Sharon Robinson v. Kathan Talebi (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 127)

On February 6, 2012, the plaintiff, Sharon Robinson, filed a one-count complaint sounding in negligence against the defendant, Kathan Talebi, for injuries and losses allegedly sustained on April 29, 2010, when the plaintiff tripped and fell down a staircase located at 164 Central Avenue in Norwich, Connecticut, premises are owned, maintained, possessed and/or controlled by the defendant.¹  On July 11, 2012, the defendant filed a two-count apportionment complaint against Raunel Blyden and his wife, Tanisha Evans (“the Blydens”), Jonathan Jandreau and Angelina Tootell (collectively “the apportionment defendants”).²  On November 29, 2012, the defendant filed an answer and special defenses.³

On April 4, 2013, the defendant moved for summary judgment.   As evidence to support his motion, the defendant submitted the following exhibits:  (A) a copy of the lease between the defendant and her husband, dated August 4, 2009;  (B) a copy of the lease between the defendant and the apportionment defendants, dated November 13, 2009;  (C) excerpts from an uncertified deposition transcript of the plaintiff, dated October 15, 2012;  (D) the defendant's affidavit, dated March 25, 2013;  (E) a letter from Gardner, dated January 11, 2013;  (F) a certificate of occupancy, signed by Gardner and dated March 9, 2012;  and (G) and (H), two photographs of the subject staircase.   On May 8, 2013, the plaintiff filed an opposing memorandum together with her exhibits (1), another copy of the November 13, 2009, lease of the premises, and (2), her affidavit dated May 3, 2013.   On June 4, 2013, the defendant filed a reply to the plaintiff's opposition.   The motion was argued on July 29, 2013.

FACTS

From the uncontested evidence, the court finds the following facts.   On April 29, 2010, and for some time prior to that date, the defendant owned, maintained, possessed and/or controlled residential rental properties at 164–166 Central Avenue in Norwich, Connecticut.   From about August 4, 2009, through April 29, 2010, the plaintiff and her husband were the defendant's tenants at 166 Central Avenue.   From about November 13, 2009, through April 29, 2010, Raunel Blyden and his wife, Tanisha Evans (“the Blydens”), and others were the defendant's tenants at 164 Central Avenue, next door to the plaintiff's unit.

The 164–166 Central Avenue two-family dwelling was built in 1929, prior to Connecticut's adoption of the 2005 State Building Code. (See G. Gardner letter dated January 11, 2013, Exhibit E to defendant's Motion for Summary Judgment.)   The staircase at issue is steep ⁴ and located entirely within the 164 Central Avenue premises.  (See defendant's Exhibit D.) On March 9, 2012, George Gardner (“Gardner”), the code enforcement officer for the city of Norwich, certified that the 164–166 Central Avenue premises “conformed substantially” with the 2003 International Residential Portion of the 2005 State Building Code (“the code”) and approved the location for use and occupancy.  (See defendant's Ex. F.) Though it did not meet the code at the time of the alleged fall, the code did not require the staircase to be modified to meet existing standards unless it was being replaced.  (See defendant's Ex. E.)

The Blydens' lease permitted them to have guests at the premises.  (See defendant's Exhibit B;  also plaintiff's Exhibit 1, paragraph 4.) On April 29, 2010, the plaintiff was their lawful guest at the premises.   The plaintiff had substantially similar—particularly, similarly steep—stairs in her unit next door.  (See defendant's Ex. C. See footnote 2.) She had used her own unit's similar stairs without injury and had used the subject stairs at the premises without problems, let alone injury, at least ten times before her fall.  (See defendant's Ex. C, pp. 24, 31.)

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.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “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).

“Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).   Thus, “[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.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).

