Angela Farricielli v. LLC (2014)

MEMORANDUM OF DECISION RE BRIMAL, LLC'S MOTIONS FOR SUMMARY JUDGMENT (# 167 & # 168)

The issue before the court is whether Brimal, LLC's motions for summary judgment on the revised fourth-party complaint and count five of the plaintiff's second amended complaint should be granted on the grounds that (1) the plaintiff's claims are barred by the statute of limitations, and (2) there is no genuine issue of material fact that Brimal, LLC did not possess or control the premises on which the plaintiff was injured.   For the reasons set forth herein, the motions for summary judgment are granted.

FACTS

The plaintiff, Angela Farricielli, filed this premises liability action against Eagle Marine Realty, LLC (Eagle) on July 12, 2011.   On December 13, 2011, August 21, 2012, and August 27, 2012, Eagle filed third-party complaints against Abid, LLC, Nasim Abid, and Branford XPress Mart, LLC (XPress Mart), respectively.   In each of these third party complaints, Eagle alleges that the respective third-party defendants are responsible for the plaintiff's injuries as the tenants in control of the premises.   On June 28, 2013, XPress Mart filed a fourth party complaint against Brimal, LLC (Brimal), which was subsequently revised on August 13, 2013.   On July 3, 2013, the plaintiff filed a five-count second amended complaint, asserting claims against Eagle, Abid, LLC, Abid, XPress Mart, and Brimal.   The second amended complaint, which is the operative complaint, alleges the following facts.   On December 2, 2010, the plaintiff tripped and fell on a sidewalk at premises located at 382–384 East Main Street in Branford.   The plaintiff's fall was the result of a deep crack in the pavement of the sidewalk curbing.   The plaintiff sustained injuries, including a severe shock to her nervous system, a right humerus fracture, and back pain.   As a result of these injuries, the plaintiff has incurred damages.

In count five, the plaintiff alleges that the premises located at 382–384 East Main Street were owned, managed, leased, and/or controlled by Brimal.   The plaintiff alleges that the injuries she sustained and the damages she incurred were the direct and proximate result of the negligence of Brimal in that Brimal knew or should have known of the defective condition, failed to remedy the condition in a timely manner, failed to warn the plaintiff, failed to make a reasonable inspection of the sidewalk, failed to barricade the defective condition so as to prevent the plaintiff from walking near it, and failed to maintain the premises in a reasonably safe condition.   Counts one, two, three, and four assert identical claims against Eagle, Abid, LLC, Abid, and XPress Mart, respectively.   Each count alleges that the respective defendant named therein “owned, managed, leased and/or controlled” the premises at 382–384 East Main Street.

XPress Mart's revised fourth-party complaint alleges the following facts.   Abid, LLC consented to an assignment of a sublease for the premises at 382 East Main Street to Brimal.   On March 27, 2009, Brimal extended the terms of its assignment through May 31, 2011, and, at the time of the accident, Brimal was the assignee in control of the premises.   Brimal retained exclusive control over the sidewalk on which the plaintiff fell, both contractually and in practice.   The plaintiff's alleged injuries and damages were caused by the negligence of Brimal.   XPress Mart requests complete indemnification from any judgment that may be rendered against it in this action.

On October 29, 2013, Brimal filed a motion for summary judgment on XPress Mart's revised fourth-party complaint,¹ accompanied by a memorandum of law and supporting exhibits.   In this motion, Brimal argues that summary judgment should be granted on the ground that Brimal did not control the sidewalk where the plaintiff fell.   On December 6, 2013, XPress Mart filed a memorandum in opposition to the motion, and Brimal filed a reply on December 19, 2013.

On October 30, 2013, Brimal filed a motion for summary judgment on count five of the plaintiff's second amended complaint, accompanied by a memorandum of law and supporting exhibits.   In this motion, Brimal argues that summary judgment should be granted on the grounds that (1) the plaintiff's claim against Brimal is barred by the statute of limitations, and (2) Brimal did not control the sidewalk where the plaintiff fell.   The plaintiff filed a memorandum in opposition on December 12, 2013, and Brimal filed a reply on December 19, 2013.

