched roof which overhangs the sidewalk and appear to show a drip line running along the sidewalk.   Weather reports show that there had been below freezing temperatures for several days after a heavy snow, and then a thaw during the day before the plaintiff's fall followed by a re-freeze at night.   The fall took place early the next morning.   Whether this evidence would be enough to convince a jury that the tenant had constructive notice of the icy sidewalk on the morning of the fall is unknown.   But, a reasonable person could draw that conclusion.

“So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried ․ A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried;  rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.”  (Citations omitted;  internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 631 (2012).   There is a genuine issue of material fact about whether the tenant had notice of the allegedly defective condition of the sidewalk.

For the foregoing reasons, the motion for summary judgment is denied and the objection is sustained.

BY THE COURT,

John W. Pickard

Pickard, John W., J.