Opinion
No. CV02-0512254S
September 30, 2003
MEMORANDUM OF DECISION
The plaintiff, Jeannette Mathews, brings this suit for damages allegedly sustained in a fall at the entrance to a convenience store. One of the defendants named in the suit is Westview Associates, Inc. (Westview), the owner of the premises. Westview has now moved for summary judgment.
During the course of oral argument on this motion, the plaintiff pointed out that the defendant had not received permission to move for summary judgment as the case had been given a trial date. See Practice Book § 17-44. The argument was adjourned and subsequently permission to move for summary judgment was given by the presiding judge, Hon. Richard Robinson. The matter was then again submitted to the court for decision.
The plaintiff alleges in her amended complaint that on December 27, 1999, she was an invitee at 662 West Street in Southington, Connecticut, and while walking on a sidewalk at the entrance of the premises, she fell and was injured. The plaintiff alleges that Westview knew or should have known of the defective condition of the sidewalk, but failed to take appropriate action to remedy the condition of the sidewalk. Westview denies that it was in possession and control of the premises and is therefore entitled to summary judgment.
In deciding whether summary judgment should be granted, the court follows well-established principles. "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. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of . . . a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, CT Page 10877-b therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . ." Hernandez v. Cirmo, 67 Conn. App. 565, 567-68 (2002), quoting Burnham v. Karl Gelb, P.C., 50 Conn. App. 385, 387 (1998).
The issue raised in this summary judgment motion is the extent to which an out-of-possession landlord might be liable to the plaintiff. "[L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof." Mack v. Clinch, 166 Conn. 295, 296 (1974). "It is the possession of land that imposes the liability for injuries, rather [than] the ownership of land . . . [because] the person in possession is in a position of control and is best able to prevent harm." (Internal quotation marks omitted.) Charest v. Burger King Corporation, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 91 3957549 (March 3, 1993, Aurigemma, J.) ( 8 Conn. L. Rptr. 756). "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." (Citation omitted.) Panaroni v. Johnson, 158 Conn. 92, 98 (1969).
The plaintiff apparently contends that the duty to maintain the sidewalk was non-delegable. This is not Connecticut law. "The short answer to this claim is that . . . an owner has no duty, delegable or nondelegable, if he is not in possession and control." Suarez v. Long, Superior Court, judicial district of New Haven, Docket No. 380763 (August 24, 2000, Levin, J.) citing Fernandez v. Estate of Ayers, 56 Conn. App. 332, 336 (2000).
"Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive domination of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue . . . Responsibility for the proper care over portions of the premises within the leased area may rest with the lessor if, with the acquiescence of the lessee, he retains control, and an agreement between the parties as to the landlord's right to inspect the premises together with his exclusive right to make repairs therein and the tenant's total abstention from making any repairs would be the equivalent of retention of control of the leased premises." (Citation omitted.) Panaroni v. Johnson, supra, 158 Conn. 98.
"A lease is a contract . . . and its construction presents a question of law for the court." (Citation omitted.) Robinson v. Weitz, 171 Conn. 545, 551 (1976). "[U]nder the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control." Gore v. People's Savings Bank, CT Page 10877-c 235 Conn. 360, 373 (1995). "Control is an issue of fact for the trier only where the written lease cannot be said to resolve definitively or expressly the issue of control." Charest v. Burger King Corp., supra. See Shira v. Rubin, Superior Court, judicial district of Waterbury, Docket No. CV 000157937S (May 30, 2002, Wolven, J.) ( 32 Conn. L. Rptr. 220); Wright v. Edwards, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0078931 (November 18, 2002, Scholl, J.) ( 33 Conn. L. Rptr. 347) (setting forth the above-stated principles).
Westview has filed an affidavit and deposition testimony of the current tenant. The affidavit of the president of Westview declares that it has given up possession and control and bases this statement on a lease of April 1995. The lease does not reserve to Westview any common areas where its has retained possession. The tenant has control over the entire premises for operation of a gasoline station and a convenience store. (Lease, paragraphs 1, 18). The tenant may "move, remove, or alter any building, structure, tank, curbing, pavement or driveway now or hereafter placed on said premises and may construct, build and place upon said premises such buildings, structures, tanks, curbings, pavement, driveways, machinery and other equipment as shall in its opinion be necessary or desirable to use and operate said premises, and may perform any and all acts necessary to the conduct of its business." (Lease, paragraph 10(a)).
There is no dispute that this lease, while between Westview and Buckley Gas Marketers, Inc., was also applicable to the current tenant, Badat, Inc.
