Blake v. Wilton Motiva Associates, LLC

• Decision Date: 07 July 2016
• Docket Number: FBTCV146041365S
• Court: Connecticut Superior Court
• Parties: Diane Blake v. Wilton Motiva Associates, LLC et al

Diane Blake v. Wilton Motiva Associates, LLC et al

No. FBTCV146041365S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

July 7, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Richard E. Arnold, Judge.

The defendant Wilton Motiva Associates, LLC (" Wilton") has filed a motion for summary judgment as to the first count of the plaintiff's four-count Revised Complaint, dated December 29, 2014. The first count alleges negligence as to this defendant, and the defendant claims there are no genuine issues of material fact that it did not owe any duty of care to the plaintiff because Wilton was not in possession or control of the premises where the incident occurred.^[1] Wilton, in support of its motion for summary judgment, has filed a memorandum of law, copies of various leases and subleases, sworn affidavits and certain interrogatory responses of the other defendant, Main Street Shell, LLC. The plaintiff has filed a memorandum of law in opposition. The plaintiff, in objecting, has also submitted excerpts from the subject lease documents and has additionally submitted a copy of the cross claim filed by Wilton against the co-defendant Main Street Shell. Wilton has filed a reply to the plaintiff's objection and the plaintiff has filed a supplemental objection. Main Street Shell has also filed an objection to Wilton's motion for summary judgment. Wilton has filed its reply to Main Street Shell's objection. The court heard the oral arguments of the parties on May 16, 2016.

The revised complaint, dated December 29, 2014, alleges that on or about July 7, 2012, the plaintiff slipped and fell on the premises located at 2613 Main Street, Bridgeport Connecticut. The plaintiff alleges she was caused to fall because the defendants Wilton and Main Street Shell created a dangerous and defective condition consisting of a gas storage tank cover that did not have a nonskid surface. The lack of the non-skid surface is alleged to be in violation of the Connecticut State Building Code. The plaintiff further alleges that the defendants failed to inspect, correct or remedy the dangerous and defective condition; failed to use reasonable care to maintain the area; failed to warn pedestrians of the defective and dangerous condition; and failed to provide a safe route between the plaintiff's motor vehicle and the gas pump, all of which caused her to slip and fall and to sustain serious injuries.

I Standard of Law

" A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp. supra, 245 Conn. 381. " The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. " A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).

" The party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Hryniewicz v. Wilson, 51 Conn.App. 440 at 443-44, 722 A.2d 288 (1999). " To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) § § 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Norse Systems, Inc. v Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).

The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law " when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, " issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, " [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." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997).

II Discussion

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. RK Constructors, Inc. v. Fusco Corp. 231 Conn. 381, 384, 650 A.2d 153 (1994). " Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). Although the determination of whether a duty exists is ordinarily a question of law; Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); although, under some circumstances, the question involves elements of both fact and law. Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000).

" The term 'owner' is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right . . . but also applies to a person who has possession and control . . ." (Citations omitted; internal quotation marks omitted.) Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972).^[2] " Liability for a claimed injury due to . . . defective premises depends on possession and control and not on title." Fernandez v. Estate of Ayers, 56 Conn.App. 332, 335, 742 A.2d 836 (2000). " 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." (Citation omitted.) Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969). " [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question." State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987). " Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury" for its determination. Darling v. Burrone Bros., Inc., 162 Conn. 187, 192, 292 A.2d 912 (1972).

Liability for injuries caused by defective premises, however, does not depend on who holds legal title, but rather on who has possession and control of the property. Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). Thus, the dispositive issue in deciding whether a duty exists is whether the landlord has any right to possession and control of the property. LaFlamme v. Dallessio, 261 Conn. 247, 252, 802 A.2d 63 (2002).

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 . . ." Gore v People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). " [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." (Internal quotation marks omitted.) Id. " 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...