Opinion
No. CV095027402S
January 6, 2010
MEMORANDUM OF DECISION
This is an application for prejudgment remedy brought by the plaintiffs, Mattia Sammarco, individually, and as administrator of the estate of his wife, Melanie Sammarco who were tenants in a two-family house owned and leased by the defendants, Edward and Susan Kostowski. The plaintiffs claim that there is probable cause a judgment will be rendered finding that the defendants were responsible for the death of Melanie Sammarco and extensive burns suffered by Mattia Sammarco as a result of a fire at their residence on May 26, 2009. The proposed complaint contains four counts seeking damages for wrongful death, personal injuries, loss of consortium and bystander emotional distress.
The claim is that the defendants failed to maintain their property in compliance with applicable state and local codes and statutes as well as common-law requirements. In particular, that the smoke detector located in the plaintiffs' bedroom did not operate on the night of the fire; that the defendants failed to provide a required alternate battery source for the smoke detector and failed to provide an adequate second means of egress from the second story dwelling. In addition, there during the hearing there was a claim that the defendants failed to inspect and remediate a hazardous situation consisting of smoking area located at the base of the wooden stairs and adjacent to accumulation of flammable trash, mulch and leaves, which the Norwalk Fire Inspector concluded was the source of the fire.
Based on the evidence submitted during the course of the hearing and briefs filed by the respective parties, this court finds that there is probable cause the following will be found:
The defendants, Edward and Susan S. Kostowski bought the subject property located at 13 Burwell St in Norwalk in 1976. It was a one-story single-family dwelling. In 1985 the defendant testified that they decided to convert the property into a two-family house. A building permit was obtained from the town of Norwalk on May 6, 1985 in order to build a second story family unit. An application for the electrical work was obtained on July 16, 1985. When the second story was completed, the city of Norwalk issued a certificate of occupancy dated January 3, 1986. The defendant testified that since its completion he believed it has been assessed as a two-family residence.
The defendant testified that when he attempted to refinance a house in 1994 the bank requested a copy of the certificate of occupancy which he claimed had been lost by the city of Norwalk. In 1994 he received the Certificate of Occupancy from the town of Norwalk indicating that the property had been changed from a single-family residence to a two-family residence. The defendant testified that when the smoke detector was installed in the new second-floor dwelling in 1985 it had a single-wire power source. There was no alternate battery power.
The entrance of the plaintiffs' second floor unit faced the back yard of the building. The required second means of egress from the second-story dwelling consisted of a window located in the bedroom of the apartment leading to the porch on the side of the building. The porch surrounded the back of the building and the only stairway leading to the ground level was located at the other end of the porch in front of a sliding door entrance. The porch was approximately 12 to 20 feet above the ground.
The plaintiff decedent, Melanie Sammarco, initially entered into a year-to-year lease with the defendants in 2007 under her maiden name, Melanie Weeks. The plaintiff, Mattia Sammarco, came to the United States from Italy in 2007. He married the plaintiff decedent in January of 2009. He was 30 years old and employed as a waiter in Greenwich. Melanie, who was 40, owned a beauty salon in Stamford.
On May 26, 2009 Mattia Sammarco, his wife Melanie and a friend, Michael Carpenter, arrived at their second-floor dwelling approximately 2:00 a.m. Melanie and Mattia went to bed. Michael had asked if he could stay over was sleeping on a couch in the living room.
The night of the fire in there were four people in the apartment on the first floor. One of the occupants advised the fire marshal that he had gone out on the rear deck at approximately 2:00 a.m. to have a cigarette. As the defendants prohibited any smoking inside the units, there was an area at the lower rear deck with a bucket for depositing cigarette butts. The Norwalk Fire Inspector reported that adjacent to that smoking area was an accumulation which he described as rubbish, trash, mulch and leaves. The downstairs tenant indicated that he had his last cigarette about 2:00 a.m., extinguished it in the pot on the deck. When he went to bed at 2:15 a.m. he noticed that the lights were on in the second-floor apartment and the occupants were still up.
Mattia Sammarco testified that he was awakened by heavy smoke and heat. He woke up his wife and told her they had to get out there was a fire. As they left the bedroom he saw Michael on the couch and told him he had to leave. The doorway was on fire so he had to put his arm up to shield his face and went down the burning stairs. He did not see his wife, Melanie, and he thought that she may have gone back to get Michael and her dog. At no time did he hear a smoke alarm.
