Opinion
CV186072994S
05-16-2019
Jason Iscaro v. 487 Glenbrook, LLC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stewart, Elizabeth J., J.
MEMORANDUM OF DECISION ON DEFENDANT CARTOM, LLC’S MOTION FOR SUMMARY JUDGMENT
STEWART, J.
Defendant Cartom, LLC moves for summary judgment in its favor in this premises liability action filed by Plaintiff Jason Iscaro. Cartom does business as the Little Monkey Café, a tenant of the premises at 471 Glenbrook Road in Stamford, Connecticut. The plaintiff parked his car at 481 Glenbrook Road, the premises next door to 471 Glenbrook, walked up to the Little Monkey Café, discovered that it was closed, started to return to his car, and fell on snow and/or ice in the parking lot at 481 Glenbrook Road. Cartom argues that it is entitled to summary judgment because it does not have possession or control over 481 Glenbrook Road where the plaintiff fell. The plaintiff does not rebut this, but argues that there are disputed issues of material fact as to whether Cartom had a duty to warn its business invitees about the presence of ice and snow in the parking lot at 481 Glenbrook Road. For the reasons that follow, the court grants Cartom’s motion for summary judgment, and judgment should enter in its favor on the second count of the amended complaint.
UNDISPUTED MATERIAL FACTS
The undisputed material facts are as follows. This defendant operates the business known as Little Monkey Caféat 471 Glenbrook Road. Although it has possession and control of those premises, it does not have possession and control of the premises next door at 481 Glenbrook Road. Affidavit of Carmine Tomas.
On March 15, 2017, the plaintiff was early for an appointment and decided that he wanted a cup of coffee. Deposition of Jason Iscaro ("Iscaro Dep.") (Exhibit A to no. 126.00). He searched for "coffee" in his GPS device and was directed to the Little Monkey Café . Id. When he arrived, he parked at 481 Glenbrook Road. Id. He emerged from his truck and walked to the front door of Little Monkey Café . Id. He learned at that point that the Little Monkey Caféwas closed, and he returned to his truck. Id. That distance back to his truck was about 20 to 25 feet. Id. As he approached the truck, while still in the travel area of the parking lot at 481 Glenbrook Road, he slipped on a patch of ice and suffered injuries. Id.
A wooden fence divides the parking lot at 481 Glenbrook Road and the premises at 471 Glenbrook Road. Deposition of Carmine Tomas ("Tomas Dep.") (Exhibit B to no. 126.00). Tomas Dep. That wooden fence does not reach all of the way down to the sidewalk along Glenbrook Road, and there is enough space between the wooden fence and the sidewalk that Tomas of Cartom has seen cars drive through that space. Id. The parking for the Little Monkey Caféis between its building and the right side of that fence. Id. Although there is no signage or pavement markings for that parking, Tomas testified that the café ’s customers use their "common sense" about where to park. Id. While the caféhas been open, Tomas has seen cars park on the left side of the fence in the lot at 481 Glenbrook Road. Id. On those occasions, he has told the people that they cannot park their cars there and that they must move them. Id. He could not recall on how many occasions he had seen people park on the wrong side of the fence. Id.
When the plaintiff’s slip and fall occurred, March 15, 2017, Little Monkey Caféwas closed for the season. Id. It typically closes during the winter from sometime between Thanksgiving and Christmas and sometime in April. Id.
LEGAL ANALYSIS
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." Practice Book § 17-49, Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007) (internal quotation marks omitted). A "material fact" is one that would make a difference in the outcome of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The burden of showing the nonexistence of any issue of material fact is on the defendant, as the moving party. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). In deciding this motion, this court must view the evidence in the light most favorable to the nonmoving party, the plaintiff. Id., Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Romprey, 301 Conn. at 320, 77 A.3d 726. It is not enough for the opposing party to assert the existence of a disputed issue of fact. Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). The opposing party must demonstrate that he has sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of his cause of action against the defendant. See Stuart v. Freiberg, 316 Conn. 809, 822-23, 116 A.3d 1195 (2015).
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "The existence of a duty is a question of law and [o]nly 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.) Id., 384, 650 A.2d 153, 155. "[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).
"[T]he dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ..." Cuozzo v. Town of Orange, 178 Conn.App. 647, 655, 176 A.3d 586 (2017). Cartom has submitted an affidavit from its managing member, Carmine Tomas, that states that Cartom does not have possession or control over 481 Glenbrook Road. The plaintiff has not introduced any evidence that would refute that fact.
