Opinion
No. 377130
July 22, 2003
MEMORANDUM OF DECISION
This is an action for damages resulting from personal injuries sustained by the plaintiff, Frank Centi, when a hydraulic lift failed injuring his left foot and ankle. The plaintiff sustained these injuries on the premises of the defendant Bradlee's, Inc., at a shopping center owned by the defendant, Kings Highway Realty, LLC. The following facts are alleged in the plaintiff's complaint. On September 15, 1998, the plaintiff was employed to pick up freight at the shopping center located at 800 Villa Avenue in Fairfield, Connecticut (premises). The plaintiff proceeded to the rear of the premises and parked his tractor trailer near the loading dock. The loading dock was equipped with a hydraulic lift, which is used for loading and unloading freight from delivery trucks and tractor trailers. The hydraulic lift has a plate that can be attached to the tractor trailer for the facilitation of loading and unloading freight. The plaintiff alleges that as the plate was being positioned, it detached from the hydraulic lift and fell onto his left foot and ankle.
On December 26, 2000, Bradlee's, Inc. filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code.
The plaintiff brought this action against Kings Highway Realty, LLC (count one) and Bradlee's, Inc. (count two) alleging that their neglect and failure to repair the defective hydraulic lift caused his injuries. Kings Highway Realty, LLC now moves for summary judgment as to count one. In support of its motion, the defendant has submitted a memorandum, a certified and sworn affidavit and the lease agreement between the defendant, lessor/owner of the premises, and Stop Shop Companies, Inc., the lessee/tenant of the property (tenant). The plaintiff filed a memorandum in opposition to the defendant's motion.
King's Highway Realty claims that Stop Shop Companies, Inc. has been the tenant of the premises for over thirty-five years, including the day on which the plaintiff was injured. (Defendant's Memorandum, Exhibit A.) It appears that Bradlee's, Inc. was doing business at the premises at the time of the plaintiff's injury.
Kings Highway Realty, LLC will be referred to as the defendant.
In his complaint, the plaintiff alleges that he sustained injuries at a shopping center at 800 Villa Avenue in Fairfield, Connecticut. The lease describes the premises as "the Shopping Center owned by Landlord on Black Rock Turnpike and Tunix Hill Road, Fairfield, Connecticut." (Defendant's Memorandum, Exhibit B.) The court accepts the representations made by both parties that 800 Villa Avenue and the intersection of Black Rock Turnpike and Tunix Hill Road describe the premises on which the plaintiff was allegedly injured. (Defendant's Memorandum, p. 4; Plaintiff's Memorandum, p. 4-5.)
DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense incident to a trial when there is no real issue to be tried." (Internal quotations omitted.) Kakadelis v. Defabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). Practice Book § 17-79 provides that: "[Summary] judgment sought 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." "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.) Gaynor v. Payne, 261 Conn. 585, 590, 804 A.2d 585 (2002). "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." Wilt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7, 746 A.2d 753 (2000). "The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment . . . because the question is one of law." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 258, 815 A.2d 263 (2003).
The defendant concedes that it owns the premises where the plaintiff allegedly suffered his injury. (Defendant's Memorandum, Exhibit A and Exhibit B.) The defendant argues, however, that: (1) it did not owe the plaintiff a duty of care because it was not in control or in possession of the loading area where the plaintiff was injured; and (2) it did not install, maintain, own or control the hydraulic lift that injured the plaintiff. The plaintiff responds that certain provisions in the lease agreement confirm that the defendant did retain some control over the premises, and a genuine issue of material fact exists as to whether the defendant controlled the loading area and/or the hydraulic lift.
"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 . . .' Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). `[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.' (Internal quotation marks omitted.) Id. 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.' Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). Thus, `[u]nless 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.' Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969)." LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002).
The Appellate Court has "also . . . noted that `[l]iability for a claimed injury due to . . . defective premises depends on possession and control and not on title.'" Doty v. Shawmut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000). "`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.' (Internal quotation marks omitted.) Doty v. Shawmnut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000). `Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court . . .' Darling v. Burrone Bros., Inc., supra, 162 Conn. 192." Mozeleski v. Thomas, 76 Conn. App. 287, 294, 818 A.2d 893, cert. denied, 264 Conn. 904 (2003).