A downstairs tenant reported that he was awakened by a popping sound. When he went to see what was making the sound he saw the fire outside the door. All occupants of the first floor left the building. All four individually told the fire marshal that they did not hear a smoke detector activate.
There were two neighbors living in a house back of the Burwell Street property. A Maxine Jargo testified that from the back of her apartment she could see the back of the house when the fire occurred. On the night in question she was awakened by the sound of crackling fire at approximate 2:30 a.m. when she looked she saw the bottom of the stairs on the left side of the house was on fire. She saw Mr. Sammarco come down the stairs and begin rolling on the ground. She also saw a female at the bottom of the stairway on the first-floor landing. The female turned around and went back up the stairs when she lost sight of her. She reported that at no time did she hear a smoke detector alarm.
The Fire Inspector from the Norwalk Fire Department testified that after the fire was extinguished they inspected the premises. They found the body of Michael Carpenter in the living room on a couch and the plaintiff's dog in the bedroom. During a second investigation they discovered the body of Melanie Sammarco on the second-floor porch under a burnt awning.
He testified that the two smoke detectors located in the building had ejected from their ceiling location. They were subsequently removed by an investigator from an insurance company. The electrical panel was found to be in working order and non-contributory to the fire. He proceeded to obtain statements from the occupants and witnesses to the fire.
The inspector concluded that the fire was caused by a careless discard of smoking material because of the numerous cigarette butts in the area which probably ignited the mulch and leaves adjacent to the smoking area. He noted that the records of the Norwalk Fire Department did not have a record of a request to inspect the property at any time.
An expert in fire investigations testified for the plaintiffs that the smoke detection system installed by the defendants on the Burwell Street property was in violation of the State Fire Code by not having an additional battery source of power.
In addition to the loss of his wife, Mattia Sammarco suffered burns over 70% of his body causing disfiguring scars. He lost the use of his left hand. Following the fire he was in a coma for 10 days. He has had to undergo six surgical procedures and will probably require three more. It is unknown if he will ever be able to work return to work. His medical bills total $ 600,000 to date.
The plaintiffs claim that the conditions the defendants allowed to exist at 13 Burwell Street on the night of the fire violated statutory and regulated obligations enacted to prevent what occurred, specifically: Title 47 a. of the Connecticut General Statutes (Landlord and Tenant Act) and C.G.S. § 29-292 (Fire Safety Code) specifically, by providing a hardwired smoke detector which was inoperable the time of the fire; by not providing a proper second means of egress from the second story building, by failing to have an alternate battery source of power for the smoke detection system and by allowing a dangerous and hazardous condition to exist in the common area of the property contributing to the ignition of the fire. The specific sections are as follows
C.G.S. § 47a-7 Landlord's Responsibilities.
(a) a landlord shall: (1) comply with the requirements of chapter 386o and all applicable building and housing codes materially affecting health and safety of both the state and any political subdivision thereof . . . (4) maintaining good and safe working order and condition all electrical plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied are required to be supplied by him; (5) provided maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the accuracy of the dwelling unit and arrange for their removal; . . . (b) If any provision of a municipal ordinance, building code or fire code requires a greater duty of the landlord that is imposed on the subsection (a close section of this section), then such division of such ordinance or code shall take precedence over the provision requiring such a lesser duty in such subsection.
C.G.S. § 47a-4 Terms Prohibited in Rental Agreement CT Page 2217
(a) a rental agreement shall not provide that the tenant: (a) Agrees to waive or forfeit rights or remedies under this chapter . . .C.G.S. § 29-292 (Fire Safety Code)
Mandates that the State Fire Marshal promulgate fire safety regulations and amend them at will. The statute also required that no certificate of occupancy could be issued for any residential building designed to be occupied by one or more families to which a building permit for new and occupancy is issued on or after October 1, 1978 unless the local fire marshal or building official has certified that the building is equipped with a smoke detection and warning equipment complying with the Fire Safety Code.
In 1977, the Legislature passed Public Act 77-334 which directed the Fire Safety Code to include a provision requiring smoke detectors in new residential buildings to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1, 1978.
