Opinion
FBTCV166059479S
03-05-2018
ROBBINS EYE CENTER, P.C. v. COMMERCE PARK ASSOCIATES, LLC et al.
UNPUBLISHED OPINION
OPINION
Edward T. Krumeich, Judge
The following order is entered in the above matter:
ORDER:[*]
On 2/2/2018, the Court issued a memorandum of decision on the trial of both of the consolidated cases. The Court and the parties understood the decision applied to both cases. The decision was filed in the case of Commerce Park Associates, LLC v. Robbins Eye Care Center, P.C. (FBT CV 144052827 S) on 2/6/2018 but by mistake was not filed in the consolidated case, Robbins Eye Care Center, P.C. v. Commerce Park Associates, LLC and RDR Management, LLC (FBT CV 16-6059479 S). Judgment should enter nunc pro tunc and the same memorandum of decision should be filed in this case.
Short Calendar Results Automated Mailing (SCRAM) Notice was sent on the underlying motion.
ATTACHMENT
(The opinion referenced in this order, dated February 2, 2018, is attached to this Order, dated March 5, 2018. See " Attachment: opinion filed in the consolidated case, Commerce Park Associates, LLC v. Robbins Eye Care Center, P.C. Dkt. # FBT CV-14-4052827 S." )
Commerce Park Associates, LLC v. Robbins Eye Care Center, P.C.
Docket Number: FBT CV-14-4052827 S
Caption Date: February 2, 2018
File Date: February 6, 2018
MEMORANDUM OF DECISION
These consolidated actions were tried to the Court. The first action was commenced in 2014 by Commerce Park Associates, Inc. (" CPA" ) against Dr. Kim Robbins (" Robbins" ) seeking rent under a lease dated August 1, 2007 (the " Lease" ), for 20,750 sf of office space in the lowest floor of a building owned by CPA located at 4695 Main Street, Bridgeport, Connecticut (the " Building" ). The second action was commenced in 2016 by Robbins Eye Center, P.C. (" REC" ), which is solely owned by Robbins, alleging various causes of action against CPA and its management company, RDR Management, LLC (" RDR" ). Dr. Robert D. Russo, Jr., is a member and manager of CPA and the sole member of RDR.
Under the Lease, Robbins rented the entire lower level of the Building for the operation of her ophthalmology and surgical practice, incorporated as REC. With the knowledge of and acceptance by CPA and RDR, REC paid the rent and carried the insurance required by the Lease and was the de facto tenant of the leased space with whom the landlord dealt. Under a prior lease by Robbins, REC had occupied a portion of the lower level, but in 2007 Robbins had expanded the REC space to the entire floor of the lower level. REC fit out the space, at a cost from $1,186,267 to approximately $2,000,000, as a state of the art eye care center, complete with a surgical center with two operating rooms certified by the State for optical surgery, which cost over a million dollars, a LASIK facility and an optical shop. The fit-out was completed in December 2009.
The de jure tenant remained Robbins.
The first figure was derived from REC’s tax returns; the higher figure was an imprecise estimate by Robbins. The parties stipulated the contractor who performed the work on the improvements was paid $1,035,479, which is the low end estimate of costs and probably does not include the full costs of fitting out the operating rooms, which Robbins estimated cost in excess of $1,000,000.
Everything changed on September 12, 2013, when, during an unusually heavy rainfall, a downspout dislodged from a roof drain and water cascaded into the building and flooded the lower level causing substantial damage to REC’s finishes, equipment and materials. REC was forced to suspend Robbins’ medical practice for six weeks until October 2013 and then to only partially reopen in approximately half its former space, without the surgical center and optical shop. Mold appeared at various dates and locations in the REC space in the months following the flood. By October 2014, a year after the flood, REC had repaired the flood damage, remedied the mold infestations, reoccupied the remainder of the floor and reopened the surgical center, but not the optical shop or LASIK center.
