Angela Farricielli v. LLC (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 164)

The issue before the court is whether Eagle Marine Realty, LLC's motion for summary judgment should be granted on the ground that there is no genuine issue of material fact that the defendant did not possess or control the premises on which the plaintiff was injured.   For the reasons set forth herein, the motion for summary judgment is granted.

FACTS

The plaintiff, Angela Farricielli, filed this premises liability action against the defendant, 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.   Then, on June 28, 2013, XPress Mart filed a fourth-party complaint against Brimal, LLC (Brimal).   Subsequently, 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 a 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 one, the plaintiff alleges that the premises located at 382–384 East Main Street were owned, managed, leased, and/or controlled by Eagle.   The plaintiff alleges that the injuries she sustained and the damages she incurred were the direct and proximate result of the negligence of Eagle in that Eagle 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 two, three, four, and five assert identical claims against Abid, LLC, Abid, XPress Mart, and Brimal, respectively.   Each count alleges that the respective defendant named therein “owned, managed, leased and/or controlled” the premises at 382–384 East Main Street.

On October 29, 2013, Eagle filed a motion for summary judgment on count one of the plaintiff's second amended complaint,¹ accompanied by a memorandum of law and supporting exhibits.   The plaintiff filed a memorandum in opposition to the motion on December 11, 2013.²  The matter was 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).

In the present case, Eagle moves for summary judgment on the ground that there is no genuine issue of material fact that it neither possessed nor controlled the premises at issue, and also that it was not responsible for the maintenance, repair, or replacement of the location of the plaintiff's fall.   In response, the plaintiff's essential argument is that the issue of control of the premises is not expressly defined in the lease and therefore a genuine issue of material fact exists as to who had control of the premises.

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, “[l]andlords ․ 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.)  LaFlamme v. Dallessio, 261 Conn. 247, 256–57, 802 A.2d 63 (2002).  “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.

For example, in Fiorelli v. Gorsky, 120 Conn.App. 298, 991 A.2d 1105, cert. denied, 298 Conn. 993, 10 A.3d 517 (2010), our Appellate Court affirmed a trial court's granting of summary judgment in circumstances where the lease and other supporting materials definitively established who controlled the premises.   In Fiorelli, the plaintiffs sought to recover damages for injuries sustained in an automobile accident that occurred on premises owned by the defendants and leased to a bank.  Id., 301.   In support of their motion for summary judgment, the defendants submitted the lease at issue, which provided that the “[bank] hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Demised Premises.”  Id., 309.   Additionally, the defendants submitted an affidavit of one of the defendants in which the defendant stated that, under the terms of the lease, the bank “assumed possession and control of the leased property” and was “responsible for the maintenance and repair to the [premises].”  Id. “The plaintiffs presented no evidence contrary to [the] affidavit or the lease terms.”  Id. Based on this evidence, the Appellate Court held that “[t]he [trial] court correctly determined that the defendants did not retain possession and control of the premises, and therefore did not owe the plaintiffs a duty of care.”  Id., 310.

In support of its motion for summary judgment in the present case, Eagle submits the lease agreement between Eagle, the landlord, and Abid, LLC, the tenant.   The lease agreement governs the rental of the “demised premises” at 382–384 East Main Street for a period of ten years lasting from May 1, 2004 to April 30, 2014.   The lease defines the demised premises as “that certain piece or parcel of land with buildings and improvements thereon situated at 382–384 East Main Street ․” (Eagle's Ex. A, 10/29/13, Lease Agreement—Article I, § 1.1.) In Article IX, § 9.1, the lease provides that Abid, LLC, as tenant “shall, at its sole cost and expense ․ keep and maintain the entire Demised Premises in good order condition and repair” and “make all necessary non structural interior and exterior repairs in and to the Demised Premises, whether the same be, latent or patent, ordinary as well as extraordinary, foreseen as well as unforeseen, in and to the Demised Premises.”  (Eagle's Ex. A., 10/29/13, Lease Agreement—Article IX, § 9.1.) Additionally, under the terms of the lease, Abid, LLC must make “any other repairs to the Demised Premises and the Common Areas and the improvements thereon, including without limitation, interior or exterior structural repairs, resulting from the actions or inactions of [Abid LLC], its employees, agents, contractors, subtenants, licensees and invitees.”  (Eagle's Ex. A., 10/29/13, Lease Agreement—Article IX, § 9.1.) Pursuant to Article IX, § 9.4 of the lease, Abid, LLC acknowledged that Eagle would have “no responsibility for the maintenance, repair or replacement of the Demised Premises or the Common Parking Area.” ³ (Eagle's Ex. A., 10/29/13, Lease Agreement—Article IX, § 9.4.)

