Opinion
CV176011652S
01-30-2020
Christopher Durant v. 105 Colony Street, LLC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sizemore, Nada K., J.
MEMORANDUM OF DECISION RE DEFENDANT 105 COLONY STREET MOTION FOR SUMMARY JUDGMENT #135 AND OBJECTION #153
Nada K. Sizemore, Judge.
This matter arises from a November 4, 2019 short calendar argument involving the Defendant 105 Colony Street, LLC Motion for Summary Judgment dated September 12, 2019 (Entry #135) and the Plaintiff Christopher Durant’s Objection dated October 30, 2019 (Entry #153).
Although this matter has multiple pending summary judgment motions involving other parties and cross complaint allegations, this decision is limited to the issues presented between these two parties only.
After having considered and reviewed the substantial materials and briefs submitted by both parties, this court hereby GRANTS summary judgment in favor of the Defendant 105 Colony Street, LLC and OVERRULES the plaintiff Durant’s Objection to such.
The court bases its decision on the following analysis.
PROCEDURAL HISTORY
By two-count Complaint dated November 6, 2017, the plaintiff Christopher Durant brings suit against the Defendants 105 Colony Street, LLC [hereinafter referred to as "Defendant 105 Colony Street"] and the Defendant 105 Restaurant and Lounge, LLC as a result of an incident on March 18, 2017. Plaintiff Durant alleges that he was a patron and business invitee at the 105 Restaurant and Lounge located within a building located at 105 Colony Street in Meriden on that date, and at 1:45 a.m. he was physically assaulted by a Vincequan Harold Wright who shot him in the neck.
He now brings suit in negligence seeking money damages for his resulting claimed injuries, losses and damages against the landowner, Defendant 105 Colony Street, and the tenant, Defendant Restaurant and Lounge, LLC. He claims physical distress from the gunshot wound to the neck and back; damage to his lungs; fractured ribs and right hand paralysis. He further seeks recovery for his economic damages and diminished early capacity and diminished ability to enjoy and participate in life’s activities. Plaintiff Durant has not brought suit against the tortfeasor, Vincequan Wright, but Mr. Wright was prosecuted in criminal court and convicted due to his assault on the plaintiff.
In the First Count of the Complaint, Plaintiff specifically alleges that the Defendant 105 Colony Street, as the building owner, owed him a duty to exercise reasonable care to protect invitees such as himself from dangers that might reasonably be anticipated or arise from activities at the premises.
He alleges that Defendant 105 Colony Street was negligent and careless and caused his claimed injuries in that: (a) it failed to take reasonable measures to protect patrons and invitees, including plaintiff from violence; (b) it failed to hire, retain, or train a proper security presence on the premises to protect patrons and invitees; (c) it ignored or tolerated aggressive, disruptive, disorderly and/or threatening behavior from patrons; (d) it failed to institute and/or follow proper guidelines for responding to persons who were disruptive, disorderly or threatening to other patrons or invitees; (e) it failed to institute and/or follow proper guidelines for preventing patrons from entering the premises with dangerous instrumentalities, including the firearm used to shoot plaintiff despite knowledge that patrons have tried to enter the premises with such instrumentalities; and (f) it failed to discover, consider, appreciate or act on the history of criminal, disorderly or violent conduct at 105 Colony Street location, which history includes aggravated assaults, fights, thefts and breaches of the peace.
In the Second Count, he brings identical negligence allegations against the Defendant 105 Restaurant and Lounge, LLC, the tenant at the 105 Colony Street location, who operated the restaurant and lounge.
By Answer and Special Defense dated March 28, 2018, the Defendant 105 Colony Street generally denies the Plaintiff’s claims, and raises a Special Defense of comparative negligence.
The Defendant claims that the Plaintiff was negligent and careless in whole or in part in that: (a) he failed to act as a reasonably prudent person under the circumstances; (b) he chose to encounter the unknown party alleged to have been present and the situation alleged to have existed in the premises, although a safe exit of the premises was available; and (c) he failed to exercise reasonable care for his safety under the conditions then and there existing. Plaintiff Durant replied to those defenses by Reply dated May 8, 2018.
By Motion for Summary Judgment dated Sept. 12, 2019, the Defendant 105 Colony Street moves for summary judgment per Practice Book Section 17-44 et seq., as to the First Count of the Complaint.
It argues that it is entitled to judgment as a matter of law because: (1) it owed no legal duty to the plaintiff as this defendant did not have possession and control over the premises; (2) this defendant did not have any actual or constructive notice of the alleged defect that caused plaintiff’s injuries nor did this defendant have any notice of alleged prior incidents or issues of similar violent conduct inside the premises; and (3) the doctrine of superseding cause applies as plaintiff was shot by a third party whose unforeseeable superseding criminal acts were the direct and proximate cause of the plaintiff’s injuries.