From time to time, both before and after the 2013 flood, toilet water and fecal matter would leak into the REC space from upper floors as a result of blocked toilets in other offices and the common area. These incidents interrupted REC’s practice for brief periods. Often, the smell of urine and fecal matter would pervade the REC premises. A former maintenance employee of RDR, who was frequently in the REC space between June 2014 and October 2015, testified that it was common for the REC space to smell of urine and sometimes fecal matter. REC’s witnesses also remarked on the odors and the effect on patients and staff from the foul odors that sometimes permeated locations on the lower floor. Robbins and REC became disenchanted with RDR’s and CPA’s attitude and efforts to maintain and repair the Building. The periodic plumbing problems, unpleasant odors and mold blooms proved to be quite disruptive of the practice and eroded any good will remaining between Robbins and REC, on one side, and RDR and CPA, on the other.
In the spring of 2015, matters came to a head when on several occasions during April, May and June 2015, the sewage system backed up and sewage, sewer water and effluent flooded into the REC space. On April 23, 2015, on April 27, 2015, and on April 28, 2015, sewage flowed up from the building sewage system into the REC space. On April 29, 2015, sewer water and fecal matter flooded into REC’s offices when a plumber engaged by RDR cut a waste pipe by accident. In May and June 2015, there were other incidents of sewage back-ups into the REC space, which culminated in a major flood on June 29, 2015. REC complained to municipal authorities and Lawrence Palaia, then Sanitarian of the City of Bridgeport, described the REC space as " sewage water all over the place." Mr. Palaia issued a notice of violation and informed REC that it must close down use of the space until the problem was remedied. Palaia sent the notice of violation to Russo, the Manager of CPA and owner of RDR, c/o his son, the attorney for both companies. The notice demanded that the owner engage a contractor acceptable to the city, take out any necessary permits and commence repairs within three business days. The space was supposed to be vacant until the city signed off on its condition after repairs and clean-up.
Before the sewage flood on June 29, 2015, Robbins had already decided to vacate the space in the Building and walk away from the expensive tenant improvements she had made. The broken pipe incident on April 29, 2015, coming as it did after three days of sewage back-ups that resulted in three office closures, galvanized Robbins to seek alternative space for REC. She engaged a broker on May 8, 2015, and signed a lease for new space on May 22, 2015. REC vacated the Building on or about June 30, 2015. Robbins moved REC out of the Building because she feared another suspension of her practice, more damage to REC’s good will, equipment and materials from site conditions that threatened future shut downs of her practice. Robbins also lost faith in the ability and willingness of CPA and RDR to maintain and repair known defects in the Building’s infrastructure.
A former maintenance employee of RDR testified that on April 29, 2015, the day after he observed a video of the sewer system by the sewer contractor to locate the cause of a sewage backup on April 28, 2015, he was called into work in the " middle of the night" because there was fecal water everywhere coming up from the drains. An outside plumber was called because a pipe was dripping and when he cut the pipe it was like " the flood gates opening up" as " poop water went all over" and poured out of the pipe steadily for a half hour. He testified there were recurring sewer problems with fecal matter flowing into REC space in May-June 2015, that were treated by snaking the pipes, which he testified was helping-although the problem was recurring.
REC had just reopened the surgical center, which had been closed for a year after the September 2013 flood, and now could not be used because of sewage contamination.
REC had business interruption insurance at the time of the September 2013 downspout flood that included business interruption caused by sewage backups. That policy was cancelled by the carrier and REC had difficulty replacing the coverage with a comparable policy; the replacement policy in effect in the spring of 2015 excluded sewage backups.
The Building was built in 1964 as part of a complex of office buildings now owned by CPA. Most of the space in the Building was rented as medical offices. By 2014-2015, three components of the Building were in poor repair: the roof, the foundation and the sanitary sewer system. Although there was compelling evidence the roof was in poor condition and well past its useful life, and expert testimony that it likely leaked, there was no evidence that any roof leaks damaged REC. The flood from the dislodged roof leader in September 2013 severely damaged REC, but there was no evidence it was caused by poor maintenance or failure to repair the roof or the leader.
