Opinion
No. CV 10 6003437
January 28, 2011
MEMORANDUM OF DECISION ON DEFENDANT NORTON LANE PROPERTIES, INC.'S MOTION FOR SUMMARY JUDGMENT
When is a landowner like the defendant, Norton Lane Properties, Inc. (Norton Lane), liable for injuries suffered by a person like the plaintiff, Antonio Fabi, while using an easement granted by the landowner to another party like the defendant, Firm, LLC (Firm)? The answer turns on the degree of control retained by Norton Lane over the easement and the status of Mr. Fabi vis-a-vis Norton Lane while traversing the easement.
I
On May 31, 2007 Russell Hunter quitclaimed to Firm premises known as 772 Farmington Ave. in the town of Farmington, along with a right of way over a driveway owned by Norton Lane to the east of 772 Farmington Ave. for purposes of ingress and egress. Seven months later, on January 4, 2008, Mr. Fabi slipped and fell on snow or ice which had accumulated on this driveway. He was on the premises as an employee of Rogers Sash Door Co. (Rogers), which had been engaged by Firm to install windows in a building owned by Firm at 772 Farmington Ave. Mr. Fabi sued Firm, Norton Lane and the snow removal contractor hired by Firm (Trail's End) for damages he claims to have suffered as a result of his fall. Norton Lane has moved for summary judgment on count two of the complaint, the only count alleging liability on its part.
See exhibit C to Norton Lane's motion for summary judgment filed on July 21, 2010. While the connection of Russell Hunter to Norton Lane is not indicated by the instrument or in the parties' briefs, the court assumes that he was a person authorized to grant such an easement over land owned by Norton Lane.
Norton Lane filed its original motion for summary judgment on July 21, 2010 and a supplement to it on July 29, 2010. It filed its final iteration of the motion on September 27, 2010, incorporating both of its arguments, and that is the motion to which the court addresses this decision.
II
"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. 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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "The existence of a duty is a question of law and only 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.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006)
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
Norton Lane argues that the court should grant its motion for summary judgment on either of two grounds: (1) it did not control snow and ice removal for the portion of the driveway where Mr. Fabi fell; or (2) Mr. Fabi was a licensee as to Norton Lane and the applicable standard of care was not breached. Mr. Fabi responds by arguing that the relevant question is possession and control of the premises, not control over the removal of snow and ice. Specifically, he contends that Norton Lane had control and possession of the premises because: (1) the easement possessed by Firm is merely a right of way and does not, therefore, prevent Norton Lane from making use of the property, and (2) Norton Lane had assumed some responsibility for the maintenance and repair of the driveway in the deed conveying the easement to Firm.
In support of these arguments Norton Lane filed the following pieces of evidence: a picture of the driveway in which the alleged slip and fall occurred, excerpts from a deposition of the plaintiff, an affidavit from the owner of Norton Lane, Firm's response to certain requests for admissions, a transcript of a recorded interview of Bruce Hunter, a member of Firm, interrogatory responses by Firm dated May 7, 2010 and Norton Lane's own interrogatory responses dated April 1, 2010.
Mr. Fabi submitted no evidence in support of his arguments beyond that which was already contained within the record.
III
Norton Lane may not be held liable under a theory of premises liability unless it had possession and control of the premises at the time of the accident. It argues, in effect, that the actions taken by Firm in relation to clearing snow and ice demonstrate that Norton Lane is without possession and control and is therefore entitled to summary judgment. This argument fails because of the presence of evidence indicating that Norton Lane assumed the major responsibility for maintenance and repair of the driveway, which would include snow removal, and that Norton Lane retained some right to use the underlying land for its own benefit.
"In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows . . . Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property . . . Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property." (Citations omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002).
"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 . . . The question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . 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." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54, 857 A.2d 439 (2004).
Norton Lane has submitted evidence that Firm had, through its agents, generally removed snow and ice from the property on which Mr. Fabi fell. It has also submitted evidence that Firm contracted with Trail's End to remove snow and ice when requested by Firm. Although such evidence might persuade the trier of fact that Norton Lane was without the right to "manage, superintend, direct or oversee" the premises, it does not compel that conclusion or establish it as a matter of law. The language of the deed conveying the easement requires Firm to pay only "a one-third share of the expense of maintaining and keeping [the easement] in good and reasonable state of repair," necessarily implying that Norton Lane retained the responsibility, and, therefore, the right, to arrange for maintenance and repair, including snow removal. Mr. Fabi is also correct in his conclusion that, although the presence of an easement restricts use of the underlying land by Norton Lane in some respects, it retains the right to enter the land for its own purposes. The language of the grant of the right of way states its purpose as "for ingress and egress" only, demonstrating that Firm does not have exclusive use of or control over the property. Examining the evidence in the light most favorable to the nonmoving party, fair minds could reach different conclusions regarding the question of control. Consequently, Norton Lane has failed to carry its burden, and the motion for summary judgment may not be granted on this ground.
"The servient owner has, [however], all the rights and benefits of ownership consistent with the easement . . . the right to use the land remains in [him], without any express reservation to that effect, so far as such right does not conflict with the purpose and character of the easement." Douton v. Norris, Superior Court, judicial district of New London, Docket No. CV 03 0566914 (January 12, 2005).
