Opinion
No. CV04-04853185
October 5, 2005
MEMORANDUM OF DECISION ON SOUTHLAND AND KAHN MOTION FOR SUMMARY JUDGMENT
On October 11, 2002 the plaintiff alleges she slipped and fell while walking down an aisle in a 7-Eleven Store and sustained injury. In her complaint she sued in the first count 502 Saw Mill Associates, Limited Partnership (Sawmill), which she claims owned, controlled, maintained, and/or possessed the premises of the 7-Eleven which is located at 502 Saw Mill Road in West Haven. She said Sawmill had an obligation "to keep and maintain said premises in a reasonably safe condition and owed the plaintiff a duty of care to do so." The allegations of negligence revolve around claimed failures to remove water that had accumulated, failure to warn of the water, failure to inspect to ascertain the dangerous water condition, contact with which caused the plaintiff to fall.
The second count lies against Southland Corporation which does business as 7-Eleven Incorporated. It claims Southland leased, controlled, maintained, and/or possessed the subject premises. It also had an obligation and duty regarding keeping the premises safe, a duty which ran to the plaintiff. The same allegations of negligence made against Sawmill are made against Southland.
The third count lies against Mohammed Kahn. It is alleged that on the date in question Mr. Kahn leased, maintained, and/or possessed the subject premises. The same allegations of obligation and duty and claims of negligence made against Sawmill and Southland have been made against Kahn.
All three defendants have filed summary judgment motions. To understand the context of what appear to be claims of concurrent negligence further factual background must be provided. Southland's rendition of these facts does not appear to be disputed so the court will quote it directly: "On December 20, 1976, Peter Fertiguena was the owner of the property in question and he and The Southland Corporation, the parent company of 7-Eleven, Inc., entered into a lease agreement whereby The Southland Corporation would lease the premises until September 30, 1997. During the period of this lease the property was transferred to various individuals and entities but on November 23, 1994, the entire premises was sold to 502 Sawmill Associates, Limited Partnership. With the purchases of the premises, 502 Sawmill Associates, Limited Partnership, assumed the position of lessor and on February 28, 1997, prior to the expiration of the initial lease terms, the Southland Corporation exercised it's option to renew the lease for a period of five years beginning October 1, 1997 and ending September 30, 2002.
During the period of the initial lease term, The Southland Corporation entered into a Store Franchisee Agreement where the store in question was leased to Mohammad W. Khan for a period of ten years commencing on September 5, 1991 and ending September 5, 2001. Mr. Kahn's franchise interest terminated on September 5, 2001 and he had no relationship whatsoever to the premises on October 11, 2003. On January 5, 2001, The Southland Corporation entered into a second Store Franchisee Agreement where the store in question was leased to Samina N. Shaikh for a period of ten years commencing then and ending January 5, 2011. On October 11, 2003, the premises in question was franchised to Samina N. Shaikh, not Mohammed Kahn.
These are the basic historical facts in the case. Sawmill and Southland have both filed motions for summary judgment as has Mohammed Khan. In light of the foregoing facts all parties agree that the motion for summary judgment filed on behalf of Kahn should be granted.
As to the motions filed on behalf of the other defendants, the standards to be applied are well known. Such a motion should not be granted if there is a disputed issue of material fact because a party has a constitutional right to a jury trial. If, however, there are no disputed issues of material fact and the question is one of law the motion should be granted.
The court will now discuss the motion for summary judgment filed by the defendant Southland.
I. A.
As indicated Southland at the time of the accident leased the premises from Sawmill, the owner of the store. Southland in turn had entered into a franchise agreement with one Samina Shaikh and she leased the store from Southland.
The second count of the complaint is directed at Southland. It is alleged that on the date of the accident 7-Eleven Inc. (i.e., Southland) "leased controlled, maintained and/or possessed" the subject premises. Southland "was obligated to keep and maintain said premises in a reasonably safe condition and owed the plaintiff a duty of care to do so." The plaintiff fell and her injuries were caused by the negligence of Southland "its agents, servants and/or employees" in a variety of alleged ways. Southland caused or allowed the water on which the plaintiff slipped to accumulate for an unreasonable period although it knew or should have known of this dangerous condition. Southland also failed to remove the water or warn the plaintiff of the dangerous and slippery condition. It in fact maintained the premises in such condition and "it failed to make reasonable inspection of said premises in order to ascertain the extremely dangerous condition . . ."
