Opinion
CV116011656S.
11-27-2012
Joan McMAHON v. Gerald MIHALKO, et al.
UNPUBLISHED OPINION
SOMMER, J.
I. SUMMARY OF FACTS
On November 4, 2011, the Plaintiff, Joan McMahon, entered the property at 174 Coram Avenue in Shelton as an invitee for the purposes of seeking legal counsel and applying for employment at the law firm of Virginia P. Mihalko, LLC. Upon arriving at the front door of the law firm, she was signaled by the Defendant, Virginia Mihalko, from inside the office to walk around to the side entrance. The Plaintiff then turned around to walk down the front steps of the front porch where she was caused to fall when the wooden porch collapsed beneath her right leg.
The Plaintiff instituted this action by Complaint, dated November 2, 2011, claiming, inter alia, negligence on the part of the Defendants, Virginia Mihalko and the Law Offices of Virginia Mihalko, LLC. The Defendants filed a Motion for Summary Judgment, dated August 7, 2012, on the ground that the Defendants were not in possession or control of the premises.
II. SUMMARY JUDGMENT STANDARD
" 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.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). " The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). " [T]he issue of whether a defendant owes a duty of care, [however], 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 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." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
III. LAW OF PREMISES LIABILITY AND POSSESSION AND CONTROL
A business invitee " is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land." 2 Restatement (Second), Torts § 332. With respect to the duty owed to business invitees, " [t]he relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ... Nevertheless, [for [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ... In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers ... Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger. To defeat a motion for summary judgment in a case based on allegedly defective conditions, the plaintiff has the burden of offering evidence from which a jury reasonably could conclude that the defendant had notice of the condition and failed to take reasonable steps to remedy the condition after such notice." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012).
" Liability for injuries caused by defective premises ... does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). " Retention of control is essentially a matter of intention to be determined in the light of all 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 ... Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises ..." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003). " Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court ..." (Internal quotations marks omitted.) Van Nesse v. Tomaszewski, 265 Coun. 627, 631, 829 A.2d 836 (2003). Otherwise, the question of possession and control over the premises is a question of fact that should go to the jury. Id.
Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), cert. denied, 254 Conn. 786, 759 (2000), is instructive on the issue of tenant liability pertaining to leased premises. In Tarzia, the plaintiff slipped and fell on a plastic shopping bag in the parking lot of a Waldbaum's Foodmart (Waldbaum's), the defendant-tenant in that case. The trial court granted Waldbaum's summary judgment motion on the ground that arguing that pursuant to its lease agreement, the landlord had the duty to keep the parking lot free from debris. The issue as framed by the Appellate Court was " whether a tenant who has actual or constructive knowledge of a dangerous condition in a leased area, which the landlord has contractually agreed to maintain, may be liable to the tenant's business invitees who use the leased area." Id., at 147.
The Appellate Court held that " as tenant in possession, Waldbaum's owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably safe condition. Whether that duty was breached and whether there is a causal connection between the breach and the plaintiff's alleged injuries are questions of fact that a trial would resolve. Waldbaum's was not entitled to summary judgment." Id., at 149. The court indicated that the issue was merely one of indemnification to be sorted out between the landlord and Waldbaum's to be decided after final judgment between Waldbaum's and the plaintiff. Id., at 147-48.
Tarzia stands for the proposition that the possessor of a premises has a non-delegable duty of reasonable care to business invitees on the premise. In Tarzia, this non-delegable duty sprung from the fact that the plaintiff was a business invitee of Waldbaum's. See Seuferling v. Plaza Enterprises, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5008040 (February 3, 2010, Cosgrove, J.) (49 Conn. L. Rptr. 286) (in slip-and-fall case in parking lot, defendant-tenant's motion for summary judgment denied despite landlord shopping center owner having exclusive control and management over the parking lot pursuant to lease between tenant and landlord).
Accordingly, a tenant-possessor owes a business invitee a duty of reasonable care to protect against known, foreseeable dangers even if there is an agreement between the tenant and the landlord that the landlord has responsibility for the relevant area. Under the facts presented to the court there is evidence from which a jury could reasonably conclude that a tenant-possessor had notice of a defective condition and failed to take reasonable steps to remedy the condition after such notice.
Therefore, the defendant's Motion for Summary Judgment is DENIED.