In 1985 the Legislature further mandated that the code include a provision for smoke detection equipment capable of operation using alternate current and batteries in "new residential buildings designed to be occupied by one of more families for which a building permit for new occupancy is issued on or after a coma first 1985." Public Act 85-321.
The defendants claim that under Masterson v. Atherton, 149 Conn. 302 (1962), the plaintiffs have failed to establish a prima facie case on the basis that after signing the lease, the plaintiffs took the premises as they found them and were themselves responsible to inspect the premises for any defects. Specifically they claim that plaintiff failed establish the existence of a legal duty to maintain or repair smoke detectors that out of possession they were not responsible for the condition or maintenance of smoke detectors; that the property was in compliance with the State Fire Code and the State Building Code regarding smoke detectors; that they had provided a primary and secondary means of egress and that they failed to establish a proximate cause between the alleged breach of duty regarding smoke detectors and the damages and losses claimed.
In Masterson, a tragic fire occurred in 1959 when an overheated hot air furnace ignited portions of the woodwork in the subject premises. There were a number of fatalities. The plaintiffs claimed that there were improper repairs of the woodwork surrounding the hot air furnace which ignited and caused the fire. The oft cited ruling in Masterson is that ordinarily, a tenant takes the demise premises as he finds them and a landlord is not liable for defective conditions within the demised area.
It further held that the landlord may, however, be liable for defective conditions existing at the beginning of the tenancy if he was chargeable with knowledge of them and they were not discoverable on a reasonable inspection by the tenant. The landlord may also be liable for failing to exercise reasonable care to have and keep in a reasonably safe condition the portion of the premises over which he retains control.
The fire in Masterson occurred 1959. It was prior to the enactment to the Landlord and Tenant Act in 1976 and Fire Safety Code, as amended in 1977. The claim in Masterson was a common-law claim of negligent repairs. Unlike Masterson, the plaintiffs' claims in this case are not based on the landlord's negligence but a failure to comply with the defendants' statutory obligations under the Landlord and Tenant Act and the Fire Safety Code.
"Where a statute is designed to protect persons against injury, one who has come as a result of its violation, suffer such an injury as the statute was intended to guard against is a good ground of recovery. Statutory negligence is actionable upon satisfaction of two conditions: (1) the plaintiff must be a member of the class protected by the statute; and (2) the injury must be the type the statute was intended to prevent." Small v. South Norwalk Savings Bank, 205 Connecticut 751 (1988).
In Gore v. People's Savings Bank, 230 Conn. 360 (1995), the Supreme Court held that a landlord's violation of C.G.S. § 47a-7 could constitute negligence per se. See Sanchez v. General Urban Corp., Superior Court Judicial District of New Haven, Doc. No. 378774 (February 6 1997, Lager J.) [ 19 Conn. L. Rptr. 97].
One of the claims of the defendants is that the absence of a battery power source for the smoke detector was discoverable on reasonable inspection by the plaintiffs and therefore the landlord could not be held responsible for its absence if found to have been required.
Had, in fact, the plaintiffs discovered that the smoke detector system did not have a secondary battery source of power, it would have been of no significance to them as the absence of a secondary battery source of power is not common-law negligence and is allowable in any one-or two-family residence for which a certificate of occupancy had been obtained prior to 1985 and in compliance with the Fire Safety Code. The claim is that the defendants violated C.G.S. § 29-262, constituting negligence per se.
"Subsection 47a-7 requires a landlord to comply with such regulations which materially affect safety. Clearly, a functional smoke detector falls within the ambit of this requirement. Also, Subsection 47a-7 compels a landlord to maintain in good working order all electrical and other "facilities and appliances" required to be supplied by the landlord." Ficocelli v. Sokolowski, CV 08 4010443 (October 17, 2009, Sferrazza, J.)
In fact, defendants did have actual notice as to the absence of alternate battery source for the smoke detector as the smoke detection system was installed by them when the second floor was built in 1985.
The basis of the defendants denying that they were obligated to install a secondary battery source of power to the smoke detector 1985 is that Public Act 85-321 provided "new residential buildings designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1, 1985, requiring equipment capable of operation using alternate current and batteries." It is their claim that the second-floor dwelling unit was not a "new residential buildings" for purposes of the statute. This court disagrees.
