Arcelia Mariani v. Lucio Ruzzier et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 126

FACTS

The plaintiff, Arcelia Mariani, commenced this action on May 19, 2011 by service of process on the defendants, Lucio Ruzzier, Lidia Ruzzier, LRC Enterprises, LLC (LRC Enterprises), and G.R.M., LLC. In count one of her four-count complaint, the plaintiff alleges the following facts.   On June 20, 2009, the plaintiff was lawfully upon the premises “owned, operated, possessed, rented and/or controlled” by the defendant, G.R.M., LLC, located at 16 Colony Street in Meriden, Connecticut (the premises),¹ when she slipped and fell on liquid that had accumulated on the floor.   Consequently, the plaintiff sustained physical injuries, as well as emotional distress, and is seeking monetary damages.   The conditions that caused her fall were the result of the defendant's negligence and carelessness in that it allowed liquid to remain on the floor, maintained the floor in a dangerous condition, failed to remedy the dangerous condition, failed to require the tenant to properly maintain the premises, permitted its tenant to bring customers on the property knowing the tenant did not have adequate experience, financial resources, or personnel to maintain a nightclub on the premises, conducted its business in such a way that it created a dangerous condition, and otherwise failed to exercise due care in maintaining the premises.

Thereafter, on May 31, 2013, the defendant ² filed a motion for summary judgment as to count one on the ground that, pursuant to the terms of the lease agreement between the defendant and LRC Enterprises, the defendant, as the landlord of the premises, did not maintain possession or control over the premises and is therefore not liable for the plaintiff's alleged injuries.   In support of its motion, the defendant submitted a copy of the lease agreement, as well as an affidavit stating that it was not in possession or control of the premises at the time of the alleged incident.   On August 12, 2013, the plaintiff filed an objection to the defendant's motion for summary judgment.   The matter was heard at the short calendar on August 12, 2013.

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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 28 A.3d 1162 (2013).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “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).  “[T]he 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).

In the present case, the defendant argues that no genuine issue of material fact exists and it is therefore entitled to judgment as a matter of law because it was not in possession or control of the premises at the time of the alleged incident.   The defendant argues that, pursuant to the terms of its lease with LRC Enterprises, the defendant maintained no responsibility to “maintain, clean, or mop the dance floor where the plaintiff is alleged to have slipped and fallen.”   Thus, it owed no duty to the plaintiff, and therefore cannot be held liable to the plaintiff for her injuries.   Conversely, the plaintiff, in her objection to the defendant's motion for summary judgment, argues that the lease between the parties did, in fact, place control and possession of the premises within the hands of the defendant, and the defendant therefore did owe the plaintiff a duty.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ 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 ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 589, 50 A.3d 802 (2012).   “[A]s a matter of common law ․ landlords generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant.”  (Internal quotation marks omitted.)   Stokes v. Lyddy, 75 Conn.App. 252, 260, 815 A.2d 263 (2003).  “Liability for an injury due to defective premises does not depend on title, but on possession and control.”  Farlow v. Andrews Corporation, 154 Conn. 220, 225, 224 A.2d 546 (1966).

In the present case, pursuant to the lease agreement between the defendant and the tenant, LRC Enterprises, the tenant assumed responsibility for properly maintaining the area in which the plaintiff fell.   The fifth section of the lease agreement states that LRC Enterprises maintained the duty to “keep the demised premises in good condition ․ and renovate said premises as may be necessary to keep them in repair and good appearance ․ The Tenant further [agreed] to keep said premises and all parts thereof in a clean and sanitary condition and free from trash, inflammable material and other objectionable matter.”   Moreover, the eighth section of the lease agreement states “[t]he Landlord shall not be responsible for ․ injury to persons, occurring in or about the demised premises or the property of which the premises are a part, or of the acts, omissions, or negligence of other persons or tenants in and about the said property.   The Tenant agrees to indemnify and save the Landlord harmless from all claims and liability for ․ injuries to persons occurring in or about the demised premises.”   Nothing in the lease agreement suggests that the defendant maintained possession or control over the area of the property where the plaintiff fell.

In her objection to the defendant's motion for summary judgment, the plaintiff, arguing that the lease agreement places possession and control of the property within the hands of the defendant, cites to the tenth section of the lease, which states in relevant part:  “[t]he Landlord ․ shall have the right to enter the demised premises ․ to run telephone or other wires, to make such repairs, additions, or alterations as it shall deem necessary for the safety, preservation or restoration of the improvements, or for the safety or convenience of the occupants or users thereof.  (There being no obligation, however, on the part of the Landlord to make any such repairs, additions, or alterations.)”   While the tenth section does state that the defendant, as the landlord, maintained the right to enter the premises, it was not obligated to examine the premises, nor was it obligated to make any repairs, additions, or alterations.