Additionally, Eagle submits an affidavit of Donald Rompe, the operating manager and vice president of Eagle.   In his affidavit, Rompe testifies that pursuant to the lease, which was in effect on the date of the alleged accident, Eagle did not maintain any possession or control of the demised premises at 382–384 East Main Street, nor did it have any responsibility for the maintenance, repair, or replacement of the demised premises.  (Eagle's Ex. B, 10/29/13, Rompe Aff. ¶¶ 6, 10–11.)   Rompe further testifies that, under the lease, Abid, LLC maintained sole possession and control of the demised premises and had sole responsibility for the maintenance, repair, and replacement of such premises.  (Eagle's Ex. B, 10/29/13, Rompe Aff. ¶¶ 12–13.)

The plaintiff presents no evidence to contradict Rompe's affidavit or the lease terms.   On the contrary, the only evidence introduced by the plaintiff confirms and supports Eagle's evidence.   Specifically, the plaintiff introduces the deposition of Nasim Abid, the sole member of Abid, LLC.⁴ In his deposition, Abid testifies to the following.   The lease was in effect on the date of the alleged incident.  (Abid Dep., 10/15/13, p. 24.)   The lease provided that Abid, LLC was responsible for keeping the demised premises, including the sidewalks, in good order, maintenance, condition and repair.   (Abid Dep., 10/15/13, pp. 29–30.)   Eagle had no responsibility under the lease to maintain or repair the sidewalk.  (Abid Dep., 10/15/13, p. 31.)   If Abid, LLC had been notified of a defective condition existing on the sidewalk which required repair, it would have made such repairs in conformity with the aforementioned lease provisions.  (Abid Dep., 10/15/13, p. 42.)

When read as a whole, the lease agreement placed all responsibility for keeping the sidewalk in good order, maintenance, condition and repair in Abid, LLC. Both Eagle's representative and Abid, LLC's representative testify that this is their understanding of the terms of the lease.   All parties stipulate that the accident occurred on the sidewalk.   As this discussion demonstrates, there is no genuine dispute of material fact that Eagle did not retain possession and control of the sidewalk at 382–384 East Main Street, and thus did not owe the plaintiff a duty of care.   Absent a duty of care, Eagle cannot be liable to the plaintiff in this negligence action.   Therefore, the motion for summary judgment on count one of the plaintiff's second amended complaint is granted.

Frechette, J.

FOOTNOTES

FN1. Eagle's motion for summary judgment does not specify any particular count, but rather discusses that it is entitled to summary judgment on the second amended complaint.   Nonetheless, the court assumes that Eagle intends to move for summary judgment on the only count asserted against it:  count one..  FN1. Eagle's motion for summary judgment does not specify any particular count, but rather discusses that it is entitled to summary judgment on the second amended complaint.   Nonetheless, the court assumes that Eagle intends to move for summary judgment on the only count asserted against it:  count one.

