Opinion
CV156027964S
05-24-2016
Krystyna Zderkiewicz v. DS Partners, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #146
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
The present action is a slip and fall case with a complex procedural history. Presently before the court is the defendants' December 29, 2015 motion for summary judgment as to the first count, second count, and third count of the plaintiff's August 3, 2015 amended complaint. In the amended complaint, the plaintiff, Krystyna Zderkiewicz, alleged negligence against Norpaco, Inc. (Norpaco) in the first count, negligence against DS Partners, LLC (DS Partners) in the second count, and private nuisance against DS Partners in the third count.
Subsequently, on March 10, 2016, the plaintiff filed a request for leave to amend the complaint, and an attached proposed fourth amended complaint. The latest amended complaint only alleges negligence against DS Partners in the first count, and recklessness against DS Partners in the second count. As such, the plaintiff has withdrawn all claims against Norpaco, as well as the claim for private nuisance against DS Partners. As a result, the defendants' motion is moot as to the first and third counts of the August 3, 2015 amended complaint. The only remaining issue presently before the court is whether to grant the defendants' motion for summary judgment as to the claim for negligence against DS Partners, which is now the first count of the March 10, 2016 fourth amended complaint.
The revised request to amend was submitted in lieu of the plaintiff's February 3, 2016 request for leave to amend complaint, and proposed third amended complaint. The defendants objected to the third amended complaint on February 17, 2016, but did not object to the fourth amended complaint.
On March 15, 2016, the plaintiff also formally filed a withdrawal, and withdrew all claims against Norpaco.
Practice Book § 10-61, named " Pleading after Amendment, " states in relevant part that " [i]f the adverse party fails to plead further [after a pleading is amended], pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." Thus, in the present case, the fourth amended complaint is the operative complaint for the purposes of this motion for summary judgment. See Tyler v. Tyler, Superior Court, judicial district of Fairfield, Docket No. CV-11-5029427-S, (September 19, 2013, Sommer, J.) (" Several judges of the Superior Court have held that, when a party moves for summary judgment, then the opposing party files an amended complaint, the judge should apply the summary judgment motion to the amended complaint."), citing Nargi v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV-98-0419562-S, n.2 (February 4, 2004, Licari, J.); Orozco v. Groll, Superior Court, judicial district of New Britain, Docket No. CV-00-0499892-S, n.1 (January 29, 2001, Shapiro, J.).
The first count of the fourth amended complaint, the operative complaint, alleges the following relevant facts. DS Partners was the landlord of the property located on 80 Bysiewicz Drive, Middletown, Connecticut, including the parking lot on the property. The plaintiff was an employee of Norpaco, which operated its business on the property. Norpaco was also the tenant of DS Partners. Norpaco did not have exclusive control over the property, and it did not have control of the parking lot's drainage and grading. Instead, DS Partners owned, possessed, and controlled the property, including the parking lot's drainage and grading. As such, it was the duty of DS Partners to exercise ordinary care to maintain the parking lot in a reasonably safe condition, including the parking lot's drainage and grading.
On December 29, 2012, after completing her shift working on the property, the plaintiff was walking across the parking lot of the property, when she slipped and fell on ice, causing her to sustain personal injuries and losses.
II
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
The defendants move for summary judgment as to the negligence against DS Partners on the ground that there is no genuine issue of material fact that, at all relevant times, DS Partners was not in possession and control of the property, including the parking lot. The plaintiff counters that the defendants have failed to show that there is no genuine issue of material fact that DS Partners was not in possession or control over the property. More specifically, the plaintiff argues that the defendants have admitted that DS Partners was in possession and control of the property, including the parking lot. In addition, the plaintiff contends that the lease shows that Norpaco did not have exclusive control over the parking lot of the property, and that DS Partners retained control over parts of the property. Finally, the plaintiff further argues that the subsequent remedial measures taken by DS Partners, namely the installation of a curtain drain in the parking lot, also show that DS Partners was in possession and control over the parking lot.
The defendants, DS Partners and Norpaco, filed their motion for summary judgment on December 29, 2015. The plaintiff objected to the motion on February 3, 2016, arguing in part that the motion is moot as to any claims regarding Norpaco because the plaintiff has withdrawn those claims in its third amended complaint. Subsequently, on February 26, 2016, DS Partners filed a reply brief.
