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Argintaru v. RPL Associates, LLC

Superior Court of Connecticut
Mar 1, 2017
No. HHDCV156062369S (Conn. Super. Ct. Mar. 1, 2017)

Opinion

HHDCV156062369S

03-01-2017

Elena Argintaru v. RPL Associates, LLC et al


UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#112)

ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.

On January 23, 2017, in this premises liability action, the court heard oral argument concerning the defendant RPL Associates, LLC's (RPL) motion for summary judgment. After consideration of the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.

I

Background

RPL moves for summary judgment on the ground that it did not possess or control the location where the plaintiff alleges she fell. The defendant argues that it did not owe the plaintiff a duty of care to keep the premises in safe condition, and therefore should not be held liable for damages. In her objection, the plaintiff, Elena Argintaru, counters that RPL, pursuant to the terms of a lease with CVS, retained the right to possess or control the area where she fell, in the parking lot, and held a nondelegable duty to keep the location in reasonably safe condition.

In support of its argument that RPL did not have possession and control of the premises, RPL submits the affidavit of Paul Tornaquindici, principal of RPL (RPL Exhibit B). He avers that, on the date of injury, a " ground lease" was in effect, meaning that RPL held title to the property, but the property was wholly demised to the tenant, CVS. See RPL Exhibit C (ground lease). Originally, the premises had been demised to Stop & Shop Supermarket Company, then later assigned to Montowese Industrial Park, Inc. (Montowese) after which Montowese subleased the property to CVS. Pursuant to the terms of the sublease (RPL Exhibit D), CVS assumed all of the rights of the lessor from the ground lease. The ground lease demised the entire parcel to CVS, including vacant land and the retail building. After the ground lease and sublease took effect and CVS took possession, CVS undertook a major renovation of the building, sidewalk and parking lot. RPL did not have any involvement in these improvements. Pursuant to the terms of the ground lease, the tenant of the demised premises owns the improvements for the duration of the lease. These improvements become the property of RPL at the termination of the lease.

The plaintiff argues that the defendant is fully liable pursuant to the nondelegable duty doctrine. The plaintiff also cites to various provisions in the ground lease and sublease, and concludes that there is no language precluding RPL from performing inspection on the subject premises. The plaintiff maintains that RPL retains the right of inspection and is also affording the tenant the right to do the same. Additionally, the plaintiff attaches CVS' interrogatory responses (Plaintiff's exhibit F) which state that RPL retained possession and control of the premises on the date of the incident, and retained the right to inspect and make repairs. The plaintiff also submits as exhibits the deposition testimony of two CVS store employees who testify that the landlord would be contacted when repairs were needed. The employees do not identify RPL as the entity to be contacted for repairs.

Additional references to the factual background are discussed below.

II

Standard of Review

" 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).

" A material fact is [a] fact that is significant or essential to the issue or the matter at hand . . . [A] material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Voris v. Middlesex Mut. Assur. Co., 297 Conn. 589, 601, 999 A.2d 741 (2010).

III

Discussion

" A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury . . . Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached." (Citation omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015).

" 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.) 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 . . . [S]ee also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him).

'Retention of control is essentially a matter of intention to be determined in the light of all the 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 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 . . . Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law." (Citations omitted; emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308-09, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).

The nondelegable duty doctrine only applies if the landlord or owner has retained possession and control over the premises where an accident occurred. Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 75, 70 A.3d 126 (2013).

" The implication which necessarily flows from the tenant's control and possession is that it is the tenant, not the landlord, who has the final word as to the person or persons who may enter upon the demised premises. The landlord has neither the power of exclusion nor the power of selection. To be sure, he may enter for the avowed purpose of inspection and supervision. But this is far from control. Said Lord Atkinson: '(T)he power of control implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them. But this power and this right belong to the tenant, not to the landlord . . .'" (Internal quotation marks omitted.) State v. Schaffel, 4 Conn.Cir.Ct. 234, 247-48, 229 A.2d 552 (1966).