Instead, the plaintiff argues that summary judgment should not enter on the issue of duty because there are material facts in dispute as to whether Cartom owed a duty to warn of snow and ice in the parking lot at 481 Glenbrook Road. There is no question that Cartom had a duty to warn its business invitees of dangers on its own premises at 471 Glenbrook Road. "A business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ..." (Citations omitted, internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). See also Kurti v. Becker, 54 Conn.App. 335, 340, 733 A.2d 916 (1999) (holding that property owners had duty to warn social invitee of ice on driveway and to take steps to remedy it).
Our Supreme Court and a few Superior Court decisions have held that a possessor of land owes these duties to invitees when they are not on those premises under certain limited circumstances. The issue is whether those circumstances apply here. In Fleming v. Garnett, the Supreme Court refused to set aside a verdict that the operator of a truck terminal had a duty to warn a truck driver that exiting that terminal via a neighboring business’ driveway created a danger to motorists on the highway. 231 Conn. 77, 83-84, 646 A.2d 1308 (1994). In so doing, the court approved this jury instruction: "a possessor of land has a duty to conduct its business operations in a manner that does not create an unreasonable risk of physical harm to those outside of the premises; ... and ... this duty may include the duty to warn invitees of conditions that pose reasonably foreseeable dangers to the public." Id., 646 A.2d 1308. While the issue in Fleming was harm that the invitee caused to a motorist on the highway, the principle approved by the Supreme Court has been applied several times by judges of the Superior Court to harm to the invitees themselves have suffered off of the defendants’ premises.
One of those Superior Court cases is Conney-Grover v. Town Center of South Windsor, LLC, Superior Court, judicial district of Hartford, Docket No. CV-15-6056783 (Oct. 3, 2017, Bright, J.) (65 Conn.L.Rptr. 312). In that case, one of the defendants, Stop & Shop Supermarket Company, moved for summary judgment, arguing that it was not in possession and control of the parking lot where the plaintiff slipped and fell. The plaintiff had alleged that Stop & Shop was negligent, in part because it failed to warn her of dangerous conditions in the area where she fell. Relying on Fleming, the court denied the motion for summary judgment. "When a plaintiff is a business invitee of the defendant, the defendant’s duty to warn of premises defects does not end at the property line beyond which the defendant has possession and control."
Another Superior Court decision relied upon Fleming to deny summary judgment where the business invitee plaintiff was injured crossing the street from the defendant’s flea market to a parking lot not owned by the defendant. Vargas v. Cheslock, Superior Court, judicial district of New Haven, Docket No. CV-03-0282979 (March 12, 2004, Wiese, J.) (36 Conn.L.Rptr. 680). The defendant operated his flea market on one side of the Ella T. Grasso Boulevard and he provided two parking lots for patrons, one of which had parking for 250 cars and was on the opposite side of the Boulevard. The plaintiff claimed that the lots owned by the defendant were full and that he parked in yet another lot on the opposite side of the Boulevard from the flea market. His complaint against the defendant alleged that the defendant had knowledge of patrons crossing the Boulevard and breached his duty to warn the patrons of dangers of crossing the Boulevard. Although the defendant argued that it was against public policy to extend this duty to patrons who cross the street from a parking lot the defendant did not own or control, the court found that the duty may extend to a situation where the defendants directed patrons to park across the Boulevard, thereby making it necessary to cross the street. The court found that there was a genuine issue of material fact concerning the location of the 250-car lot owned by the defendant and whether that location created a duty to warn the plaintiff of the dangers of crossing the street.
Conney-Grover is distinguishable from the present case because the parking lot, although owned by the shopping center landlord instead of Stop & Shop, was the intended parking area for Stop & Shop customers. In the present case, the plaintiff did not park where Cartom claims its customers regularly park while it is open. Instead, the plaintiff parked at the premises next door, 481 Glenbrook Road. While this would seem to bring this case in line with the facts of Vargas, that case also is distinguishable because the defendant owned another parking lot, the location of which potentially created harm of the same general nature that befell that plaintiff.
