Kriz v. Coldwell Banker Real Estate

• Decision Date: 29 January 2002
• Docket Number: (AC 19745)
• Citation: Kriz v. Coldwell Banker Real Estate, 789 A.2d 1091, 67 Conn.App. 688 (Conn. App. 2002)
• Court: Connecticut Court of Appeals
• Parties: MARY KRIZ v. COLDWELL BANKER REAL ESTATE ET AL.

67 Conn. App. 688

789 A.2d 1091

MARY KRIZ v. COLDWELL BANKER REAL ESTATE ET AL.

(AC 19745)

Appellate Court of Connecticut.

Argued January 9, 2001.

Officially released January 29, 2002.

Schaller, Mihalakos and Hennessy, Js. James E. Coyne, with whom, on the brief, was Kevin S. Coyne, for the appellants (defendant Danforth Smith et al.).

Todd Thomas Trautz, for the appellee (plaintiff).

Kevin M. Tepas, with whom, on the brief, was Brock T. Dubin, for the appellee (named defendant).

Opinion

HENNESSY, J.

The defendants Danforth Smith and Deforest Smith (Smith defendants) appeal from the judgment, rendered after a jury trial, in favor of the plaintiff, Mary Kriz, after the trial court granted the motion for a directed verdict filed by the named defendant, Coldwell Banker Real Estate (Coldwell Banker). The Smith defendants claim that the trial court improperly (1) directed the verdict in favor of Coldwell Banker on the plaintiffs complaint and on their cross claim for apportionment, (2) admitted into evidence testimony concerning a prior accident, (3) admitted into evidence testimony concerning subsequent remedial measures and (4) charged the jury on the issues of control, notice, prior accident or occurrence and subsequent remedial measures. We reverse the trial court's judgment on the first claim, and, therefore, we need not review the remaining claims.

The jury reasonably could have found the following facts. On October 9, 1995, the plaintiff, a real estate agent, intended to show a client a residential property that was listed by Coldwell Banker. At approximately 6 p.m., the plaintiff obtained a key to the property from Coldwell Banker's Milford office. At approximately 7:20 p.m., the plaintiff went to Coldwell Banker's office to return the key. Prior to the plaintiffs return, a Coldwell Banker employee had turned off the exterior lights to the building. The plaintiff, however, thought that the Coldwell Banker office was still open because the interior lights were on when she drove into the parking lot. The Coldwell Banker employee was still in the office and, when the employee saw the plaintiff drive into the parking lot, the employee turned off the interior lights. The plaintiff left her car engine running and hurried to Coldwell Banker's door. By this time, the interior was dark. The Coldwell Banker employee stood inside in total darkness. As the plaintiff approached Coldwell Banker's door, she fell, hit her head on the door and was injured.

The plaintiff commenced an action against Coldwell Banker, the tenant of the premises, and the Smith defendants, the owners and landlords of the premises, claiming that each defendant negligently caused her injuries by failing (1) to turn on the lights to the walk area so that the condition of the stairs could be seen by the plaintiff, (2) to light the walk area adequately so as to make it safe, (3) to maintain an automated illumination of the exterior step, (4) to warn the plaintiff of the dangerous condition and (5) to inspect the step to ensure that it was safe for use. The plaintiff further claimed that the defendants maintained the entranceway step in a dangerous condition by carpeting the stairs with a dark color carpet and by using a low step riser and configuring the step in an unusual and unsafe manner. The Smith defendants and Coldwell Banker filed separate answers to the complaint denying the plaintiffs claims and alleging special defenses that the plaintiff failed (1) to keep a proper lookout, (2) to be inattentive to her surroundings, (3) to make proper use of her senses and faculties and (4) to exercise reasonable care for her own safety. The plaintiff denied each of these special defenses.

The Smith defendants brought a cross claim for apportionment against Coldwell Banker, claiming that Coldwell Banker's negligence and carelessness proximately caused the plaintiffs injuries.¹ After the evidence but before final arguments, Coldwell Banker moved for a directed verdict on the plaintiffs complaint and the Smith defendants' cross claim. The court granted Coldwell Banker's motion and concluded that there was insufficient evidence, as a matter of law, to prove the plaintiffs claims and the Smith defendants' cross claim against Coldwell Banker.² The court allowed the jury, however, to decide the plaintiffs action against the Smith defendants, which resulted in a jury verdict against them. This appeal followed.

The Smith defendants claim that the court improperly directed the verdict in favor of Coldwell Banker on the plaintiffs complaint and on their cross claim for apportionment. "Directed verdicts are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion." (Internal quotation marks omitted.) Domogala v. Molin, 57 Conn. App. 525, 527, 749 A.2d 676 (2000). "Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop & Shop Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002). "In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) Abramczyk v. Abbey, 64 Conn. App. 442, 447, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001).

I

The Smith defendants claim that the court improperly directed the verdict in favor of Coldwell Banker on the plaintiffs complaint as a matter of law.³ Specifically, the Smith defendants argue that the issue of who had exclusive possession and control over the lighting of the area where the plaintiff fell was a genuine issue of material fact to be decided by the jury. The Smith defendants' claim turns on whether the jury reasonably could have concluded that Coldwell Banker had exclusive possession and control of the light switch.

"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." Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).

We conclude that the court improperly concluded that Coldwell Banker was entitled to a directed verdict as a matter of law. By granting the motion for a directed verdict in favor of Coldwell Banker, the court improperly concluded that the jury reasonably could not have found that Coldwell Banker was in exclusive possession and control of the light switch. Here, the lease agreement provided that the Smith defendants retained control over the area outside of Coldwell Banker's leased premises. The lease agreement, however, failed to specify who had exclusive possession and control over the light switch that illuminated the common area. Exclusive possession and control of the light switch, which was located within Coldwell Banker's leased premises, was a disputed fact. Although the court admitted evidence that showed that the landlords had changed the lights to an automated system after the plaintiffs injuries occurred for the limited purpose of showing control, there was also evidence that showed that the light switch was within Coldwell Banker's premises and that Coldwell Banker's employee had turned the lights off at the time of the plaintiffs approach and immediately before her fall and injury. Viewing the evidence in a light most favorable to the plaintiff, we conclude that the jury reasonably could have found that Coldwell Banker had exclusive possession and control of the light switch.⁴ The trial court, therefore, improperly directed the verdict in favor of Coldwell Banker on the plaintiffs complaint.

Coldwell Banker argues that it had no duty to the plaintiff because, as a matter of law, the Smith defendants, as landlords, had the duty to maintain the common area, including the duty to provide for adequate illumination. We disagree. The general rule requires the use of reasonable care not to cause injury to those whom a person reasonably could foresee might be injured by the person's negligent conduct, whether that conduct consists of acts of...