" The defendant's claim presents a question of contract interpretation because a lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts . . . The standard of review for the interpretation of a contract is well established . . . Ordinarily the parties' intent is a question of fact . . . Where a party's intent is expressed clearly and unambiguously in writing, however, the determination of what the parties intended . . . is a question of law . . . The intent of the parties as expressed in [writing] is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622-23, 987 A.2d 1009 (2010).

The ground lease is unambiguous. The court concludes that control of the area at issue is definitely expressed in the ground lease. See Fiorelli v. Gorsky, supra, 120 Conn.App. 308-09.

In relevant part, the ground lease provides, in Article, I, Section 1.1(a) " Demised Premises" that the subject property leased to the tenant included the land identified in Exhibit A (" the Land") to the lease. Demised premises includes all buildings, structures, and fixtures, and includes the exterior, including the parking lot.

Article II, Section 2.1 " Term": permits Landlord to remove any fixtures and equipment prior to the commencement of the lease term. The plaintiff argues that this provision specifically provides that RPL will retain possession and control of the premises. However, the provision clearly states that on the Commencement Date, February 10, 1995, the landlord will deliver the demised premises to the tenant with the existing retail building on it, and in the same condition. The provision indicates that the landlord may remove fixtures and equipment prior to that date.

Article II, Section 2.2 provides that Tenant shall have the right " to enter upon the demised premises and any part thereof from and after the date of this lease . . . for the purpose of inspecting the same . . ." Article VII, Section 7.1 " Construction, Repairs and Alterations" allows the tenant the sole discretion to perform construction on the Land, including the right to demolish so long as the tenant constructs a new retail building of comparable size and value. The plaintiff maintains that this provision does not preclude RPL from making construction, repairs, and alterations.

Article VII, Section 7.3 provides, " All buildings, structures, improvements, and other property on the demised premises that are constructed or placed thereon by Tenant shall be owned by Tenant until expiration or sooner termination of this lease . . ."

Article VII, Section 7.5 provides in relevant part: " Tenant shall make all necessary repairs to the demised premises and any buildings and improvements thereon in order to maintain the same in good repair and in compliance with all applicable laws . . . except for reasonable wear and tear . . . Landlord shall have no obligation to make any repairs to the demised premises and any building and improvements thereon . . . unless such repairs are necessitated by any act, negligence, or default under this lease, of Landlord . . ." (Emphasis added.) The plaintiff maintains that this provision does not preclude RPL from making construction, repairs, and alterations.

The language of the ground lease clearly and unambiguously intends for the premises to be wholly demised to the tenant. The ground lease defines the demised premises (The Land) in Exhibit A to the ground lease as the entire premises to include the land, buildings, and parking lot. Article I, Section 1.1(a) and Exhibit A clearly communicate that the Tenant has possession and control over the entire property.

In addition, Article VII, Section 7.5 of the lease clearly communicates the intent of the parties that the Tenant, now CVS, shall make all necessary repairs, and keep the property in good repair and in compliance with all applicable laws, orders and regulations. See Ziulkowski v. Kolodziej, 119 Conn. 230, 175 A. 780 (1934) (defendant's " right of possession involved corresponding duties, including such as pertained to repair of parts of the premises . . . and imposed personal responsibility for negligence in the performance of them . . . [Therefore, ] it was the defendant's duty to keep reasonably safe the stair in question, that the plaintiff's injuries were caused by the defendant's failure to do so, and that, therefore, she is liable for the resulting damages" [citation omitted]).

While the plaintiff points to Article VII, Section 7.5, in her assertion that RPL retained the right to re-enter, therefore it retained possession and control, when construing the lease in its entirety, however, the provisions repeatedly reiterate that the subject property is a wholly demised premises leased to the tenant. Thus, section 7.5 read in light of all other provisions reflects RPL's right to re-enter to make repairs in the event of an act or negligence by RPL.