Westview argues that these provisions support its contention that it lacks possession and control. The plaintiff in reply relies upon paragraph 10(d) of the lease that requires the submission of all plans for improvement of the property to Westview. But paragraph 10(d), giving a consulting role to the landlord does not undermine a conclusion that the landlord has surrendered possession and control. A similar issue was addressed in Charest v. Burger King, supra:
[T]he lease . . . permits the lessor or its agents to enter the premises for the purpose of making repairs in the event that the lessee fails to do so. Absent some evidence presented by a plaintiff that the lessor, Burger King Corporation, did, in fact, make repairs to the premises, reliance on the aforementioned language in the lease is insufficient to create an issue of material fact in the face of the evidence submitted by Burger King Corporation that it did not make repairs during the lease period. CT Page 10877-d
See also Baker v. Getty Oil Co., 663 N.Y.S.2d 40 (A.D. 1997) ("[W]hile Getty had a contractual obligation to make certain limited structural repairs occasioned by ordinary wear and tear or by damage from the elements, [the] sublessee . . . had the express obligation to make all other repairs and to maintain the station in a `well-lighted' and `good, safe and operating condition.'").
The tenant is required in paragraph 11(a) to "maintain and make minor repairs to the said premises." Westview argues that this is also an indication of its lack of control. The plaintiff replies that wording of this paragraph leaves open the possibility that Westview was retaining the right to make major repairs and this might include sidewalk repair.
There are several reasons why the plaintiff's proposed interpretation of this paragraph is unsuccessful. First the tenant is to "maintain" the premises. The examples given in paragraph 11(a) as to repairs include repairs to plumbing, heating equipment, electrical wiring and fixtures, and replacing broken windows. The parties thus intended that the tenant's duty to maintain the premises (which would include the sidewalks) should be contrasted with the duty to make minor repairs to the building's contents. In addition under paragraph 13 the tenant takes the premises "as is," except that Westview has the duty to clean up any contaminated soil on the premises. This is the sole example in the lease of Westview assuming a duty to enter the premises to make a major repair. As in the Charest and Baker cases quoted above, the provisions of paragraph 11(a) supports Westview's position that it was an out-of-possession owner and did not retain the degree of control necessary to find otherwise.
The court agrees with Westview that paragraph 12(b) requiring the tenant to keep in force an insurance policy protecting Westview from liability for sidewalk injuries does not indicate that Westview had retained possession and control for slips and falls on the sidewalk.
Further the testimony of Ibrahim Badat at his deposition was that his corporation (the current tenant) maintains control over the premises and Westview does not. The plaintiff has not submitted an affidavit or other proof in response to this evidence. She argues that she should be given the opportunity before summary judgment is considered to take the deposition of the president of Westview, and author of its supporting affidavit, Timothy Brennan. She states that Brennan might confirm that his employees or staff retained control of some or all of the premises or entered the premises on a regular schedule to make repairs. CT Page 10877-e
On the other hand, the court may not forego a decision merely on the speculation that contrary evidence might be developed. "Mere hope that somehow, the plaintiffs will uncover evidence that will prove their case, provides no basis . . . for postponing a decision on a summary judgment motion." Kennerly v. Campbell Chain Co., 519 N.Y.S.2d 839, 840 (App.Div. 1987).
In addition, Westview's motion for summary judgment has been actively pending since June 2003. Brennan's deposition was not taken on its scheduled date in June, but Westview agreed with the plaintiff to allow a deposition of Brennan at a later date. The deposition was only noticed by the plaintiff on September 17th, after the summary judgment motion was re-claimed. This would indicate that the plaintiff "has had a sufficient opportunity to establish facts in opposition to the summary judgment motion . . ." and it would be inappropriate to give the plaintiff additional time to conduct her proposed discovery. Peerless Ins. v. Gonzalez, 241 Conn. 476, 489 (1997).
The proof submitted by Westview and the lack of sufficient contrary proof by the plaintiff satisfies the court that there is no genuine issue of material fact as to whether Westview was in possession or control of the premises at the time of the plaintiff's accident. Cf. LaFlamme v. Dallessio, 261 Conn. 247, 262 (2000); Kriz v. Coldwell Banker Real Estate, 67 Conn. App. 688, 693-94 (factual disputes remained on issue of possession and control).
The plaintiff appears also to contend that summary judgment should be denied because she qualifies for an exception to the general rule of landlord non-liability known as the "public use" doctrine. Drawn from the case of Webel v. Yale University, 125 Conn. 515 (1939), the doctrine imposes liability upon an out-of-possession landlord where the premises is leased for public use, the defect in question existed before the commencement of the lease, and the owner knew or should have known that the tenant could not reasonably be expected to remedy the defects. The plaintiff has not submitted any factual proof that meets the requirements of Webel. See Murphy v. Danbury Car-G-Cam Uni Corporation, Superior Court, judicial district of Danbury, Docket No. CV99 0336766 S (March 27, 2001, Adams, J.).
Because Westview was not in possession and control of the leased premises, the court grants its motion for summary CT Page 10877-f judgment.
HENRY S. COHN, JUDGE.