The defendant, in support of its motion for summary judgment, argues that it owes no duty to the plaintiff to repair defects within the premises, which are in the exclusive possession and control of the tenants/apportionment defendants.   Absent such a duty, the defendant argues, the plaintiff cannot prove a prima facie case of negligence and, as a result, the defendant is entitled to judgment as a matter of law.   The plaintiff argues that there is a genuine issue of material fact as to whether the defendant relinquished control of the interior portion of the apartment and, therefore, the motion for summary judgment must be denied.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ․ 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.)  Considine v. Waterbury, 279 Conn. 830, 858–59, 905 A.2d 70 (2006).

Connecticut courts have found that a state building code violation is negligence per se.   See Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 24–25, 60 A.3d 222 (2013) (upholding verdict for the plaintiff based on building code violation as negligence per se);  Gore v. People's Savings Bank, 235 Conn. 360, 372, 665 A.2d 1341 (1995) (presence of lead paint in violation of §§ 47a–8 and 47a–54f was negligence per se).   Nevertheless, the absence of a violation of the building code does not mean there has been no negligence.   See Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012) (discussing difference between negligence per se and common-law negligence);  Gore v. People's Savings Bank, 35 Conn.App. 126, 134, 644 A.2d 945 (1994) (same), rev'd on other grounds, 235 Conn. 360, 665 A.2d 1241 (1995);  Buravski v. DiMeola, 141 Conn. 726, 729, 109 A.2d 867 (1954) (same).

In this court's view, a jury could find that a stairway is more than just the treads, the surface of the treads, and the risers.   A jury could find that a stairway is an integrated system for walking with reasonable safety from one level of a structure to another, including, for present purposes, appropriate hand railing(s) and lighting, the width of the stairs and warnings if necessary, as well as the stair treads, their surface, and the height of the risers.

The plaintiff alleges that “[a]s she fell, she tried to brace herself by holding onto the hand railing but the hand railing came apart from the wall thus contributing to her fall down the stair case.”   In his affidavit in support of the present motion, the defendant testifies that, although he did not occupy or—contrary to his admission of paragraph 1 of the complaint—control the premises, “[p]rior to and after the occurrence, the handrail/bracket and the stairs in question at the 164 Central Avenue apartment were in good repair” and “did not require repair after the occurrence.”

In ruling on a motion for summary judgment, the court cannot determine the credibility of witnesses, let alone determine which of two conflicting claims is true.   See Masse v. Perez, 139 Conn.App. 794, 798, 58 A.3d 273 (2012) (the trier of fact is the final judge of the credibility and weight of testimony), cert. denied, 308 Conn. 905, 61 A.3d 1098 (2013);  Bogart v. Tucker, 164 Conn. 277, 283, 320 A.2d 803 (1973) (courts do not substitute their judgment concerning the credibility of witnesses for that of the jury).   The defendant's main argument is that he owed no duty to the plaintiff to repair the subject stairs and/or the upper bracket handrailing because the staircase was entirely within the premises.   It was not a common area.   Therefore, the defendant argues, he was not in possession or control of the premises and, if there was a defect in the premises, he had no liability for that defect.   This argument is unpersuasive for three reasons.   First, the defendant admits the plaintiff's allegation in her complaint that, on and for some time prior to April 29, 2010, he owned, maintained, possessed and/or controlled the premises.   See defendant's answer, paragraph 1. Second, the defendant's retention of significant control of the premises is shown by the lease of the premises, particularly sections 13 (landlord can enter at all reasonable times for inspection, repairs and alterations and to remove things that violate lease) and 7 (tenant shall make no alterations without landlord approval).

