Opinion
No. CV04-5000073S
August 10, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #113
Before the court is the defendant's motion for summary judgment. This action for personal injuries sustained by the plaintiff, Christopher Murphy, on December 18, 2003 and was commenced by the filing of a complaint dated December 7, 2004.
On May 31, 2006, the plaintiff filed a three-count amended complaint against the defendants, Dennis Sullivan, individually and as fiduciary of the estate of his deceased wife, Susan Sullivan, and Jacovino's Lawn Care. The amended complaint alleges that while delivering mail on Sullivan's property, the plaintiff slipped and fell on ice in the driveway. The plaintiff claims that the defendants were negligent in maintaining the property and failing to warn of the condition. On November 30, 2006, the court, Upson, J., granted a motion to strike the third count of the complaint against the defendant Jacovino's Lawn Care.
On February 16, 2007, Sullivan filed a motion for summary judgment as to the remaining counts of the complaint claiming that he had no duty of care to the plaintiff because the property was in the exclusive possession and control of the tenants, Helene Skrzyniarz and Claire Cejer pursuant to a lease dated October 31, 2001, Skrzyniarz and Cejer who were the sole occupants of the single-family residence were added as party defendants on May 14, 2007 by the court, Gilligan, J. Along with his motion for summary judgment, Sullivan filed an affidavit, a copy of the lease and portions of his deposition transcript. The motion was scheduled to be heard on the short calendar on March 19, 2007. On that date, the court, Gilligan, J., denied the motion for summary judgment. The movant was not present at the oral argument on March 19, 2007, and later filed a motion to reargue on March 27, 2007. The court, Gilligan, J., granted the motion to reargue on April 16, 2007. On May 15, 2007, Skrzyniarz and Cejer filed an objection to the motion for summary judgment attaching the following exhibits: the lease, portions of Sullivan's deposition transcript and a letter from Skrzyniarz. On May 18, 2007, the plaintiff joined Skrzyniarz and Cejer in their objection. The motion was reheard on the short calendar on May 29, 2007.
Skrzyniarz and Cejer are defendants in a companion case entitled Murphy v. Skrzyniarz, Docket No. CV 06 5000606S, which arose from the same transaction at issue in this case. The cases were consolidated by the court, Agati, J., on February 21, 2006.
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." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
Sullivan argues that he did not owe the plaintiff a duty of care because he was not in possession or control of the premises at the time of the incident. He argues that, the terms of the lease, provided that the tenants were responsible for keeping the "grounds" in good order and repair, and, consequently, they were responsible for snow and ice removal. He further argues that although the written lease had expired at the time of the incident, the parties continued in a month-to-month landlord tenant relationship under the same terms and conditions set forth in the lease.
The tenants counter that, unless it is expressly provided for in the lease, a landlord retains control of the premises and any dispute over the issue of control is a question of fact for the jury. The tenants further argue that after the expiration of the lease, they verbally agreed to continue in occupancy on a month-to-month basis without a written agreement; therefore, there was no writing which governed the responsibility for maintaining the driveway. The tenants further assert that even if the provisions of the original lease were in effect, the provisions do not specify which party is responsible for removal of snow and ice. Lastly, the tenants argue that the intent of the parties regarding snow removal is a question of fact and not appropriate for summary judgment.
A. The Status of the Written Lease
To begin, the court must determine the status of the lease dated October 31, 2001 (the "Lease"). The Lease executed by the parties is a pre-printed form entitled "House Lease" between Dennis Sullivan and Susan Sullivan as "Landlord" and Helene Skrzyniarz and Claire Cejer as "Tenant" and provides for the lease of 303 East Mountain Road, Waterbury, CT for the term of October 31, 2001 to October 2002. The parties have both stated in their respective memoranda in support and opposition to the motion that prior to the expiration of the initial term set forth in the Lease, the parties entered into an verbal agreement to continue on a month-to-month basis and did not execute any further written extension or modification of the Lease.
This case illustrates the hazards of the use of pre-printed forms by well-meaning lay persons. One significant deficiency is that the Lease is silent as to the effect of a holdover by the tenants at the end of the term. Since the parties failed to contractually agree on their relationship at the expiration of the term, the court must resort to common-law precedent to determine their ongoing rights and responsibilities.
Upon the expiration of a written lease, the continued payment of rent on a monthly basis creates a month-to-month tenancy. See FJK Associates v. Karkoski, 52 Conn.App. 66, 68, 725 A.2d 991 (1999); General Statutes § 47a-3b. "The renewal of a month-to-month tenancy requires the payment of rent by the tenant and the acceptance of payment by the landlord or other circumstances showing an agreement to continue the lease." (Internal quotation marks omitted.) FJK Associates v. Karkoski, supra, 52 Conn.App. 68. "It is a firmly established rule that proof of a holding over after the expiration of the term fixed in the lease gives rise to the presumption (which, in the absence of contrary evidence, will be controlling) that the holdover tenant continues to be bound by the covenants which were binding upon him during the term." 49 A.L.R.2d 480 § 2(a) (2007). In Peter-Michael v. Sea Shell Associates, 244 Conn. 269, 709 A.2d 558 (1998) where the holdover tenant continued to pay rent after the expiration of a written lease and the rent was accepted by the landlord, our Supreme Court upheld the holdover tenant's right to exercise an option to purchase the premises that was granted by the terms of the expired written lease.
