Evelyn Wilcox v. 1354 LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 124)

The defendant, 1354 Commonwealth, LLC moves for summary judgment against the plaintiff.   The defendant argues it was not in possession and control of the subject property where the plaintiff alleges she fell on November 6, 2012.

The plaintiff opposes this motion and argues it should be denied as there is a genuine issue of material fact as to whether the defendant was in possession and control of the common area.

Oral argument was held during short calendar on September 23, 2013.

DISCUSSION

“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.)  Gargano v. Aspiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008).   Generally “[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotations marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   Nevertheless, “The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)   Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The 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).

“Liability for an injury due to defective premises does not depend on title, but on possession and control.”  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).  “Possession involves not only the exercise of acts of ownership over the land but also the exclusion of such acts by others.”   (Internal quotation marks omitted.)  State v. Schaffel, 4 Conn.Cir.Ct. 234, 247, 229 A.2d 552 (1966).  “[T]he 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.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).  “Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property.”  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).

In her complaint the plaintiff alleges she tripped and fell on water on the lobby floor of 150 Sargeant Drive in New Haven, Connecticut.

The defendant acknowledges owning the property but states it is not in possession and control of said lobby area and therefore does not owe plaintiff any duty.

If an issue of control is expressed definitively in a lease it becomes a question of law.   The defendant leased said area where the alleged fall occurred to Medical Center Realty.

The tenant, pursuant to said lease, was in possession and control of the lobby area where the plaintiff allegedly fell on November 10, 2010.

The defendant has no legal duty to the plaintiff and is entitled to judgment as a matter of law.

The motion is hereby granted.

Brian T. Fischer, Judge

Fischer, Brian T., J.