In support of its Motion, the Defendant 105 Colony Street has provided a Memorandum of Law dated Sept. 12, 2019 along with several supporting exhibits. Those exhibits include: Exhibit A- Lease Agreement dated July 27, 2016 between the two defendants; Exhibit B- Affidavit of Isaac Shweky dated Sept. 5, 2019; Exhibit C- Excerpts of Deposition transcript of Manuel Medeiros taken April 23, 2019; Exhibit D- Excerpts of Deposition transcript of Plaintiff Durant taken on April 23, 2019; Exhibit E- Answers of co-defendant 105 Restaurant & Lounge to Written Interrogatories dated Dec. 13, 2018; and Exhibit F- Responses to Request for Admission of defendant 105 Restaurant & Lounge dated Sept. 9, 2018. In addition, this defendant has provided a Reply Memorandum dated Nov. 21, 2019 (Entry #155); and Objection to SUR Reply Memorandum dated January 13, 2020 (#167) as further support for its motion.
Plaintiff, by Objection dated Oct. 30, 2019 (Entry #153), urges this court to deny the Motion for Summary Judgment on the basis that: (1) there are genuine issues of material fact including the issue of foreseeability as to this defendant; (2) because there was a past history of criminal activity at or in the vicinity of 105 Colony Street, it creates an issue so as to preclude judgment to enter as a matter of law; and (3) since the firearm used by Wright against the Plaintiff came from outside the restaurant, that creates a duty of care and foreseeability so as to hold this landowner responsible. In support of his Objection, Plaintiff has presented the following exhibits: A- Printout from Meriden police logs undated and unverified and unauthenticated; B- Call logs from Meriden Police Department related to Boys and Girls Club of Meriden from Jan. 6, 2015 to Jan. 19, 2017- unverified and unauthenticated; C- Excerpts of Deposition Transcript of Medeiros taken April 23, 2019; D- Undated Advertisement for 105 Restaurant & Lounge- "Sexy Saturdays" and E- Undated and unsigned report of Sheldon Denis, of UGS, LLC (Professional Security Services).
The court heard the parties at oral argument on November 4, 2019 short calendar session, at which time there was no additional briefing schedule requested by these two parties or ordered by the court on this motion for summary judgment. The only additional briefs requested in this matter by the court on November 4, 2019 were related to the cross claim issues between the two defendants on an arbitration clause issue related to the summary judgment motions pending as to cross claim issues.
Nonetheless, Plaintiff Durant, without court permission, filed several further documents and briefs after oral argument in Entry #165 (Supplemental documentation in opposition to summary judgment) and Reply Memorandum to Defendant Reply Memorandum dated January 10, 2020 (Entry #166). Because these additional filings by the plaintiff were made several months after the November 4, 2019 short calendar argument and without court permission, the court deems them procedurally improper per the Connecticut Practice Book and per common sense rules of finality. Therefore, the court will disregard these additional materials in considering its decision as to the Defendant 105 Colony Street’s Motion for Summary Judgment. Plaintiff already had ample opportunity from the initial Motion for Summary Judgment filing to provide the court with its response to the motion as allowed by Section 11-10(c) of the rules of practice.
LEGAL STANDARD OF REVIEW- SUMMARY JUDGMENT GENERALLY
"Summary judgment is a method of resolving litigation when 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 ... 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 ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"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 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 is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
A fundamental part of any negligence case is the existence of a duty owed by the defendants to the plaintiff. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for duty has ever been formulated our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hanford, 259 Conn. 729, 754, 792 A.2d 752 (2002).
In a claim of premises liability, the threshold question is whether the defendant owed a duty to the plaintiff. See Gelati v. K&A Enterprises, LLC, Superior Court, judicial district of New Haven, CV 12-6028922 (Wilson, J., Sept. 27, 2013), 2013 WL 5663837. The existence of a duty depends on who has possession and control over the premises. See Lin v. National Railroad Passenger Corp. 277 Conn. 1, 16, Note 10, 889 A.2d 798 (2006). Control refers to the power of authority to manage, superintend, direct or oversee. Mozelski v. Thomas, 76 Conn.App. 287, 294, 818 A.2d 893 (2003). The possessor of the premises is ordinarily the party responsible for the reason that the person in possession is in a position of control and is best able to prevent harm. Smith v. Town of Greenwich, 278 Conn. 428, 547, 889 A.2d 563 (2006). "Where the evidence on the question as to who has control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable person could reach but one conclusion as to the identity of the person exercising control, the question is one for the court." Pelletier v. Sordoni Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008). The Connecticut trial courts have often considered similar negligence actions arising out of assaults or incidents at bars or restaurant locations, such as in the case at bar. It is well recognized that the Connecticut courts recognize a common-law cause of action in negligence against a proprietor or permittee of a restaurant or bar for failing to exercise reasonable care in the supervision of the conduct of the patrons or visitors within the establishment. Nolan v. Morelli, 154 Conn. 432, 440-41, 226 A.2d 383 (1967).
