Opinion
No. CV-08-5005061
June 26, 2009
MEMORANDUM OF DECISION
The defendant, Pershing Drive CVS, Inc. (CVS), moves for summary judgment on the second count of the plaintiff's amended complaint, claiming that there is no question of material fact that the defendant, Connecticut Commercial Investors Limited Liability Company (CCI),1 owned, possessed, controlled and maintained the area of the premises where the plaintiff allegedly fell and sustained injuries. In support of its motion, CVS relies on a lease agreement defining the demised premises as being exclusive of the parking area around it and making the landlord responsible for maintenance of the parking area. For the reasons more fully discussed herein, CVS's summary judgment motion is denied.
The plaintiff alleges in his complaint that he sustained personal injuries as a result of a fall during the morning of February 14, 2006 in the parking lot of the CVS store located on Pershing Drive in Ansonia, Connecticut.2 In his amended complaint, the plaintiff alleges that his fall and resulting injuries were caused by the defendants' negligence in allowing the parking area to become depressed and uneven, and to become slippery due to the accumulation of snow and ice. In the second count, the plaintiff claims that CVS "owned, operated, controlled, managed and/or possessed" the premises where the fall occurred, and was legally liable to him.
CVS has submitted a copy of the operative lease in support of its motion for summary judgment. The lease describes the demised premises as being the physical building and the space within it. In relevant part, the lease provides that "[t]he premises are leased together with the right in [CVS] . . . in connection with their business . . . to use, in common with others entitled thereto, (i) the areas dedicated from time to time for parking purposes by Landlord, for the parking of motor vehicles . . ." Specifically, concerning parking, the lease states that "[t]he Landlord agrees to maintain in good condition, paved, black topped and line painted, parking areas . . . to be used in connection with the cotenants of the Center . . . to maintain proper lighting facilities therefore, and to clean the same, all at its own cost and expense, which shall be available to [CVS], its customers and employees free of charge . . . CVS is responsible under the lease for paying its "pro rata share of the costs of maintaining and operating the parking area . . ."
CVS alleges that summary judgment should enter on the second count of the plaintiff's amended complaint because the plaintiff cannot establish that CVS owed him a duty of care. More particularly, CVS claims that it did not owe the plaintiff a duty of care because, under the lease, CCI, the landlord, and not CVS, the tenant, controlled and maintained the area of the parking lot where the plaintiff allegedly fell.
"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. Practice Book [§ 17-46] . . ." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119 (2009); Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
The plaintiff opposes the motion claiming that he was a business invitee to whom CVS owed a duty of care to keep the premises in a safe condition. He relies on Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000) in support of this position. In Tarzia, the plaintiff, a business invitee, commenced an action against the defendant, doing business as Waldbaum's Food Market, claiming damages for personal injuries allegedly caused by a slip and fall on a plastic bag in the parking lot. Id., 138. The plaintiff appealed from the trial court's decision granting summary judgment in favor of the defendant based on its claim that the landlord, Samuel Heyman, retained control of the parking area under the lease of the premises, and that therefore the defendant was not liable to the plaintiff. Id., 140. Thus, "[i]n essence, the defendant argue[d] that it owe[d] no duty of care to the plaintiff because the defendant delegated that duty and control of the leased parking lot to [Heyman]." Id., 148.
The Supreme Court found that the question to be decided was one of law, and stated the issue was "whether a tenant who has actual or constructive knowledge of a dangerous condition in a leased area, which the landlord has contractually agreed to maintain, may be liable to the tenant's invitees who use the leased area . . ." Id., 147. In reversing the trial court's granting of summary judgment in favor of the defendant, the Appellate Court stated as follows: "The plaintiff was present in the parking lot as a business invitee of the defendant, having alleged that immediately preceding his fall, he had bought groceries in the defendant's store . . . The possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition . . . Whether a duty was also owed to the plaintiff by the defendant's landlord, Heyman, is not the issue of this appeal.