The plaintiff also argues that the sixteenth section of the lease imputes the defendant with possession and control of the property.   That section states in relevant part:  “[t]he Landlord reserves the right to rescind any presently existing rule applicable to the demised premises and to make such other and further reasonable rules and regulations as, in its judgment, may from time to time be desirable for the safety, cure, and cleanliness of the premises.”   While this section provides the defendant landlord with the right to make and rescind any rules and regulations as it sees fit, it does not demonstrate that the defendant maintained possession and control of the premises in which the plaintiff fell.

Similarly, the plaintiff argues that the defendant maintained a duty to the plaintiff pursuant to the seventeenth section of the lease agreement, which provides in relevant part:  “[i]n the case of violation by the Tenant of any of the covenants, agreements and conditions of this lease or of the rules and regulations now or hereafter to be reasonably established by the Landlord, and upon failure to discontinue such violation within ten days after notice thereof given to the Tenant, this lease shall thenceforth, at the option of the Landlord, become null and void.”   Again, however, the plaintiff makes no argument as to how the seventeenth paragraph demonstrates that the defendant landlord maintained possession and control over the premises in which the plaintiff fell.   Therefore, although the defendant was the landlord and owner of the premises, it was the tenant, LRC Enterprises, who was in possession and control of the premises at the time the plaintiff fell, and it was therefore the tenant's duty to maintain the premises in a clean and safe condition and to make reasonable inspections thereof.

Although the defendant surrendered possession and control of the premises to the tenant, the defendant could still be liable for the plaintiff's injuries under an exception to the general rule that landlords have no duty to properly maintain any portions of the premises leased to and in the exclusive possession and control of the tenant.   Fountain v. D'Addario Industries, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV–89–0261424–S (December 17, 1991, Spear, J.).  “[A] visitor to business premises which have been leased by the owner may recover against him upon proof (1) that there existed at the time of the leasing conditions on the leased premises likely to cause injury to persons entering the premises;  (2) that the landlord has knowledge, actual or imputable, of the existence of these conditions;  (3) that the landlord had knowledge, actual or imputable, that persons were likely to be invited upon the premises as customers of the tenant;  [and] (4) that the landlord had reason to expect that the tenant would not take steps to remedy or guard against injury from the conditions.”  Fiorelli v. Gorsky, 120 Conn.App. 298, 310, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).   Thus, under the exception to the general rule, “[i]n order for the defendant Landlord to be held liable for injuries sustained by virtue of [a dangerous] condition, that condition must have existed at the time the premises were put into the possession and control of the Tenant ․ or, alternatively, the condition must have been created by the defendant at some time subsequent to the commencement of the tenancy.”  Fountain v. D'Addario Industries, Inc., supra.

In the present case, the plaintiff has presented no evidence indicating the wet spot on which the plaintiff slipped was there at the time the defendant landlord transferred possession of the property to the tenant nor does the plaintiff claim that the defendant had knowledge of the condition.   Therefore, the defendant cannot be held liable for the plaintiff's injuries under the exception to the general rule.

Having failed to establish the relevant, existing exception regarding a landlord's duty of care, the only allegation of the complaint that would create a new duty states that the defendant knew its tenant did not have adequate experience, financial resources, or properly trained personnel to maintain a nightclub, but nevertheless allowed the tenant to do so.   The plaintiff does not brief this argument in opposition, but nevertheless, as a matter of law, no such duty should be extended to landlords.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ․ The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ [T]he test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ․ A further inquiry must be made, for [the court] recognize [s] that duty is not sacrosanct in itself ․ but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”   (Internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 590, 50 A.3d 802 (2012).  “In defining the limits of duty, we have recognized that [w]hat is relevant ․ is the ․ attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand ․ [D]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ․ Due care is always predicated on the existing circumstances.”   (Internal quotation marks omitted.)  Id., 595.

The link between a landlord's general knowledge of the plaintiff's business operations—at the time of the signing of the lease—and a slip-and-fall accident involving the tenant's customer—at some distant point in the future—is far too attenuated and remote to be foreseeable.   Lack of forseeability is fatal to the existence of a duty, but even if it was foreseeable, such a duty would not be extended as a matter of policy due to increased litigation.   See id., 603 (increased litigation one of four factors considered for public policy analysis).   Landlords, based on their alleged knowledge of the tenant's business, could be held liable for virtually any cause of action in connection with the tenant's business.   Accordingly, this duty of care should not be extended to landlords.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion for summary judgment as to count one of the complaint.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Though not stated in the complaint, the plaintiff notes in her objection to the defendant's motion for summary judgment that the premises in which the fall occurred was a nightclub called Club Mambo..  FN1. Though not stated in the complaint, the plaintiff notes in her objection to the defendant's motion for summary judgment that the premises in which the fall occurred was a nightclub called Club Mambo.

FN2. Though there are multiple defendants in this case, the party moving for summary judgment is the defendant, G.R.M., LLC, who will therefore be referred to as the defendant throughout this memorandum..  FN2. Though there are multiple defendants in this case, the party moving for summary judgment is the defendant, G.R.M., LLC, who will therefore be referred to as the defendant throughout this memorandum.

Fischer, Jack W., J.