Opinion
No. CV 06 5002363
April 23, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #116
FACTS
The plaintiff, the administratrix for the estate of Mechelle Rutka (the decedent), brought this wrongful death action against Kenneth McNeil, K.B. Entertainment, LLC (K.B.) dba Club Hip-Notic and El-N-Gee Club, Joaquin Gouin, John Green, SWM, LLC (SWM) and Scott Magruder. The plaintiff alleges the following facts in her amended complaint, filed July 27, 2009. SWM and its principal member, Magruder, were the owners of real property known as 86 Golden Street, New London, Connecticut, and leased some or all of the property to K.B. and/or McNeil. K.B. operated Club Hip-Notic (the Club) at the corner of Golden Street and Eugene O'Neill Drive in New London, Connecticut. McNeil was the permittee and owner of the Club, and Gouin and Green were the managers.
The defendants filed their pending motion for summary judgment prior to the plaintiff filing her amended complaint. Nevertheless, the amended complaint is the plaintiff's operative pleading, as the defendants are deemed to have consented to the plaintiff's amendment pursuant to Practice Book § 10-60(a)(3), in that they did not file a timely objection thereto. Pursuant to Practice Book § 10-61, the motion for summary judgment will be applied to the plaintiff's July 27, 2009 amended complaint.
On July 22, 2006, the decedent met her friend, Jessica McNeil, at Septembers in Waterford, Connecticut. Jessica McNeil is the wife of defendant McNeil. Sometime in the late evening of July 22, 2006, or early morning of July 23, 2006, the decedent and Jessica McNeil went to the Club. Subsequently, employees, agents or representatives of the Club served the decedent with intoxicating beverages and illegal drugs while she was in an intoxicated condition. The drugs were unsuspectingly provided to the decedent.
The decedent became unconscious as a result of the drugs and alcohol, and sometime during the early morning of July 23, 2006, the owners, employees, agents or representatives of the Club dragged the decedent's body through the Club and outside one of the Club's doors. After an unreasonable amount of time, someone called 9-1-1 and emergency personnel were dispatched. The emergency personnel found the decedent outside the Club with no pulse. An ambulance transported the decedent to the hospital, where she was placed on advanced life support. The decedent never regained consciousness and died as a result of the drugs and alcohol provided to her while she was at the Club.
Count one of the amended complaint alleges a negligence claim against K.B., McNeil, Gouin and Green. Count two alleges a violation of General Statutes § 30-102, the Dram Shop Act. Count three alleges a recklessness claim against K.B., McNeil, Gouin and Green. Count four alleges a negligence claim against SWM and Magruder.
On May 9, 2008, Magruder and SWM, referred to hereinafter as "the defendants," filed a motion for summary judgment and memorandum in support. On June 6, 2008, the plaintiff filed an objection to the motion and a memorandum in opposition.
Although the motion and objection were originally heard at short calendar before Judge Parker, the parties have agreed that the motion may be decided by this court, Martin, J.
DISCUSSION
"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. 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.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "[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, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
"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 . . . 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 . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendants move for summary judgment on the ground that they did not owe a duty of care to the decedent. In response, the plaintiff argues that the defendants had a duty based on their statuses as landlords and the fact that they knew or should have known that their tenant would engage in illegal or negligent acts. There is no appellate authority on this precise issue, but the appellate courts have dealt with the issue of a potential duty to a third person on numerous occasions.
In general, "[t]he existence of a duty is a question of law and only 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 . . . We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
I. Foreseeability
"Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role. Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although . . . no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." (Citations omitted; internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632-33, 674 A.2d 811 (1996).
In the present case, the defendants appear to concede that the injury to the decedent was foreseeable, at least for the purposes of this motion. The defendants contend that "[p]erhaps, on a quite literal basis, the unfortunate death of the [decedent] was `foreseeable.' However, seen through the necessary spectrum of public policy, Connecticut Law simply does not support the necessary causal connection. It is only conjecture, surmise and remote, with too many variables, as to whether anything that Magruder or SWM could have done would have prevented this tragic death. There was simply no direct, temporal or spacial connection between the death and anything SWM or Magruder did or did not do. The requisite duty and causation under these circumstances simply does not exist, as a matter of law." (Defendant Scott W. Magruder and SWM, LLC's Brief in Support of Their Motion for Summary Judgment, May 9, 2008, p. 31.) Thus, the defendants argue that while the decedent's death may have been foreseeable, a legal duty did not exist based on the particular circumstances in the present case.