The Court noted that "[t]he issue is not one of construction of the lease between Heyman and [the defendant], which would have been the issue to be resolved if we were deciding whether the defendant . . . should prevail on its complaint against . . . Heyman, in the event the plaintiff obtained a judgment against [the defendant]." Tarzia v. Great Atlantic Pacific Tea Co., supra, 52 Conn.App. 147-48.
"Waldhaum's could not 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, Waldbaum's owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably 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. Waldbaum's was not entitled to summary judgment." (Citations omitted.) Id., 148-49.
CVS attempts to distinguish the decision in Tarzia by claiming that, as opposed to the lease at issue in this action, the lease in Tarzia included the parking lot. The court disagrees and concludes that controlling legal principles espoused in the Tarzia case are applicable to the present action. The lease presently at issue expressly provides that "[t]he premises are leased together with the right in [CVS] . . . in connection with their business . . . to use . . . the areas . . . for parking" designated by the defendant. (Emphasis added.) For purposes of determining whether CVS owed a duty of care to the plaintiff, its business invitee, under the circumstances of this case, there is no distinction between the defendant leasing the parking lot to CVS for use in its business, and permitting CVS to use the parking area around the store in furtherance of its business. In either situation, the law is clear that CVS owed a duty to the plaintiff to use reasonable care to protect persons such as the plaintiff from dangers that might reasonably be anticipated to arise from the parking area. Id., 148.
But see Castlevetro v. BASA, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5010080 (January 23, 2009, Holden, J.) (granting summary judgment in favor of a commercial tenant against the plaintiff claiming injuries due to defective premises after finding that, under the terms of the lease, the tenant did not lease the parking area and therefore did not control or possess the area where the plaintiff allegedly fell).
The facts in this action are similar to those that were the basis of the well-reasoned decision of Judge Gallagher in Lerouska v. First Union National Bank, Superior Court, judicial district of Waterbury, Docket No. CV 04 5000017 (May 14, 2007, Gallagher, J.). In that action, the plaintiff claimed that she was a customer of the defendant bank, First Union, and was caused to fall as she was entering its premises due to First Union's negligent maintenance of that area. Id. First Union moved for summary judgment against the plaintiff claiming that it did not own, possess, control or maintain the area where the plaintiff allegedly fell. Id. In support of its motion, First Union submitted a copy of the operative lease that it entered into with the defendant landlord, 60 North Main Holding, LLC. Id. Judge Gallagher noted that "First Union contend[ed] that the lease between [it] and North Main conclusively show[ed] that North Main had control of the area where the plaintiff fell. The plaintiff and North Main counter[ed] that there [was] a genuine issue of material fact as to which party had control of the area where the fall occurred, and that the lease agreement [was] not conclusive proof of control because the duty to safely maintain a place of business is non-delegable." Id.
Judge Gallagher cited to the Tarzia decision to the extent that "[t]he [Appellate Court] held that the terms of the lease cannot absolve the defendant of a non-delegable duty." Id. Thus, the court denied First Union's motion for summary judgment. Id.
In the second count of his amended complaint, the plaintiff alleges that CVS had actual or constructive knowledge of the dangerous conditions in the parking area that CCI had the obligation under the lease to maintain. CVS owes a duty of care to the plaintiff, its business invitee to keep the area in a reasonably safe condition. In view of the foregoing, and viewing the evidence in the light most favorable to the plaintiff, the motion for summary judgment on the second count of the plaintiff's amended complaint filed by CVS (132.00) is denied.
1 CCI is the successor in interest to the original landlord. CCI executed an Amendment to Lease with CVS dated March 18, 2002 that, among other things, extended the term of the lease.
2 It is undisputed that the plaintiff was a business invitee of CVS at the time of his alleged fall.
The plaintiff also claims that an issue of fact exists as to whether the lease submitted by CVS in support of its motion for summary judgment was operative on the date of the alleged fall. In its reply memorandum, CVS submitted evidence showing that the lease it relied upon was in force and effect on the incident date. Therefore, there is no factual question in that regard.