Baldwin v. Curtis

• Decision Date: 19 February 2008
• Docket Number: No. 27827.,27827.
• Citation: 939 A.2d 1249,105 Conn.App. 844
• Court: Connecticut Court of Appeals
• Parties: Shirley A. BALDWIN v. Ann S. CURTIS.

939 A.2d 1249

105 Conn.App. 844

Shirley A. BALDWIN v. Ann S. CURTIS.

No. 27827.

Appellate Court of Connecticut.

Argued September 20, 2007.

Decided February 19, 2008.

Joseph A. Marotti, with whom, on the brief, was Frank J. Kolb, Jr., East Haven, for the appellant (plaintiff).

Eric P. Smith, with whom, on the brief, was Donn A. Swift, New Haven, for the appellee (defendant).

FLYNN, C.J., and GRUENDEL and FOTI, Js.

GRUENDEL, J.

In this premises liability action, the plaintiff, Shirley A. Baldwin, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment in favor of the defendant, Ann S. Curtis. On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment in favor of the defendant. The plaintiff argues that a genuine issue of fact exists as to whether the defendant possessed and controlled a parking lot and, thus, owed the plaintiff a duty to exercise reasonable care in the maintenance of that parking lot. We conclude that a genuine issue of fact exists such that the motion for summary judgment should not have been granted in the defendant's favor. We therefore reverse the judgment of the trial court.

The pleadings, accompanying affidavits and other documentary evidence reveal the following undisputed facts. The defendant owns two adjacent properties in Branford, one at 65 South Main Street and one at 69 South Main Street.¹ The properties share a driveway that runs between them, and parking lots exist behind each of the properties. The plaintiff is a tenant at 65 South Main Street, and Sisk Brothers Funeral Home (Sisk) is a tenant at 69 South Main Street.

In January, 2005, the plaintiff commenced an action against the defendant, claiming that, in February, 2003, she slipped and fell on ice in the parking lot located behind 65 South Main Street as a direct and proximate result of the defendant's negligence. The defendant denied that she was negligent in the maintenance of the parking lot and, instead, claimed that the plaintiff was contributorily negligent. The defendant also filed both an apportionment complaint and a cross complaint against her tenant, Sisk, claiming that Sisk was responsible for the maintenance of both parking lots. In response, Sisk denied ever owing a duty to the plaintiff.

The defendant subsequently withdrew both the apportionment complaint and the cross complaint against Sisk, at which point Sisk was no longer a party to this action.

After withdrawing her claims against Sisk, the defendant filed a motion for summary judgment, claiming that "the plaintiff cannot establish a necessary element of her negligence claim—namely duty." The defendant asserted in her supporting memorandum of law that this was because "the plaintiff cannot establish that the defendant was the party in possession and control of the parking lot where the plaintiff allegedly fell." In support of her motion, the defendant attached two sworn affidavits. The plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment but offered no counteraffidavit or counter evidence to establish that the defendant possessed and controlled the parking lot.

After hearing oral argument and reviewing the pleadings and the aforementioned affidavits, the court granted the defendant's motion for summary judgment, finding that "in the absence of any counteraffidavit, there is no issue of material fact that the defendant was not in possession, and the motion is granted." The plaintiff filed motions for reargument and articulation. The court denied the motion for reargument but granted the motion for articulation. In its articulation, the court explained that it relied specifically on the defendant's affidavit, paragraph nine, in which she attested, "I was not in possession of either the parking lot or the premises at 65-69 S. Main Street in Branford at any point from July 1993 through the date of February 20, 2003." The court further stated that the "plaintiff, who had ample time to develop contrary evidence through discovery, neither countered these statements with evidence nor requested additional time to do so."

"The standard of review of a trial court's decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). "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." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). "Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." LaFlamme v. Dallessio, supra, at 250, 802 A.2d 63.

The plaintiff brought a negligence action against the defendant grounded in premises liability. "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. Dallessio, supra, 261 Conn. at 251, 802 A.2d 63. "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." (Citation omitted; internal quotation marks omitted.) Id., at 256-57, 802 A.2d 63; see 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). In light of the foregoing, the defendant filed a motion for summary judgment, claiming that she did not possess the parking lot and, as such, did not owe the plaintiff a duty. As the defendant was the moving party, it was the defendant's burden to demonstrate the absence of any genuine issue of material fact as to whose duty it was to maintain the parking lot in a reasonably safe condition. The defendant attached two sworn affidavits to her motion for summary judgment, one from the defendant and one from an agent of Sisk. Specifically, in her affidavit, she attested that she did not possess the parking lot and, therefore, did not owe the plaintiff a duty. Sisk's agent attested that Sisk maintained the parking lot. The plaintiff did not counter the affidavits. The question for this court to determine is whether, viewed in the light most favorable to the plaintiff, the affidavits provided sufficient evidence to demonstrate that the defendant did not possess and control the parking lot, and that, as a matter of law, the defendant was entitled to summary judgment.²

"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Rockwell v. Quintner, supra, 96 Conn.App. at 228-29, 899 A.2d 738. In the present case, the court rendered summary judgment in favor of the defendant on the basis of the defendant's affidavit, specifically paragraph nine, in which she attested to not possessing the parking lot where the plaintiff fell. The court further based its ruling on, the fact that the plaintiff did not counter the defendant's affidavit with evidence even though the plaintiff had ample opportunity to do so. "An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint.... It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Accordingly, [w]hen 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." (Citations omitted; internal quotation marks omitted.) Id., at 229-30, 899 A.2d 738.

In the present case, the defendant attached two affidavits in support of her motion for summary judgment. In her affidavit, the defendant attested that she did not possess the parking lot. In addition, she attested that Sisk maintained the parking lot. The defendant did not, however, attest as to who possessed the parking lot, if she did not, and her ownership of the parking lot is undisputed. The second affidavit by Sisk's agent attested that Sisk maintained the parking lot. It did not allege that Sisk possessed or controlled the parking lot. Because the plaintiff allegedly fell in the...