Opinion
No. CV 03 0519645 S
March 30, 2004
MOTION FOR SUMMARY JUDGMENT
The instant action concerns a fall down that occurred on real property located at 475 Hartford Road, New Britain Connecticut. The plaintiff alleges that for all times pertinent hereto, the defendant was the owner of the aforementioned real property and that the defendant, or its employees, agents or servants, controlled the subject premises and had a duty to maintain the properly in a reasonably safe condition.
The plaintiff alleges in her complaint that on or about February 8, 2001 she was lawfully upon the subject property when she was caused to slip and fall to the ground due to a dangerous and defective condition consisting of a large accumulation of ice and snow.
On January 30, 2004, the defendant filed a Motion for Permission to File Summary Judgment and a Motion for Summary Judgment.
The defendant asserts in its motion that at the time of the plaintiff's fall, the defendant owned the subject property, but for all times pertinent hereto, said property was wholly demised to the tenant, Dayton Hudson Corporation. The defendant further asserts that due to this fact the defendant did not owe any duty to the plaintiff and is therefore entitled to summary judgment as a matter of law.
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted:
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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
The plaintiff in the instant action claims that her injuries were caused by the negligence and carelessness of the defendant as follows:
1. They allowed [the] parking lot to become covered with ice, when they knew, or should have known with reasonable inspection, that such condition constituted a risk of injury to individuals using the parking lot, such as the plaintiff;
2. They failed to remove said ice there from (sic);
3. They failed to place, sand salt or other abrasive material on said parking lot for the safety of persons using same, such as the plaintiff, when they knew or should have known of the slippery, dangerous and defective condition of said parking lot;
4. They failed to warn the plaintiff of the slippery, dangerous and defective condition when they knew, or should have known, that said condition was extremely hazardous and constituted a risk of injury to persons using the same, such as the plaintiff;
5. They failed to make a reasonable inspection of said parking lot to ensure that persons, such as the plaintiff would not be exposed to the hazardous condition resulting from the ice covering said parking lot;
6. They failed to place a barricade so as to prevent the plaintiff from walking on the subject premises although said dangerous and defective condition constituted a serious risk of injury to persons such as the plaintiff;
7. It failed to maintain the subject premises in a reasonably safe condition.
The defendant asserts that it did not owe the plaintiff a duty for reason that it did not have control over the premises at the time of the plaintiff's fall. The defendant asserts that that prior to February 8, 2001, it had entered into a "Grounds Lease" with Dayton Corporation wherein the subject premises had been totally and wholly demised to Dayton Corporation.
In support of its motion for summary judgment the defendant submitted an affidavit of Lorraine Tartaglia, "a member of NB-BTMC, LLC." The affidavit provides in pertinent part that:
4. On January 18, 2000, Dayton Hudson Corporation entered into a Grounds Lease with NB-BTMC, LLC concerning property located at 475 Hartford Road in New Britain, Connecticut, which is being used as Target.
5. Pursuant to the Recitals and Article II of said Grounds Lease, NB-BTMC, LLC wholly and totally demised the entire property at issue to Dayton Hudson Corporation. CT Page 4876
Article II, Section 2.1 of the subject lease provides that:
Demise. Landlord hereby demises and leases the Premises unto Tenant, and Tenant hereby takes and accepts the same from Landlord. The Premises shall include, without limitation, all rights, benefits, easements, appurtenances, and hereditaments attaching, belonging, or pertaining thereto.
6. Pursuant to paragraph 7.3 Dayton Hudson Corporation agreed to "maintain the Premises together with all Tenant's Improvements and other facilities thereon, in good condition and repair," including snow and ice removal, to the exclusion of NB-BTMC, LLC.
Article II, Section 7.3 of the subject lease provides that:
Maintenance. Tenant shall keep and maintain the Premises, together with all Tenant's Improvements and other facilities thereon, in good condition and repair.
7. This clause has remained in full force and effect since January 18, 2000.
8. Said clause was in effect between Dayton Hudson Corporation and NB-BTMC, LLC on February 8, 2001.
9. During Dayton Hudson Corporation's tenancy at the premises located at 475 Hartford Road, Dayton Hudson Corporation did maintain snow and ice removal, to the exclusion of the owner, NB-BTMC, LLC.
11. At all times Dayton Hudson Corporation was in exclusive possession and control of the premises located at 475 Hartford Road in New Britain, Connecticut to the exclusion of the owner, NB-BTMC, LLC.
The defendant asserts that summary judgment should enter in its favor for reason that the tenant, not the defendant landowner, had exclusive control of the subject premises at the time of the accident that is the subject of the instant action.
"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 . . .' Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). `[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.' (Internal quotation marks omitted.) Id. The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances. Dinnan v Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). Thus, `[u]nless 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.' Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969)." LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002).
The Appellate Court has "also . . . noted that `[l]iability for a claimed injury due to . . . defective premises depends on possession and control and not on title.'" Doty v. Shawmut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000). "`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.' (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000). `Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court . . .' Darling v. Burrone Bros., Inc., supra, 162 Conn. 192." Mozeleski v. Thomas, 76 Conn. App. 287, 294, 818 A.2d 893, cert. denied, 264 Conn. 904 (2003).
Centi v. King's Highway Realty, No. 377130 (Jul. 22, 2003 Levin, J.) 2003 Ct. Sup. 8715.
This Court notes that the plaintiff has not provided this Court with any contradictory affidavits:
The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof . . .
DeCorso v. Watchtower Bible Tract Society, 78 Conn.App 865, 871 (2003).
Upon completing its review of the subject lease and the affidavit in support of the motion for summary judgment, this Court finds that there are no genuine issues of material fact that the Dayton Corporation, not the defendant NB-BTMC had exclusive control of the subject property at the time of the accident in question. The defendant is therefore entitled to summary judgment as a matter of law.
The motion for summary judgment is granted.
Richard Allan Robinson, J.