The basic issue in contention between the parties is whether Southland owed a duty of care to a person in the plaintiff's position — that is, will a negligence action lie against Southland. As is often the case Am.Jur. succinctly states the law. When in "Negligence," Vol. 57 Am.Jur.2d at § 73, page 144, it says:
One of the basic elements of a negligence cause of action is that the defendant owed the plaintiff a duty of care. The existence of such a duty is imperative to a negligence cause of action, essential to a finding of negligence and a prerequisite to any negligence action. Thus, the threshold question in a negligence action is whether the defendant owed a legal duty to the plaintiff.
Our cases agree with this general proposition, Sevigny v. Dibble Hollow Condominium Assoc., 76 Conn.App. 306, 317 et seq. (2003), Gomes v. Commercial Union Ins., 258 Conn. 603, 614 (2001), see Prosser Keeton on Torts, 5th ed. § 30. The question presented by this case is where does the duty lie in a case where a person is injured due to the conditions existing on land, in a building or on other premises. The allocation of duty is somewhat more complicated in such a case because various parties may have an interest in or legal relationship to the premises in question at the time of the accident which causes injury. Here Sawmill owned the property, Southland leased it from Sawmill and through a franchise agreement in effect subleased the premises to Ms. Shaikh.
As noted Southland can be viewed as a "landlord" for purposes of this discussion and the franchise agreement with Shaikh for the purposes of analysis is a lease agreement for these premises between Southland and Shaikh.
The general common law is that when a person is injured as a result of a condition in a building or other premises, it is the possession or control of the premises or the portion thereof where injury occurred that imposes liability not ownership. Mack v. Clinch, 166 Conn. 295, 296 (1974).
Since possession or control for premises is the legal basis for premises liability, a landlord who is not in possession is usually not liable to persons injured on the leased property — the tenant, who is in possession, would be liable. See Smith v. Housing Authority, 144 Conn. 13, 16-17 (1956); see generally Connecticut Law of Torts, Wright, Fitzgerald, Ankerman, § 46, p. 108, § 54, p. 139. At § 46, page 108, Wright states that the reason for the rule is that "the possessor is ordinarily the party responsible for the reason that the person in possession is in a position of control and is best able to prevent harm." Also see Prosser Keaton on Torts, 5th ed., § 57, p. 386.
But since the policy of the law in this area is to prevent harm, there is a refinement that must be added to the foregoing observations. Thus, "the court has defined `control' as the power or authority to manage, superintend, direct or oversee." Doty v. Shawmut Bank, 58 Conn.App. 427, 432 (2000); Alderman v. Hanover Ins. Group, 169 Conn. 603, 605 (1975); Panaroni v. Johnson, 158 Conn. 92, 98 (1969). (Emphasis added). Thus, an out of possession landlord can be found liable for injury caused by negligently created conditions on a portion of the premises if there is a written lease and the intent of the parties as reflected in the lease indicates that the landlord has reserved control on that portion of the premises. See Martel v. Malone, 138 Conn. 385, 388-89 (1951).
A lease is a contract concerning land, and Levine v. Massey, 232 Conn. 272, 277-78 (1995) stated: "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.'"
One case has thus said in a summary judgment context as applied to premises liability:
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 and, unless the terms of the lease determine the matter, the question is one of fact . . . Tenney v. Pleasant Valley Realty Corp., 136 Conn. 325, 330. It becomes an issue for the trier, however, only where the written lease read as a whole cannot be said to resolve definitely or expressly the issue of control . . . Panaroni v. Johnson, 158 Conn. 92, 22; Rogers v. Great Atlantic Pacific Tea Co., 148 Conn. 104, 107." Edgar v. Burger King Corp., 1993 Conn.Sup. 230, Docket No. 387119, Sup.Ct. Htfd., 1993.