A more serious problem for the long-term use of the REC space was the porous foundation, which let ground water and runoff seep into the space, which was below ground level. The flood damage in September 2013, and resulting mold growth, was not caused exclusively by water pouring in from above, but also by ground water seeping in through the foundation. The blistering of the special floor in the operating room, for example, was caused from water pressure from below not from the water pouring down from the ceiling. The ground water and runoff flooding problem in the REC space was known to all and was addressed by specific provisions in the original lease of the space. These provisions were not included in the 2007 lease, but it is apparent RDR and CPA were aware of the problem. REC attempted to deal with the problem by water-proofing the inside of its space, but as RDR’s former head of maintenance observed, you cannot waterproof effectively from the inside of the slab and interior walls, you need to waterproof the slab and foundations from the outside (which was outside the " Demised Premises" under the Lease). REC’s engineering expert noted the foundation was observably porous and let water into the below ground space during conditions when the pumps were overwhelmed by heavy rain. No effort was made by CPA or RDR to waterproof the slab and foundation.
The most egregious problem was the condition of the Building’s sanitary sewer system, which caused periodic sewage backups and release of foul odors into the REC space. Some of the toilet backups that leaked toilet water and fecal material from the offices above REC into REC space were probably the result of normal operation of medical offices and were dealt with routinely by RDR staff. RDR also installed warning devices in the toilets above the REC space for more prompt response. However, there were several serious backups of the sewer system that deposited sewage, sewer water and effluent, as well as emanation of foul odors, into the REC space as a result of known defects in the sewer system that RDR and CPA failed to address effectively. No one has a map of the sewer system, which has a main sewer line under the slab and branch lines connected to an uncounted number of plumbing fixtures throughout the Building. The main sewer line is a gravity-fed system that uses four-inch cast iron pipes to pass sewer water, paper and effluent into a cistern, where it is collected and, when it reaches a certain level, is ejected out of the Building by two ejector pumps. One problem with the system is that there is insufficient pitch in the main line to efficiently pass water and material to the cistern. REC’s mechanical engineering expert testified credibly there was insufficient space for the existing main line to be building code compliant in pitch of the pipes into the cistern. The other related problem is that the system lacked uniformity of pitch. The cast iron pipe used in the system has " multiple sags" some of which were major and acted as pockets that trapped water and material flushed down the toilets that, together with insufficient pitch, ultimately led to clogs which backed up the system and sent sewer water, effluent and raw sewage into the lower level occupied by REC on a number of occasions. Between 1997 and 2015, the sewer system was videotaped by RDR’s contractor at least five times after the contractor cleared a blockage in the system. These videos demonstrated a deteriorating sewer piping system as penetration of the pipe and sags worsened over time. The first video in 1997 showed a penetration of a rock into the main line, and subsequent videos in 2014 and 2015 showed multiple sags worsening over time. The sewer contractor engaged by RDR to deal with the more serious backups testified there were sags throughout the main line and laterals, some of which were major and severe enough to cause backups. He said there were clogs all over the system, not just in one place, but conceded that floods to the lower floor would be caused by a clog in the main line not the laterals. He testified the recurrence of problems more frequently indicated there was a problem with performance of the system and he had discussed the defects and possible remedies with RDR such as cutting up the floor to replace the pipes as well as controlling what went into the system. A former employee of RDR testified he was present when a video was taken on June 12, 2014, and informed RDR of the sewer contractor’s concern about sags that " needed to be fixed," and also about the need to " rip up the floors" to make repairs to the pipes. He was also present when the video was taken on June 28, 2015, when " multiple sags" were seen, and he told RDR management that the sewer contractor expressed concern about sags, in particular a major sag in the main line approximately twenty feet from the ejector pit that needed to be dug up and fixed. REC’s engineer credibly opined that the major sags, along with lack of pitch, had become worse over time and interfered with the performance of the system and caused the sewage backups into the REC space. RDR, as CPA’s agent, was advised by its sewer contractor (and its own personnel) about the presence of the sags in the system shown on the videos, which the contractor disclosed to RDR when he discussed taking the sags out because there were so many backups; he told RDR the sags could only be remedied by tearing up the floor and replacing the affected sections of pipe. If the sags were not repaired, RDR was informed by its contractor that it would be necessary to carry on a preventative maintenance program to periodically snake the sewer system to break up potential clogs before they were formed. RDR and CPA pursued neither course, but merely decided to address system backups as they occurred. After REC abandoned the space, there is no evidence of any repairs or remediation efforts by RDR or CPA other than to snake the line to remove the specific clog that caused the backup. There was no evidence of any repairs to the sewer system in response to the June 29, 2015 Notice of Violation, although there is evidence the space was cleaned and the specific clog was removed. If there were repairs, they were not done by the outside sewer contractor. What work was done was likely by RDR maintenance personnel. There is no evidence the space was fit to be occupied after the June 29, 2015 incident, and apparently the entire lower floor was left vacant. In October, November and December 2016, while the lower space was vacant and its fixtures unused, there were other major problems with the sewer system as sewage once again backed up into the " old Robbins Eye Care Center" space.
