Opinion
No. CV-08-5024206S
January 13, 2011
RULING ON MOTION FOR SUMMARY JUDGMENT (#118)
In this single-count personal injury action, sounding in premises liability, the plaintiff Juan Burney (Burney) alleges that he was injured on premises "owned, controlled, possessed, managed and/or maintained" by the defendant Tap Petroleum, Corp. (Tap). Tap has moved for summary judgment on two grounds: (1) It does not owe any duty to Burney because it was not in possession or control of the premises where he alleges he was injured; and (2) even if it owed a duty to Burney it is entitled to judgment as a matter of law because Burney cannot establish it had actual or constructive notice based on the undisputed facts.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "The facts at issue [in a motion for summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). When, as here, a defendant moves for summary judgment its burden is to "negate each claim as framed by the complaint [before] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id.
In his revised complaint, Burney alleges that he was a patron of the Exxon Shoppe located on Whalley Avenue in New Haven, Connecticut on October 9, 2006 when he "was caused to slip and fall on a dangerous and defective condition," "located on the pavement near the pump at the rear of the building" of the Exxon Shoppe, specifically "an amount of liquid on the ground which appeared to be oil or gasoline." (Revised Complaint, ¶¶ 1, 3, 4.) Burney further alleges that Tap "owned, controlled, possessed, managed and/or maintained" the Exxon Shoppe on October 9, 2006 and that it was negligent in a number of respects including causing, allowing, maintaining or permitting the area to remain slippery, dangerous and unsafe, falling to remedy the condition, failing to make timely inspections, failing to warn him and failing to erect barriers. (Revised Complaint, ¶¶ 2, 8.)
In support of its motion, Tap has submitted an affidavit from Mohammed T. Paracha, President of Tap Petroleum Corp. (Ex. A), a copy of a five-year lease dated February 20, 2004 for the subject premises between Tap and Mike's Exxon, a Connecticut limited liability corporation (Ex. C), and Burney's answers to requests for admission (Ex. B). Burney has not filed any affidavits or documents in opposition to the motion. Based on these submissions, the court finds that the following facts are undisputed: On October 9, 2006, Tap owned the premises but had fully demised them to Mike's Exxon. (Ex. A). The lease specifically provided that Mike's Exxon "keep and maintain the premises, and every system, appliance and improvements above ground, including the building and improvements above ground and all appurtenances thereto, including sidewalks adjacent thereto in good, sanitary and neat order, condition and repair . . ." (Ex. C, § 16(a)). Burney slipped and fell on a liquid substance that appeared to be gasoline or oil near the pump at the rear of the building outside the shop on the premises. He does not know how long that substance had been there before he fell and has no witnesses with that knowledge. (Ex. B) Neither Tap nor any of its agents, servants or employees had any knowledge of the existence of the liquid substance near the pumps in the location where Burney slipped and fell. Further, Tap did not have any responsibility to inspect the premises for spills. (Ex. A.)
Tap maintains it does not owe any duty to Burney because it was not in possession or control of the premises where he alleges he slipped and fell. "Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., 154 Conn. 220, 225, 225 A.2d 546 (1966). The premises were completely demised to Mike's Exxon under the lease between it and Tap. "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." (Citation omitted; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 848-49, 939 A.2d 1245 (2007). Although retention of control is generally a factual question that focuses on the intention of the parties in light of all the circumstances, see LaFlamme v. Dallessio, 261 Conn. 247, 257, 802 A.2d 63 (2002), it effectively becomes a question of law "if the issue of control is expressed definitely in the lease." Fiorelli v. Gorsky, 120 Conn.App. 298, 309, 991 A.2d 1105, cert. denied, 298 Conn. 933 (2010).
Burney argues, citing to Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), that Tap had a nondelegable duty to maintain the premises, but the rule is that a nondelegable duty arises only for that portion of leased premises over which the owner retains possession and control. See 2 Restatement (Second), Torts § 421 (1965). The law is well established in Connecticut that "the party in control of a premises . . . has . . . a nondelegable duty to maintain the safety of the premises." (Emphasis supplied.) Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006).
Read as a whole, the lease between Tap and Mike's Exxon clearly fully demises the premises to Mike's Exxon. Section 16(a) of the lease expressly addresses the maintenance of the premises and provides that the lessee, Mike's Exxon, is fully responsible for keeping and maintaining them "in good, sanitary and neat order, condition and repair . . ." Further, Paracha's affidavit confirms that not only were the premises fully demised to Mike's Exxon but also that Tap did not retain possession or control of the premises and did not have any responsibility to inspect for spills on the premises.
Burney argues that because Tap retained a right of entry under § 10 of the lease, the court cannot conclude that the premises were fully within the control of Mike's Exxon as a matter of law. The language of § 10 limits Tap's right of entry, however, to "reasonable times and on reasonable notice" and requires it to exercise its right of entry "in a manner which minimizes any interference with the Lessee's use of the premises." The language of § 10, read in the light of this language and in the light of the lease in its entirety, does not raise a material factual issue regarding the parties' intention to give Mike's Exxon full possession and control of the premises under the terms of the lease.
In this case, it was Mike's Exxon as the possessor of the property which invited Burney onto its premises for a business purpose and it was Mike's Exxon which owed a duty of care to him under both the terms of the lease and the law of premises liability. Thus, as a matter of law, Tap did not owe Burney any duty of reasonable care with respect to the area in which he alleges he slipped and fell.
Moreover, even if Tap had retained control over the area in which Burney alleges he slipped and fell, there is no genuine issue of material fact that Tap had actual or constructive notice of the alleged slippery condition. "Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury . . ." (Internal quotation marks omitted, citation omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 418, n. 9, 3 A.3d 919 (2010).
In this case, there is no evidence of actual notice. To establish constructive notice, there must be direct or circumstantial evidence that the alleged defective condition, here a liquid substance that appeared to be gasoline or oil, had existed for a sufficient period of time to permit its discovery if a reasonable inspection had been conducted. See Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). Although what constitutes a reasonable length of time is a question of fact, the undisputed facts here demonstrate that there is no genuine material factual issue. See James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 6 A.3d 1199 (2010).
Burney admits that he does not know how long the defective condition existed nor does he have any witnesses with that knowledge. The mere presence of the liquid substance near the pump does not provide an evidential basis for a conclusion that the defect existed for any sufficient length of time to provide notice. See Kelly v. Stop Shop, Inc., supra, 281 Conn. 777 ("Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice . . ."); Columbo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002) (evidence that plaintiff fell on dirty milk insufficient basis for an inference to be drawn that milk was on floor for a sufficient period of time to establish actual or constructive notice.) In the absence of any evidence of actual or constructive notice on the part of Tap, it would be entitled to judgment as a matter of law even if it were in possession and control of the premises.
For the foregoing reasons, the motion for summary judgment is granted. Judgment shall enter in favor of the defendant and against the plaintiff on the revised complaint.