A. Negligence Claim Against DS Partners
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . 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 . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotations mark omitted.) Sic v. Nunan, 307 Conn. 399, 406-07, 54 A.3d 553 (2012).
" In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows . . . Liability for injuries caused by defective premises, however, does not depend on who holds legal title, but rather on who has possession and control of the property . . . Thus, the dispositive issue in deciding whether a duty exists is whether [the defendant] has any right to possession and control of the property ." (Citations omitted; emphasis added.) LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002). " The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . . [L]andlords [however] 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 . . . The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances . . . Thus, [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; internal quotation marks omitted.) Id., 256-57.
DS Partners has submitted numerous documents, including a copy of the lease agreement, in support of its argument that there is no genuine issue of material fact that it was not in possession and control of the property, including the parking lot. The lease generally provides, in relevant part: " Lessor [DS Partners] agrees that upon Lessee's [Norpaco] paying the rent and performing and observing the agreements, conditions, and other provisions on its part to be performed and observed, the Lessee shall and may peaceably and quietly have, hold, and enjoy the Real Estates during the term of this lease without any manner of hindrance or molestation from Lessor or anyone claiming under or through Lessor." (Defendants' Exhibit 1, § 7.2.) The lease agreement does not explicitly or definitely state which party is in control and possession of the parking lot. Instead, the agreement only states that the lessor is responsible for the maintenance and repair of the roof, foundation and exterior walls (Defendants' Exhibit 1, § 8.1), and that the lessee is responsible for the maintenance and repair of the interior of the building (Defendants' Exhibit 1, § 8.2).
In support of its motion, DS Partners relies heavily on the deposition testimony and affidavit of Dean Spilka, the president of Norpaco and the sole member of DS Partners. Spilka testified that Norpaco is responsible for the maintenance and inspection of the facility and property. (Defendants' Exhibit 6, Deposition of Spilka, pp. 20-21.) In other words, DS Partners owns the building and leases everything out, and DS Partners has passed out all the upkeep and maintenance to Norpaco. (Defendants' Exhibit 6, p. 43.) In his affidavit, Spilka further explained that the lease agreement states that Norpaco is responsible for maintaining and repairing the interior of the building, and that, although not explicitly stated in the lease, it was understood between the parties to the agreement that Norpaco would also be solely responsible for the outdoor maintenance and upkeep, including the retention of a snow removal contractor. (Defendants' Exhibit 7, Affidavit of Spilka, ¶ ¶ 10-11.)
In particular, Spilka specified that Peter Bermani, the facilities manager at Norpaco, was responsible for taking care of the outside and inside of the building. (Defendants' Exhibit 6, p. 31.) Bermani was responsible for snow plowing and landscaping maintenance, but the work was performed by a third-party company. (Defendants' Exhibit 6, pp. 31, 32, 34, 35.) As part of his duties, Bermani would personally check the condition of the property, and ensure that the maintenance company properly removed snow and ice. (Defendants' Exhibit 6, p. 37.) Spilka confirmed that the agreements with the third party maintenance company were entered into by Norpaco, and not DS Partners. (Defendants' Exhibit 6, p. 43.)
Bermani's job description and responsibilities are confirmed by his deposition testimony. Specifically, Bermani testified that he has a duty to " [m]aintain an overall operation of Norpaco's buildings, ground, and equipment . . ." (Defendants' Exhibit 8, Deposition of Bermani, p. 37.) As part of his duties, Bermani would seek proposals from snow removal companies, and would later authorize payments. (Defendants' Exhibit 8, pp. 15-16, 18-20, 23-24, 55-57.)
The evidence submitted by the defendants, especially the deposition testimony and affidavit of Spilka, satisfies the defendants' initial summary judgment burden to show that there is no genuine issue of material fact that it was not in possession and control of the property, including the parking lot. The plaintiff counters, in part, that a genuine issue of material fact remains because the defendants have admitted that DS Partners was in possession and control of the property, including the parking lot.