For example, the invoice to RDR from its sewer contractor for April 23, 2015 reported, " upon arrival the whole system was backing up and overflowing coming up through the floor drains."
The sewer contractor engaged by RDR testified videos were taken after a blockage was cleared to ascertain what caused the blockage. The earliest video was taken in 1997 before CPA acquired the Building. On August 14, 2012, a video was taken after a blockage in REC space and the contractor’s invoice to RDR reported " can’t go any further because to[o] many bends, some sags in line." On August 28, 2012, there was another video taken after a backup into the mechanical room at REC. On June 12, 2014, another video was taken from a toilet in an office above REC, which had leaked into REC space, and the contractor reported in its invoice to RDR " video out 89’ cannot get any further (too many bends) can see big sags and heavy paper in line." The contractor recommended " to video whole line" and stated " customer did not want lin[e] jet flushed." The invoice dated April 28, 2015 reported a video showing " line has multiple sags and a lot of turns. Line should be put on preventive maintenance to help prevent emergency backups. See dvd for details." The October 24, 2016 invoice reported " arrived on site and found building backing up ... recommend video line to see condition of pipe." There was no evidence whether this video was ever taken.
There was a discrepancy between the contractor’s initial trial testimony and his deposition testimony on the severity of the sags. The Court believes his deposition testimony that he saw sags in the video severe enough to cause backups. This also explains why he discussed with RDR opening up the floors to replace sagging pipes. He also opined having " a lot of turns" in the pipes could affect the performance of the system.
The sewer contractor testified that often the clogs that backed up the system into REC space were paper products flushed down the toilets, and he commented there was " way too much" paper in the sewer system when compared to other medical offices. REC’s engineering expert testified the sags would catch items in the system like paper products, and create clogs that would later backup the system into the tenant space.
Robbins learned about the problems in the system and the recommended fix from discussions with RDR’s contractor. Her knowledge of defects in the sewer system and CPA’s and RDR’s failure to repair the defects were factors in her decision to abandon the space.
Witnesses for RDR and CPA indicated that a preventative maintenance program was instituted as recommended by the contractor, but the contractor contradicted that there was a preventive maintenance program initiated, and the invoices bear out that the contractor came to the site in response to specific reported problems rather than on a regular and routine basis.
There is no corresponding invoice dated June 29, 2015, from the sewer contractor. Mr. Palaia testified if he had been told the violation was remedied, he would have re-inspected to see if corrections were made. Ms. Spinelli testified, she left a voice message which is noted on the exhibit that all is " remediated." The credible evidence is that the defective conditions (i.e. insufficient pitch and sags) in the sanitary sewer system that caused the sewage backflows in 2014 and 2015 were not remediated.
The sewer contractor testified there was a major repair done to the force line to the street in November 2016, but no repairs were made to the gravity system inside the Building.
1. CPA’s Claims
CPA claims that it is owed past rent for the period when REC occupied the space but defaulted on the full rent payments called for under the Lease and future rent for the period after REC vacated the space until the termination date of the Lease. Robbins asserts rent abated under the Lease for untenantable space and that she was constructively evicted when the space became untenantable in the spring of 2015.
