Opinion
CV116011101.
12-04-2012
Lillie DAVIS v. CIL REALTY, INC.
UNPUBLISHED OPINION
ROCHE, J.
The issue is whether the court should grant the defendant's motion for summary judgment on the grounds that the defendant was not in possession or control of the premises at the time of the plaintiff's alleged injury and therefore did not owe the plaintiff a duty of care.
FACTS
The plaintiff, Lillie Davis, initiated this action through service of process on the defendant, CIL Realty, Inc., on July 27, 2011. In her complaint, Davis alleges the following facts. On or about December 9, 2009, and while employed by the Oak Hill School, Davis was on premises owned by CIL Realty when, as a result of ice or snow on the premises' driveway, she slipped, fell and injured herself. CIL Realty, either by its own actions or that of its employees, servants or agents, was responsible for Davis' injuries by, inter alia, negligently failing to keep the driveway in a safe condition and not warning of the dangerous condition.
On August 21, 2012, CIL Realty filed this motion for summary judgment with a supporting memorandum of law, asserting that there is no genuine issue of material fact and it is entitled to judgment as a matter of law because it had no possession or control over the premises at the time of the incident due to it having leased the entire premises along with the responsibility for maintenance and repair to its tenant, Oak Hill Community Residences, Inc. In support of its motion for summary judgment, it attached the lease and the affidavit of Martin Legault, CIL Realty's president and chief executive officer, as exhibits. On August 27, 2012, Davis submitted a memorandum in opposition to CIL Realty's motion for summary judgment and similarly attached the lease as an exhibit.
DISCUSSION
" 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." (Internal quotation marks omitted.) Stewart v. Watertown, 303 Conn. 699, 709-10, 38 A.3d 72 (2012). " 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 ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
Both CIL Realty and Davis submit the applicable lease in support of their respective positions. " [B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). CIL Realty has submitted the affidavit of its president and chief executive officer, Martin Legault, in which he makes reference to several provisions of the lease between itself and Oak Hill Community Residences, Inc. Therefore, CIL Realty has sufficiently demonstrated that Exhibit One is a genuine copy of the lease on which both parties rely.
CIL Realty argues that the court should grant its motion for summary judgment because there are no genuine issues of material fact as to its possession or control over the property because it had leased the entire premises to a tenant, Oak Hill Community Residences, Inc., along with the responsibility for maintenance and repair. As the underlying owner, CIL Realty maintains it was not in possession or control of the premises and therefore owed no duty or responsibility to Davis for her injuries. In response, Davis counters that, based on the lease provisions, there is a genuine issue of material fact as to whether CIL Realty possessed or controlled the premises at the time of the accident such as to create a duty of care to Davis. Alternatively, Davis argues that CIL Realty, as the owner of the premises, owed her a nondelegable duty of care for the removal of ice and snow.
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). " [T]he issue of whether a defendant owes a duty of care [however] is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
" In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A .3d 517 (2010). " 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.) LaFlamme v.. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002).
" 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." (Internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. at 308. " 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." Windecker v. Roscoe Family Ltd. Partnership, Docket No. CV00-05040235 (June 14, 2002, Quinn, J.) (32 Conn. L. Rptr. 354, 356). For a party to be liable, " [t]he control must relate to the condition and location of the injury." (Emphasis added.) Farrell v. McDonald's Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0491505 (February 14, 2000, Graham, J.) (26 Conn. L. Rptr. 586, 588).
" 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." Fiorelli v. Gorsky, supra, 120 Conn.App. at 309. " In construing a written lease ... three elementary principles must be [considered]: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible ... Furthermore, when the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party's subjective perception of [its] terms." (Citation omitted; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 8, 931 A.2d 837 (2007). " No matter what the written lease may say and even if it clearly does not reserve the offending portion of the premises for the landlord's control, the landlord could still be found to be in possession and control of that portion of the premises if in fact it did actually engage in activities regarding such an area which made clear it possessed control." (Internal quotation marks omitted.) Hoffman v. Maynard, LLC, Superior Court, judicial district of New London, Docket No. CV 09 6002301 (January 25, 2012, Cosgrove, J.).
