Opinion
No. CV04-5000017 S
May 14, 2007
MEMORANDUM OF DECISION
The plaintiff, Zorka Lerouska, brings this action sounding in negligence against First Union National Bank (First Union) and 60 North Main Holding, LLC (North Main). The plaintiff alleged that she was a customer of First Union National Bank on July 25, 2002, when she was caused to fall as she was entering the Bank at its 60 North Main Street, Waterbury, Connecticut location. She claims that the defendants failed to maintain the entrance area in a safe condition. North Main owns the building at 60 North Main Street, and leases space to a number of businesses, including First Union.
The complaint names two additional defendants who are not involved in this motion.
First Union moves for summary judgment as to the count against it on the ground that undisputed material facts establish that it did not own, posses, control or have the responsibility to maintain the area where the plaintiff fell.
DISCUSSION
"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.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "The courts hold the [summary judgment] 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
First Union filed a certified affidavit along with a copy of the lease agreement and two sets of North Main's responses to First Union's requests for admissions. The plaintiff and North Main filed uncertified deposition testimony from the plaintiff and the bank manager Honoree Goodson. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. "[T]he Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment . . . [The Appellate Court has] not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 3402 (1997). In the present case, First Union's submissions are certified and properly admissible. The documents submitted by the plaintiff and North Main are not certified; however, lacking any objection by First Union, they are also admissible.
"The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). "Summary judgment procedure [however] is . . . ill-adapted to negligence cages, where . . . the ultimate issue in contention involves a mixed question of fact and law . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
First Union contends that the lease between First Union and North Main conclusively shows that North Main had control of the area where the plaintiff fell. The plaintiff and North Main counter that there is a genuine issue of material fact as to which party had control of the area where the fall occurred, and that the lease agreement is not conclusive proof of control because the duty to safely maintain a place of business is non-delegable.
First Union submitted a certified affidavit along with a copy of the lease agreement and two sets of North Main's responses to First Union's requests for admissions. The affidavit introduces the lease and states that pursuant to the lease, First Union did not exercise control over the area of the fall, and that First Union did not have any responsibility to maintain or repair the area. In the admissions, North Main asserts that the mortgage holder controlled the common area. On the other hand, the plaintiff and North Main introduce the deposition of Honoree Goodson, First Union's head manager at the time of the accident. She testified that First Union had a department named Corporate Real Estate, which performed duties similar to a property management company to take care of maintenance issues. Further, First Union hired a security guard to monitor the area, including the spot where the plaintiff fell.
In Tarzia v. Great Atlantic and Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000), the plaintiff filed a negligence suit after he slipped and fell on a plastic bag in a parking lot. The lot was leased by the defendant in order for it to be used by its business invitees. The defendant moved for summary judgment on the grounds that its unambiguous lease and the statements of the landlord showed that the landlord controlled the parking lot. The defendant argued that since it did not control the parking lot, it owed no duty to the plaintiff to keep the lot safe. The Appellate Court disagreed. The court held that the terms of the lease cannot absolve the defendant of a non-delegable duty: "[The defendant cannot] absolve itself of its duty to its customers, who shop in its store and use the parking lot to gain entrance and exit from its store, to keep all of the premises it uses for its business purposes in a safe condition by contracting with another. As a matter of law, [the defendant] owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonable safe condition. Whether that duty was breached and whether there is a causal connection between the breach and the plaintiff's alleged injuries are questions of fact that a trial would resolve." (Citations omitted.) Tarzia v. Great Atlantic and Pacific Tea Co., supra, 52 Conn.App. 148-49.
Conclusion
Viewing the evidence in the light most favorable to the nonmoving parties, the court finds that there is a factual issue as to whether First Union had control of the area where the plaintiff fell. Accordingly, the motion for summary judgment is denied.