Opinion
No. CV06-5007408-S
August 24, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF'S COMPLAINT BY JOSEPH MULCAHY
This case involves a suit for personal injuries by the plaintiff who claims he slipped and fell in a parking lot in West Haven on January 25, 2005. At the time of the incident the plaintiff was an employee of Genalco, Inc. and Genalco was a commercial tenant on the property. The plaintiff brought a negligence action against Joseph P. Mulcahy (Mulcahy) the owner of the property and Pereira Sons Construction, Inc. a snow removal contractor. The defendant Mulcahy has now brought a motion for summary judgment to which the plaintiff objects.
The standards to be applied in reviewing a motion for summary judgment are well known. If a disputed issue of material fact exists on which granting the motion depends the motion should not be granted since a litigant has a constitutional right to a jury trial. However, if no issue of material fact exists to prevent the granting of such a motion it should be granted to avoid the burden and expense of litigation that would otherwise be placed upon the parties.
In support of its motion the defendant Mulcahy has attached his affidavit as well as that of Robert Bartley who is a co-owner of the premises. Both affidavits state these men purchased the property in 2000 and "Genalco, Inc. was leasing the premises under the terms and conditions of a lease agreement effective March 1, 1993." They "decided to continue leasing the premises to Genalco, Inc. by utilizing the lease agreement effective March 1, 1993." They do not appear to claim that the written lease was in effect on the date of the accident. The affidavits assert the continuation of the lease "was by oral agreement with Genalco, Inc." Both affidavits then make the blanket assertion that "The lease agreement along with all of its terms and conditions was in effect on January 25, 2005" (the date of the accident). Reading the paragraphs of the affidavit together it can be said that the defendant Mr. Mulcahy claims an oral lease agreement was in effect between the parties on the date of the accident which in effect incorporated all the terms of the written lease which by its terms was no longer operative qua written lease. In support of its motion the defendant Mulcahy attaches the written lease whose terms, it is alleged, were in effect in the oral lease.
The plaintiff spends much time in its brief opposing the Mulcahy motion in arguing that the written lease was not renewed by its own terms and therefore was not operative at the time of the accident. He is clearly correct in asserting that Section 19 of the written lease was not complied with which permits a renewal of the written lease; even if it was, the "second lease would have expired in February 2003 and there was no evidence of a third lease." All of this is true. The plaintiff does recognize that the defendant may be arguing that an oral lease between Mulcahy — Bartley and Genalco incorporated all the terms of the written lease but to make this argument he states two requirements are necessary. Mulcahy must have intended to have the terms of the written lease to apply to the oral lease and Genalco must also have so intended. Basic contract law dictates that the terms of a contract are to be determined from the intent of the parties, the plaintiff cites Amwax Corp. v. Chadwick, 28 Conn.App. 739, 741-42 (1992). The plaintiff contends here that no evidence has been offered to show an intention by these parties — Mulcahy and Genalco — that the terms of any oral lease incorporated the terms of an admittedly expired written lease.
But the Mulcahy affidavit makes a relevant statement in this regard where in paragraph 4 he states: "I am also the President of Genalco, Inc. and have been so since 1989." A written lease existed since March 1, 1993 and when he and Bartley acquired the property, Genalco, of which he was then the president, was still renting under that lease. As joint owner of the subject premises and lessor, Mulcahy would appear qualified to assert the lessor's intention to incorporate the terms of the written lease into an oral agreement to lease with Genalco. And as president of Genalco he would appear to have established the necessary foundation to assert Genalco agreed to and intended to agree to the same terms for the oral lease.
Or to move from an abstract to a common sense analysis, from the foregoing it can be concluded that given Mulcahy's uncontroverted assertion it can be assumed that each of these respective parties acted with or conducted themselves concerning this subject property as if the written lease, though not formally in effect, defined their contractual relationship by way of an oral lease.
In addition to statements about the lease the affidavits of Mr. Mulcahy and Bartley also assert facts which are not directly connected to the terms of the lease but which claim to set forth their lack of involvement with parking lot maintenance and particularly snow and ice removal, thus evidencing an absence of control.