In the present case, the parties acknowledge that near the end of the stated term of the Lease, they agreed they would continue on a month-to-month basis after the expiration of the stated term. Neither party disputes that rent was paid by the tenants and accepted by the defendant. No facts or circumstances have been offered or alleged by either party to show that any of the terms and conditions set forth in the Lease changed after the expiration of its stated term except for their acknowledged agreement to continue the term on a month-to-month basis.
Accordingly, the court finds, as a matter of law, that the provisions of the written lease governing the legal relationship of the parties continued during the holdover period and were in effect at the time of the incident.
B. Possession and Control of the Premises
"`Liability for injuries caused by defective premises is not based upon title, but on possession and control.' Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).
"`[A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant.' Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). In other words, `[t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the building over which he reserves control.' Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). The control must relate to the condition and location of the injury. See Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. 263193 (July 19, 1999, Beach, J.) (`the notion of possession and control must relate to the condition that caused the injury and not merely the premises where the injury occurred').
`Whether control of the premises has been retained by the lessor is determined by examining the terms of the lease.' Martel v. Malone, 138 Conn. 385, 388, 85 A.2d 246 (1951) . . .' A lease is a contract . . . and its construction presents a question of law for the court.' (Citations omitted.) "Whether a landlord . . . has reserved control of [an area] ordinarily can best be determined by the intent of the parties as expressed in the terms of the lease." Martel v. Malone, supra 138 Conn. 388-89. "Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court." Water Way Properties v. Colt's Manufacturing Co., 230 Conn. 660, 667, 646 A.2d 143 (1994). "When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction." (Internal quotation marks omitted.) Id. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). When the language of a written lease is plain and unambiguous, it is not subject to interpretation or construction. See Central New Haven Development Corp. v. La Crepe, Inc., 177 Conn. 212, 215, 413 A.2d 840 (1979).
"Control over a particular part of . . . premises is ordinarily dependent upon determining whether that portion is or is not included in the lease, and unless the terms of the lease determine the matter, the question is one of fact." (Citations omitted.) Adams v. The Recorded Picture Co., 1993 Ct.Sup. 9920, No. 517924.
In the present case, the pre-printed Lease, although not artfully drafted in many respects, is sufficiently clear and unambiguous with respect to the issue of possession and control of the premises. The Lease, by its terms, granted full possession of the property to the tenants. Under the "Definitions" section, the Lease provides that "The word House means the building and the land at the above address" (Italics in original). Section 8 of the Lease entitled "Access" provides that the landlord shall have no right of access to the property except in the event of emergencies, or to: (i) inspect it; (ii) make needed repairs or improvements; (iii) supply services or (iv) show it to possible buyers, tenants or contractors. The right to inspect does not mean and is not equivalent to the right to control. Ward v. McDonald's Restaurant, Superior Court, judicial district of New Haven at New Haven (Oct. 29, 2002, Arnold, J.) (33 Conn. L. Rptr. 354)." Scap Motors, Inc. v. 675 Kings Highway, LLC, Superior Court, judicial district of Bridgeport, Docket No. CV 05 5000105 (September 5, 2006, Arnold, J.).
Section 17 of the Lease entitled "Grounds" provides in pertinent part that: "I (Tenant) shall keep the grounds in good order and repair. I and persons on the grounds with my consent shall park vehicles in the driveway and garage (if any), not on lawns." Although the lease does not expressly define "grounds," since the Lease included the entire land and building and Section 17 expressly refers to the driveway, it is clear that the driveway is included within the definition of grounds and pursuant to § 17, the tenants assumed the responsibility to keep it in "good order and repair."
This reading of the Lease is supported by the unchallenged claim that the tenants hired third-party contractors to care for snow removal and lawn care throughout the entire period of their occupancy. In the transcript of his deposition testimony submitted with his motion, Sullivan stated that the tenants took care of lawn maintenance and that he never personally removed any snow from the premises, nor did he hire anyone to perform snow removal.
The plaintiff argued at short calendar that Sullivan's deposition testimony shows that he actively inspected the property, thus indicating control. This court does not agree. Sullivan's actions of passing by the property, which he testified was a five-minute walk from his own home, do not constitute an inspection that would exhibit control over the premises. He merely stated that he had the opportunity to drive by the house because it was in his neighborhood. As noted above, the right to inspect, by itself, has no bearing on the issue of which party was in possession and control of the property.
The tenants also cite portions of Sullivan's deposition transcript whereby he stated that if he had ever seen that snow on the property had not been removed for two days, he would have stopped and asked, "what's happening?" The tenants argue that this statement shows that it was not clear who would remove the snow. This court does not agree with this interpretation of the deposition transcript. A more complete reading of the transcript shows that this testimony was given in the context of Sullivan description of how meticulous the tenants were in their maintenance of the property indicating that if the snow was not removed it would cause him concern that something may have happened to the tenants. This excerpt, taken out of context, does not create an issue of fact as to which party was in possession and control of the driveway or was responsible for snow removal.
CONCLUSION
Based on the foregoing, the court concludes that the Lease, as a matter of law, is sufficiently clear and unambiguous with respect to the issue of possession and control of the driveway and by its terms establishes that the driveway where the plaintiff allegedly fell, was in the exclusive possession and control of the tenants at the time of the incident. Since there exists no genuine issue of material fact, the defendants' motion for summary judgment is granted.