Opinion
HHDCV156056783S
10-03-2017
Heather Conney-Grover v. Town Center of South Windsor, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT STOP & SHOP SUPERMARKET COMPANY, LLC'S MOTION FOR SUMMARY JUDGMENT
William H. Bright, J.
I. Introduction
This action arises out of plaintiff Heather Conney-Grover's trip and fall as she was heading toward the defendant Stop & Shop Supermarket Company, LLC's (" Stop & Shop") store located in the defendant Town Center of South Windsor, LLC's (" Town Center") shopping center. The plaintiff claims that she fell when going from the parking area to the sidewalk outside of the store. She claims that her fall was caused by the negligence of the defendants because the curb that rose from the parking area to the sidewalk was not clearly marked, there were no warnings of a change in elevation, and the area where she fell was not properly lit.
Stop & Shop has moved for summary judgment claiming that it, was not in possession or control of the area where the plaintiff fell. It further argues that lighting for the area was and is the responsibility of Town Center. Finally, it argues that to the extent the plaintiff claims that the area where she fell was too dark due to signs Stop & Shop had on its windows that blocked light from the store from illuminating the area where she fell, the lease between Stop & Shop and Town Center specifically permitted Stop & Shop to use such signs. Thus, it was and is Town Center's responsibility to insure proper outside lighting while such signs are in use. Alternatively, Stop & Shop argues that any fault was a result of the plaintiff's carelessness.
In response, the plaintiff argues that issues of negligence are typically not suitable for resolution on summary judgment. She argues that that is particularly true here, where there is a question of fact as to Stop & Shop's use of signs and whether Stop & Shop was negligent in how it placed them on the window blocking light that would have made the alleged defect on which the plaintiff fell visible.
For the reasons set forth below, the defendant's motion is denied.
II. Discussion
Count Two of the plaintiff's complaint, which is directed to Stop & Shop, alleges the following facts. On December 2, 2012, the plaintiff was a business invitee to the Stop & Shop store in the Town Center shopping center located at 1739 Ellington Road in South Windsor. While attempting to step up to the sidewalk from the parking area in front of the store, the plaintiff tripped and fell forward onto her hands and knees causing her injuries. The complaint alleges that Stop & Shop was negligent in the following ways 1) it placed posters and/or signs on the windows preventing adequate lighting from the store to shine through the windows onto the sidewalk and curb area; 2) it failed to adequately mark the curb; 3) it failed to place barriers or warning signs about the transition from the parking area to the curb and sidewalk; 4) it failed to warn the plaintiff of the transition; 5) it failed to make reasonable inspections regarding any dangerous conditions; 6) it failed to take adequate steps to correct the dangerous condition.
For purposes of its motion, Stop & Shop does not dispute the plaintiff's claim that she fell when and where she claimed. It also does not dispute that the plaintiff was injured. In addition, although not specifically alleged in the complaint, the evidence submitted by the parties, viewed in a light most favorable to the plaintiff, establishes that the plaintiff's fall occurred at night when there was no natural light to guide the plaintiff. Furthermore, Stop & Shop has not submitted any evidence disputing the existence of the alleged defect between the parking area and the sidewalk. Nor has it submitted any evidence that the artificial lighting provided in the shopping center was sufficient for the plaintiff to see where she was going.
Instead, Stop & Shop claims that based on its lease with Town Center, as a matter of law, it was not in possession or control of the area where the plaintiff fell. Consequently, it owed no duty to address the alleged defect or to provide the necessary lighting. Alternatively, it argues that even if it owed a duty to the plaintiff, it cannot be liable because the plaintiff's fall was a result of her own carelessness.
The summary judgment standard is well established. " 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.) Stuart v. Freiberg, 316 Conn. 809, 820, 116 A.3d 1195 (2015). " [T]he 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can reasonably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment." (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009). " 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." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" 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 . . . The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all of the significant circumstances." (Internal quotation marks omitted; citation omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002). Stop & Shop argues that the lease between it and Town Center makes clear that Town Center, as landlord, retained control over the area where the plaintiff fell. Consequently, Stop & Shop argues that it was not responsible for the condition of the premises where the plaintiff fell.
The problem with this argument is that it does not defeat all of the allegations of negligence against Stop & Shop. In particular, subparagraphs 6(C) and (D) of Count Two allege that Stop & Shop was negligent by failing to warn the plaintiff of the dangerous condition where she fell. When a plaintiff is a business invitee of the defendant, the defendant's duty to warn of premises defects does not end at the property line beyond which the defendant has possession and control. For example, in Fleming v. Garnett, 231 Conn. 77, 646 A.2d 1308 (1994), the plaintiff sued the owner of depot for failing to warn a driver leaving the depot from the driveway of an adjacent property, that the driveway was not wide enough to permit safe entry onto the highway. There was no dispute that the defendant had a duty to warn of the danger, even though it did not possess or control the property from which the turn was made, if the driver was unaware of the danger. Thus, the Supreme Court held that the trial court properly charged the jury " that a possessor of land has a duty to conduct its business operations in a manner that does not create an unreasonable risk of physical harm to those outside of the premises; . . . and that this duty may include the duty to warn invitees of conditions that pose reasonably foreseeable dangers to the public." (Emphasis added.) Id., at 83-84.
The plaintiff's reliance on Angelo v. Southland Corporation dba 7 Eleven, Inc., Superior Court, judicial district of New Haven, Docket No. CV-04-04853185 (October 5, 2005, Corradino, J.) [40 Conn. L. Rptr. 94, ], to the contrary is misplaced. In that case, the plaintiff sought to hold the landlord and franchisor liable for spilled water inside the franchise location. The lease and franchise agreement made clear that the franchisee was in possession and control of the inside of the store. Based on the facts of that case, the court recognized that holding the landlord, which had relinquished control to the tenant, liable made little sense. " 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 able to prevent harm." Id.
The situation is much different, where, as here, the defendant is the tenant and its store is the destination point of the plaintiff. Stop & Shop was in a position to know as well as or better than anyone of any defects its customers would confront when traveling from the parking lot to its store. While its lease with Town Center may have relieved it of the responsibility of taking remedial actions to fix any defect, it cannot and does not relieve Stop & Shop of the obligation to warn its customers of known defects they will encounter when approaching its store from the parking area it knows its customers use. To hold otherwise would encourage tenants like Stop & Shop to turn a blind eye to such defects. Such a rule would defy practical sense.
The plaintiff has alleged that Stop & Shop breached its duty by, among other ways, failing to warn the plaintiff of the dangerous condition on which she fell while approaching the defendant's store. The defendant has presented no evidence that it did not know of the defect or provided any warning of it. Thus, it has failed to meet its burden of demonstrating a lack of a genuine issue of material fact as to each element of the plaintiff's claim.
As to Stop & Shop's alternative argument that the undisputed facts demonstrate that the plaintiff's fall was the result of her own carelessness, the defendant has relied on only selected portions of the plaintiff's deposition. As the plaintiff points out, other parts of her testimony put her purported admissions in context. For example, she testified that " the markings on the curb were not visible." She also testified that " there wasn't enough lighting." The issue of comparative fault is typically a question for the jury. The plaintiff has submitted enough evidence to raise a genuine issue of material fact on this point to defeat Stop & Shop's motion for summary judgment.
III. Conclusion
For all of the foregoing reasons, Stop & Shop's motion for summary judgment is denied.