Opinion
No. CV 04-0182761 S
February 28, 2005
MEMORANDUM OF DECISION
This matter is before the court on the defendant, Dots, LLC, dba Dots Clothing's motion for summary judgment, dated July 21, 2004. The defendant claims that since it was not in possession or control of the allegedly defective premises at the time of the incident, it is not liable for plaintiff's injuries and is entitled to summary judgment.
The plaintiff, Beverly Bullard, filed a nine-count complaint dated December 20, 2003, against numerous defendants. She maintains that the defendant, DOTS, Inc. (DOTS) is liable in negligence for injuries she sustained while walking outside of the DOTS clothing store where she fell down after apparently tripping over a hole in the sidewalk.
DOTS filed a motion for summary judgment on the grounds that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. DOTS argues that based on its tenancy agreement with K Five they have no responsibility or liability with respect to the sidewalk in front of their store where Bullard allegedly tripped. DOTS points to § 4.01 of the lease entitled "Control of Common Areas by Landlord," arguing that it clearly states that the sidewalk is the sole responsibility of K Five. Bullard argues that under § 9.01(g) of the lease listed under the section entitled "Rules and Regulations," DOTS is required to remove snow, ice and rubbish from the sidewalk and that this requirement created an implied duty to inspect and, therefore, report hazardous sidewalk conditions. Bullard essentially argues that read as a whole the lease creates a system of dual control of the sidewalk area in front of DOTS. As required by Practice Book § 11-10, DOTS has filed a memorandum of law in support of its motion for summary judgment along with an uncertified copy of the lease agreement between DOTS and K Five, and Bullard has timely filed a memorandum of law in opposition.
"[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." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 523 A.2d 1221 (2003). "[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "The judgment sought 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." Practice Book § 17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004).
Ultimately, the issue of liability turns on whether "the lease, written as a whole, definitely or expressly resolves the issue of control . . . Liability for an injury due to defective premises does not depend on title, but on possession and control." (Citations omitted; internal quotation marks omitted.) Oliver v. Health Rehab Prop., Superior Court, judicial district of New Haven, Docket No. CV 93 0351198 (June 26, 1997, Zoarski, J.T.R.). "[T]he control must relate to the condition and location of the injury." Windecker v. The Roscoe Family L.P., Superior Court, judicial district of New Britain, Docket No. CV 00 05040235 (June 14, 2002, Quinn, J.) ( 32 Conn. L. Rptr. 354). "Possession and control of leased premises are the linchpins of premises liability claims against lessors . . . Liability for injury due to defective premises does not depend on title, but on possession and control . . . It is the possession of land that imposes liability for injuries rather than the ownership of land . . . because the person in possession is in a position of control and is best able to prevent harm . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . However, whether control of the premises has been retained by a lessor is best determined by the intent of the parties as expressed in the terms of the lease . . . A lease is a contract and its construction presents a question of law for the court . . . As has also been noted, 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 . . . 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 . . . In considering control of the premises, one can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property, and the use of the premises." (Citations omitted; internal quotation marks omitted.) Moreno v. Rivera, Superior Court, judicial district of New Britain, Docket No. CV 02 0516715 S (June 8, 2004, Robinson, J.).
"In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible . . . Although ordinarily the question of contract interpretation being a question of the parties' intent is a question of fact . . . where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citations omitted; internal quotation marks omitted.) Meyhoefer v. Tatoian, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176971 S (July 1, 2004, Matasavage, J.) ( 37 Conn. L. Rptr. 319). "More than one entity can be in control of a premises at the same time, and thus responsibility for injuries upon the premises may be shared by more than one entity." Gardner v. Ralph and Rich's Inc., Superior Court, judicial district of Fairfield, Docket No. 385057 (July 19, 2004, Levin, J.).
The defendants, in their memorandum of law in support, cite § 4.01; "Control of Common Areas by the Landlord," of the lease agreement, which states in pertinent part, "All automobile parking areas . . . pedestrian sidewalks and ramps . . . shall at all times be subject to the exclusive control and management of [the] Landlord." The language of the lease agreement plainly and unambiguously indicates the intent of DOTS and K Five when they entered into their lease agreement in regard to possession and control of common areas, which includes the sidewalk upon which Bullard allegedly tripped.