The court will now try to set forth the law which governs whether under the circumstances of this case the landlord, Mulcahy, should be held liable for any injuries allegedly suffered by the plaintiff as the result of his slipping on snow and ice in the parking lot. The basic argument of the defendant Mulcahy is that summary judgment should enter in his favor since he "was not in control or possession of the area where the plaintiff was allegedly injured? — i.e., the parking lot.
Connecticut law comports with the general law in this area, see G2 Am.Jur.2d. "Premises Liability, Sections 13-17, pp. 379-84; Restatement (2d) Torts, Sections 355 et seq. In LaFlamme v. Dallessio, 261 Conn. 247, 256-57 (2002) the court summed up the law by referring to the language of earlier cases. The court said:
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 . . ." ([L] andlords [however] generally [do] not have a duty to keep n repair any portion of the premises leased to and in the exclusive possession and control of the tenant.) 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. 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. In other words, 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.
cf. Smith v. Housing Authority, 144 Conn. 13, 16 (1956), Mack v. Clinch, 166 Conn. 295, 296 (1974), see also Martel v. Malone, 138 Conn. 385, 390 (1951) and more recent case of Kriz v. Coldwell Banker Real Estate, 67 Conn.App. 688, 693-94 (2002). Panaroni v. Johnson, 158 Conn. 92 (1969) is often cited in our cases and it succinctly states the law. At page 98 the court says
"Unless 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 tenant, and it becomes a question of fact and is a matter of intention in light of all the significant and attendant facts which bear on the issue," quoted also in Kriz case supra at 67 Conn.App. page 693.
What is somewhat unusual in this case, is that because of the language of the lease there is an issue as to whether or not the parking lot area was part of the "Leased Premises" which are the specific subject of the lease. If it is not, then the tenant presumably would have had permission to use the parking lot area but that particular area of the property owned by the landlord would not have been subject to any formal lease agreement between the parties and the landlord would certainly seem to have retained possession and control of the parking lot area which he owns. From that perspective the true reach of the cases just discussed is not relevant just for deciding whether from the terms of the lease, the landlord has retained control of the premises or a portion thereof but also whether, the lessee can be said to be in possession of a particular portion of the premises it or its customers uses. In other words if a portion of the premises was not definitely included in the terms of the lease as part of the leased premises between tenant and landlord, as to that portion a question of material fact at the very least, is raised as to whether the landlord intended to retain exclusive possession or control — why else was it not included in the lease.
This is especially so if the actual lease terms impose various requirements on a tenant regarding the portion of the premises that are "leased" by the terms of the lease but say nothing regarding any repair etc., obligation as to the portion of the premises not "leased" under the agreement but which common sensically the tenant would appear to have a right to use or here have customers use. In any event relying on the foregoing the court will try to analyze the lease.
(a)
As a first step in the analysis then it is certainly true that the terms of this lease are highly relevant in this suit against the landlord; such terms have a bearing on whether in fact the landlord was in possession and control of the premises he owned and rented or any portion of it, Smith v. Housing Authority, 144 Conn. at pp. 16-17; see also Rogers v. Great Atlantic and Pacific Tea Co., 148 Conn. 104, 106-08 (1961) where court analyzed a lease and determined that "by virtue of the lease the defendant (lessee) was in possession and had exclusive control of the walk where plaintiff fell," therefore court concluded defendant lessee was liable to a business invitee to whom it owed a duty of reasonable care because of its possession and control, id. Page 108.
What does the lease say here? Does it have definitive language as to what premises were leased or as to which party was in possession and control of the parking lot area where the plaintiff alleges that he fell? As noted the written lease was not in effect qua written lease at the time of the accident but the court has concluded that the court can refer to its terms to define the ambit and terms or understandings of the parties with respect to the oral lease.
