Opinion
CV176073655S
02-13-2018
John M. RHODES v. GLASTONBURY COMMONS OFFICE CONDOMINIUMS ASS’N et al.
UNPUBLISHED OPINION
File Date: February 14, 2018
OPINION
Cobb, J.
This action involves a slip and fall on ice in a parking lot at the defendant Glastonbury Commons Office Condominiums. The defendants, Six F’s II Associates, LLC and S & R Ventures, LLC, are owners of condominium units (referred to herein as " defendant unit owners" ) in the defendant Glastonbury Commons. The defendant unit owners have filed motions for summary judgment asserting that there are no issues of material fact and that they are entitled to judgment as a matter of law because they did not have possession and control of the parking lot where the plaintiff fell. They claim that the parking lot was a " common element" of defendant Glastonbury Commons and that Glastonbury Commons and it, not the unit owners, were solely responsible for maintaining the parking lot. In support of their claim, the defendant unit owners rely on language contained in the Glastonbury Common’s declaration and bylaws to establish that the it had a duty to maintain all common elements, including the parking lot.
The other appearing defendant is Thompson Landscape Improvement, Inc. It has not filed a motion for summary judgment or offered any argument as to these motions.
The plaintiff opposes summary judgment and relies on General Statutes § 47-75(c). He argues that under this section, the defendant unit owners are liable for injuries occurring in the condominium’s common areas in proportion to their ownership interest. Further, the plaintiff argues that unadmitted pleadings in a cross claim brought by defendant unit owner, Six F’s II Associates, LLC against Glastonbury Commons, create a genuine issue of material fact as to who had possession and control of the parking lot at the time of his fall.
The court has reviewed the parties’ submissions and heard argument on these matters and finds the issues for the defendant unit owners.
The following facts are material and undisputed. On December 19, 2014, the plaintiff, an invitee, slipped and fell in a Glastonbury Commons’ parking lot located at 109-17 New London Turnpike, Glastonbury, Connecticut. The moving defendants own condominium units in the Glastonbury Commons. The plaintiff admits in his complaint that the parking lot where he fell is a " common element" of the defendant Glastonbury Commons. The Condominium Act defines " common elements" as: " all portions of the condominium other than the units." General Statutes § 47-68a(e). Article II, Section 5, of the Glastonbury Commons Declaration defines " common elements" the same as the Condominium Act, as " all portions of the property except the units." A supporting affidavit avers that under the Declaration and Bylaws: " the Common Areas of the Glastonbury Commons Office Condominium include the entire parking lot."
DISCUSSION
The summary judgment standards are well established. Practice Book § 17-49 provides that summary judgment " shall be rendered forthwith if the pleadings, affidavits and 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 burden of proof is on the movant, and when deciding a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. See Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010); Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). The party seeking summary judgment has the burden to show " the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitled him to a judgment as a matter of law." (Internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 699-700, 138 A.3d 951 (2016).
" Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ... [T]he existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Citation omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., 118 Conn.App. 757, 759, 985 A.2d 1076 (2010), aff’d, 301 Conn. 657, 21 A.3d 816 (2011); see Practice Book § 17-49.
Although an admission in the defendant’s answer is a judicial admission conclusive on the defendant; Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971); " unadmitted allegations in the pleadings ... do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." (Internal quotation marks omitted.) Taylor v. Lantz, 129 Conn.App. 437, 449, 20 A.3d 88 (2011).
" In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury." LaFlamme v. Dallesio, 261 Conn. 247, 251, 802 A.2d 63 (2002). The issue presented in the defendant unit owners’ motions for summary judgment is whether they owed a duty of care to the plaintiff. " [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 (2003).
In general, " liability for injuries caused by defective premises ... does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallesio, supra, 261 Conn. 251. " [A] duty of care to an invitee ... only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred." Millette v. Connecticut Post Limited Partnership, 143 Conn.App. 62, 70, 70 A.3d 126 (2013). " 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, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
In this case the fall occurred in the Glastonbury Condominium’s parking lot, an admitted common clement of the property. In order to determine the allocation of duties between unit owner and condominium association, the court may examine the condominium’s declarations and bylaws; See Sevigny v. Dibble Hollow Condominium Ass’n, Inc., supra, 76 Conn.App. 322-23; Moody v. Soundview Condominium Ass’n, supra, Superior Court, Docket No. 09-5013200 ; Gardner v. Woodland Heights Condominium Ass’n, Inc., supra, Superior Court, Docket No. CV 04-5000083, here attached to Six F’s motion as Exhibit B and S & R Ventures’ motion as Exhibit A.