The single-family dwelling unit was completely built as a second story on the defendant's single story home in 1985. Public Act 85-231 was approved in June of 1985. The defendants applied for electrical permit in July of 1985 and sought and obtained a certificate of occupancy in January of 1986, which required compliance with Public Act 85-231.
The reference to a new building is to allow those single-and two-family residences for which a certificate of occupancy had been obtained prior to 1985 would still be in compliance with the Fire Safety Code. The single-family residence which the plaintiffs were occupying was entirely constructed in 1985. For purposes of fire protection, the statute clearly intended to ensure that any new single-family unit dwelling coming into existence in 1985 had the added protection of an alternate battery means of power.
The 2005 Fire Safety Code defines a "dwelling unit" as a single unit providing complete independent living facilities for one or more persons, including permit provisions for living, sleeping, eating, cooking and sanitation. The Code also contains additional sections which, in the opinion of this court, represent the intent of mandating current requirements of smoke detectors for new single-family dwelling units:
Section 29-292 — 11e. Changes of Occupancy or Use
"In any building or structure, whether or not a physical alteration is needed, a change from one occupancy classification to another shall be permitted only where such structure, building a portion thereof conforms with the requirements of this code that apply to new construction for the proposed new use . . ."
Chapter 24. One and Two Family Dwellings
Section 24.3.4.2. Dwelling units shall be protected by an approved smoke detection system in accordance with § 9.6 and equipped with an approved means of occupant notification.
Chapter 9. Fire Detection, Alarm, and Communications Systems.
Section 9.6.2.10.2 provides "Smoke alarms shall receive their operating power as follows: (1) in buildings for which a building permit for new occupancy was issued on or after October 1, 1985 smoke alarms shall be powered by both alternating current (AC) and batteries (DC).
The defendants claim as landlords out of possession, they were not responsible for the condition or maintenance of the smoke detectors.
Generally, the tenant "takes the premises as he finds them in bears the risk of any defective conditions which are we then the area under his exclusive possession and control . . . this rule, however, does not apply defects which are the result of faulty design or disrepair in which existed at the beginning of the tenancy, were not discoverable by the tenant on reasonable inspection, and were known either actually or constructively to the landlord" (internal quotation marks omitted). Gore v. People's Savings Bank, 230 Conn. 360 (1995). Nor does the rule apply "when a landlord retains control of a portion of the demise premises. In such case the landlord must use reasonable care to keep that portion of the premises in a reasonably safe condition." Mack v. Lavalley, 55 Conn.App. 150, 162; Pollack v. Gampel, 163 Connecticut 462, 468.
In Masterson the Court acknowledged that the plaintiffs had the burden of alleging and proving retention of control by the landlords which would in turn obligate them to maintain and repair any defective conditions in the demise premises. The Court noted the defendant was not given access to the seller for purposes of inspecting and repairing the furnace so as to support a finding of retention and control. Further, the court found that the plaintiffs had failed to prove that the defendants had keys to the house which would additionally support a finding of retention of control.
The following sections are in the lease between the plaintiffs and the defendants:
"Access by Landlord to Premises." Subject to tenants, consent, which shall not be unreasonably withheld, the landlord shall have the right to enter the premises to make inspections to provide necessary services or show the unit prospective buyers, mortgages . . . In case of emergency landlord may enter the premises without tenant's native to the consent.
"Landlord May Enter, Keys, Signs." Landlord may, at reasonable times, enter the premises to examine, to make repairs or alterations that . . . tenet must give to landlord keys to all locks. Locks may not be changed or additional locks installed without the landlord's consent.
"Alterations." Tenant shall make no alterations to the premises other than for decorative purposes. Tenant shall not make structural alterations to the premises without the landlord's written consent.
"Repairs." Tenant shall be responsible for all non-structure repairs to the premises and/or repairs necessitated by the tenant's negligence. Landlord is responsible for all structure repairs (within the wall) including plumbing and electric repairs . . .
Where the language of the lease is clear, the court does not have to look at the actions or conduct of the landlord and tenant . . . The landlord can retain control when the lease grants the landlord the right to inspect the premises and the right to make repairs . . . Furthermore, the landlord can remain in control by reserving the right to have general access to the premises for inspection . . . The landlord can also have control by restricting the tenant from making repairs . . . Thus, when determining whether the landlord retained control of the demise premises, the court must look at the lease to determine the rights and restrictions pertaining to the landlord and tenant. (Internal citations omitted.) Lopez v. Kruy, Judicial District of New Haven, CV 99-0265 855 S (March 19, 2002, Skolnick, J.) [ 31 Conn. L. Rptr. 590].
