Opinion
No. CV04-5000083S
July 26, 2005
MEMORANDUM OF DECISION
The plaintiff, who rented a condominium unit, brought this action against the unit owner and the condominium association, claiming that she fell on ice and snow as a result of the defendants' negligence. The plaintiff alleges that she fell on the stairway of the premises. The condominium association (hereinafter, "association") moves for summary judgment on the grounds that it had no duty to the plaintiff.
The association argues that the area of the alleged fall is not a common area but a "limited common element." The condominium bylaws, attached as an exhibit to the motion, provide that each unit owner shall be responsible for removing all snow, leaves and debris from all stoops and stairs which are limited common elements appurtenant to his or her unit.
Section 2.17 of Article II of the Declaration defines "limited common elements" as "a portion of the common elements allocated by the Declaration or by the operation of Subsection (2) or (4) of Section 47-221 of the Act for the exclusive use of one or more but fewer than all of the Units."
Section 7.3 of Article VII provides, in relevant part: [E]ach Unit Owner shall be responsible for removing all snow, leaves and debris from all stoops and stairs which are Limited Common Elements appurtenant to his or her Unit. If any such Limited Common Element is appurtenant to two or more Units, the Unit Owners of those Units will be jointly responsible for such removal.
The plaintiff counters, in her affidavit, that it was her understanding that the condominium association was responsible for the removal of snow and ice from the parking lot, driveways and walkways of the condominium complex, including the stairs and landings leading to the individual condominium units. She states that she personally observed snow removal crews clearing snow and ice and applying sand and salt to the stairs and landings adjacent to her unit during the two years she lived in the unit prior to her fall.
DISCUSSION
"In considering a motion for summary judgment, the function of the court is to determine whether any material fact is in dispute, not to make factual findings . . ." See Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 522-23, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001)." Summary judgment is appropriate when "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." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); see also Practice Book § 17-49. Middlesex Mutual Assurance Co. v. Vaszil, 89 Conn.App. 482, 486, 873 P.2d 1030 (2005) ". . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). Lee v. Duncan, 88 Conn.App. 319, 323-24, 870 A.2d 1 (2005).
"In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail at trial, only evidence sufficient to raise issues of fact." (Citations omitted) Vaillancourt v. Latifi, 81 Conn.App. 541, fn.4, 840 A.2d 1209 (2004)
In the instant case, the association has demonstrated that the condominium declaration clearly places the responsibility for ice and snow removal from the limited common elements on the unit owners. The plaintiff's statement concerning the actual practices regarding snow removal raises an issue of fact as to whether the association acted in such a way as to justify a determination that it did indeed have a duty to remove the snow and ice from the limited common elements.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . First, it is necessary to determine the existence of a duty . . . 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 . . . Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless he shows that the defendant owed a duty to the plaintiff." (Internal quotation marks omitted; citations omitted.). Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).
"A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted; citation omitted.) Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004). In Sevigny v. Dibble Hollow Condo Assn., Inc., 76 Conn.App. 306, 323, 819 A.2d 844 (2003), the Connecticut Appellate considered the duty of a condominium association to be like that of a landlord: "In determining whether to impose a landlord's duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether the association conducts itself as would a landlord in the traditional landlord-tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally." Id. The test for a duty is whether the association, like a landlord, has control of the limited common elements. The association has not established an absence of a genuine material fact in this regard.
In light of the plaintiff's assertions, the court concludes that disputed issues of fact exist. The motion for summary judgment is denied.
GALLAGHER, J.