As to possession and control of the common elements, Article IV, Section 2 of the declaration and bylaws states that the association’s duties shall include the " operation, care, upkeep, and maintenance of the common areas," and the " employment and dismissal of the personnel necessary for the repair, replacement and operation of the common areas." In addition, Glastonbury Commons’ Rules and Regulations § § 1B & E, limit the unit owners’ use of the parking lot to parking automobiles, excluding trucks and commercial vehicles, and ingress and egress from the common areas. Thus, pursuant to the Glastonbury Commons ruling documents, the defendant unit owners do not have possession and control over the common elements and thus, had no duty to care for or maintain the common areas, which included the parking lot where the plaintiff fell. Consequently, the court finds that the defendant unit owners have met their burden to establish that there is no disputed issue of material fact that they did not have possession and control over the parking lot and therefore no duty to the plaintiff.
The burden now shifts to the plaintiff. In response, the plaintiff has offered no facts in dispute of the material facts presented by the defendants. The plaintiff relies on General Statutes § 47-75(c) and the condominium documents provided by the defendant unit owners as exhibits to argue that the defendant unit owners had a duty to maintain the parking lot because they have an ownership interest in the association. Section 47-75(c) provides in relevant part: " [e]xcept in proportion to his percentage interest in the common elements, no unit owner, officer or director of the association shall be personally liable for (1) damages resulting from injuries arising upon or in connection with the common elements, solely by virtue of his ownership of a percentage interest therein." Based on this language, the plaintiff claims that the defendants may be liable in proportion to said interest if someone is injured in a common area.
At oral argument on November 13, 2017, plaintiff’s counsel stated that he agreed with defendant’s counsel on the facts but was objecting on the ground that he disagreed with the defendant’s interpretation of § 47-75(c).
Trial courts which have decided cases brought pursuant to § 47-75(c) have required plaintiffs to provide evidence showing the existence of a duty of care beyond merely having an ownership interest. Moody v. Soundview Condominium Ass’n, Superior Court, judicial district of New London, Docket No. 09-5013200, (February 4, 2011, Cosgrove, J.) (court examined condominium declaration and bylaws to determine whether unit owner had possession and control of limited common element where § 47-75(c) was also applicable); Skelley v. Monaco, Superior Court, judicial district of Hartford at New Britain, Docket No. 362952 (July 30, 1990, Purtill J.) (court eranted summary judgment where § 47-75(c) applied, defendant offered evidence they did not have possession or control of common area, and plaintiff did not offer counter evidence).
When analyzing the issue of control of the " common elements" of a condominium complex, the Appellate Court has held that a condominium association’s relationship with unit owners is analogous to a landlord’s relationship with a tenant. See Sevigny v. Dibble Hollow Condominium Ass’n, Inc., supra, 76 Conn.App. 306, 322-23, 819 A.2d 844 (2003); Moody v. Soundview Condominium Ass’n, Superior Court, judicial district of New London, Docket No. 09-5013200 (February 4, 2011, Cosgrove, J.) . " 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 light of all the significant circumstances." (Citation omitted; internal quotation marks omitted.) Laflamme v. Dallessio, supra, 261 Conn. 257-58. In the context of a landlord-tenant relationship, one significant circumstance is the lease, if any, between the parties and " if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." Id., 257.
Thus, the court finds that General Statutes § 47-75(c) does not establish possession and control of the common elements and does not therefore establish a duty on behalf of the unit owners.
The plaintiff also argues that unadmitted allegations in the pleadings of a cross claim between defendant unit owner Six F’s and Glastonbury Commons Office Condominium Association, Inc. (a defendant not party to these motions for summary judgment), creates a genuine issue of material fact as to the defendant unit owners’ control of the parking lot. However, " unadmitted allegations in the pleadings ... do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." (Internal quotation marks omitted.) Taylor v. Lantz, supra, 129 Conn.App. 449. Thus, the plaintiff has not provided any evidence, including exhibits or counteraffidavits, that creates a genuine issue of material fact that the defendant unit owners had possession or control of the parking lot, and thus owed a duty of care to the plaintiff.
CONCLUSION
For the foregoing reasons, judgment shall enter for the defendants, Six F’s II, Associates, LLC and S & R Ventures, LLC.
So ordered.