Opinion
No. CV-06-5004931-S
October 24, 2008
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT STEVEN S. TURGEON
The defendant, Steven J. Turgeon, has moved for summary judgment on the First Count of the Fourth Revised Complaint on the grounds that liability under that Count is based on Connecticut General Statutes § 47a-7(a) and he has no liability to the plaintiff under that statute.
Statement of Facts
The plaintiff claims damages as the result of a fire which occurred in Building #6 of the Pleasant Valley Condominiums on October 28, 2004. At the time of the fire, the plaintiff was a resident of Unit 5 in Building #6 and the defendant Turgeon was the owner of Unit 8 in Building #6. Turgeon was leasing that unit to Fanetta Craig. The plaintiff alleges that the cause of the fire was an electrical short originating in the unit owned by the defendant Turgeon.
The only claim of negligence against the defendant Turgeon in the First Count is contained in paragraph 12, which states that Turegon "was negligent and failed to comply with § 47a-7(a)(4) of the Connecticut General Statutes" in various ways.
Steven Turgeon has submitted an affidavit in which he avers that he was not aware and had no reasons to know of any purported defect in the heating element in either the baseboard or the heating system in Unit 8 and that at no time before the fire did he receive notice or complaint from anyone regarding the defective condition which the plaintiff claims caused the fire. More importantly for purposes of the present motion, Turgeon also avers that the plaintiff was not his tenant.
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 596 (2003); Mytych v. May Dept. 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. Stam, 224 Conn. 524, 530, cert. denied, 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).
Connecticut General Statutes § 47a-7(a)(4) provides:
(a) A landlord shall: . . . (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him.
The statute, however, concerns the obligations of a landlord to a tenant. It does not pertain to duties between a landlord and a third-party who is not a tenant, such as the plaintiff here. Pinette v. McLaughlin, 96 Conn. 769, 775-76, 901 A.2d 1269, cert. denied, 280 Conn. 929 (2006). In Pinette, the plaintiff brought a cause of action for injuries sustained after slipping and falling on a neighboring tenant's steps. In affirming the summary judgment in favor of the landlord, the Court examined the plaintiff's claim that the landlord's violation of § 47a-7(a)(2) offended public policy and served as a basis for a CUTPA claim. The Court did not find any CUTPA violation, concluding that the plaintiff was neither a tenant of the premises where the violation occurred nor a third-party beneficiary of the lease agreement regarding that premises, and, therefore, could not recover for a violation of § 47a-7.
The existence of a duty of care is an essential element of negligence . . . 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.
Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983).
Under the circumstances of this case the defendant may have a common-law duty to the plaintiff. However, the First Count, even when taken in a manner most favorable to the plaintiff, does not allege such duty, but only alleges that the defendant was negligent for a violation of § 47a-7(a), a statute which only pertains to the obligations of a landlord to his tenant. Since the plaintiff was not a tenant of the defendant, Steven Turgeon, § 47a-7(a) cannot form a basis of Turgeon's liability. Therefore, the motion for summary judgment with respect to the First Count is granted.