FN2. On the same date, the plaintiff also filed an objection to Eagle's filing of a motion for summary judgment.   Therein, the plaintiff argues, inter alia, that the court should deny Eagle's motion for summary judgment on procedural grounds because Eagle has failed to abide by the scheduling order, failed to file its summary judgment motion in a timely manner, and otherwise failed to comply with this court's orders.   These arguments are not persuasive.   Pursuant to the May 15, 2013 scheduling order in this case, dispositive motions were to be filed by August 1, 2013.   Subsequently, however, the court, Robinson, J., granted Brimal's motion to extend the scheduling order.   There was no objection to Brimal's motion and Brimal represented to the court that all parties agreed to the updated schedule.   Pursuant to the updated scheduling order, dispositive motions were to be filed by October 31, 2013, responses to such motions were to be filed by November 15, 2013, and such motions were to be marked ready by November 30, 2013.   Eagle filed the present motion for summary judgment on October 29, 2013, in accordance with the updated scheduling order.   The plaintiff's response to the motion was not filed until December 11, 2013.   The motion was quickly marked ready, and heard by this court on December 23, 2013.   To the extent that the motion was untimely marked ready, it was due to the delay of the plaintiff, not Eagle.   In any event, any slight delay will not prejudice the parties.   Trial in this case is scheduled for April 22, 2014, and the present motion has been briefed, argued, and decided well in advance of that date..  FN2. On the same date, the plaintiff also filed an objection to Eagle's filing of a motion for summary judgment.   Therein, the plaintiff argues, inter alia, that the court should deny Eagle's motion for summary judgment on procedural grounds because Eagle has failed to abide by the scheduling order, failed to file its summary judgment motion in a timely manner, and otherwise failed to comply with this court's orders.   These arguments are not persuasive.   Pursuant to the May 15, 2013 scheduling order in this case, dispositive motions were to be filed by August 1, 2013.   Subsequently, however, the court, Robinson, J., granted Brimal's motion to extend the scheduling order.   There was no objection to Brimal's motion and Brimal represented to the court that all parties agreed to the updated schedule.   Pursuant to the updated scheduling order, dispositive motions were to be filed by October 31, 2013, responses to such motions were to be filed by November 15, 2013, and such motions were to be marked ready by November 30, 2013.   Eagle filed the present motion for summary judgment on October 29, 2013, in accordance with the updated scheduling order.   The plaintiff's response to the motion was not filed until December 11, 2013.   The motion was quickly marked ready, and heard by this court on December 23, 2013.   To the extent that the motion was untimely marked ready, it was due to the delay of the plaintiff, not Eagle.   In any event, any slight delay will not prejudice the parties.   Trial in this case is scheduled for April 22, 2014, and the present motion has been briefed, argued, and decided well in advance of that date.

FN3. Similarly, the lease also provides that “[e]xcept to the extent otherwise specifically provided ․ [Abid LLC] agrees that throughout the Term [of the lease] it shall be the responsibility of [Abid LLC] to comply with all duties and obligations with respect to the demised Premises and the repair, use, maintenance and operation thereof, whether such duties and obligations would otherwise be construed to be those of [Eagle] or [Abid LLC], so that no matter from what source arising, if anything shall be ordered or required to be done or omitted to be done in, at, upon or about the Demised Premises during the Term [of the lease], the same shall be done performed, observed, maintained, and complied with by [Abid LLC], at its sole cost and expense, without any expense, liability or obligations whatsoever to or upon [Eagle].”  (Eagle's Ex. A., 10/29/13, Lease Agreement—Article XXXI, § 31.3.).  FN3. Similarly, the lease also provides that “[e]xcept to the extent otherwise specifically provided ․ [Abid LLC] agrees that throughout the Term [of the lease] it shall be the responsibility of [Abid LLC] to comply with all duties and obligations with respect to the demised Premises and the repair, use, maintenance and operation thereof, whether such duties and obligations would otherwise be construed to be those of [Eagle] or [Abid LLC], so that no matter from what source arising, if anything shall be ordered or required to be done or omitted to be done in, at, upon or about the Demised Premises during the Term [of the lease], the same shall be done performed, observed, maintained, and complied with by [Abid LLC], at its sole cost and expense, without any expense, liability or obligations whatsoever to or upon [Eagle].”  (Eagle's Ex. A., 10/29/13, Lease Agreement—Article XXXI, § 31.3.)

FN4. Both Eagle and the plaintiff introduce this deposition in support of their respective positions regarding the present motion..  FN4. Both Eagle and the plaintiff introduce this deposition in support of their respective positions regarding the present motion.

Frechette, Matthew E., J.