Opinion
HHDCV146054598S
11-22-2016
Ermel Vazquez v. Vanguard Real Estate Holdings, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#138)
ROBERT B. SHAPIRO, JUDGE
On October 17, 2016, the court heard oral argument concerning the defendant Vanguard Real Estate Holdings, LLC's (Vanguard) motion for summary judgment as to Count One of the complaint. After consideration of the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.
I
Background
In the plaintiff's complaint, he alleges that, on January 5, 2013, Vanguard owned, possessed, maintained and/or controlled a building and adjacent land at 1 National Drive, Windsor Locks, Connecticut. He also alleges that the premises contained an Enterprise Rental Car business.
He alleges that, on January 5, 2013, he was an employee of Enterprise at the premises and, when filling a rental car with gasoline and walking near the gasoline pumps he suddenly slipped and fell due to the snowy and/or icy conditions of the area, him to sustain personal injuries. He alleges that the occurrence was due to the negligence and carelessness of Vanguard, in one or more ways. See complaint, Count One, ¶ 4.
Vanguard presented an affidavit and a lease of the premises to CAMRAC, Inc., d/b/a Enterprise Rent-A-Car (lease).
The co-defendant Russo Lawn and Landscape, Inc. (Russo) filed papers in opposition to the motion (#143), which the plaintiff and intervening plaintiff, CAMRAC, LLC, joined and adopted. See ##144, 150. Additional references to the factual background are discussed below.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact is [a] fact that is significant or essential to the issue or the matter at hand . . . [A] material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Voris v. Middlesex Mut. Assur. Co., 297 Conn. 589, 601, 999 A.2d 741 (2010).
III
Discussion
Vanguard contends that it was not in possession and control of the premises on which the plaintiff was injured. In opposition, Russo argues that there are genuine issues of material fact in dispute as to whether Vanguard had possession or control so as to create a duty of care to the plaintiff and that Vanguard had a nondelegable duty to maintain the premises in a safe condition.
" A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury . . . Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached." (Citation omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015).
" 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 in repair any portion of the premises leased to and in the exclusive possession and control of the tenant . . . [S]ee also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him).
'Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . 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 . . . 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 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 . . . Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law." (Citations omitted; emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308-09, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
" The defendant's claim presents a question of contract interpretation because a lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts . . . The standard of review for the interpretation of a contract is well established . . . Ordinarily the parties' intent is a question of fact . . . Where a party's intent is expressed clearly and unambiguously in writing, however, the determination of what the parties intended . . . is a question of law . . . The intent of the parties as expressed in [writing] is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms.
" A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party's subjective perception of the terms . . . If the language of [a] contract is susceptible to more than one reasonable interpretation, [however] the contract is ambiguous . . . Such ambiguity permits the trial court's consideration of extrinsic evidence as to the conduct of the parties." (Citations omitted; internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622-23, 987 A.2d 1009 (2010).
" In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998).
In support of the motion, Vanguard submitted the affidavit of Kevin Kolstad, operations manager for Enterprise Holdings, Inc. In paragraph 9, he avers that the gas pump area of the leased premises, where the plaintiff allegedly was injured, is an exterior portion of the premises, located on a portion of the parking lot and vehicle access area.
The lease is unambiguous. Construing the lease as a whole, the court concludes that control of the area at issue is definitely expressed in the lease. See, Fiorelli v. Gorsky, supra, 120 Conn.App. 308-09.
The lease is dated in February 2008, and was amended as of August 1, 2009. In relevant part, Article 7 of the lease, page 2, provides that " Landlord will deliver the Premises to Tenant clean and free of debris, and Landlord warrants to Tenant that, as of the Commencement Date, the Premises will be free from defects and in good working order, condition, and repair. If it is determined that this warranty has been violated in any respect, then it will be the Landlord's obligation, after written notice from Tenant setting forth the nature of the violation, to correct the condition(s) constituting such violation promptly, at Landlord's sole cost and expense . . . If a repair is necessitated by the negligence or willful misconduct of Landlord or Landlord's employees, agents or contractors, such repair will be made by or for the account of Landlord at Landlord's expense. Otherwise, Tenant will keep the Premises and the building and other improvements on the Premises in good order, condition and repair and Tenant will maintain and make all repairs and replacements to: . . . (iv) all parking surfaces, sidewalks and points of access . . ." (Emphasis added.)
In Article 2, page 1, the Commencement Date is defined as the date on which the Tenant opens for business.
There is no allegation in Count One that the alleged snowy and/or icy conditions of which the plaintiff complains existed when the lease commenced. Similarly, no evidence has been presented to that effect. Landlord's warranty that the premises would be free from defects was subject to an express temporal limitation, " as of the Commencement Date." Contrary to Russo's argument, this language does not show that the Landlord was in control of repairing defects thereafter. In addition, there is no allegation or evidence that CAMRAC, the tenant, provided Vanguard with a notice of a warranty violation.
In addition, Russo argues that there is evidence that a defect in the canopy above the area of the plaintiff's fall may have contributed to the formation of ice in the area of the plaintiff's fall, citing photographs. Russo speculates that, if this defect existed at the time of the lease to CAMRAC, then, under the lease, Vanguard was in control and may have had an obligation to repair it. Speculation is not evidence that demonstrates the existence of a disputed factual issue. See Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 319-20.
The photographs presented are unauthenticated. " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). No affidavit was presented in opposition to the motion. See Practice Book § 17-46. The photographs may not be considered.
Likewise, Russo has not presented any evidence to show that negligence by Vanguard resulted in the need for repairs at the time of the alleged incident.
Russo also asserts that Vanguard's insurance obligations under the lease contemplated its retention of control over the maintenance and repair of the premises. Paragraph 10.2 of the lease, page 3, provides that " Landlord will maintain in full force and effect commercial general liability insurance, insuring Tenant and Landlord as their interests may appear, against any and all claims and demands for damage to property or injury to persons or loss of life arising out of or related to Landlord's activities on or maintenance and repair of the Premises with a combined single limit coverage of not less than $2,000,000."
A property owner's insurance obligation is insufficient to establish that the owner was in possession and control of the premises at the time of the alleged slip and fall. See Fernandez v. Estate of Ayers, 56 Conn.App. 332, 335-36, 742 A.2d 836 (2000).
Thus, at the time of the alleged incident, the lease obligated the tenant, not Vanguard, the landlord, to maintain the area where the plaintiff allegedly slipped and fell.
Similarly, since the lease provides that it was the tenant's obligation to maintain the premises, the landlord had no nondelegable duty to maintain the area where the plaintiff allegedly slipped and fell by removing snow and ice. " [A] property owner . . . is subject to being found vicariously liable . . . with respect to a nondelegable duty only if the property owner also has retained possession and control of the property." Sola v. Wal-Mart Stores, Inc., 152 Conn.App. 732, 744 n.10, 100 A.3d 864, cert. denied, 314 Conn. 941, 103 A.3d 165 (2014).
In the absence of possession and control, Vanguard owed no duty to the plaintiff. See Fiorelli v. Gorsky, supra, 120 Conn.App. 308-09.
Vanguard has met its burden to show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is granted. It is so ordered.