Both motions were argued at the short calendar on December 23, 2013, and on January 27, 2014, at which time all parties stipulated that the accident occurred on the sidewalk of the premises at 382–384 East Main Street.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Moreover, “[i]n 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, 57, 68 A.3d 1162 (2013).  “[I]t is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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).  “It necessarily follows that it is only [o]nce [the moving party's] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the nonmoving party] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).

I

In the present case, Brimal moves for summary judgment on count five of the plaintiff's second amended complaint on the ground that the plaintiff's claims are barred by the statute of limitations.²  More specifically, Brimal argues that the plaintiff's claims are barred by General Statutes § 52–584 because the claims were not asserted within two years from the date of the alleged injury.

Section 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the action or omission complained of ․” Our Supreme Court has held that “the two year statute of limitations set forth in § 52–584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor.”  Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004).   In other words, “a plaintiff who has incurred an actionable injury and knows the identity of one or more of the tortfeasors, but has no reason to suspect the existence of additional responsible parties, clearly cannot bring an action against the unknown parties until he discovers their existence.   In such cases, the blameless failure to discover the existence of the unknown tortfeasors is ․ a failure that clearly tolls the statute of limitations.” ³  Id., 292.  “When the plaintiff ․ knew or should have known [a particular tortfeasor's] identity is a question to be determined by the fact finder ․” Id., 296.

In the present case, the plaintiff's injury was sustained on December 2, 2010.   The plaintiff first asserted its claim against Brimal on July 3, 2013, over two years, but less than three years, later.   Therefore, it is undisputed that the action against Brimal was commenced outside the two-year statute of limitations provided in § 52–584 as measured from the date of the incident.   Nonetheless, the two-year statute of limitations provided in the statute does not begin to run until the plaintiff knew, or reasonably should have known, Brimal's identity—provided, of course, that the action was filed within three years, as is the case here.   Brimal argues that there is no genuine issue of material fact that the plaintiff knew or reasonably should have known of Brimal's identity, and thus the plaintiff's claim against it is barred by the statute of limitations.   In support of this argument, Brimal introduces, inter alia, the affidavit of Jaydatt D. Vyas, a member of Brimal.   In his affidavit, Vyas testifies as follows.   Brimal subleases a portion of the property located at 382–384 East Main Street from Abid, LLC to operate a liquor store.  (Vyas Aff., 10/28/13, ¶¶ 4–6.)   The plaintiff is a frequent patron at Brimal's liquor store.  (Vyas Aff., 10/28/13, ¶ 11.)   The plaintiff has had numerous conversations with Vyas both before and after the fall, but the plaintiff has never asked Vyas the name of the entity that leased the premises where the liquor store was located.  (Vyas Aff., 10/28/13, ¶ 11.)   The plaintiff is “well-aware” that Vyas is the owner of the liquor store business.  (Vyas Aff., 10/28/13, ¶ 14.)   In response, the plaintiff does not introduce any evidence, but argues that it is clear from the procedural history that the plaintiff only learned of Brimal's involvement in the premises in April 2013 when XPress Mart filed a motion for permission to assert a third-party complaint against Brimal.   The plaintiff argues that she was previously unaware of Brimal's existence or its connection with the premises at 382–384 East Main Street, nor is there any reason why the plaintiff should have known the same.

In order to prevail on this argument, Brimal must prove that it is clear that the plaintiff knew or reasonably should have known of Brimal's existence, that the plaintiff's claim against Brimal was not brought within two years of the date when the plaintiff knew or reasonably should have known of Brimal's existence, and that there is no doubt as to these facts.⁴  Brimal's evidence fails to meet this strict standard.   Even though there is no dispute that the plaintiff regularly frequented Brimal's liquor store, it is not clear that the plaintiff reasonably should have known that Vyas was an owner of a business entity, rather than a store clerk who would not be privy to ownership and leasing arrangements between the relevant entities.   Vyas' testimony that the plaintiff was “well-aware” that he is the owner of the liquor store is unsupported by any facts, other than the plaintiff's frequent patronage of the business.   The plaintiff could reasonably have assumed that Vyas was simply an employee of one of the entities she filed suit against.   It is, of course, entirely possible that a finder of fact could conclude that the plaintiff should have inquired sooner and discovered Brimal's identity at an earlier date, and thus her claim would be barred by the statute of limitations.   But on a motion for summary judgment, the court does not make such factual determinations.   All that is clear based on the present evidence is that genuine issues of material fact exist as to when the plaintiff knew or reasonably should have known of Brimal's existence, and thus summary judgment on count five of the plaintiff's second amended complaint is denied on this ground.