" [W]here the right of the lessor to enter the leased premises and make repairs is limited, the lessor does not retain control and possession of leased property ..." (Internal quotation marks omitted.) Hooks v. Thermospas, Inc., Superior Court, judicial district of New Haven, Docket No. CV 09 5029236 (December 6, 2010, Woods, J.). Judges of the Superior Court have found the right of the landlord to enter or repair has been sufficiently limited when the lease " gave the lessor the right to enter the premises at reasonable hours to examine or make any repairs or alterations necessary for the safety and preservation of the premises and provided that the leased premises should be available for the inspections and necessary repairs"; see id., citing Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 664-65, 368 A.2d 6 (1976); or when " the lessor could only enter during reasonable business hours to inspect the premises and had the right to make repairs only in the event of fire or other casualty." See id., citing Farrell v. McDonald's Corp., supra, 26 Conn. L. Rptr. at 588. " [Other] [j]udges of the Superior Court have held that similar lease provisions create no control or possession sufficient to create a legal duty between an invitee and a landlord. See Waller v. W.E.F. Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 04 5000188 (May 2, 2006, Licari, J.), [ 41 Conn. L. Rptr. 291] (finding that lease gave exclusive control to tenant to make repairs was not undermined by provision giving landlord the right to make repairs that tenant refuses or neglects to make); Koonce v. W.E.F. Associates, LLC, Superior Court, judicial district of New Haven, Docket No. 407114 (June 16, 1999, Blue, J.), [ 24 Conn. L. Rptr. 683] (same)." Furr v. Longcove, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5007508 (January 14, 2009, Martin, J.), 47 Conn. L. Rptr. 93, 95.
Finally, at least two judges of the Superior Court have noted that " [s]now removal cannot reasonably be construed as a repair." Waller v. W.E.F. Associates, supra, 41 Conn. L. Rptr. at 292; see also Rivera v. TH Real Estate Holdings, Superior Court, judicial district of Fairfield, Docket No. CV 03 0400816 (April 1, 2005, Dewey, J.) (" [t]he right to make repairs does not confer the responsibility for snow removal").
In the present case, CIL Realty argues, and Davis contests, that it is undisputed that the provisions of the lease granted CIL Realty's tenant exclusive possession and control over the entirety of the premises. In support of its argument, CIL Realty relies on the submitted lease between itself and the tenant concerning the premises. The introductory paragraph of the lease provides in relevant part: " BY THIS AGREEMENT, made and entered into on September 8, 1987 ... LESSOR [CIL Realty Associates Eighty Seven-Three Ltd. Partnership, the predecessor in interest to CIL Realty] leases to LESSEE [Oak Hill Community Residences, Inc.] the premises situated at 17-19 VIVIAN DRIVE, WATERBURY, CONNECTICUT, more particularly bounded and described in Exhibit A attached hereto and made a part hereof, together with all appurtenances ..." Exhibit A provides in relevant part that these premises are " [a]ll that certain piece or parcel of land, with all the improvements thereon, " and describes the property in greater detail by referencing both the plat map and the specific metes and bounds.
In paragraph eight, the lease provides in relevant part: " REPAIRS, ALTERATIONS AND IMPROVEMENT: Lessee shall keep the premises in good condition and repair, and shall redecorate, paint and renovate the premises as may be necessary to keep them in good repair and appearance. Lessee shall, at its own expense, make all necessary repairs and replacements to the premises and to the pipes, heating system, plumbing system, window glass, fixtures, and all other appliances and appurtenances belonging thereto, all equipment used in connection with the premises and the sidewalks, driveway and grounds appurtenant to the premises. Such repairs or replacements, interior or exterior, structural as well as nonstructural, shall be made promptly, as and when necessary ... On default of the Lessee in making necessary repairs or replacements, the Lessor may, but shall not be required to, make such repairs and replacements for the Lessee's account, and the expense thereof constitute and be collectible as additional rent. Lessee shall keep the premises and all parts thereof in a clean and sanitary condition, free from trash, inflammable material and other objectionable matter ... In no event shall the Lessor be liable for any defect in such property or for any limitation on its use."
In paragraph nine, the lease provides in relevant part: " INDEMNITY: Lessor shall not be responsible for the loss of or damage to property, or injury to persons, occurring in or about the premises, regardless of the cause thereof including, without limitation, any loss of damage caused by ... any repairs or alterations ... [and] any existing or future condition, defect, matter or thing in the premises or the property of which the premises are a part whether caused by Lessee or others or by Lessee's guests, its agent or employees ..."
In paragraph fourteen, the lease provides in relevant part: " MAINTENANCE AND UTILITIES: Lessee will, at its sole expense, keep and maintain said premises in good and sanitary condition and repair during the term of this Lease. Lessor shall have no responsibility for any maintenance or repairs to the Premises, including major and structural repairs."
