Opinion
No. CV01 038 29 36
June 4, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is a premises liability action in which the plaintiff, Andrew Wolff, Executor of the Estate of Thalia Wolff, claims that the decedent was injured by a defective door which was possessed and/or controlled by the defendants, Fairfield Optical, Inc. and Gary's Realty Co., LLC (Gary's Realty). The defendant, Gary's Realty, now moves this court for summary judgment as to count Two, claiming that it did not possess or control the defective door; accordingly, cannot as a matter of law be liable for injuries to the plaintiff. Because Count Four is a loss of consortium claim, in derivation of the decedent's action, the defendant opines that it, too, must fail. Memoranda of law were submitted by both sides with supporting documentation. The defendant filed a supplemental memorandum on May 19, 2004, and the court heard oral arguments on June 1, 2004.
Standard of Review
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. Connecticut Bank Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Mere assertions of fact are insufficient to establish the existence of an issue of material fact and cannot refute evidence that is properly presented to a court in support of a motion for summary judgment. Miller v. United Technologies Corp., 233 Conn. 732 (1995). Evidence in support of motions for summary judgment and opposition to such motions must be admissible evidence. Evidence that is inadmissible cannot be relied upon for purposes of a motion for summary judgment. Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984); see, Practice Book Sections 17-45, 17-46. If the non-moving party fails to respond with specific facts, the court is entitled to rely upon the facts stated in the affidavit of the movant. Id. If such affidavit, pleading or 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, the motion for summary judgment should be granted. Practice Book § 17-49.
Discussion
"[A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the prperty over which they have retained control, landlords generally `[do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control' of the tenant." Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). Possession and control of leased premises are the linchpins of premises liability claims against lessors. See Mack v. Clinch, 166 Conn. 295, 296, 348 A.2d 669 (1974). Liability for injury due to defective premises does not depend on title, but on possession and control. See Corvo v. Waterbury, 141 Conn. 719, 725, 109 A.2d 869 (1954). "It is the possession of land that imposes 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.) Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. 263193 (July 19, 1999, Beach, J.).
"Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances." Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). However, whether control of the premises has been retained by a lessor is best "determined by the intent of the parties as expressed in the terms of the lease." Martel v. Malone, 138 Conn. 385, 388-89, 85 A.2d 246 (1951). A lease is a contract and its construction presents a question of law for the court. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976); Sacharko v. Center Equities, Ltd. Partnership, 2 Conn. App. 439, 445, 479 A.2d 1219 (1984). As has also been noted, "[t]he 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 or whether they were under the exclusive dominion 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." (Citations omitted.) In considering control of the premises, one can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property, and the use of the premises. Panaroni v. Johnson, 158 Conn. 92, 98-100, 256 A.2d 246 (1969).
In this matter a lease was submitted by the plaintiff in his supporting documentation (Exhibit E). While the names of the specific defendants, Gary's Realty and Fairfield Optical are not contained in the lease, the agreement does reference the representative of these entities, Gary Swanson and Christopher Cannella. This lease was marked as Exhibit 3 at the deposition of Christopher Cannella, an agent of the defendant, Fairfield Optical, who testified that this lease was the agreement between Fairfield Optical and Gary's Realty. This lease is silent as to the control and maintenance of the outside door of Fairfield Optical which is at issue in this case. Accordingly, the court must look to the circumstances to determine possession and control of this portion of the premises.
The depositions of Gary Swanson and Christopher Cannella support the defendant's position that the defendant, Fairfield Optical, was in exclusive control and possession of the defective door. Fairfield Optical purchased the door, had it installed, maintained the door and removed it when it vacated the premises at the termination of the lease. The plaintiff offers no evidence to rebut these facts. The plaintiff does argue that the defendant, Gary's Realty, was in control of the sidewalk over which the defective door swung prior to striking the decedent. There is no allegation, however, that the sidewalk was defective or in any way contributed to the decedent's injuries, therefore, any such control is irrelevant to the plaintiff's claims. For the plaintiff to prevail against Gary's Realty, the law requires possession and control of the instrument of injury, in this case, the purportedly malfunctioning door; not merely control over the adjacent premises. Cf. Cruz v. Drezek, 175 Conn. 230, 397 A.2d 1335 (1978).
With no possible factual basis for a finding that the defendant, Gary's Realty, had control or possession of the allegedly defective door that caused the decedent's fall and injuries, the defendant is, as it contends, entitled to judgment as a matter of law. The motion for summary judgment submitted by the defendant, Gary's Realty, is therefore granted.
CAROL A. WOLVEN, J.