II

Brimal also moves for summary judgment on both XPress Mart's revised fourth-party complaint and count five of the plaintiff's second amended complaint on the ground that there is no genuine issue of material fact that it did not possess or control the sidewalk where the accident occurred.   In response, the plaintiff and XPress Mart argue that summary judgment should be denied because there are factual issues regarding possession, control, and maintenance responsibility of the sidewalk.

With respect to the governing legal principles, “[t]he essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action.”  (Internal quotation marks omitted.)  Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174, 72 A.3d 929 (2013).  “The existence of a duty is a question of law ․” (Internal quotation marks omitted.)  Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).   In a premises liability case, “[l]iability for an injury ․ does not depend on title, but on possession and control.”  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).   As our Appellate Court recently recognized, “the dispositive issue in deciding whether a duty exists [in a premises liability case] is whether the [defendant] has any right to possession and control of the property ․ 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.”  (Internal quotation marks omitted.)  Colon v. Autozone Northeast, Inc., 148 Conn.App. 435, 438 (2014).

In the landlord-tenant context, “[t]he general rule 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.”  (Emphasis added;  citations omitted;  internal quotation marks omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002).  “Control over a particular part of a business premise is ordinarily dependent upon determining whether that portion [of the premises containing the defective condition] is or is not included in the lease ․” (Internal quotation marks omitted.)   Sullivan v. Lincoln Plaza Development, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–10–6001722–S (March 5, 2012, Markle, J.) (53 Conn. L. Rptr. 672, 674).  “Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law.”  (Emphasis added;  internal quotation marks omitted.)  Colon v. Autozone Northeast, Inc., supra, 148 Conn.App. 439.

In support of its motions for summary judgment, Brimal submits the sublease agreement between Abid, LLC and Brimal.⁵  Pursuant to the sublease agreement, Abid, LLC subleased to Brimal “that certain portion of the Leased Premises at 382 East Main Street, (the ‘Sublet Space’);  together with the right, in common with others, to enter and exit onto the Leased Premises for the purpose of operating a retail liquor store.  [Brimal] hereby acknowledges that it is not subleasing, nor has any rights to any other portion of the Leased Premises, nor any aspect of [Abid LLC's] gasoline and convenience store ․” (Brimal's Ex. E, 10/29/13, Sublease—Article 1.) Additionally, Brimal submits Abid, LLC's responses to Brimal's requests for admissions, in which Abid, LLC unambiguously states that the lease does not require Brimal to repair or maintain the sidewalk.⁶  (Brimal's Ex. C, 10/29/13, Brimal's Requests for Admissions ¶¶ 11–14.)   Brimal also submits the deposition of Nasim Abid, the sole member of Abid, LLC.⁷ In his deposition, Abid testifies that the sublease does not define the sublet space to include the sidewalks, and there is no portion of the sublease that would require Brimal to inspect the sidewalks or notify Abid, LLC of any structural problems regarding the sidewalk.  (Abid Dep., 10/15/13, pp. 55–58.)

It is clear that the sublease at issue defines the premises sublet to Brimal to include only the portion of the property at 382 East Main Street on which Brimal operates its liquor store.   Under the sublease, Brimal has the right, in common with others, to enter and exit onto those premises, but only for the purpose of operating the liquor store.   It is clear that Brimal may use the common areas, but only in conjunction with others and only for the purpose of entering and exiting the liquor store.   Abid, LLC admits that this is their understanding of the terms of the lease, and Nasim Abid testifies to the same in his deposition.