In the absence of other evidence, the lease agreement between the defendant and the tenant controls the outcome because it expressly provides that the tenant has exclusive control of the loading area. Article IX, Section 9.2(a) of the lease agreement provides that: "Landlord covenants that Tenant and all having business with it shall have the right to use all the Common Facilities in common with the Landlord and the other occupants of the Shopping Center and those having business with them, except that the loading facilities and areas adjacent to any service door of the demised premises or other premises shall not be subject to such use in common, but shall be used exclusively by Tenant or the lessee of such other premises as the case may be, subject to reasonable rights of passage in others over such loading areas." (Emphasis added.) Unlike the common areas of the premises where the tenant and the landlord share use and access, the loading area is exclusively used by the tenant. Furthermore, the plaintiff fails to provide any evidence substantiating his allegation that the defendant ever exercised its "reasonable rights of passage" over the loading area.
The plaintiff argues that both the tenant and the defendant may have control over the loading area. Although this court agrees that more than one party may maintain control over property, the plaintiff has not provided any evidence establishing that the defendant in this case maintained control over the loading area. "The Restatement recognizes that possession and control are not [the only] bases for liability due to a defect in premises. Restatement (Second) Torts, § 386 provides: `Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them, irrespective of whether they are lawfully upon the land, by consent of the possessor or otherwise, or are trespassers as between themselves and the possessor.'. . . [T]he Restatement deals with a person whose affirmative action `creates and maintains' a dangerous condition . . . [thereby implicating that a] possessor of land may also be liable to an invitee for such a condition." Zercie v. Vantage Point Condominium Association, Superior Court, judicial district of New Haven, Docket No. 398828 (April 5, 2000, Levin, J.) ( 27 Conn.L.Rptr. 45, 47). Evidence indicating that the defendant used the loading area would create an issue of fact as to whether the defendant owed the plaintiff a duty of care because it would indicate that the defendant occupied and/or used the loading area.
The plaintiff argues that provisions 11.1.1 and 11.2 of the lease agreement provide sufficient evidence to raise a question of fact as to which entity had control and possession over the premises. The plaintiff does not, however, "file a counter-affidavit or any other supporting documents to contradict [the defendant's] affidavit. The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 663. `Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.' United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969)." Mozeleski v. Thomas, supra, 76 Conn. App. 293.
Indeed, the provisions that the plaintiff relies on are in Article XI of the lease agreement, which details the terms of the defendant's and tenant's obligations to repair and maintain the exterior and interior of the premises, specifically provides that it does not apply to "Fixtures," the type of equipment that allegedly caused his injuries. Section 11.1.1 expressly provides: "Except as provided in the subdivisions of this Section, the term `Repairs' shall mean, but shall not be limited to, all work of repair, maintenance, restoration, refurbishing, replacement and alteration which may become necessary, for any reason or cause, in order to keep the Premises, or the building of which they are a part, or any equipment in or component of either, in good order, repair and condition. (a) This article does not govern any work of any of the types referred to in Section 11.1.1 which may become necessary by reason of any `Damage' or `Taking' as set forth in Articles XVIII and XIX. (b) This Article does not govern any work of any of the types referred to in Section 11.1.1 which must be done to any of the `Fixtures,' as defined in Article XV, but the provisions of this subdivision shall not be deemed to relieve Landlord of any responsibility which may be imposed on Landlord by law or by any other provision of this lease for loss of or damage or injury to, any of the Fixtures." Fixtures are defined in Article XV as "all furniture, furnishings, fixtures and equipment, other than signs (which are dealt with in Article XVI) and other than furniture, furnishings, fixtures and equipment furnished by the Landlord at its expense, which are used by Tenant (or anyone claiming under Tenant) in conjunction with its use of the Premises." The hydraulic lift was being used as equipment in the loading area of the premises, and therefore, it is considered a fixture for purposes of the lease agreement.
Section 11.1.1.1(b) also provides that "this subdivision shall not be deemed to relieve Landlord of any responsibility which may be imposed on the Landlord by law or by any other provision of this lease for loss of, or damage or injury to, and of the Fixtures." Therefore, this court examined the other provisions of the lease to determine whether the defendant was obligated under another provision of the lease agreement to repair or maintain the hydraulic lift.