Bullard also asserts in her memorandum of law, citing § 5.02(a) of the lease agreement, that "the Landlord's responsibility under the lease to make repairs does not appear to include the duty to maintain in proper conditions the `sidewalks and entranceways adjacent and contiguous to the leased premises.'" This assertion is a misreading of the contract provision, which appears under the article titled "Maintenance of Common Areas." The lease states in pertinent part that, "[t]he costs and expenses of which Tenant will pay a pro rata share will be all costs and expenses . . . incurred by Landlord in operating, cleaning, signing, painting, protecting, equipping, lighting, repairing, replacing . . . and maintaining all common areas . . . Such costs . . . shall include, without limitation: cleaning . . . repairing and replacing paving; keeping the common areas (except sidewalks and entranceways adjacent and contiguous to the Leased Premises) properly supervised, drained, reasonably free of snow, ice, rubbish and other obstructions in a neat, clean, orderly and sanitary condition . . . keeping the common areas suitably lighted." Based on a plain reading of this contract language, the intent of the parties was that K Five alone would be responsible for the repair and replacement of paving in common areas. The mention of DOTS' responsibility in adjacent and contiguous areas that follows the repair and replacement language, when read with regard to punctuation, only reiterates DOTS' responsibility, as indicated in § 9.01, to supervise the common areas adjacent to its leased premises to the extent that they be kept clean of snow, ice, dirt and rubbish and are not obstructed by merchandise.
Bullard's assertion that the lease agreement created a dual control for the area where the fall occurred and a duty on the part of DOTS to inspect and report on the condition of the pavement is not supported by case law. She cites Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136 (1999), where the plaintiff sued Waldbaum's grocery store for injuries he sustained when he slipped on a plastic bag in the store's leased parking area. Waldbaum's unsuccessfully argued that they owed the plaintiff no duty and could, therefore, not be found liable because they had contracted with a third party whose responsibility it was to keep the premises in a safe condition, thus relinquishing all control of the parking area. The court was not persuaded and held that, "the defendant argues that it owes no duty of care to the plaintiff because the defendant delegated that duty and control of the leased parking lot to the third party defendant. The plaintiff was present in the parking lot as a business invitee of the defendant, having alleged that immediately preceding his fall, he had bought groceries in the defendant's store . . . The possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition." Id. The present case is distinguishable from Tarzia because in that case the parking lot was part of the leased premises and apparently used exclusively by Waldbaums customers, while in this case the sidewalk was part of a common area used by customers going to all of the shopping plaza's shops, not just that of DOTS. In Tarzia the parking lot was leased along with the store premises, in this case the lease was only for the DOTS store premises. The lease agreement between K Five and DOTS states in § 1.01 that the leased premises "contain approximately . . . square feet of the ground floor area . . . `Floor Area' shall be measured from exterior faces of exterior walls and from the center lines of party or partition walls." While DOTS, along with other tenants, is permitted to use and occupy the common areas according to § 1.02, these areas are apparently not part of the "leased premises."
The rationale of Tarzia would be illogical if applied in the present case because it would render all of the shops in the plaza potentially liable for pavement conditions on the portions of sidewalk abutting every other shop in the plaza, as well as the entire parking lot. If the logic of Tarzia is applied, where a pedestrian parked at one end of the plaza and walked along the common sidewalk to the far end of the plaza, each and every shop along the way would be liable for any sidewalk defect in front of any other store because a pedestrian might have to use that portion of sidewalk to reach their shop. The idea behind Tarzia is that a lessee cannot contract away the duty to keep its leased premises in safe condition. In the type of shopping center in the present case it is not realistic for a number of independent tenants to monitor all of the common areas shared by all of the tenants, including "employees' parking areas, service roads, loading facilities, sidewalks and customer car parking areas." The shops in the plaza here have not attempted to "contract away" their duty, they have not assumed the duty to begin with because they have not individually leased the common areas abutting their shops.
DOTS has met its burden of showing the absence of any genuine issue of material fact regarding control of the common areas and Bullard has not sufficiently raised such an issue. Therefore, for the above reasons, the motion for summary judgment is granted.
Matasavage, J.