" The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." (Internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 670-71, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). Nevertheless, " [u]pon the amendment of the original answer, the superseded pleading ceases to be a conclusive judicial admission and becomes nothing more than an evidentiary admission to be weighed and considered by the trial court along with the rest of the evidence." Crowell v. Danforth, 222 Conn. 150, 155, 609 A.2d 654 (1992); see also Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985) (" [S]tatements in withdrawn or superseded pleadings . . . may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import").
" In contrast with a judicial admission, which prohibits any further dispute of a party's factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it . . . Thus, an evidential admission, while relevant as proof of the matter stated . . . [is] not conclusive . . . Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact . . . The trier of fact is free to give as much weight to such an admission as, in the trier's judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other." (Internal quotation marks omitted.) Brown v. Hartford, 160 Conn.App. 677, 704, 127 A.3d 278, cert. denied, 320 Conn. 911, 128 A.3d 954 (2015).
In the present case, DS Partners has moved for summary judgment on the ground that there is no genuine issue of material fact that, at all relevant times, it was not in possession and control of the property, including the parking lot. However, in the original answer to the January 29, 2015 revised complaint, DS Partners admitted that " [a]t all relevant times hereto [DS Partners] was the landlord in possession and control of the Property, including the Parking Lot . . ." Subsequently, in the answer to the plaintiff's August 3, 2015 amended complaint, DS Partners denied that it was in possession and control of the property.
The original answer is dated May 6, 2015.
In the response to the plaintiff's standard interrogatory, DS Partners and Norpaco also both admitted that DS Partners was responsible for the maintenance and inspection of the property at the time and place where the plaintiff was injured. Subsequently, an amended response to the plantiff's interrogatories was filed, which now states that Norpaco had possession of the premises, and that it was responsible for the maintenance and inspection of the premises at the time of the plaintiff's injury.
Thus, based on the law in the preceding paragraphs, after the amendment of the original answer, the superseded pleading ceased to be a judicial admission and instead became an evidentiary admission that must be weighed and considered by the trier of fact along with the rest of the evidence. Furthermore, the probative value of the admission raises an issue for the trier of fact.
Nevertheless, the defendants argue that the original admission was a mistake and " oversight" that was subsequently corrected, and that the court should disregard the earlier admission because (1) the overwhelming evidence establishes that Norpaco had exclusive possession and control of the property and parking lot, and (2) there is no other evidence that DS Partners possessed and controlled the property.
The defendants' argument is not persuasive. Firstly, an evidentiary admission should be weighed and considered by the trier of fact along with other evidence even where counsel argues that the initial admission was a mistake that has subsequently been corrected. Sandella v. Dick Corp., 53 Conn.App. 213, 221, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999) (" Maguire claims on appeal that the answer was a mistake, and that the cross claim and answer, which were later superseded by amended pleadings and answers, should not be part of the file . . . During his closing argument, Maguire's counsel alluded to its position that the original answer was a mistake. Attorneys' statements are not testimony and are not evidence . . . The jury is free to draw its own conclusions from the evidence presented and need not believe the arguments for one side or the other." [Citation omitted.]).
Secondly, " [a]dmissions in the answer can be taken advantage of even if evidence is admitted and controverted on the issue. Guiel v. Barnes, 100 Conn. 737, 741, 125 A. 91 (1924)." People's Bank v. Madden, Superior Court, judicial district of Fairfield, Docket No. CV-94-312050-S, (July 21, 1995, Tobin, J.). Thus, as previously stated, the original admission serves as evidence that the court must weigh along with other admissible evidence. The court may not, however, discard the earlier admission simply because the defendants offered contradicting evidence.
Finally, by arguing the weight that should be given to the evidence, DS Partners improperly seeks to have this court decide issues of fact at summary judgment.
In addition, the defendants also argue that Norpaco admitted " right from the start" that it was in possession and control of the property, including the parking lot, and that it had the duty to exercise ordinary care in the maintenance of the facility. The defendants alternative argument is also not persuasive because the admission to an answer does not lose its effect where the admissions are contradicted elsewhere in the answer. See Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
Therefore, the defendants' earlier admission that DS Partners was in possession and control of the property serves as evidence that raises a genuine issue of material fact.
Thus, because the defendants' earlier admission that DS Partners was in possession and control of the property serves as evidence that raises a genuine issue of material fact, the court does not need to consider the plaintiff's alternative arguments.
III
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is denied.
SO ORDERED.