II. Policy Considerations
Following the analysis of whether the decedent's death was foreseeable, the next inquiry is whether, on the basis of a public policy analysis, the defendants' responsibility should extend to the particular consequences of the decedent in this case. Neuhaus v. Decholnoky, supra, 280 Conn. 217-18. In Kargul v. Sandpiper Dunes Ltd. Partnership, Superior Court, judicial district of New London, Docket No. CV 50 56 00 (January 29, 1991, Axelrod, J.) ( 3 Conn. L. Rptr. 154), the court engaged in an extensive analysis of the primary and secondary authority surrounding the issue of landlord liability for the conduct of third parties. In Kargul, the plaintiff, a tenant in an apartment building, was sexually assaulted and stabbed by the guest of another tenant. Id. In order to determine whether the defendant tenant had a duty to the co-tenant plaintiff, the court first analyzed the basis upon which liability has been imposed on landlords for the conduct of third parties. Id., 157. After synthesizing numerous cases from various jurisdictions, the court determined that "[t]he common thread that weaves through all of the above cases is that of control. Whether the duty was imposed upon the landlord or upon the condominium association, there was a duty imposed as the result of the ability to control, whether the control was over the common area, or whether the control was over the person to be hired by the landlord and thereby have access to the tenant's apartment, or whether the control was over the type of locks installed on the tenant's apartment." Id., 160.
While Kargul is factually distinguishable from the present case, several Superior Court decisions have addressed similar situations where an injured party brought a claim against a landlord for an injury sustained on the landlord's premise. The judges in these cases utilized the "control analysis," as elaborated in Kargul, to determine whether the defendant landlord owed a duty to the injured third-party plaintiff. For example, in Spencer v. Nesto, 46 Conn.Sup. 566, 567, 764 A.2d 224 [ 27 Conn. L. Rptr. 212] (2000), the plaintiff sustained injuries when he was assaulted by the tenants of the defendant landlord's property. The plaintiff alleged that the defendant landlord had a duty to "safeguard the innocent members of the community" and warn them of the tenant's dangerous tendencies. Id., 574. The court determined that the defendant landlord did not have a duty to the plaintiff because "the defendant in the present action has no such control over his tenants. A landlord can exercise control over the premises . . . but a landlord cannot exercise control over his tenants. The defendant landlord here could not have anticipated the criminal negligence of his tenants, and even if he could, he did not have control over the tenants' individual thoughts and actions." Id., 576. See also Murphy v. Eddinger, Superior Court, judicial district of Middlesex, Docket No. CV 98 0086973 (November 30, 1999, Robaina, J.) [ 26 Conn. L. Rptr. 8]; Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L. Rptr. 458).
In contrast, courts have found that defendant landlords owe a duty of care to third persons when the landlord had some degree of control over the premises where the incident occurred. The plaintiff relies heavily on three such cases: Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995), Melin v. Reed, judicial district of New London, Docket No. CV 567597 (August 17, 2004, Hurley, J.T.R.) ( 37 Conn. L. Rptr. 715), and Hayes v. Caspers, Ltd., 90 Conn.App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). In Stewart v. Federated Department Stores, Inc., supra, 234 Conn. 599, the decedent was killed "in a parking garage in Stamford that was owned and operated by the defendant in connection with its retail store, Bloomingdale's." In Melin v. Reed, supra, 37 Conn. L. Rptr. 718, "[t]he defendant [was] alleged to have exercised `control' over the business and to have profited from the sale of alcohol to minors." Finally, in Hayes v. Caspers, supra, 90 Conn.App. 783, the plaintiff filed a complaint "against the defendant Caspers, Ltd., the owner and operator of a bar and restaurant in Niantic known as the Lyme Tavern Cafe, and against the defendant Diane Lynch, its permittee . . ." Thus, in these three cases, the defendant landlords were alleged to be active operators or otherwise controlling the premises where the alleged injuries occurred.
In the present case, the plaintiff alleges that the defendants were the owners of the property where the incident took place, and that they were negligent in leasing the property to K.B. and/or McNeil. The plaintiff also alleges that the defendants operated a club on the property prior to leasing it to K.B. and/or McNeil, and that the club that the defendants formerly operated sold and/or distributed drugs. The plaintiff alleges that the defendants' club had a reputation for being an establishment where illegal drugs were sold, and that based on this reputation the defendants knew or should have known that the tenants would continue to engage in that practice. Nowhere in the complaint, however, does the plaintiff allege that the defendants were currently operating or controlling the tenants' business.
Attached to their motion for summary judgment, the defendants present evidence that they never owned or operated the tenants' business, and "[a]t no time . . . exercise[d] any control or authority over the operation of the Club Hip-Notic, K.B. Entertainment, LLC or Kenneth McNeil . . ." (Affidavit of Scott W. Magruder, May 8, 2008, ¶ 21.) In response, the plaintiff presents evidence that the defendants knew that "there were numerous occasions when there was trouble at Club Hip-Notic," Affidavit of Michael McNabney, June 10, 2008, ¶ 7, but does not present any evidence that the defendants had any control over the tenants' business, which was operating on the property at the time of the incident. The defendants have met their burden of showing that they did not operate or control the tenants' business at the time of the incident, and the plaintiff has not presented any evidence to demonstrate the existence of a disputed fact with respect to this issue. The defendants' alleged ownership of the property and knowledge of trouble at the Club is not conduct that rises to the level of active operation or control needed to find that they owed the decedent a duty of care.
CONCLUSION
Based on the foregoing, the defendants did not owe the decedent a duty as a matter of law. Therefore, the defendants' motion for summary judgment is granted.