Section I of the lease says that the lease is of "the premises known as 44 West Clark Street, West Haven, Connecticut, consisting of a 6370 square foot building, situated on premises more particularly described on Schedule A attached hereto, hereinafter referred to as 'Leased Premises.' " Schedule A refers to "all that certain piece or parcel of land, with the buildings and all other improvements thereon situated in the Town of West Haven known as 44 West Clark Street . . ." The foregoing is not a model of clarity given the issue of control of the parking lot area. Section I can certainly be read to refer solely to the building as the premises that is being leased. Schedule A refers to more than just the building but land on which the building is located presumably including the parking lot but it is confusing whether the "hereinafter" clause in Section I which refers to the "leased premises" is meant to apply to only the "building" mentioned in Section I or the premises as defined in Schedule A which would include the building and the land on which it was located and which encompass the parking lot area.
Section IV(f), if only to the court, adds to the confusion. It reads:
f. Rubbish and Vermin The tenant agrees to keep all rubbish in closed containers and to keep the area to the rear, front, and side of the Leased Premises free from boxes, cartons, and rubbish. The tenant further agrees to keep the leased premises free and clear of all vermin.
If read strictly this language would seem to indicate that the "Leased Premises" would only be the building; presumably any cartons left on the " side of the Leased Premises" envisages that side as a distinct area from the Leased Premises and not a part thereof but the side of the building would certainly appear to be a part of the entire premises referred to in Schedule A. If the side of the building is not part of the leased premises how can the parking lot be — does one skip over the side area to reach the parking lot which then is under the landlord's control?
Section VI states the parties agree that the landlord has not made nor has the tenant relied on an representations, warranties or promises "with respect to the physical condition of the Buildings, the Land or the Leased Premises," (emphasis by court). Again the land area on which presumably the parking lot would be situated is posited as distinct from the "Leased Premises" which by a process of deduction would only be the building.
The defendant Mulcahy in its brief points to Section VI(c) of the lease to support its position that the tenant had exclusive possession and control of the parking lot area and makes the following quotation from subsection C: "the tenant shall keep the leased premises . . . clean and in good condition (reasonable wear and tear excepted) and shall make any and all repairs and replacements whatsoever necessary to maintain the leased premises in good condition." But again the argument, at least to the court, fails because it does not deal with the necessary predicate to the argument — what are the leased premises. Also the language is suspect from another point of view insofar as it is being used to support the inference that the leased premises included the parking lot area and not just the building. There is no mention of snow and ice removal or the responsibilities for such activity; keeping premises in "good condition" as implying responsibility for snow and ice removal does not leap to the mind as an obvious reference. We live after all in the Northeast where snow and ice removal would be a concern as regards allocation of responsibilities between parties entering into a lease arrangement.
In fact the only mention of snow or ice is contained in subsection e of Section VI which appears to be concerned with ice or snow flowing or leaking "from any part of the Leased Premises which might cause damage to the property of the tenant or other person."
From the foregoing the court cannot conclude that the language of the lease which became part of the oral lease, definitively establishes that the parking lot area was considered by the parties to be part of the leased premises and thus whether the landlord meant to reserve that portion of the premises as referred to in Schedule A under his possession or control.
(b)
But the examination of the lease does not end the discussion. Next must be discussed whether apart from the lease the facts and circumstances of the case indicate it was the intention of the parties that the parking lot area was to be in the exclusive control and possession of the tenant, Genalco. Mr. Mulcahy and Mr. Bartley, besides offering their interpretation of the lease do say that they did not have any responsibility to care for and control the parking lot. It is said Genalco hired a snow removal service to maintain the lot free of ice and snow and Genalco paid this company, Pereira Sons Construction, Inc. But the documents to establish the latter point include only a 1997 letter confirming the company received monies for snow plowing services from 1986 through 1996. An invoice regarding that; an invoice for plowing services dated March 31, 2001 and a June 2001 check for the services. The accident happened here in January 2005, four snow seasons after the last evidence of snow removal at Genalco's request. As the plaintiff points out the court in Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2000) said: "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue." The court cannot conclude the conclusory statements by Mr. Mulcahy and Bartley as to acts showing actual control establish the absence of a material fact. All they may do is underline the possibility that both Mulcahy and Genalco may be liable to the plaintiff if the allegations are proven. Desy v. Dominicle et al, 1995 Ct.Sup 1398, CV 92-0516197. In any event the court denies the motion for summary judgment.