Opinion
CV146049499S
03-07-2016
Cintia Martinez v. Bart Realty, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Robin L. Wilson, J.
On September 3, 2014, the plaintiff, Cintia Martinez, (plaintiff) commenced this action by service of writ, summons and complaint against the defendants, Bart Realty, LLC (Bart Realty), Saul Castro, Nelly Rivera, and Orange Avenue, LLC d/b/a Utopia Cafe. On September 9, 2014, the defendant, Bart Realty filed a motion to strike which was granted on March 16, 2015. In response to the court's ruling on the motion to strike, the plaintiff filed a substituted complaint on March 27, 2015, which is the operative complaint and, in which she alleges the following. On October 21, 2012, at approximately 2:00 a.m., the plaintiff was in the bar area of Utopia Cafe, located at 857 Orange Avenue in West Haven, Connecticut. At approximately the same time, the defendant, Nelly Rivera was arguing with a patron and threw a bottle across the bar area, striking the plaintiff in the face. As a result, the plaintiff sustained injuries. The substituted complaint alleges seven causes of action against the defendants, all of which sound in negligence. In count six the plaintiff alleges premises liability against Bart Realty and alleges that the defendant, Bart Realty " knew or should have known through a reasonable inspection that its tenant, defendant Orange Avenue, LLC had an employee, defendant Rivera, who was inclined toward violence and disruption." The plaintiff further alleges in count six, that, " [a]lthough the defendant [Bart Realty] knew, or should have known of the risk presented by their tenant, the defendant did nothing to keep the premises safe and reduce the risk presented by their tenant, or its servants and agents, to harm business invitees on their premises, such as the plaintiff." Count seven is also against Bart Realty and also sounds in premises liability. The plaintiff alleges in count seven in relevant part that, " [t]he [d]efendant, Bart Realty, LLC negligently failed to exercise reasonable care as the owner of the building to inspect its premises and allowed a dangerous defective condition to exist, and as a result, the plaintiff . . . sustained injury as a consequence of the [d]efendant's failure to keep the premises reasonably safe." The plaintiff further alleges that the defendant " knew or should have known through reasonable inspection of its premises that a dangerous and defective condition of inadequate security existed at the business on its premises [and that] the [d]efendant Bart Realty, knew or should have known prior to leasing the premises to Orange Avenue, LLC that Orange Avenue, LLC could not provide adequate security on the premises."
The defendant, Orange Avenue, LLC d/b/a Utopia Cafe is non-appearing.
The defendant, Bart Realty has filed a motion for summary judgment on grounds that it did not owe a duty to the plaintiff under the circumstances of the alleged incident. More specifically, the defendant claims that as evidenced by the lease agreement it had with the defendant Orange Avenue, LLC and the affidavit of David White, managing-member of Bart Realty, Orange Avenue LLC possessed and controlled the cafe premises. The defendant claims that it did not control the hiring of employees at Utopia Cafe, nor did it control the decisions regarding security measures that the cafe took on the night of the alleged incident. The defendant further claims that no representative of Bart Realty was at Utopia Cafe, on the night of the alleged incident, nor did it have any reason to be on the premises. The defendant argues that because it was the owner of the property and not Utopia Cafe and it did not control the management or operation of Utopia Cafe, it owed no duty to the plaintiff, and is entitled to judgment as a matter of law. In support of its motion, the defendant attached a memorandum of law, the lease agreement between Hide Realty, LLC and Orange Avenue, LLC, and an affidavit of David White, managing-member of Bart Realty, LLC.
Although the lease agreement indicates that Hide Realty, LLC is the Lessor, in 2012, Bart Realty, LLC, purchased the property from Hide Realty and took over as Lessor.
The plaintiff has filed an objection to the motion to which she has attached a memorandum in opposition. The plaintiff relies on the provisions of the lease agreement to raise genuine issues of material fact. Specifically, the plaintiff argues that the issue of control of the premises in regards to security is not definitively expressed in the lease between Bart Realty and 857 Orange Avenue, LLC. Therefore, the plaintiff argues that the issue of control is a question of fact that would be improperly decided on a motion for summary judgment. The plaintiff argues alternatively, the issue of control of security is definitively expressed in the lease, in that Bart Realty has expressly reserved control of the ability to hire security to protect the premises should it decide that additional protection is needed. Oral argument was heard on the motion at short calendar on March 7, 2016.
Because the lease agreement contains provisions in which the defendant has expressly reserved control of the ability to hire security to protect the premises, on the one hand, and also contains provisions which seem to indicate that Orange Avenue, LLC had possession and control of the premises, issues of fact remain as to control, and thus, summary judgment is not appropriate.
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 . . . 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 . . .
" With respect to the governing legal principles, [t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . The existence of a duty is a question of law . . . 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 . . . [L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof . . . 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 . . . Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law. . . ." Colon v. Autozone Northeast, Inc., 148 Conn.App. 435, 437-39, 84 A.3d 1234 (2014).
After review of the relevant lease that existed between Bart Realty and Orange Avenue, LLC, this court concludes that said lease is not definitive on the issue of control. There are many provisions of the lease which transfer control, but there are other provisions which do not, and in which the Lessor specifically reserves control over security of the premises. Significantly, Section 5, paragraph (iii) is entitled " Additional Rent" and provides: " If in Lessor's reasonable discretion, based on events involving Lessee's operations or patrons that result in complaints by other tenants or the community, Lessee's operation of the Leased Premises require that additional security measures be taken to protect the Property, measures shall be charged solely to the Lessee as additional rent and shall not be apportioned among other tenants at the Property." (Def. Ex. A.) The second significant provision of the lease is contained in Rule 7 of the Rules and Regulations, attached as Ex. B to the lease agreement which provides that: " Lessee shall comply with such security regulations as Lessor may from time to time adopt." Id. These provisions and regulations contained in the lease raise an issue of material fact as to whether the defendant, Bart Realty had control of the premises and thus owed plaintiff a duty of care.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.