What all of this means then is that in a premises liability case where a trial court is presented with a landlord's or sublessor's motion for summary judgment based on a claim that it did not have possession or control of the premises, the trial court must first look to the terms of any lease agreement. If the language of the lease definitively establishes that the landlord did not reserve control of that portion of the premises which is claimed to have been defective and caused injury, then the defendant landlord is entitled to prevail on the motion. It should be noted that even where a lease agreement lodges full control in the lessee, liability can attach to the lessor if in fact the latter exercised actual control, Martel v. Malone, 138 Conn. 385, 391 (1951). But no evidence of such actual control prior to the accident has been presented for the purposes of this motion so the court will just look to the franchise agreement.
Thus in several cases involving tort claims by franchise employees or invitees against franchisors where injury has occurred on the franchised property courts in other jurisdictions have determined the issue of whether the franchisor retained sufficient control over the franchisee and the subject property by analyzing the franchise agreement and deciding such control had not been established as a matter of law by examining the franchise agreement, Coty v. U.S. Slicing Machine, et al., 373 N.E.2d 1371 (see App. 1978); Yassin v. Certified Grocers, 502 N.E.2d 315 (see App. 1986); Murphy v. Holiday Inns, Inc., 219 S.E.2d 874 (Va. 1975), also see Prosser and Keeton on Torts 5th ed., § 63, p. 443-45 clearly analyzing scope of a lessor's premises liability at least in the first instance by examining lease to see if control was retained.
Before examining the lease the court should note that there is very little in the way of commentary concerning the specific problem of whether liability should be imposed on a franchisor for injuries occurring on the franchised property arising from the act of the franchisee. Often the cases discussed revolve around injuries resulting from use of equipment recommended by the franchisor, see generally "Tort Liability of a Non Manufacturing Franchisor for Acts of its Franchisee," 79 U. CINLR 720 (1979), 62B Am.Jur.2d "Private Franchise Contracts," §§ 477 et seq., 59 A.L.R.4th 1133, 1142 "Primary Liability of private chain franchisor for injury or death caused by franchise premises or equipment."
Some cases approach the premises liability problem by analogizing it to independent contractor cases Yassin v. Certified Grocers, supra, Wise v. Kentucky Fried Chicken, 555 F.Sup. 991, 995 (D.N.H., 1983), others by trying to determine if the franchise agreement has set up an agency relationship, Murphy v. Holiday Inn, supra.
As indicated the court will approach the problem in terms of lessor-lessee law. The franchise agreement in effect set up a lease as to the subject premises and uses that term throughout. Insofar as that agreement contains language regarding issue of control or defining the relationship between these parties in a manner not found in the ordinary lease agreement, that language still is relevant on the control of the premises issue in that it has a bearing on the control or lack of control of the franchisee who is in immediate control of the subject premises and in that sense defines the ambit of the franchisee's control of the premises as opposed to that of the franchisor.
B.
The court will now try to discuss the specific circumstances of this case and examine the franchise agreement.
The Store Franchise Agreement between Southland and Shaikh which contains the lease agreement for the store has several provisions relevant to the issue before the court. The court will first discuss the provisions of the agreement it believes are relevant and then discuss the Operations Manual issued by Southland to franchisees and referred to in the franchise agreement.
The opening paragraph of the franchise agreement says the franchisee wishes to lease the store and operate it "in a manner which will enhance the 7-Eleven Image and pursuant to the 7 Eleven System." 7-Eleven (which the court has referred to and will continue to refer to as Southland) expressed its willingness to "grant a license and lease but only on the terms of this Agreement . . ." As noted the Agreement later refers to the Operations Manual issued by Southland which could be said to be a term of the Agreement.
Paragraph 6 says it is the intention of the parties "to create only a landlord-tenant relationship." "Paragraph 21 defines the franchisee as an independent contractor." Paragraph 10 requires the franchisee to prepare detailed and fairly frequent financial reports. But no mention is made specifically of the franchisee being required to submit to Southland weekly let alone daily records regarding day to day maintenance of the store or compliance with that portion of the Operations Manual detailing how spills are to be dealt with, warning signs, etc.
Paragraph 14 does state Southland agrees to assist "in cleaning and stocking" the store but this refers to a point in time before the agreement is to go into effect (par. 7).
