Opinion
No. LLI CV 05 5000050
June 28, 2006
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #125 AND #128
This is an action for personal injuries arising out of a fall on ice on the steps of a condominium unit. The plaintiff, Sean McKenna, was a tenant in the unit. He sued the defendant, Willow Springs Condominium Association, Inc. ("Willow Springs") and the defendant, Imagineers, LLC ("Imagineers"), the property manager. The defendants filed apportionment complaints against the owner of the unit, Bruce Daab ("Daab"). The plaintiff pled over against Daab.
Willow Springs and Imagineers have both moved for summary judgment and have attached an affidavit and other documentary evidence. The plaintiff and Daab have both filed extensive briefs in opposition, both supported by other documentary evidence.
On December 16, 2005 the court scheduled the case for trial on September 19, 2006. Pursuant to Practice Book § 17-44 the parties were required to obtain the court's permission prior to the filing of motions for summary judgment. Daab has moved for permission but Willow Springs and Imagineers have not. The motions for summary judgment were fully argued on the merits on May 15, 2006. Although the court does not wish to approve the failure to follow proper procedure, I have decided to grant permission for the filing of these motions. There is sufficient time for these motions to be decided well in advance of trial, and it may advance the prospects for settlement if the motions are decided rather than denied as procedurally deficient.
For the reasons briefly given below, both motions must be denied on the merits because there are genuine issues of material fact as to the possession and control of the steps.
Willow Springs and Imagineers primarily rely upon the Willow Springs Bylaws which contain the Rules and Regulations of the association. These contain a statement that: "Routine maintenance, upkeep, cleaning and snow removal of and on the front steps leading to the units are the responsibility of the unit owner for whose unit such elements are Limited Common Elements in all respects as though such elements were part of the Unit. In all other respects other than use, these elements shall be treated as Common Elements." Willow Springs and Imagineers have submitted an affidavit from the Willow Springs president that, based on the Rules and Regulations, neither Willow Springs nor Imagineers are responsible for cleaning or snow removal on the front steps. But, this statement is simply a conclusion.
In opposition, the plaintiff and Daab present affidavits and deposition transcripts that Willow Springs and Imagineers have shoveled the snow from the front steps of the units on a regular basis. This presents an identical fact pattern to that confronting Judge Gallagher in Gardner v. Woodland Heights Condominium Associates, Superior Court judicial district of Waterbury, Docket No. CV0450000835 (July 26, 2005, Gallagher, J.). I agree with and adopt the reasoning from that case:
In the instant case, the association has demonstrated that the condominium declaration clearly places the responsibility for ice and snow removal from the limited common elements on the unit owners. The plaintiff's statement concerning the actual practices regarding snow removal raises an issue of fact as to whether the association acted in such a way as to justify a determination that it did indeed have a duty to remove the snow and ice from the limited common elements.
The essential elements of a cause of action in negligence are well established: duty, breach of that duty; causation; and actual injury . . . First, it is necessary to determine the existence of a duty . . . 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 . . . Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless he shows that the defendant owed a duty to the plaintiff.
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. In Sevigny v. Dibble Hollow Condo Ass'n., Inc., 76 Conn.App. 306, 323, 819 A.2d 844 (2003), the Connecticut Appellate considered the duty of a condominium association to be like that of a landlord: "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." Id. The test for a duty is whether the association, like a landlord, has control of the limited common elements. The association has not established an absence of a genuine material fact in this regard.
(Citations omitted; internal quotation marks omitted.) Id.
For the same reasons, the motion for summary judgment filed by Willow Springs and Imagineers (#125) is denied.
Daab's motion for summary judgment is based upon his claim that there is no evidence that he was in possession or control of the steps where the plaintiff was injured. The documents submitted by Daab in support of his motion are persuasive in all but one respect. He offers evidence that the Rules and Regulations of Willow Springs were incorporated as part of the rental agreement he had with the plaintiff. But, this fact is disputed in an affidavit of the plaintiff submitted in opposition to this motion. This creates an issue of fact in at least this part of Daab's argument. Daab's motion for summary judgment (#128) is denied.