Summary
In Domogala v. Molin, 57 Conn.App. 525, 749 A.2d 676 (2000), a plaintiff slipped and fell in a parking lot owned by the defendant.
Summary of this case from Friedman v. Lillian Aug. DesignsOpinion
(AC 17940)
The named defendant property owner appealed to this court from the judgment of the trial court rendered on a directed verdict in favor of the third party defendant, T, in the plaintiff's action for injuries he sustained in a fall in a parking lot of a commercial building in which T was a tenant. Held that conflicting evidence having been introduced on the question of whether T had been in control of the property on the date of the plaintiff's fall, the trial court improperly directed a verdict in favor of T; the evidence presented warranted full consideration by the jury.
Argued March 2, 2000
Officially released May 2, 2000
Action to recover damages for personal injuries sustained by the plaintiff as a result of the defendant's alleged negligence, brought to the Superior Court in the judicial district of Fairfield, where the defendant filed a complaint against the third party defendant; thereafter, the matter was tried to the jury before Skolnick, J.; verdict for the plaintiff against the defendant and directed verdict in favor of the third party defendant; subsequently, the court denied the defendant's motions to set aside the verdict and for remittitur, and rendered judgment in accordance with the verdict, from which the defendant appealed to this court; thereafter, the appeal was withdrawn as against the plaintiff. Reversed in part; new trial.
Edward V. Walsh, with whom, on the brief, was Michael O. Connelly, for the appellant (defendant-third party plaintiff).
John A. Pinheiro, for the appellee (third party defendant).
Opinion
The defendant, Esther Molin, appeals from the judgment of the trial court granting the motion for a directed verdict filed by the third party defendant, Albert Testo. Although the defendant raises two issues on appeal, the dispositive issue is whether the court properly granted Testo's motion for a directed verdict. We reverse in part the judgment of the trial court.
The third party defendant failed to file a brief; the appeal was considered on the defendant's brief only. The term defendant in this opinion refers only to Esther Molin.
The jury returned a verdict for the plaintiff against the defendant for $630,669.69. The defendant moved to set aside the verdict and for a remittitur. Her motions were denied and she filed this appeal. As part of the appeal, the defendant claims that the court improperly (1) directed a verdict for the third party defendant and (2) excluded evidence purporting to show the third party defendant's criminal convictions. Because we agree with the defendant on her first claim, we do not reach the issue concerning the excluded evidence.
The plaintiff, Richard Domogala, who no longer is a party to this appeal, commenced an action for personal injuries allegedly sustained in a slip and fall in a parking lot of a commercial building owned by the defendant. The defendant filed a third party complaint, claiming that Testo, as a tenant of the property was responsible for maintenance of the building. The defendant alleged a breach of contract and sought indemnification. The trial court granted Testo's motion for a directed verdict on the third party complaint.
The defendant sought to withdraw the third party complaint against Testo, and Testo and the plaintiff objected to the defendant's oral motion. The trial court denied the defendant permission to withdraw the complaint against Testo and thereafter granted Testo's motion for a direct verdict.
On January 26, 1993, in the early afternoon, the plaintiff, accompanied by his wife, drove to the parking lot at the rear of 3606-3610 Main Street in Bridgeport for the purpose of visiting Testo, who owned the Connecticut Jewelry Exchange, one of the businesses on the premises. As the plaintiff stepped out of his motor vehicle, his foot slipped on ice, causing him to fall and slide forward on his back. His left foot slid into a wooden pallet, which had been frozen immovable in ice, causing his leg to fracture in two places. According to Testo's testimony, the water that froze forming the ice on which the plaintiff slipped had been deposited on the surface of the parking lot from a hose that extended through the basement doors to remove water from the basement.
Evidence presented revealed that the defendant had instituted a summary process action against Testo and served him with a notice to quit on January 11, 1993, that directed him to vacate the premises on or before January 25, 1993. The defendant also had indicated in a written communication that Testo had been in Florida since December 24, 1992, and responded in a recorded statement dated December 9, 1993, that Testo was "out of the premises by January 26." On the basis of that evidence, the court granted Testo's motion for a directed verdict.
"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. Glucksman v. Walters, 38 Conn. App. 140, 143, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995). In reviewing a trial court order directing a verdict, we consider all of the evidence and the reasonable inferences drawn therefrom in the light most favorable to the [nonmoving party]. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979)." Hunter v. Healey Car Truck Leasing, Inc., 41 Conn. App. 347, 348, 675 A.2d 919, cert. granted on other grounds, 238 Conn. 901, 677 A.2d 1375 (1996) (appeal dismissed December 18, 1996, certification improvidently granted).
Considering the evidence in this case in the light most favorable to the defendant, we conclude that there existed conflicting evidence that warranted full consideration by a jury. See id., 350. There was evidence that Testo was on the premises on January 26, 1993, and that he retained keys to his business and did not return them until February 1, 1993. Further, there was some evidence that Testo was responsible in January, 1993, for snow and ice removal on the premises, and that Testo had installed a sump pump in the basement of the premises. The plaintiff and Testo had a business relationship, and the plaintiff had come to say goodbye to Testo. There also was evidence that while the written lease between the defendant and Testo had been terminated, a month-to-month tenancy was in effect in January, 1993, between the parties, and Testo physically occupied the premises until January 28, 1993.
The responsibility for snow and ice removal rested on Testo in the original lease; whether Testo continued to assume this obligation through his actions and continued possession of the premises would be a question of fact for the trier of fact to determine.
In light of the evidence presented, the issue of control of the premises, a question of fact; see Smith v. Housing Authority, 144 Conn. 13, 16, 127 A.2d 45 (1956); was in conflict. The court therefore should not have concluded that a jury could not, without speculation, have returned a verdict for the defendant against Testo.