The plaintiff argues that RPL's right of inspection is definitive as to its retention of possession and control. Case law supports that such an assertion does not equal control. See Wilcox v. 1354 Commonwealth, LLC, judicial district of New Haven, Docket No. CV 12 6034001, (September 30, 2013, Fischer, J.) (concluding property owner had no legal duty to plaintiff where lease expressed definitively that tenant was in possession and control of the lobby where the plaintiff fell); Burney v. Tap Petroleum Corp., Superior Court, judicial district of New Haven, Docket No. CV 08 5024206, (January 13, 2011, Lager, J.) (construing lease in its entirety; provision permitting owner right of reentry does not raise material factual issue as to parties' intent to give tenant full possession and control of premises); State v. Schaffel, supra, 4 Conn.Cir.Ct. 247 (" Under the terms of the lease . . . the landlord was entitled to possession only upon breach of one or more of the covenants contained in the lease, and then only upon reentry or by statutory summary process. The landlord has not reentered or acted by summary process. Moreover, under the terms of the lease, the landlord's right of entry was limited to two specific purposes: (1) 'for the purpose of inspection, ' and (2) 'to see that the covenants on the part of the tenant are being kept and performed.' It must follow, therefore, that the tenant retained control and possession of the demised premises").

The plaintiff also argues that the defendant's affidavit of Tornaquindici is an admission that it never made any repairs, and is therefore illustrative of RPL's negligence. RPL's right to inspect or right to reenter within the limited circumstances provided in the lease do not constitute control. The limited provisions allowing RPL to reenter are not indicative of the authority to manage, superintend, direct or oversee.

CVS is party to a sublease with Montowese which defines Montowese as the " landlord" and CVS as " the tenant." See RPL Exhibit D. The fact that the CVS employees do not identify who is contacted is important here, as the sublease suggests in Article VI, " Landlord's Entry, " so long as reasonable prior notice is given, the parties agree Montowese expressly retains the right to reenter, inspect, and make repairs on the demised premises in order to comply with any requirements imposed upon it pursuant to the ground lease (referred to therein as the overlease). Thus, when the CVS employees refer to the landlord making repairs, it may be that Montowese is the party contacted. The deposition testimony submitted by the plaintiff contains very brief excerpts and does not include the deponent's response when asked about RPL. See Plaintiff's Exhibits D, p.11; and E, p.36. " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829, 92 A.3d 1025 (2014).

CVS's response to Interrogatory No. 3 (see Plaintiff's Exhibit F) states that RPL retained the right to enter the property to make necessary repairs, improvements, alterations or additions. " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). " An admission may be introduced only against the party who made the admission." State v. John, 210 Conn. 652, 682, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989). See Palombizio v. Murphy, 146 Conn. 352, 356, 150 A.2d 825 (1959) (admission by a co-defendant, if relevant, admissible only as against that co-defendant). CVS's interrogatory response is not evidence of a genuine issue of material fact as to control or possession by RPL.

There is no evidence showing that RPL had control or possession of the part of the premises where the plaintiff alleges she was injured. See Fiorelli v. Gorsky, supra, 120 Conn.App. 306.

Where an entity does not possess or control the premises where the incident occurred, it has no duty of care. See Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 48-51, 58 A.3d 293 (2013). In the absence of evidence of possession or control, RPL had no duty of care to the plaintiff. See Fiorelli v. Gorsky, supra, 120 Conn.App. 310.

In the absence of possession or control, no duty of care was owed by RPL to the plaintiff. RPL has met its burden to show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.

CONCLUSION

For the reasons stated above, RPL's motion for summary judgment is granted. It is so ordered.


Summaries of

Argintaru v. RPL Associates, LLC

Superior Court of Connecticut
Mar 1, 2017
No. HHDCV156062369S (Conn. Super. Ct. Mar. 1, 2017)
Case details for

Argintaru v. RPL Associates, LLC

Case Details

Full title:Elena Argintaru v. RPL Associates, LLC et al

Court:Superior Court of Connecticut

Date published: Mar 1, 2017

Citations

No. HHDCV156062369S (Conn. Super. Ct. Mar. 1, 2017)

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