Minerve Pierre Louis v. Otis Elevator Company et al. (2014)

MEMORANDUM OF DECISION

This matter is before the court on two motions for summary judgment, one filed by the defendant, HCP PC1 Stamford CT, LLC on July 8, 2013;  and the second filed by the defendant Prime Care One, LLC on December 19, 2013.   Both defendants claim that they were not in possession or control of the premises at the time of the incident alleged by the plaintiff, and are not liable for plaintiff's injuries;  and therefore, they claim to be entitled to summary judgment.

The plaintiff, Minerve Pierre Louis, filed a three-count amended complaint dated August 23, 2013, against three defendants:  Otis Elevator Company, (hereinafter, Otis), HCP PC1 Stamford CT, LLC, (hereinafter, HCP), and Prime Care One, LLC (hereinafter, Prime Care).   She maintains that the defendants are liable in negligence for injuries she sustained in an incident which occurred at a retirement community known as Brighton Gardens of Stamford, located at 59 Roxbury Road, Stamford Connecticut.   The plaintiff alleges that while occupying an elevator in the Brighton Gardens' facility on October 25, 2010, the said elevator suddenly dropped from the third floor to the first floor and caused her injuries.   For purposes of this motion, there is no dispute that at the time of the incident, HCP owned the Roxbury Road building, and Prime Care leased the premises from HCP. In addition, Prime Care had entered into an operating agreement with Sunrise Senior Services, Inc., (hereinafter, Sunrise), whereby Sunrise was to operate an assisted living facility business known as Brighton Gardens at the premises.   At the time of the incident, the plaintiff was an employee of Sunrise.

HCP filed a motion for summary judgment on the grounds that there are no genuine issues of material fact and it is entitled to judgment as a matter of law.   HCP argues that based on its lease agreement with Prime Care, dated July 9, 2003, it has no duty or liability with respect to the elevator in which the plaintiff allegedly was injured.   HCP points to Section V of its lease with Prime Care entitled “Maintenance and Repairs,” and argues that the lease clearly states that the maintenance of the building is the sole responsibility of Prime Care. HCP argues that § 5.1 of the lease is controlling, which states:

Lessee agrees that, at its expense, it shall keep and maintain the Leased Property, including any altered, rebuilt, additional of substituted buildings, structures and other improvements thereto, in good repair and appearance ․ Lessor shall not be required to maintain, repair or rebuild or to make any alterations or replacements or renewals of any nature to the Leased Property, or any part thereof, whether ordinary or extraordinary ․

As required by Practice Book § 11–10, HCP has filed a memorandum of law in support of its motion for summary judgment along with a copy of the lease agreement between HCP's predessor, CNL Retirement PCI Stamford, LP Prime Care. Further, the HCP has attached interrogatory responses from Kendall Young, executive Vice President of HCP, and a state of Delaware certificate of change of name for HCP. The plaintiff has timely filed a memorandum of law in opposition, without any attached exhibits.

Prime Care's motion for summary judgment claims that there are no genuine issues of material fact and it is entitled to judgment as a matter of law.   Prime Care argues that based on its operating agreement with Sunrise, dated January 29, 2004, it has no duty or liability with respect to the elevator in which the plaintiff allegedly was injured.   Prime Care relies on Section 8 of its operating agreement with Sunrise entitled “Routine Repairs and Maintenance,” and argues that the agreement clearly states that the maintenance of the facility is the sole responsibility of Sunrise.   Prime Care cites § 8.01 of the agreement, which states:

Operator shall maintain the retirement community in good repair and condition and in conformity Legal Requirements and Operator's Standards, and make or cause to be made such routine and preventive maintenance, repairs and minor alterations, as it, from time to time, deems necessary for such purposes.

As required by Practice Book § 11–10, Prime Care has filed a memorandum of law in support of its motion for summary judgment along with a copy of the operating agreement between Prime Care and Sunrise.   Further, the Prime Care has attached a copy of a deposition of Sunrise's maintenance coordinator, John Donch, dated August 5, 2013, and an affidavit of the executive director of Brighton Gardens, Jaclyn Robbins, dated December 10, 2013.   The plaintiff has not filed any objection or memorandum of law in opposition to this motion.   The parties were heard at short calendar on February 24, 2014.

I.

“[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, cert. denied, 264 Conn. 904 (2003).  “[O]nly 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.)   Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 478–79 (2003).   “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 ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Citation omitted;  internal quotation marks omitted.)  Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237 (2004).  “The judgment sought 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.”  Practice Book § 17–49.  “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.)  Barrett v. Montesano, 269 Conn. 787, 791 (2004).

Ultimately, the issue of liability turns on whether “the lease, written as a whole, definitely or expressly resolves the issue of control ․ Liability for an injury due to defective premises does not depend on title, but on possession and control.”  (Citations omitted;  internal quotation marks omitted.)   Oliver v. Health & Rehab Prop., Superior Court, judicial district of New Haven, Docket No. CV 93 0351198 (June 26, 1997, Zoarski, J.T.R.).  “[T]he control must relate to the condition and location of the injury.”   Windecker v. The Roscoe Family L.P., Superior Court, judicial district of New Britain, Docket No. CV 00 05040235 (June 14, 2002, Quinn, J.) (32 Conn. L. Rptr. 354).  “Possession and control of leased premises are the linchpins of premises liability claims against lessors ․ Liability for injury due to defective premises does not depend on title, but on possession and control is the possession of land that imposes liability for injuries rather than the ownership of land ․ because the person in possession is in a position of control and is best able to prevent harm ․ Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ․ However, whether control of the premises has been retained by a lessor is best determined by the intent of the parties as expressed in the terms of the lease ․ A lease is a contract and its construction presents a question of law for the court ․ As has also been noted, 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 ․ 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.”  (Citations omitted;  internal quotation marks omitted.)   Moreno v. Rivera, Superior Court, judicial district of New Britain, Docket No. CV 02 0516715 S (June 8, 2004, Robinson, J.).   See also Colon v. Autozone Northeast, Inc., 148 Conn.App. 435, 438 (2004).

