Williams v. Macky Two, LLC

• Decision Date: 06 April 2016
• Docket Number: MMXCV136009247
• Court: Connecticut Superior Court
• Parties: Mary I. Williams et al. v. Macky Two, LLC et al

Mary I. Williams et al. v. Macky Two, LLC et al

No. MMXCV136009247

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

April 6, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAIMS AND MOTION TO DISMISS APPORTIONMENT AND INDEMNIFICATION CLAIMS.

Julia L. Aurigemma, J.

The defendant, City of Middletown (" Middletown"), has moved to for summary judgment on the Second Count of the complaint dated September 17, 2013, and has moved to dismiss the Second Count of the apportionment complaint filed by the apportionment plaintiff/defendant, It's Only Natural Market, LLC (" Market") and the cross claim filed by the co-apportionment defendants, The Liberty Square, a Condominium Association and Liberty Square Owner's Association (" Liberty Square").

Middletown has provided a memorandum of law in support of its motions as well as the portions of the transcript of the deposition of the plaintiff, Mary I. Williams and the affidavit of Geen Thazhampallath, director of the Parking Department for the City of Middletown. The plaintiff, Market and Liberty Square have also provided memoranda of law. Market and Liberty Square have provided the aforementioned affidavit of Mr Thazhampallath, and Market has provided a copy of Parking Easement between defendant, Macky Two, LLC, and Middletown.

Facts

On September 4, 2012, the plaintiff parked her car in front of the Market, and began walking into that store when she tripped on a concrete tire stop and fell. Middletown is responsible for maintaining the parking lot on which the plaintiff fell. A certain Parking Easement, dated March 10 2008, between Macky Two, LLC and Middletown and recorded in Volume 1630, Page 641 of the Middletown Land Records provides, in pertinent part:

For valuable consideration, receipt of which is hereby acknowledged, MACKY TWO, LLC, a Connecticut limited liability company, acting herein through PETER A. HARDING, Member, duly authorized, hereinafter called Grantor, hereby grants to THE CITY OF MIDDLETOWN, a body politic with its territorial limits within the County of Middlesex and State of Connecticut, its successors and assigns, forever, hereafter called Grantee, the non-exclusive and perpetual easement and right to park on, and travel traverse and cross over, in common with the Grantor, the parking area as depicted on Schedule A attached hereto and made a part hereof (the " Easement Area"), comprising certain parking spaces associated with the development known as LIBERTY SQUARE and located at 575 Main Street, Middletown, Connecticut, for use by Grantee, its employees, agents, invitees and guests . .

The Grantee at its own cost and expense, shall maintain, repair, operate (including lighting and electricity for lighting), refurbish and replace (including capital items) the entire parking area, including parking spaces allocated to the Grantor, its tenant and visitors . . .

Emphasis added.

Discussion of the Law and Ruling

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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 589 (2003); Mytych v. May Dep't Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a 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. Practice Book § § 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995). Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). 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. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

" As a general rule, then, '[w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by . . . [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him.' (Footnote omitted.) Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980). 'Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial.' Great Country Bank v. Pastore, supra, 241 Conn. at 436, 696 A.2d 1254." Squeo v. The Norwalk Hospital Association, 316 Conn. 558, 594, 113 A.3d 932 (2015).

" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Id.

The defendant moves for summary judgment on the Second Count of the complaint on the ground that the negligence claim is barred by governmental immunity. The plaintiff, Market and Liberty Square argue that in obtaining a parking easement from Macky Two, LLC, Middletown was engaged in proprietary activity within the meaning of Connecticut General Statutes § 52-557n(a)(1)(B). " General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages."

(Footnote omitted.) Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).

Section 52-557n, provides in pertinent part

(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law .

Emphasis added.

In this case the plaintiff's allegations are based on Middletown's acts or omissions relating to the maintenance of the tire stops in the parking lot. Generally, " the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity. A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extend of inspections, maintenance and repairs." Grignano v. City of Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).

The plaintiff, Market and Liberty Square all argue that Middletown is not entitled to governmental immunity under § 52-557n(a)(1)(B) because Middletown derived a pecuniary interest out of maintaining the parking lot. They all rely on the case of Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006). In that case a restaurant patron brought a negligence action against the city, after he fell into a glass window panel in a common entryway of the clubhouse...