However, the trend at the trial court level is to grant summary judgment for the defendants unless the plaintiff can clearly establish a legal duty and actual or constructive specific notice of the specific harm to a plaintiff, so as to deem the alleged assault as a foreseeable potential incident. See Wasik v. Ansonia Shopping Center, Superior Court, judicial district of Ansonia-Milford at Milford, CV 17-6024266, (Stevens J., Jan 18, 2019) 2019 WL 423063; Navarro v. Santiago, Superior Court, judicial district of Windham at Putnam, CV 126005750 (Boland, Jr., Oct. 8, 2014) [SJ granted- sudden stabbing] 2014 WL 6461940; Daddana v. Mutual Benefit Society of the Marche Italy, Inc., Superior Court, judicial district of Fairfield at Bridgeport CV 03-03995655 (Gilardi, J., Aug. 18, 2005) 2005 WL 2210650 [Sudden bar tight inside social club- no prior notice]; Deedon v. Friends of Jasper McLevy, Superior Court, judicial district of Fairfield at Bridgeport, CV 000372489 (Wolven, J., Jan. 8, 2003) 2003 WL 190762 [patron suddenly knocked off bar stool]; Winston v. Pool Hand Luke’s, Inc., Superior Court, judicial district of New London, CV 555438 (Corradino, J., May 14, 2003) 2003 WL 21235288 [shooting outside bar involving dram shop liability]; and Flanagan v. The Grill, Superior Court, judicial district of Hartford at Hartford, CV 010808992 (Satter, J., Feb. 15, 2006) 2006 WL 494647 [judgment for plaintiff after trial on merits against bar- hit by cue stick while patron inside bar].
APPLICATION TO CASE AT BAR
In this case, based on negligence against the landowner, the defendant 105 Colony Street asks this court to apply the above analysis and to find that there are no genuine issues of material fact; and to find that no duty is owed to the Plaintiff Durant by the Defendant Landowner 105 Colony Street as it had no possession or control over the subject premises where the alleged incident occurred.
Based on this court’s review of the defendant 105 Colony Street’s submissions and the relevant case law, this court is persuaded that there is no duty owed to the plaintiff in this case by the Defendant landowner, 105 Colony Street. The plaintiff has presented no credible, admissible evidence to show that the Defendant 105 Colony Street was in possession or control of the restaurant location at the time of the incident. Instead, the defendant 105 Colony’s briefs, arguments and exhibits clearly show that it had no possession or control of the restaurant/bar area at the time of the plaintiff’s incident.
A plain reading of the lease agreement, at Exhibit A of the Defendant’s Motion for Summary Judgment, clearly shows the restaurant and bar were fully demised to the codefendant 105 Restaurant & Lounge. The Defendant 105 Colony Street retained no supervision or control or security responsibilities for the operations of that business or the inside of the leased premises. All maintenance was solely the responsibility of the tenant; and there are no lease provisions putting any security policy back on the landowner. The other exhibits filed by Defendant 105 Colony with the Motion also support the fact that this defendant lacked any involvement with the restaurant/bar operations. The affidavit of Mr. Shweky along with the deposition admission of Manuel Medeiros, manager of 105 Restaurant further support this conclusion. In addition, the Plaintiff Durant has provided no admissible credible evidence to controvert that fact on possession or control. This case therefore tracks closely to the court’s decision in Washington v. Raggozino, Superior Court, judicial district of New Haven at New Haven, CV 16-066166 (Wilson J., Jan. 31, 2018) 2018 WL 1137579, citing Fiorelli v. Gorsky, 120 Conn.App. 298, 309, 991 A.2d 1105 cert. den. 289 Conn. 933 (2010); see also Navarro v. Santiago, Superior Court, judicial district of Windham, CV 12-6005750 (Boland J., Oct. 8, 2014) 2014 WL 6461940.
Therefore, as a matter of law, this court finds that the Defendant 105 Colony Street owes no legal duty to the plaintiff, and therefore, it is entitled to judgment as a matter of law.
The court thus does not need to address the additional arguments about notice and/or superseding cause raised in the motion by the Defendant 105 Colony Street, as the above issue is determinative of this liability issue between the parties.
CONCLUSION
Based on the foregoing, the court GRANTS the Defendant 105 Colony Street’s Motion for Summary Judgment; and OVERRULES the Plaintiff Durant’s Objection to such.