Robbins and REC link all the various incidents since the broken downspout flood in September 2013 to justify its abandonment of the space in April-June 2015. The Court does not believe there are links except to document the reasons for Robbins’ disenchantment with CPA’s and RDR’s maintenance of the Building, which culminated in her decision to vacate the space.
Section 23(c) of the Lease provides, in pertinent part, as follows:
" In the event the Demised Premises shall be damaged by ... casualty and shall be rendered wholly or partially untenantable, then ... Landlord shall, at Landlord’s own cost and expense, proceed with all reasonable dispatch to cause the damage to be repaired and in the case of partial damage, the monthly rental for any period of such repair which is not otherwise covered by Tenant’s business interruption insurance shall be abated in proportion to the portion of the Demised Premises rendered untenantable."
The entire space was untenantable for its intended purposes for six weeks as a result of the September 2013 flood, the area that formerly housed the clinic, optical shop and operating rooms, was not tenantable until October 2014. The sewage backups in April, May and June 2015, rendered affected portions of the premises untenantable. After the June 29, 2015 sewage flood, the entire space was untenantable and could not be occupied pursuant to the Notice of Violation issued by the Bridgeport Health Department, which required REC to vacate the premises. There is no evidence that required repairs were made and signed off by municipal authorities. The sags in the sewer lines were not repaired. Recurring sewage floods to the now vacant space in the last three months of 2016 confirmed that the underlying problems to the sewer system were not repaired.
Under the Lease (¶ 14(a) ), Robbins had a duty to comply with requirements of municipal authorities.
In response to the various problems experienced, Robbins and REC withheld a portion of rents, although REC did pay CPA $232,765.08 in rents and fees during the period between September 2013 and April 2015, approximately one-half of the sums due under the Lease. Under the provisions of Section 23(c) of the Lease, a portion of the unpaid rent abated because of the untenantable conditions described above for the months of May and June 2015. The condition of the premises thereafter is uncertain. REC vacated the space and CPA engaged in a sporadic and desultory effort to market the space.
Robbins asserts that she was constructively evicted due to the repeated sewage floods in late April, May and June 2015. The Court agrees. No rent is due for the period after REC vacated the premises and the three months leading up to the move when repeated incidents caused by the defective sewage system disrupted Robbins’ medical practice. See 31 Tobey Road Ltd. v. Wright, 2016 WL 5798712 *3-4 (Conn.Super. 2016) (Schuman, J.) .
" [A] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant’s promise to pay rent ... In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem ... [w]hether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of the situation of the parties to the lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant’s use of the premises is interfered with by the injury claimed ..." Welsch v. Groat, 95 Conn.App. 658, 662 (2006).
In Welsch, the Appellate Court affirmed the opinion below which held that the leased premises were rendered uninhabitable by the landlord’s failure to make necessary repairs in regard to water damage and presence of mold and mildew which made it impossible for tenant to use a basement room as a bedroom for his children, thus resulting in constructive eviction. 95 Conn.App. at 663-64.
For constructive eviction, it is not necessary that the entire premises be untenantable so long as a substantial portion was rendered unfit for its intended use, which here was as a medical office and operating rooms. " As our Supreme Court long ago established, [a]ny disturbance of the tenant’s possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased amounts to a constructive eviction ...’ " Id. quoting Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339 (1932).