Paragraph 17 sets forth "additional covenants" agreed to by the franchisee. Southland is to have access "to all of the store" "at any time and for any continuous time during Normal Operating Hours." In a subparagraph the franchisee agrees "to comply with those minimum standards of operation for the Foodservice Facility as set forth in the Foodservice Operations Manual." If there is a failure to so comply, notice is to be given to the franchisee of the breach and if there is a failure to cure, only after a reasonable time can Southland take necessary action to remedy the situation.
The only other times Southland can enter the store and take possession of it is where the store has not been open, the franchisee dies or becomes incapacitated, or a divorce or felony conviction jeopardizes the store's operation.
Despite the fact that paragraph 18 requires the franchisee to maintain the store in a safe condition in accordance with the "minimal standards" of the operations manual the foregoing hardly contemplates that hands-on control which at common law would attach premises liability on the franchisor.
The right to make repairs presents an analogous problem and it has been held that the mere right of the lessor-franchisor to enter the premises for inspection and to make repairs, hardly establishes the requisite control. A Missouri case which dealt with inspection and repairs and a fortiori has a bearing on the issue now before the court nicely defines the common law. In Lemmon v. Gould, 425 S.W.2d 190, 195 (Mo., 1968) and later in McKinney v. HMKG C Inc., 123 S.W.3d 274, 278-79 (Mo.App. 2003), that state's courts have said:
The possession of control, which must be shown in order to make a landlord liable under this rule, is not to be found merely in the obligation of the landlord to make repairs or the right to enter the premises. There must be something more — some additional fact or facts from which a jury could infer that under the agreement the tenant gave up and surrendered his right to exclusive possession and control and yielded to the landlord some degree or measure of control and dominion over the premises; some substantial evidence of a sharing of control as between landlord and tenant. In order to be bound to keep the premises in a reasonably safe condition the landlord need not have reserved such a degree of control as to be entitled to admit or exclude others from the premises. It is sufficient that he retained a general supervision over the premises for a limited purpose such as the making of repairs or alterations, and the right to enter the premises and make repairs upon his own initiative and responsibility.
Compare our court's language in Smith v. Housing Authority, 144 Conn. 13, 16-17 (1956).
The termination provision of this agreement further underlines the fact that the parties did not contemplate reservation of control in the franchisor to ensure safe maintenance and operation of the store on a day-to-day basis to do what the franchisee had failed to do regarding safe operation.
Paragraph 28 discusses termination of the agreement and in subparagraph (a) says Southland has a right to terminate the agreement. "Upon 45 calendar days notice to franchise and subject to franchisee's right to cure as set forth herein, in the event that . . . (V) franchisee fails properly to maintain the store and equipment . . . or (XI) franchisee fails to comply with the quality or other reasonable operating standards as from time to time established and set forth in the Foodservice Operations Manual, where applicable (emphasis by court).
The operating manual itself opens with a comment that says:
Ongoing cleaning and maintenance of the store and equipment will help ensure the positive image that customers say is important in their choice of where they prefer to shop.
Then generic, common sense advice is given about how and when to strip, wax, and maintain floors and also the need to clean up spills and the use of warning signs to customers about floor conditions.
The manual and the agreement that reference it do not envisage that Southland or its agents would directly oversee, manage, or direct day-to-day maintenance of the store let alone enter these stores to wipe up spills, see definition of control in Panaroni, 158 Conn. at p. 98; Doty v. Shawmut Bank, 58 Conn.App. at p. 432. The previously quoted introductory language in the operations manual makes clear its purpose was merely to achieve standardization among its franchisees regarding maintenance and to promote customer good-will which would be a benefit to both contacting parties.
Finally the court would like to observe that imposing liability on Southland given the facts of this case would be tantamount to making it an insurer. From documents submitted in conjunction with this motion it appears Southland corporate offices are located in Dallas, Texas and 7-Eleven has someone called a "market manager" in our state at South Windsor. A franchisor can have dozens of stores in our state. How can premises liability be imposed on such franchisors, in a practical sense, if they are allowed to operate at all; practicality is the whole basis of the common-law rule in premise liability cases — the person in actual possession and control is best ably to prevent harm.
Accordingly the Southland/7-Eleven motion for summary judgment is granted. Kahn's motion is also granted since the parties recognize Mr. Kahn was not the franchisee at the time of the accident.
Corradino, J.