In paragraph fifteen, the lease provides: " INSPECTION: Lessor and its agents shall have the right to inspect the premises at all reasonable times and with reasonable notice to the Lessee during the term of this Lease."
The introductory paragraph of the lease and, by reference, Exhibit A grants the entire premises, including the land and all appurtenances and improvements such as the driveway, to the tenant. Therefore, given the broadness of this grant by the uncontested terms of the lease, the lease is clear and unambiguous with regards to CIL Realty's lack of possession and CIL Realty has carried its burden of proving that there is not a genuine issue of material fact as to this matter.
With regards to CIL Realty's control over the premises, there is no provision in the lease explicitly defining which party bears the responsibility for snow and ice removal. CIL Realty argues that the language in paragraph eight, where the tenant agreed to keep the premises in good condition and repair, make all necessary repairs and replacements to the premises, sidewalks, driveway, and grounds appurtenant to the premises, and keep the premises in a clean and sanitary condition free from trash, inflammable material and other objectionable matter, and paragraph fourteen, where the tenant agreed to keep and maintain the premises in good and sanitary condition and repair and CIL Realty retained no responsibility for maintenance or repairs, demonstrate that there are no genuine issues of material fact regarding its lack of control over both the driveway and the duty to remove snow and ice at the time of Davis' injury. Because snow and ice removal cannot reasonably be construed as a repair or replacement, however, CIL Realty must demonstrate that the lease is clear and unambiguous with regards to its lack of control over the maintenance and upkeep of the driveway.
The lease vests all responsibility over all relevant parts of the premises, maintenance and upkeep in the tenant. The introductory paragraph of the lease gives possession of the driveway as an appurtenance to the premises to the tenant. Additionally, various paragraphs by their terms place responsibility on the tenant for upkeep of various aspects of the property. Paragraph eight requires that the tenant keep the premises in good condition and repair and free of all objectionable matters. Paragraph fourteen requires that the tenant, at its sole expense, keep and maintain the premises in good and sanitary condition and repair.
Importantly, none of the provisions in the lease place responsibility for the upkeep or maintenance of the premises on CIL Realty. Paragraph eight does allow CIL Realty to make necessary repairs and replacements, but only on the condition that the tenant fails to do so; regardless, CIL Realty is not required by the terms of the lease to do so. This lack of responsibility to act is in accord with paragraph fourteen, which reiterates that CIL Realty has no responsibility for maintenance or repairs. Furthermore, paragraph nine indemnifies CIL Realty for any and all injuries to people and property that arise from the leased property, including those arising from conditions or defect existing " in the premises or the property of which the premises are a part ..."
In the said affidavit of CIL Realty's president and chief executive officer, Martin Legault, he asserts that, under the lease agreement, CIL Realty retained no responsibility for any maintenance of the property, which included arranging for snow and ice removal. Legault also affirms that CIL Realty was not in possession or control of the premises on the date of the accident. Legault points to no concrete facts supporting these assertions in his affidavit. Because these statements are merely conclusory, the court grants them little weight in determining whether there is a genuine issue of material fact.
Given that the lease places all responsibility for the maintenance of the property on the tenant and requires no such responsibilities by CIL Realty, the court finds that CIL Realty has carried its burden in demonstrating that the lease itself is clear and unambiguous with regards to CIL Realty's lack of control over the removal of snow and ice from the driveway of the premises and that CIL Realty has demonstrated that there is no genuine issue of material fact regarding its lack of control over the driveway. Court further finds that, because possession or control is a prerequisite to finding CIL Realty liable, CIL Realty has demonstrated that it deserves judgment as a matter of law.
As CIL Realty has met its burden of proving that there is not a genuine issue of material fact regarding its lack of possession or control over the driveway, the burden shifts to Davis to provide evidence demonstrating some disputed factual matter. Davis has not submitted any additional evidence but instead points to the same terms of the lease in attempting to demonstrate that there remains a genuine issue of material fact. Specifically, Davis relies on two arguments: first, that CIL Realty's retention of a right to repair in paragraph eight contradicts CIL Realty's assertion that it had no control over the premises; and second, that it is not clear and unambiguous from the terms of the lease whether paragraph eight or paragraph fourteen addresses the responsibility of CIL Realty for making repairs.