Under the terms of the lease between the plaintiff and the defendant it is the opinion of this court that the defendants did retain control of the premises for purposes of inspection and compliance with their statutory obligations.
With respect to the evidence which indicated that the single wire smoke detector did not operate the night of the fire. The Fire Inspector found the electrical system of the two-family home was fully operational. The downstairs tenants had seen the lights on in the plaintiff's unit at the time of the fire. All five of the occupants of the property and a witness gave statements indicating that they did not hear any warning from the smoke detector system.
C.G.S. § 47a-7 requires a landlord to comply with all such state and local building housing code regulations which materially affect health and safety, maintain good and safe working order and conditions all electrical and other facilities and appliances. "The failure to provide a properly working smoke detector poses a material safety hazard to those persons occupying the tenant's dwelling unit. Clearly a functional smoke detector falls within the ambit of these requirements." Ficocelli v. Sokolowski, Superior Court, Housing Session at Rockville, CV 08 4010443 (Feb. 17, 2009, Sferrazza, J.).
Finally, the defendants claim that they intend to apportion in the downstairs tenant who testified he was smoking at the time the fire began and was presumed to have initiated the fire. They allege that "failing to have a battery backup had nothing to do with the origin of the fire, the alleged failure of the upstairs detector to sound, or the plaintiff's ultimate losses and damages." They conclude that if in fact liability is found against named defendants, the trier of fact will apportion no more than 10% of the damages to the defendants.
Actually, one of the claims briefed by the plaintiffs is that the evidence established that the defendants were responsible for the hazardous conditions which contributed to the fire itself in that they allowed a smoking area in the common area with a receptacle for discarded cigarettes in proximity to an accumulation of flammable objects, including garbage, leaves and mulch, which the fire investigator indicated caused the acceleration of the fire.
"[A] landlord is subject to liability for physical harm courts to a tenant and by others by a dangerous conditions existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or ministry of regulation." Ward v. Murnane, No.CV00-0158043S, Judicial District of Waterbury (Mar. 18, 2003, Gallagher, J.).
"When the landlord is able to discover the condition by the exercise of reasonable care, he is subject to liability if he has had a reasonable opportunity to discover the condition and to remedy it." Gore v People's Savings Bank, 235 Connecticut, 360, 384 (1995).
The defendant testified that he was on the property the week before the accident but that he did not notice the receptacle for the cigarettes or the accumulation of the flammable debris in the backyard.
In Ruiz v. Victory Properties, LLC, No. HHB CV 9-5011585-S (August 14, 2009, Vacchelli, J.). A pre-judgment remedy was granted when it was determined that a landlord had allowed an accumulation of loose concrete blocks and construction material in the backyard of a rental property. A child dropped a concrete block from a third-floor balcony striking a seven-year-old causing serious permanent physical injuries. "Plaintiffs are not claiming, that the defendant failed to protect them from the intentional act of Louis Cruz. They have alleged, and are claiming, that the defendant neglected his property and left it in a dangerous condition that caused a foreseeable injury to the plaintiffs. There was no public policy against imposing a duty of reasonable care and that circumstances. Such has long been a part of the common law of the state." Id., 14329. See also: State v. White, 204 Conn. 410, 427.
The plaintiffs are not claiming that the smoke detection system caused the fire. The sole purpose of requiring a smoke detection system installed is to have it function when a fire has started, regardless of its source. It is at that point that the system must emit proper warnings to the occupants of the premises as to the impending fire in order that they may have the opportunity to evacuate the premises and avoid injury as is also the reason requiring a second means of the egress.
It is the decision of this Court pursuant to C.G.S. § 52-278d(a) there is probable cause that the trier of fact will find that the defendants had a statutory obligation to protect the occupants of their premises; that they breached that duty; that the breach of that duty was the proximate cause of the injuries and deaths that resulted.
A prejudgment remedy in the amount of $ 1.5 million is awarded as an attachment to the defendants' real property. The defendant will comply with the disclosure of assets within two weeks. The plaintiffs are not required to post a bond.