Section 11.1.2 of the lease agreement provides that: "The `exterior and structure' of the Building means: (a) the outside walls and exterior faces; (b) the foundations, floor slab and floor (but not floor coverings); (c) the gutters and downspouts (if any); (d) the canopy; (e) all structural members; (f) all wiring, plumbing, pipes, conduits and other utility and sprinkler fixtures and equipment (if any) located within the Building but exclusively serving premises other than the demised premises . . ." The hydraulic lift does not fall within any category listed in 11.1.2.
Alternatively, Section 11.1.3 provides that: "The `interior' of the premises includes, but is not limited to, the following: (a) the interior faces of the exterior walls of the Building; (b) the ceilings; (c) the floor coverings; (d) the portion of the wiring, plumbing, pipes, conduits and other utility and sprinkler fixtures and equipment in the Premises which are not a part of the exterior and structure of the Building under Section 11.1.2; (e) all glass (which shall be replaced, when necessary, with glass of like kind and quality); and (f) the heating, ventilating and air conditioning (HVAC) systems, and (g) the roof (subject to the last sentence in Section 11.1.2). (Emphasis added.) Arguably, under 11.1.3, the hydraulic lift could be considered "equipment in the Premises which are not a part of the exterior and structure of the Building under Section 11.1.2 . . ."
The defendant's obligations to the interior are expressly provided in Section 11.3, which provides: "Landlord shall make the following Repairs to the interior of the Premises:
(a) Repairs necessitated by faulty installation or construction or by the installation of defective equipment, but only with respect to such of the foregoing Repairs as become necessary during the first year of the term hereof . . .;
(b) Repairs necessitated by Landlord's failure to renovate the Building in accordance with the provisions of Article VIII;
(c) Repairs necessitated by Landlord's failure to renovate the Building in accordance with the then applicable governmental requirements as set forth in Article VIII;
(d) Repairs necessitated by the settlement of the Building;
(e) Repairs necessitated by any act, negligence or default under this lease of Landlord, its employees, agents, licensees or contractors;
(f) Repairs which become necessary as the consequences (whether with or without any intervening act, negligence, or default under this lease of Landlord, its employees, agent, licensees or contractors) of a condition Landlord is required to correct, as in the case of damage to the ceiling which results from a roof leak.
On the other hand, Section 11.5 provides the tenant's obligations to the interior: "Tenant shall make all Repairs to the interior of the Premises in order to keep the same in good order, repair and condition, except those which Landlord is required to make under this Article, and except those necessitated by reasonable use and wear. Tenant shall make all repairs of the heating, air conditioning and utility systems (provided that Landlord shall have made such initial repairs, installations and improvements thereto as are required by the Building Plans) and of glass, including plate glass."
The tenant is obligated under Section 11.5 to "make all Repairs to the interior of the Premises in order to keep the same in good order, repair and condition, except those which Landlord is required to make under this Article, and except those necessitated by reasonable use and wear." As cited above, the defendant's obligations to the interior do not include the repair or maintenance of the fixtures or equipment, except as to "[r]epairs necessitated by faulty installation or construction or by the installation of defective equipment, but only with respect to such of the foregoing Repairs as become necessary during the first year of the term hereof . . ." This provision does not apply because the tenant has occupied the premises for over thirty-five years. After reading "the evidence in the light most favorable to the [plaintiff]," the lease agreement fails to provide that the defendant was obligated to maintain the hydraulic lift. Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002).
Reading Article XI, Section 11.1.1(b) and Article XV, Section 15.1, together, the former explicitly excludes the defendant from an obligation to repair any fixtures, except those supplied by the defendant. The plaintiff has not provided any evidence establishing that the defendant supplied the hydraulic lift. In fact, Aviva Budd, a managing member of the defendant testified in his affidavit that "[T]he lift in question was not part of the premises when the premises was leased to Stop Shop Companies, Inc." The exclusion in Article XI extends to the hydraulic lift in question because the evidence indicates that it is a fixture that was furnished by the tenant, not the defendant.
No genuine issues of material fact exist because the lease agreement provides that the defendant did not control or possess the loading area or the hydraulic lift. Furthermore, the plaintiff has failed to provide any evidence to the contrary. For these reasons, the defendant did not owe a duty to the plaintiff and the motion for summary judgment of the defendant Kings Highway Realty, LLC is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court