“Our landlord-tenant law generally presumes that a landlord retains possession, control, and responsibility for all common areas in leased premises ․ [T]ort law principles recognize that a landlord, having retained control of common areas, is responsible for their maintenance and repair because he has a right of entry and control of those areas, while no tenant can claim exclusive control of them.”  State v. LoSacco, 12 Conn.App. 172, 177, 529 A.2d 1348.   The sublease agreement in this case fits comfortably into this general rule.   There is no genuine dispute of material fact that, pursuant to the sublease, Brimal did not have possession and control of the sidewalk, and thus did not owe a duty of care to the plaintiff.   Absent such a duty, Brimal cannot be liable to either XPress Mart or the plaintiff for the plaintiff's alleged injuries.

CONCLUSION

Because there is no genuine issue of material fact that Brimal lacked possession and control of sidewalk where the accident occurred, Brimal's motions for summary judgment on XPress Mart's revised fourth-party complaint and the plaintiff's second amended complaint are granted.

Frechette, J.

FOOTNOTES

FN1. Brimal's motion requests summary judgment on the original version of the fourth-party complaint filed on June 28, 2013.   By the time Brimal filed its motion, however, XPress Mart had filed a revised fourth-party complaint.   The court has reviewed both the original and revised fourth-party complaints, and finds them to be substantially similar.   Therefore, the court construes Brimal's motion for summary judgment as directed toward the most recent fourth-party complaint..  FN1. Brimal's motion requests summary judgment on the original version of the fourth-party complaint filed on June 28, 2013.   By the time Brimal filed its motion, however, XPress Mart had filed a revised fourth-party complaint.   The court has reviewed both the original and revised fourth-party complaints, and finds them to be substantially similar.   Therefore, the court construes Brimal's motion for summary judgment as directed toward the most recent fourth-party complaint.

FN2. Brimal advances this argument with regards to its motion for summary judgment on count five of the plaintiff's second amended complaint.   Brimal makes no such argument with regards to its motion for summary judgment on XPress Mart's revised fourth-party complaint..  FN2. Brimal advances this argument with regards to its motion for summary judgment on count five of the plaintiff's second amended complaint.   Brimal makes no such argument with regards to its motion for summary judgment on XPress Mart's revised fourth-party complaint.

FN3. Nonetheless, the court also “emphasize[d] that a plaintiff's ignorance of the identity of a tortfeasor [does] not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of.”  Tarnowsky v. Socci, supra, 271 Conn. 296..  FN3. Nonetheless, the court also “emphasize[d] that a plaintiff's ignorance of the identity of a tortfeasor [does] not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of.”  Tarnowsky v. Socci, supra, 271 Conn. 296.

FN4. In making this determination, the evidence must be viewed in the light most favorable to the plaintiff, the nonmoving party on this motion..  FN4. In making this determination, the evidence must be viewed in the light most favorable to the plaintiff, the nonmoving party on this motion.

FN5. It is undisputed that Eagle owned the property at 382–384 East Main Street and leased the entire property to Abid, LLC. In its memorandum of decision granting Eagle's motion for summary judgment on count one of the plaintiff's second amended complaint, this court found that there are no genuine issues of material fact that, pursuant to the lease agreement between Eagle and Abid, LLC, the latter was in possession and control of the premises.   The present motions concern the sublease agreement between Abid, LLC and Brimal governing the rental of a portion of the premises..  FN5. It is undisputed that Eagle owned the property at 382–384 East Main Street and leased the entire property to Abid, LLC. In its memorandum of decision granting Eagle's motion for summary judgment on count one of the plaintiff's second amended complaint, this court found that there are no genuine issues of material fact that, pursuant to the lease agreement between Eagle and Abid, LLC, the latter was in possession and control of the premises.   The present motions concern the sublease agreement between Abid, LLC and Brimal governing the rental of a portion of the premises.

FN6. Abid, LLC did not respond to Brimal's requests for admissions.   Pursuant to Practice Book § 13–23, these requests are deemed admitted..  FN6. Abid, LLC did not respond to Brimal's requests for admissions.   Pursuant to Practice Book § 13–23, these requests are deemed admitted.

FN7. Both Brimal and Abid, LLC introduce this deposition in support of their respective positions regarding the present motion..  FN7. Both Brimal and Abid, LLC introduce this deposition in support of their respective positions regarding the present motion.

Frechette, Matthew E., J.