Third, as to the railing, it appears that the alleged condition—weakness of the top railing bracket that resulted in the railing coming off the wall and failing to stop the plaintiff's fall—was latent:  there is no evidence that the defendant, the tenants at the premises, or the plaintiff knew that the railing was not well enough installed to stay in place when grasped by a person beginning to fall down the stairs.   The defendant claims that the alleged defect was not present at the beginning of the Blydens' tenancy in November of 2009, that he had neither actual nor constructive notice of any defect, and that he cannot, as a matter of law, be found to have had a duty to eliminate the defect.   The defendant acknowledges that, where the lessor retains control of part of the property, he has a duty to use reasonable care to keep such property reasonably safe.  Klahr v. Kostopoulos, 138 Conn. 653, 655, 88 A.2d 332 (1952);  see Johnson v. Fuller, 190 Conn. 552, 558, 461 A.2d 988 (1983) (landlord responsible for defects at outset of tenancy due to faulty design or disrepair not reasonably discoverable by tenant and actually or constructively known to landlord).   This duty requires a reasonable inspection by the landlord.  Id. Here, the defendant argues that the court should find his inspection of the premises was reasonable as a matter of law.   He implicitly argues that, because the railing had not failed or revealed itself as about to fail, he had no duty to inquire further into its safety and soundness.   The court disagrees.   In common experience, railings are not supposed to come off the walls to which they are attached.   Purely for illustration, if a railing bracket is screwed into wallboard or plaster alone, not into a piece of framing wood, common experience dictates that it is reasonably likely to fail when stressed, even if has held up for years of light use.   Indeed, the jury could find that, the older a railing is, the closer inspection it should receive.   As to the railing in this case, the pertinent time of control and of the duty to inspect and maintain may have been before the defendant's tenants moved into the premises.   That is a question for the jury.

As for the integrity of the railing at the subject stairway, the defendant relies on two arguments.   The first is that the railing was in good repair before the plaintiff's claimed fall, it was not broken in the fall, and required no repair after the fall.   The court could so find only by crediting the defendant's testimony (despite his admission he did not occupy the premises or say when he first saw the subject stairway after April 29, 2010) and discrediting the plaintiff's allegation that the railing came apart from the wall, contributing to her fall (by failing to stop or mitigate her fall).   That the court cannot do.   See Bogart v. Tucker, supra, 164 Conn. 283.   The defendant's second argument is that the plaintiff was familiar with the stairway, particularly its steepness.   She had used it multiple times and, even more often, the similar stairway in her apartment without injury.   Therefore, citing Shegda v. Hartford–Connecticut Trust Co, 131 Conn. 186, 191–92, 38 A.2d 668 (1944), the defendant argues that the duty to fix, avoid, or at least give notice of the defect to the landlord was on the plaintiff.   That argument does not apply to the railing which, had it held when the plaintiff alleges she needed it to hold, could have prevented at least some, if not all, of her injuries.

CONCLUSION

There are triable issues of material fact.   The defendant's motion is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The defendant's answer (# 113.00) does not answer paragraph 7 of the complaint.   That paragraph includes key allegations that the “fall of the plaintiff was caused by the carelessness and negligence of the defendant in [several] ways ․” However, the defendant's denial of those allegations is, for present purposes, clear from the present motion..  FN1. The defendant's answer (# 113.00) does not answer paragraph 7 of the complaint.   That paragraph includes key allegations that the “fall of the plaintiff was caused by the carelessness and negligence of the defendant in [several] ways ․” However, the defendant's denial of those allegations is, for present purposes, clear from the present motion.

FN2. Count one sounds in negligence and count two seeks indemnification..  FN2. Count one sounds in negligence and count two seeks indemnification.

FN3. By way of the special defenses, the defendant asserts that the plaintiff suffered the injuries alleged in the complaint “as a result of his/her own negligence and not as a result of any of the negligence on the part of the defendant ․”.  FN3. By way of the special defenses, the defendant asserts that the plaintiff suffered the injuries alleged in the complaint “as a result of his/her own negligence and not as a result of any of the negligence on the part of the defendant ․”

FN4. See transcript of the plaintiff's October 15, 2012, deposition, the entirety of which was submitted, without objection, by the plaintiff's counsel to the court at oral argument on July 29, 2013, pp. 25, 26, 51, 52.   See also defendant's Exhibit C..  FN4. See transcript of the plaintiff's October 15, 2012, deposition, the entirety of which was submitted, without objection, by the plaintiff's counsel to the court at oral argument on July 29, 2013, pp. 25, 26, 51, 52.   See also defendant's Exhibit C.

Cole–Chu, Leeland J., J.