The sewage backups and floods in the spring of 2015 constructively evicted Robbins from the premises. As landlord, CPA had control of the sewer pipes, which were outside " the Demised Premises" (Lease ¶ 1). See Nicholas v. Stop and Shop Corp., 1998 WL 867335 *2 (Conn.Super. 1998) (Corradino, J.). CPA had assumed a duty under the Lease to maintain and repair the sewer system (¶¶ 16(b), 18(b), 23(c) ) and also had a repair duty under common law by reason of CPA’s possession and control of the sewer system. Compare Prodigy Services Co. v. South Broad Associates, 64 F.3d 48, 50 (2d Cir. 1995) (Conn. law) (landlord had duty to keep plumbing system safe). CPA and RDR had been on actual notice of the defects in the sewage system from at least June 2014, but the landlord failed to carry out the recommended repairs as required under the Lease (¶¶ 16, 18, 23) and at common law, although there was a reasonable time to do so. Starting in late April 2015, defects in the system caused the repeated sewage floods into the medical facility, with attendant filth and odor. The medical office space needed to be welcoming to the public and tolerable to staff, all of whom deserved a healthy environment; the fecal floods also compromised the operating rooms that required antiseptic and pristine conditions. Together, these repeated septic incidents became intolerable and rendered the space untenantable, and thus warranted Robbins into looking for alternative sites, moving her medical practice and vacating the premises within a reasonable time after CPA’s failure to make repairs. Because CPA was aware of the defects in the sewer system but decided not to accept professional advice and make the repairs CPA and RDR were advised were necessary to alleviate the problem, or to follow a preventative maintenance program recommended as an alternative, CPA was responsible for the sewer problems that rendered the space untenantable beginning on April 23, 2015, and Robbins was constructively evicted from the premises.
Under the Lease (¶ 12), Robbins as tenant had a right to quiet enjoyment of the premises.
In Masterson v. Atherton, 149 Conn. 302, 309-10 (1962), the Supreme Court held that proof of the landlord’s control of a building component would carry a duty to repair known or discoverable defects and to keep the area controlled in a reasonably safe condition. See also Sammarco v. Kotowski, 2010 WL 2682418 *6 (Conn.Super. 2010) (Gilardi, J.) (" when a landlord retains control of a portion of the demised premises ... the landlord must use reasonable care to keep that portion of the premises in a reasonably safe condition." ) quoting Mack v. La Valley, 55 Conn.App. 155, 162 (1999).
The landlord’s actual notice of the defects and the resulting floods relieved Robbins of any duty to notify CPA of the defects in the sewer lines and to provide yet another opportunity to remedy them. See 31 Tobey Road, Ltd., 2016 WL 5798712 *5.
The evidence clearly demonstrates that RDR and CPA were on notice of the worsening sags in the sewer line and were advised on the need to rip up floors to correct this problem. There is no evidence, however, that either CPA or RDR were aware of the insufficient pitch in the system, which exacerbated the backups caused by the buildup of material in the sags.
The problems with the foundation that led to water seepage and mold growth in the premises might have justified a constructive eviction given the landlord’s knowledge of and refusal to address the problem, but Robbins did not decide to move out until April 29, 2015, when faced with yet another sewage flood, so the foundation defects and seepage were not a substantial factor in the decision. A tenant may not claim constructive eviction if the tenant remains in possession of the premises. See Welsch, 95 Conn.App. at 662. However, a tenant must hold off a reasonable time to allow the landlord the opportunity to remedy the problem and, if not repaired, the tenant may take additional time to make alternative arrangements to vacate the premises, which is what Robins did here. See id. When Robbins learned that CPA had been advised to repair known defects in the sewer system and failed to do so, she was justified in deciding to vacate the premises, look for alternative space and transition her practice over a reasonable period of time, which here was approximately two months.
2. Claims by Robbins and REC
Robbins, and its invitee REC, claim that CPA, as landlord, and RDR, as property manager, were negligent and/or reckless in the management of the premises. CPA relies on the negligence waiver in the Lease as a defense, which it argues also extends to its agent RDR.
Robbins and REC also assert that CPA’s and RDR’s conduct in failing to repair known defects and misrepresenting that repairs were made constituted unfair and deceptive conduct in violation of the Connecticut Unfair Trade Practices Act, C.G.S. § 42-110b (" CUTPA" ).
A. Negligence
Negligence of a landlord with a duty to repair may be proven by " an unreasonable delay or failure to make any repair at all, or in making the repairs in a negligent and unskillful manner." Papallo v. Meriden Sav. Bank, 128 Conn. 563, 565 (1942).