The other Supreme Court case that imposed a duty to warn about conditions on premises not within the possession and control of the defendant is Ford v. Restaurant Employees & Bartenders Union, 155 Conn. 24, 229 A.2d 346 (1967). In that case, the defendant leased part of an armory to hold a dance, and the plaintiff, one of the patrons, exited from a door and fell down an open exterior stairwell. Id., 29, 229 A.2d 346. Among the plaintiff’s allegations was the claim that the defendant failed to warn him of the open stairwell. Id., 31, 229 A.2d 346. The court held that "[w]hether or not the defendant was in control of the parking lot and the unguarded stairwell is not a determining factor in this case. The defendant was in actual control of the drill shed and of the east door leading to the parking area, and, in the exercise of reasonable care, it should have known of the existence of the dangerous condition." Id., 35, 229 A.2d 346. Quoting from Restatement (Second) of Torts § 343, comment b, the court observed that "(A)n invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land (reasonably) safe for his entry ... He is entitled to expect ... warning as may be reasonably necessary for his protection under the circumstances." Id., 229 A.2d 346. The Supreme Court affirmed the judgment for the plaintiff. Id., 229 A.2d 346.
The Superior Court cases following or distinguishing Ford have focused on premises in the immediate proximity of the entrance or exit to the premises under the possession and control of the defendant. For example, the court in Major v. City of New London, Superior Court, Docket No. CV-550099 (May 19, 2000, Corradino, J.) (27 Conn.L.Rptr. 217), denied a summary judgment motion on the basis of the duty recognized in Ford where a restaurant patron fell on the walkway leading to the moving party’s restaurant. That court stated that "a tenant running a business who knows customers enter and exit through a particular door should be held liable for injuries incurred by those customers immediately outside that door by a defect in the sidewalk at that location." Id. Conversely, a court held that the duty recognized in Ford was inapplicable to a plaintiff who fell in a parking lot in front of the defendant’s store in part because the parking lot was not "premises functionally dedicated to the entrance/exit of the party sought to be held liable- that is, immediately outside the entrance/exit way." Navarro v. Starwood Ceruzzi Golf, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5001811 (October 25, 2007, Levin, J.) (44 Conn.L.Rptr. 424).
The two cases proffered by Cartom in its reply memorandum where summary judgment was granted in cases brought by plaintiffs who fell on walkways outside the defendants’ units distinguished Ford but they are not directly applicable to the situation here. Eafano v Hatchery Brook Homeowners Association, Inc., Superior Court, judicial district of Hartford, Docket No. CV-16-6070301 (April 11, 2018, Peck, J.T.R.) ; Sullivan v. Lincoln Plaza Development, Superior Court, judicial district of New Haven, Docket No. CV-10-6001722 (March 5, 2012, Markle, J.) . In each of those cases, the court granted summary judgment to a condominium unit owner (Eafano ) and to a tenant (Sullivan ) because the declaration and the lease at issue clearly indicated that the co-defendant in each case had possession and control.
This court holds that any duty recognized by Ford and its progeny to warn about defects off of premises possessed or controlled by a defendant does not apply to the facts of this case because the alleged injury here occurred in a parking lot 20 to 25 feet away from the entrance to the defendant’s premises, which is too far away.
The issue remains as to whether the duty recognized by Fleming applies here. As noted above, both Conney-Grover and Vargas recognized the possibility of duties flowing to plaintiffs using parking lots connected with the defendants’ businesses and possibly to plaintiffs walking the same way as patrons using defendant-owned parking. Here, the parking for the defendant’s business was in the area adjacent to its business at 471 Glenbrook Road, not in the lot where the plaintiff fell at 481 Glenbrook Road. Therefore, if the court were to hold that this defendant owed a duty to warn about conditions at 481 Glenbrook Road, it would be expanding that duty to warn about off-premises conditions beyond which it previously has been applied. Moreover, the duty to warn recognized in Fleming applies to "conditions that pose reasonably foreseeable dangers to the public." 231 Conn. at 84, 646 A.2d 1308. This court declines to hold that snow and ice in the parking lot at the premises next door would be a reasonably foreseeable danger to invitees of a business that is not open during the winter. An ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would not anticipate that harm of the general nature of what happened to this plaintiff would result. See Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505, 509 (2001).
This holding is further supported by one final case that considered the issue of warning about off-premises conditions. In Amodio v. Canavan, Superior Court, Docket No. CV-95-0372175 (July 29, 1996, Corradino, J.), the court granted summary judgment in favor of the defendant parking lot owner on a plaintiff’s claim that the defendant owed a duty to warn her about the dangers of walking on a pathway from that lot to the building where she worked. The plaintiff had slipped and fallen on ice on the pathway. The court refused to find such a duty where there was "not even an allegation here that the defendant knew or should have known the plaintiff and co-workers were using this path, or more exactly, were using this pathway when there were ice and snow conditions." Id. Similarly, there is no basis here to require the defendant, a business that is not open in the winter, to warn its patrons about snow and ice in the parking lot at the premises next door.
Summary judgment shall enter in favor of defendant Cartom on the second count of the amended complaint.