Opinion
No. CV06-5001811
October 25, 2007
MEMORANDUM OF DECISION
The plaintiff alleges that she fell and was injured as a result of a defect in a parking lot at the front of a store of the defendant Best Buy. Best Buy has moved for summary judgment on the grounds that it was not in possession or control of the parking lot. See Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966) ("Liability for injuries caused by defective premises is not based upon title, but on possession and control"). The plaintiff admits that Best Buy was not in possession and control but seeks to avoid summary judgment based on an exception to that general rule articulated in Ford v. Hotel Restaurant Employees Bartenders Union, 155 Conn. 24, 35, 229 A.2d 346 (1967); see also Desy v. Dominick, Superior Court, Judicial District of Hartford-New Britain, No. CV92 0516197 (1995) (Corradino, J.); Major v. City of New London, Superior Court, Judicial District of New London, No. 550099 (2000) (Corradino, J.) [ 27 Conn. L. Rptr. 217]. The plaintiff's brief containing that argument and those cases, however, were not filed with the court in a timely manner, pursuant to Practice Book § 17-45, but were submitted to the court on the morning of argument on the defendant's motion. Best Buy objected. Under the hard line taken by Appellate Court in Barile v. Lenscrafters, Inc., 74 Conn.App. 283, 811 A.2d 743 (2002), the court cannot consider this claim.
Moreover, even if the court had discretion to consider the rule in Ford v. Hotel Restaurant Employees Bartenders Union, it would find that Ford does not apply to a shopping center parking lot setting where the defect is neither "latent," as in Ford (at page 35), nor in premises functionally dedicated to the entrance/exit of the party sought to be held liable — that is, immediately outside the entrance/exit way, as in Ford, Desy v. Dominick, supra, and Major v. New London, supra — nor created by that party.
Notably, Ford has been characterized by one Superior Court judge as "an unusual case . . ." Swain v. Leninski, 47 Conn.Sup. 660, 665, 823 A.2d 462 (2003) [ 34 Conn. L. Rptr. 416].
None of these circumstances exist here. Here, the claimed defect was not latent. Rather as the plaintiff states in her affidavit, the pavement was "cracked and pitted, thereby creating a hole next to the drain cover marked `Water' to the southeast of the entrance to Best Buy." The hole is depicted in two photographs attached to the affidavit and is more of an irregular pavement. This is a garden variety walkway defect, far from the unilluminated unguarded stairwell into which the plaintiff fell at 1:30 A.M. in Ford, which was so dangerous, the court held, that the defendant "should have taken appropriate steps to prevent its invitees from using the door." Ford v. Hotel Restaurant Employees Bartenders Union, supra, 155 Conn. 35. The condition here, while very close (34 inches) from the curb line of a walkway in front of the Best Buy store, existed in a parking lot that served the entire shopping center and was not functionally dedicated to Best Buy's use. Notably, customers entering or exiting Best Buy could take any route over nearly a 180 degree area without traversing the depression on which the plaintiff slipped. Finally, there is no suggestion that Best Buy created the claimed defect.
Were the exception to the rule otherwise, it would swallow the rule in the context of modern shopping centers or malls. Lessees in such developments would be required to post warnings concerning defects of whatever nature anywhere in the parking lot. Cf. Swain v. Leninski, 47 Conn.Sup. 660, 665, 823 A.2d 462 (2003) ("Landowners with businesses or residences facing public sidewalks would acquire a duty to repair or warn that they do not now have"). Such a requirement would be unworkable. So too would be an exception requiring shopping center lessees not in possession or control of parking lots to warn patrons of defects of whatever nature in that portion of the parking lot "close" to their store. The motion for summary judgment is granted.