Summary
holding that broker and listing agent were not possessors or occupiers of property and had no duty to warn when listing agreement provided that the listing broker was "not responsible for the maintenance, management or upkeep of" the listed property, and when defendants were not present at the time of plaintiff's accident during showing
Summary of this case from Kidd v. Metro Brokers, Inc.Opinion
FBTCV146046621S
09-27-2016
Kiara Lopez v. JP Morgan Chase Bank et al
September 28, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON SUMMARY JUDGMENT
Edward T. Krumeich, J.
Defendants Dianne Camella and Right Choice Real Estate, LLC d/b/a Remax Right Choice (" defendants") have moved for summary judgment to dismiss the counts alleged against them by plaintiffs on the ground that as listing real estate agent they owed no legal duty to plaintiff Kiara Lopez, who was injured by reason of a defective stair from an outside deck while visiting a property listed by defendants, and to her husband on the derivative counts. For the reasons stated below, the motion is granted.
The Standards for Deciding a Motion for Summary Judgment
" 'The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001).
Defendants Were Not in Possession or Control of the Subject Premises
" The existence of a duty of care is a prerequisite to a finding of negligence . . . [T]he essential elements of a cause of action for negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614-15, 783 A.2d 462 (2001) (citations omitted). " The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." Waters v. Autuori, 236 Conn. 820, 827, 676 A.2d 357 (1996) (citations omitted).
In a premises liability case the duty to keep visitors safe from defective or dangerous conditions arises from defendant's possession and control of the premises. See Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 49, 58 A.3d 293 (2014). " 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." LaFlamme v. Dallessio, [261 Conn. 247, 802 A.2d 63] supra, 261 Conn. at 251, 802 A.2d 63 [2002]. 'Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . 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.' (Citation omitted; internal quotation marks omitted.) Mills v. The Solution, LLC, [138 Conn.App. 40, 50 A.3d 381] supra, 138 Conn.App. at 60, 50 A.3d 381 [2012]." Sweeney, 140 Conn.App. at 50-51.
Dianne Camella submitted an affidavit in which she averred that defendants were not the owners of the property, but " were merely the listing agent for the owner . . ." She also declared that defendants " never had any possessory interest or responsibility for maintenance of the . . . premises." No affidavit was submitted in opposition and plaintiffs failed to submit evidence to support the allegations in the complaint that defendants had a duty to maintain and repair the premises or that defendants had possession and control of the premises. The listing agreement appended to the motion specifically provides the listing broker is " not responsible for the maintenance, management or upkeep of" the listed property. Thus, there is no genuine issue of fact as to whether defendants possessed or controlled or maintained the premises, a prerequisite for a premises liability case. Compare, Polio v. First Niagra Bank, 2014 WL 5099211 *6 (Sup.Ct. CT 2014) (Nazzaro, J.) [58 Conn.L.Rptr. 929, ].
Defendants Had No Legal Duty to Inspect and Warn Invitees of Defects as Listing Broker
Plaintiff argues that defendants as listing broker had a duty to inspect the premises and warn about defects to protect prospective buyers from defective and dangerous conditions which presented a foreseeable risk of injury to invitees. Plaintiff invoked the two-prong test for determining whether a legal duty arises at common law:" . . . the test for the existence of the legal duty of care entails (1) a determination of whether a person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Ruiz v. Victory Properties, LLC, 135 Conn.App. 119, 124, 43 A.3d 186 (2012).
Plaintiff has not met her burden of rebutting defendants' proof that they were not negligent under the circumstances. As noted above, defendants did not possess, control or maintain the premises. The Camella Affidavit states defendants were not present at the time of plaintiff's accident and have " no actual knowledge of any defective condition on the property and had, and continue to have, no knowledge of the specific defect alleged to have existed in this lawsuit." Plaintiff has submitted no evidence to rebut defendants' assertion of lack of knowledge or evidence that would support an inference of constructive knowledge. On this ground alone plaintiff has failed to demonstrate a genuine issue of material fact.
Assuming plaintiff could have satisfied the first prong, I agree with the two opinions by Superior Court Judges who have examined the issue and concluded that real estate brokers, listing and selling, have no legal duty to invitees to keep them safe from defects in the listed property absent the broker's possession, custody and control the premises or a duty to maintain the premises. See Purcaro v. Angelicola, 2012 WL 3517614 **20-21 (Sup.Ct. CT 2012) [54 Conn.L.Rptr. 427, ], and Polio v. First Niagra Bank, 2014 WL 5099211 **5-6. In Purcaro Judge Trombley applied the four public policy factors identified by Judge Borden in Ruiz, 135 Conn.App. at 129, and concluded that as a matter of public policy " the imposition of a duty to inspect the listed premises and a duty to warn prospective buyers thereof all discoverable defects, whether known or unknown, latent or illusionary . . . would be inconsistent with public policy by creating additional expenses to all involved, adversely affecting the housing market and increasing litigation in our courts.", 2012 WL 3517614 *20. In Polio Judge Nazzaro agreed as a general matter with Judge Trombley that neither listing nor selling brokers owed a duty of care simply by marketing the premises for sale absent possession or control. 2014 WL 5099211 *5-6.
There being no genuine issue of material fact defendants' motion for summary judgment is granted.