As to the first argument, this court has previously held that snow or ice removal cannot reasonably be construed as a repair. The subject lease paragraphs limit CIL Realty to act only upon the premises in making necessary repairs and replacements that the tenant fails to make per paragraph eight and the right to inspect the premises at all reasonable times and with reasonable notice in paragraph fifteen. The lease does not give CIL Realty any right or responsibility to act for the maintenance of the condition of the premises or to keep the premises clear of any objectionable matters. Further, even if snow and ice removal were characterized as a repair, the right to repair retained by CIL Realty in paragraph eight is limited by the fact that the tenant must first fail to make the necessary repairs and replacements itself. In neither paragraph eight nor any other provision of the lease has CIL Realty preserved to itself an unfettered right to act upon the property in general or the driveway specifically. Therefore, Davis fails to establish that there is a genuine issue of material fact regarding CIL Realty's possession or control over the premises.
With respect to Davis' second argument, paragraph eight permits, but does not require, CIL Realty to make necessary repairs and replacements in the event that the tenant fails to do so. Paragraph fourteen provides that CIL Realty has no responsibility for any maintenance or repairs on the premises. Reading the lease as a whole, the provisions operate to grant exclusive control over upkeep and maintenance to the tenant which is not undermined by the reservation of CIL Realty's right to make necessary repairs and replacements that the tenant fails to make. This does not, without more, create a genuine issue of material fact. Further, even assuming that paragraphs eight and fourteen conflict as to CIL Realty's responsibility for repairs, Davis has not demonstrated that snow removal qualifies as a repair under this lease nor upkeep, maintenance or the removal of objectionable matter, all of which are solely the responsibility of the tenant to address under the lease. Because both of these arguments fail to create a genuine issue of material fact and Davis has submitted no other evidence showing that CIL Realty has exercised possession or control over the premises regardless of the terms of the lease to the contrary, the court finds that Davis has not carried her burden of demonstrating there is a genuine issue of material fact.
Davis further claims that CIL Realty, as the undisputed owner of the property in question, owed her a nondelegable duty of care to make the premises safe. Specifically, Davis claims that, because this duty is nondelegable, CIL Realty cannot absolve itself of liability by contracting out performance of upkeep and maintenance to the tenant.
" [L]iability in a premises liability case is based solely on control and possession, not title." E.g. Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n. 10, 889 A.2d 798 (2006). " [U]nder Connecticut law, an owner has no duty, delegable or nondelegable, if he is not in possession and control." Suarez v. Long, Superior Court, judicial district of New Haven, Docket No. 380763 (August 24, 2000, Levin, J.), citing Fernandez v. Estate of Ayers, 56 Conn.App. 332, 336, 742 A.2d 836 (2000); see also Burney v. Tap Petroleum Corp., Superior Court, judicial district of New Haven, Docket No. CV 08 5024206 n. 1 (January 13, 2011, Lager, J.) (" a nondelegable duty arises only for that portion of leased premises over which the owner retains possession and control"); Furr v. Longcove, LLC, supra, 47 Conn. L. Rptr. at 96 (" [t]his doctrine [of nondelegable duty] is inapplicable ... [when] the [landlord or owner] owes no duty to the tenant to maintain the [instrumentality causing the injury]").
The decisions of the appellate courts support this view that an owner not in possession or control of property owes no duty to those injured on the property. The Supreme Court has noted that " possession and control of the area by the defendant [is] an essential element in the plaintiff's proof in order to establish [premises] liability" and therefore upheld the decision by the lower court to set aside the verdict in the plaintiff's favor in a slip and fall case because erroneous jury instructions caused the jury to assume the possession and control of the instrumentality causing the injury by its owner. Farlow v. Andrews Corp., 154 Conn. 220, 224-25, 224 A.2d 546 (1966). Similarly, the Appellate Court has affirmed the trial court's grant of summary judgment when the plaintiff in a slip and fall case failed to plead or provide evidence demonstrating the defendant was in possession and control of the property. Fernandez v. Estate of Ayers, supra, 56 Conn.App. at 335-36.
Davis argues that CIL Realty owed her a nondelegable duty as the owner of the property to make the premises safe. Ownership itself does not create a nondelegable duty of care, only those circumstances showing that the owner or operator exercised possession or control over the portion of the property causing the injury. Because mere ownership is insufficient to create a genuine issue of material fact to bar summary judgment, Davis must point to additional evidence that creates a genuine issue of material fact as to whether CIL Realty possessed or controlled the premises at the time of her injury. She has provided no such evidence. Therefore, the court does find that Davis has not created a genuine issue of material fact regarding whether CIL Realty owed her a nondelegable duty of care.
CONCLUSION
For the foregoing reasons, the court concludes that CIL Realty's motion for summary judgment is hereby granted.