“In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind:  (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument;  (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended;  (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible ․ Although ordinarily the question of contract interpretation being a question of the parties' intent is a question of fact ․ where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.”   (Citations omitted;  internal quotation marks omitted.)   Meyhoefer v. Tatoian, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176971 S (July 1, 2004, Matasavage, J.) (37 Conn. L. Rptr. 319).  “More than one entity can be in control of a premises at the same time, and thus responsibility for injuries upon the premises may be shared by more than one entity.”   Gardner v. Ralph and Rich's, Inc., Superior Court, judicial district of Fairfield, Docket No. 385057 (July 19, 2004, Levin, J.)

A.

The defendant, HCP, in its memorandum of law in support, refers to § 5.1, “Maintenance and Repairs,” of the lease agreement with Prime Care, which states in pertinent part, “[l]essee agrees that, at its expense, it shall keep and maintain the Leased Property, including any altered, rebuilt, additional of substituted buildings, structures and other improvements thereto, in good repair and appearance ․ Lessor shall not be required to maintain, repair or rebuild or to make any alterations or replacements or renewals of any nature to the Leased Property, or any part thereof, whether ordinary or extraordinary ․” The language of the lease agreement plainly and unambiguously indicates the intent of HCP and Prime Care when they entered into their lease agreement in regard to possession and control of the building, which includes the elevator whereupon which the plaintiff allegedly was injured.   Further, HCP attaches answers to interrogatories by Kendall Young, executive Vice President of HCP, who verifies that at the time of the incident, the premises were under the exclusive supervision and control of Sunrise.

The plaintiff asserts in her memorandum of law, citing paragraph XVII of the lease, that HCP retained a right of inspection to the property, thereby retaining a possessory and control interest in the premises.   However, the plaintiff has failed to provide any evidence to the court in the form of contradictory affidavits to show that HCP exercised any control over the premises at the time of the incident sufficient to raise an issue of fact.

Further, citing Gazo v. Stamford, 255 Conn. 245 (2001), the plaintiff claims that the defendant had a nondelegable duty to maintain the premises.   That case, involving the removal of ice and snow, is distinguishable on its facts.   Citing Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54 (2008), the Appellate Court held our case law suggests that the “nondelegable duty doctrine applies only when the plaintiff has established that the defendant maintained possession and control of the property.”  Millette v. Connecticut Post Limited Partnership, 143 Conn.App. 62, 75 (2013).   Since HCP did not possess or control the premises at the time of the incident, the nondelegable duty doctrine does not apply.

Therefore, the court finds that HCP has met its burden of showing the absence of any genuine issue of material fact regarding control of the building and elevator, and the plaintiff has not sufficiently raised such an issue.   Therefore, for the above reasons, HCP's motion for summary judgment is granted as to the second count.

B.

The defendant, Prime Care, in their memorandum of law in support, cites Section 8.01 of its operating agreement with Sunrise which states in pertinent part, “[o]perator shall maintain the retirement community in good repair and condition and in conformity Legal Requirements and Operator's Standards, and make or cause to be made such routine and preventive maintenance, repairs and minor alterations, as it, from time to time, deems necessary for such purposes.”   The language of the operating agreement plainly and unambiguously indicates the intent of Prime Care and Sunrise when they entered into their agreement in regard to possession and control of the building, which includes the elevator whereupon which the plaintiff allegedly was injured.   Further, Prime Care attaches a copy of a deposition of Sunrise's maintenance coordinator, John Donch, dated August 5, 2013, and an affidavit of the executive director of Brighton Gardens, Jaclyn Robbins, dated December 10, 2013.   In the Robbins affidavit, she verified that as executive director of Sunrise, she is responsible for the full operation of the facility, including assuring that the building is in good repair.   Ms. Robbins directs the maintenance supervisor, and at no time does she take any direction or report to either HCP or Prime Care. In the Donch deposition, John Donch testified that he, himself, called Otis on the day of the incident, and that as a maintenance supervisor at the facility, he had never had any dealing with HCP or Prime Care.

The plaintiff did not file any objection, supporting affidavits, or memorandum of law in opposition to Prime Care's motion for summary judgment.

Therefore, the court finds that Prime Care has met its burden of showing the absence of any genuine issue of material fact regarding control of the building and elevator, and the plaintiff has not raised any such issue.   Therefore, for the above reasons, Prime Care's motion for summary judgment is granted as to the third count.

III.

In conclusion, for the above reasons, the motion for summary judgment filed by the defendant, HCP PC1 Stamford CT, LLC, dated July 8, 2013, is granted.   Further, the motion for summary judgment filed by the defendant, Prime Care One, LLC dated December 19, 2013, is granted.

Matasavage, J.

Matasavage, Paul, J.