Opinion
No. AAN-CV-05-5000285
February 20, 2007
MEMORANDUM OF DECISION RE DEFENDANT CRAPE'S MOTION FOR SUMMARY JUDGMENT #135
This case arises from an incident in which the plaintiff, Edward T. Dudek, allegedly suffered injuries when he slipped and 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. In support of his motion, Crape submitted a memorandum of law along with his affidavit, copies of Milford's bylaws, Milford's responses to requests for admissions and Milford's responses to interrogatories. On July 7, 2006, Milford filed a memorandum in opposition to Crape's motion without any attachments or exhibits. On July 14, 2006, Crape filed a memorandum in reply and on July 17, 2006, Milford filed a second memorandum in opposition to Crape's motion. Thereafter, on July 19, 2006, the plaintiff filed a memorandum in opposition to Crape's motion, which, like Milford's motion, did not include any attachments or exhibits. The matter was heard on the short calendar on January 29, 2007.
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "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.) Id., 319. "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In his motion for summary judgment, Crape argues that as a condominium unit owner, he did not owe a duty of care to the plaintiff because the plaintiff fell in a common area that was not in his control and possession. In support, Crape argues that Milford admitted that the parking lot where the plaintiff fell was in a common area under its exclusive control and possession. Moreover, Crape attests that the condominium bylaws "specifically state that the walkway and parking lot are common areas under the exclusive control and possession of [Milford]." According to Crape, "it is indisputable that the plaintiff's claimed fall happened in a location owned and possessed by [Milford], which it contractually agreed to maintain." As legal support for his argument Crape cites case law involving the duty owed by a landlord.
In opposition to Crape's motion, Milford argues that Crape, as owner of a condominium unit, owed the plaintiff a duty of reasonable care to protect him from dangers that might reasonably be anticipated to arise from the conditions of the parking lot. In support of its argument, Milford relies on Tarzia v. Great Atlantic and Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000). In addition, Milford argues that "a condo unit owner is responsible for damages resulting from injuries in common elements to his percentage held in common under [General Statutes] § 47-75(c)." The plaintiff argues in opposition to Crape's motion that Crape owed the plaintiff a duty as an invitee and "the nature of the relationship between the parties raises legitimate factual issues as to the control of the premises, thereby making summary judgment relief inappropriate."
Initially, the court recognizes that the circumstances in this case present a situation opposite to the Appellate Court's discussion in CT Page 3175 Sevigny v. Dibble Hollow Condominium Ass'n., Inc., 76 Conn.App. 306, 318, 819 A.2d 844 (2003). In Sevigny, the court discussed the duty of a condominium association and analogized it to that of a landlord stating: "In determining whether to impose a landlord's duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether the association conducts itself as would a landlord in the traditional landlord-tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally." In the present case, the issue is not whether and to whom a condominium association owes a duty of care. Instead, the issue is whether an individual unit owner owes a duty of care to an invitee. By citing landlord/tenant law in support of its argument, the court interprets Crape's position to be that this court should accept that an individual condominium unit owner is analogous to a tenant and, therefore, whatever duty, if any, owed by a tenant is equal to the duty owed by a unit owner. Crape has not cited any legal authority for this proposition and, this court is not prepared to conclude as such since "[t]he question of tort liability with respect to condominiums, particularly as to the members thereof, is complicated by the peculiar nature of the condominium, in that a condominium is a creature of various enabling acts and is conceptually a hybrid form of real-property ownership which does not fit readily into established common-law categories." Annot., 39 A.L.R.4th 98, 99 (1985). Nevertheless, the court will address Crape's motion because it implicates Crape's duty as an individual unit owner and "[t]he 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.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
"The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., supra, 76 Conn.App. 318. While our law provides that a duty of care may arise from a statute, it is also true that a statute can abrogate a duty of care. See, e.g., General Statutes § 52-557g. Statutes, therefore, can affect an individual condominium unit owner's liability as recognized in an American Law Reports annotation which states in part: "The question of tort liability with respect to condominiums depends primarily on the particular organizational structure governing the specific condominium involved and the applicable statutory provisions." (Emphasis added.) Annot., 39 A.L.R.4th 98, 100 (1985).
General Statutes § 52-557g provides in relative part "Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge . . . owes no duty of care to keep the land . . . safe for entry or use by others for recreational purposes . . .
"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 COIA 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 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.
In addition, the Condominium Act and COIA "differ in the manner in which they distinguish a common element from a limited common element and a unit. Compare [General Statutes] § 47-68a(b), (e) and (g) [with General Statutes] § 47-202(4), (19) and (31)." Cormier v. Spring Lake Co., LLC, Superior Court, judicial district of New Britain, Docket No. CV 030522871 (February 4, 2005, Burke, J.). Thus, whether the area where a plaintiff suffered injuries constitutes a common area as defined by the appropriate statutes also depends on which statute applies.
While Crape has submitted a copy of the condominium bylaws which provides that the term "Act" as used therein means the "Common Interest Ownership Act of the Connecticut General Statutes, Public Act 83-474, as amended from time to time"; this sole reference to COIA is not sufficient to establish that the property in question was created after December 31, 1984.