Felix Samboy–Rodriguez v. FMG LLC (2013)

MEMORANDUM OF DECISION

This is an action brought by the plaintiff-tenant residing at certain premises at 115 Rose St. in Waterbury, Connecticut.   The plaintiff-tenant claims that ice and snow were allowed to accumulate on certain exterior stairs outside the said premises and that the plaintiff slipped and fell on the said stairs.   The plaintiff further alleges that the accumulated ice and snow were the cause of his resulting injuries.   The defendant-landlord claims that under the terms of the lease, the plaintiff-tenant was responsible for clearing snow and ice from the subject stairs.   The defendant further claims that it is entitled to summary judgment based on the evidence and facts produced.  “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.”  (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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.

․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed 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, 10–11, 938 A.2d 576 (2008).

“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 ․ [L]andlords [however] 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.”   (Citation omitted;  internal quotation marks omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002).

“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.”  (Internal quotation marks omitted.)  Fiorelli v. Gorsky, supra, 120 Conn.App. 308.  “In considering control of the premises, one can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property and the use of the premises.”  Windecker v. Roscoe Family Ltd. Partnership, Docket No. CV00–05040235 (June 14, 2002, Quinn, J.) (32 Conn. L. Rptr. 354, 356).

The plaintiff relies on certain sections of his deposition taken by the defendant in which he denies exclusive responsibility for clearing and maintaining the subject stairs.   The plaintiff alleges that another tenant on the third floor shares that responsibility.   He further references those sections of the lease 7.6:  “Tenant shall make sure sidewalks and steps are free of snow and ice.” and the additional terms:  “Help with snow shoveling walk and stairs ․”

Based on the phraseology of what the tenant's responsibility is concerning the subject stairs, it would appear that the defendant-landlord has not exclusively devised or delegated control and possession of the subject stairs to the plaintiff-tenant.  “Helping” with snow removal implies that other parties are involved, not to the exclusion of the landlord-defendant.  “Making sure” that sidewalks and steps are free of snow and ice sounds like maintenance, delegated by a higher authority, such as a landlord.   The defendant as moving party has failed to meet its burden under the said practice book section, and therefore there are one or more issues of material fact that are raised by its summary judgment motion and plaintiff's objection, and therefore said motion is hereby denied.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.