Opinion
No. AAN-CV-05-5000285
April 16, 2007
MEMORANDUM OF DECISION RE DEFENDANT CRAPE'S MOTION TO REARGUE SUMMARY JUDGMENT #150
The defendant Crape filed a motion for summary judgment that was denied by this court on February 20, 2007. By motion dated February 26, 2007, the defendant sought to reargue this motion. The motion to re-argue was granted and the court heard the arguments of counsel on April 2, 2007.
As stated in the decision on the initial motion for summary judgment:
This case arises from an incident in which the plaintiff, Edward T. Dudek, allegedly suffered injuries when he slipped an fell on a collection of unsanded ice and/or snow on the premises of the defendants Milford Professional Condominium Association, Incorporated (Milford), and Charles A. Crape. On July 3, 2006, Crape filed a motion for summary judgment on the grounds that he did not own, possess, control or maintain the area where the plaintiff fell and that the place the plaintiff fell was a common area owned, possessed, controlled and maintained by Milford . . .?There are two distinct statutory schemes governing condominiums in Connecticut. The Condominium Act of 1976 (Condominium Act), General Statutes § 47-68 et seq., applies to condominiums created on or before December 31, 1984; and the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq., applies to condominiums created after that date." (Internal quotation marks omitted.) Mercado v. Giesing, Superior Court, judicial district of New London, Docket No. CV 04 5100009 (January 30, 2006, Devine, J.); see also General Statutes §§ 47-201, 47-214, 47-219; Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 4 n. 1, 717 A.2d 77 (1998). Both the Condominium Act and CIOA limit a unit owner's liability for damages for injuries that arise in connection with common elements. General Statutes § 47-75(c) provides in relevant part: "Except in proportion to his percentage interest in the common elements, no unit owner . . . shall be personally liable for . . . damages resulting from injuries arising upon or in connection with the common elements, solely by virtue of his ownership of a percentage interest therein . . ." General Statutes § 47-253(a) provides: "A unit owner is not liable, solely by reason of being a unit owner, for injury or damage arising out of the condition or use of the common elements." Accordingly, the extent of an individual condominium unit owner's liability depends on whether § 47-75(c) of the Condominium Act or § 47-253(a) of COIA applies. In this case, it is not clear from the evidence presented which statutory scheme applies and this information is a crucial to a determination of liability. Accordingly, a genuine issue of material fact exists as to whether the condominium in this case was created before or after December 31, 1984. This issue in turn raises a question as to which statutory scheme applies and the extent of an individual unit owner's liability for injuries sustained in a common area. Because there is a genuine issue of material fact, Crape's motion for summary judgment is denied. (Footnotes omitted.)
Attached to the motion to reargue is an affidavit signed by the defendant Crape stating that the condominium was created on January 14, 1985. Also attached to the motion is a copy of the declaration of condominium association dated January 14, 1985, which incorporates the relevant COIA language. Both these documents are uncontroverted by the plaintiff. The defendant argues that because the condominium was created after December 31, 1984, COIA was in effect and therefore he is not personally liable for the plaintiff's injuries and resulting damages. The plaintiff counters that the defendant Crape owes him the duty of care because of his status, independently of COIA. He argues that the plaintiff was a business invitee and therefore, Crape owes him the duty commiserate with this status.
The cases cited by the plaintiff are inapplicable to the facts in this case. For example, the plaintiff states "that a `duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person knowing what knew, or should have known, would anticipate the harm of the general nature of that suffered from his act or failure to act.' " Sevigny v. Dibble Hollow Condominium Ass'n, Inc., 76 Conn. 306 (2003). The plaintiff's reliance on this case is misplaced. In Sevigny, the plaintiff was the owner of a condominium unit who fell on ice that had accumulated in the driveway of his unit. He brought an action against the condominium association, the management service for the association and the company hired by the contractor hired by association to remove snow. He is in a different position than the plaintiff in this case. In addition, immediately after the passage cited by the plaintiff, the Appellate Court goes on to state that the existence of a duty is a question of law for the court to decide. COIA specifically states: "A unit owner is not liable, solely by reason of being a unit owner, for injury or damage arising out of the condition or use of the common elements." General Statutes § 47-253. This language clearly and unambiguously negates any duty that an individual condominium owner may have owed to a business invite for incidents occurring in a common area. As such the defendant Crape's motion for summary judgment (No. 135) is granted.