In a memorandum of law in support of his objection to the motion for summary judgment Mr. Fabi asserts that the driveway over which Firm has a right of way continues on to 1 Norton Lane, a building owned by Norton Lane. Plaintiff's Memorandum of Law in Support of Objection, 1. That assertion is not contradicted by anything in Norton Lane's submissions in support of its motion.
IV
Even if Norton Lane had possession and control of the premises and a duty to exercise care, it would nonetheless be entitled to summary judgment if it could establish, as a matter of law, that it had met the standard of care applicable to Mr. Fabi while he was on the property. In this regard, Norton Lane argues that Mr. Fabi, a business invitee as to Firm, was a mere licensee in relation to Norton Lane.
When Norton Lane added this argument as an additional ground for summary judgment, in its motion of September 27, 2010, Mr. Fabi made no reply, seeming to abandon the field to Norton Lane on this issue. The court, however, is obligated to make its own determination whether a party is entitled to judgment before granting a motion for summary judgment.
As a threshold matter, it is necessary to determine if Norton Lane, as the owner of a servient estate, owes any duty to individuals using the easement at Firm's behest. Neither the Appellate Court nor the Supreme Court has clarified the manner in which our law of premises liability is applied in relation to the owner of a servient estate when a third party is injured upon an easement. In McMellon v. Ball and Socket Liquidating Trust, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0259574 (April 20, 2001) ( 29 Conn. L. Rptr. 681) however, the court addressed the liability of the owner of an easement. The court stated: "Ordinarily the owner of a servient estate is under no obligation to make repairs; the duty is upon the one who enjoys the easement to keep it in proper condition, and, if he fails to do so and injury to third persons results, he alone is liable . . . It would be illogical to make the owner of the easement responsible for damage to the servient estate which results from improper maintenance of the easement while at the same time making the owner of the servient estate responsible for damage to third parties which results from improper maintenance of the easement." Id.
This conclusion, however, would not logically extend to cases in which the parties have agreed to share the costs of maintaining and repairing the easement. ". . . Connecticut law . . . [is] clear that, as between the owner of an easement and the owner of the servient estate, the owner of the easement is responsible for maintaining the land over which the easement runs, unless the parties have agreed otherwise." (Emphasis added.) Id. See also Esposito v. Toys "R" Us, Superior Court, judicial district of New Haven, Docket No. 382699 (December 26, 1997) ("While the duty to maintain an easement is with the owner of the easement . . . the rule is otherwise where the owner of the servient estate has agreed to maintain the easement"). Moreover, it does not extend to cases in which the use of the easement is shared by both parties. Sutera v. Go Jokir, Inc., 86 F.3d 298, 304 (2nd Cir. 1995) ("[W]here an easement gives the dominant owner a non-exclusive right-of-way over a certain part of the servient property, both the dominant and servient owners use that part of the property as a road, and a third party is injured by a dangerous condition in the road. In such a case, both owners appear to owe a duty").
The evidence in the record demonstrates that Norton Lane shares the expense of maintaining and repairing the driveway with Firm, pursuant to the quitclaim deed. Moreover, Norton Lane has submitted no evidence indicating that Firm possessed a right to the exclusive use of the easement, and there is evidence to the contrary. Consequently, Norton Lane is not absolved from any duty of care to Mr. Fabi merely because it is the owner of the servient estate.
Assuming that some duty is owed, the nature of that duty must be determined by an examination of the circumstances surrounding the relationship among the parties.
This court views the liability of the grantor of a non-exclusive easement who retains some control over the granted right of way as analogous to that of a landlord who reserves control over the common areas of leased premises. Since early in the twentieth century it has been the law of this state that the "obligation of the landlord [to use reasonable care to keep those common areas reasonably safe] extends also to all those who have lawful occasion to visit the tenants for social or business purposes. A right of ingress and egress for all such persons is essential not merely to the enjoyment of the rented premises by the tenants but also to the renting of them by the landlord; it is part of that for the use of which he is paid, and it exists for the mutual benefit of landlord and tenants alike." Reardon v. Shimelman, 102 Conn. 383, 386 (1925). "(I)t is no defense that someone else is charged by [the landlord] with, or assumes the performance of, that duty, if it not be performed." Id. Accord: Smith v. Greenwich, 278 Conn. 428, 456 (2006). Cf. Gazo v. Stamford, 255 Conn. 245 (2001).
This duty of the landlord to the tenant's invitees is based on the business relationship between landlord and tenant and the mutual benefit accruing to them as a result of the invitees having safe access to the premises. There is evidence here of the same type of mutual benefit. Norton Lane reaped an economic benefit from the sale of the easement, itself, and from Firm's obligation to reimburse it for one-third of the expense of maintenance and repair of the easement. Thus, it is reasonable to apply the same principles as govern the liability of landlords to their tenant's invitees to deciding the standard of care owed by the grantor of a non-exclusive right of way to a business invitee of its grantee.
Based on these principles of law, and because there is no dispute that Mr. Fabi was a business invitee of Firm's, the court holds that Mr. Fabi was a business invitee of Norton Lane, and that he was owed the duty of care applicable to such an invitee. "Under the common law, a possessor of land owes an invitee two separate duties: the duty to inspect and maintain the premises to render them reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be expected to discover." Gargano v. Azpiri, supra, 110 Conn.App. 510. Whether Norton Lane met its duty to keep the easement reasonably safe for invitees like Mr. Fabi will be a question for the jury.
V
The motion of the defendant Norton Lane for summary judgment is DENIED.