The Lease includes a waiver of liability for negligence by the landlord or its agents: " ... [U]nless caused by the gross negligence or willfulness of Landlord, or of Landlord’s agents, Landlord shall not be responsible or liable to Tenant, or any person, firm or corporation claiming by, through or under Tenant for, or by reason of, any defect in the Demised Premises ... from any injury or loss or damage to person or property of Tenant, for loss of or damage to property contained in or upon the Demised Premises ... caused by or arising or resulting from pipes ... or by or from any deficit in or leakage, running or overflow of water or sewage in any part of the Demised Premises ..." Lease ¶ 16(b).
Robbins waived any negligence claims against CPA for herself and REC relating to the sewage floods or the leakage of water from the porous foundation. Both Robbins and REC retained the right to sue CPA for gross negligence and/or recklessness.
The Lease terms do not exculpate CPA’s agent, RDR, from negligence claims. Had CPA intended to do so, it simply could have added " or its agent" to the exculpatory language in the provision, instead it shielded itself from its agent’s negligence, but did not extend exculpation from negligence to RDR as CPA’s agent.
The Court does not agree that expert testimony was required to establish the standard of care for a landlord or a property manager under these circumstances. It does not take special skill or expertise to decide to repair known defects to the sewer system when an expert in the field told management employees that there would continue to be periodic sewage overflows if major sags in the sewer piping were not fixed. The decision not to make the needed repairs was negligent under the prudent person standard applicable generally to negligence claims; the cases against CPA and RDR were not for professional malpractice that would require expert testimony.
In Matyas v. Minck, 37 Conn.App. 321, 326 (1995), expert testimony was required to establish the standard of care for defendant who designed and installed a septic system. Here, the defects in the sewer system, the need for repair and the causal link to the sewer backups experienced by REC were established by expert testimony.
CPA as landlord had possession and control of the sewer system; as its agent RDR shared a modicum of possession but not control because it lacked authority to make the repairs. The decision not to make the recommended sewer repairs was made by the landlord CPA, not by its manager RDR. Although Russo was the decision maker for both entities, it was only CPA as landlord which exercised its authority to decide not to make the needed repairs but simply to allow sewage overflows to occur and to snake the pipes and clean up the mess as the inevitable overflows occurred. The employees of RDR dutifully reported the observations and recommendations of the sewer contractor hired to inspect and repair the system to Russo and he decided the Landlord would not make the recommended repairs. RDR was not party to the Lease and, unlike CPA as landlord, had assumed no duty to repair and was not in control of the sewer pipes. This is not a case like the typical premises liability case where the job of the property manager is to maintain the property and the manager’s failure to carry out that duty to maintain premises over which it has control caused injury. See Kwoczala v. Wilde Wood Condominium Ass’n, 2010 WL 2682333 *4 (Conn.Super. 2010) (Shortall, J.); Falcon v. Deerfield Woods Condo. Ass’n, 2000 WL 1918030 *3 (Conn.Super. 2000) (Zoarski, J.). Here, the sewer and foundation repairs would require more than simply snaking out the pipes or patching the foundation, but would require major capital projects that were beyond simple maintenance, and thus would not be within the purview of RDR as property manager or subject to its possession or control. Without authority from the landlord, RDR could not carry out the necessary repairs to the sewer system or foundation, which were thus outside their possession and control as required to impose a duty to repair or maintain. See LaFlamme v. Dalessio, 261 Conn. 247, 251 (2003). Under these circumstances, RDR could not be found to be " the person who is in a position of control and best able to prevent harm." Kwoczala, 2010 WL 2682333 *4. RDR’s failure to repair the sewer pipes was not negligent under the circumstances.
The need for foundation repairs was evident as various witnesses testified about observable defects and seepage. CPA and RDR evidently decided the seepage was Robbins’ problem to fix. The porous foundations were not part of the Demised Premises and should have been remedied by the landlord.
There was insufficient evidence that RDR was responsible for the failure to carry out the preventative maintenance program recommended by the sewer contractor.
CPA argues the work needed to correct the observed defects in the sewer pipes was an improvement not a repair and cites to cases like Masterson v. Atherton, 149 Conn. 302, 312 (1962), about defects in the demised premises. CPA ignores the fact that the sewer pipes were not defects in the Demised Premises but were in areas exclusively within the control of the landlord for which CPA had a duty to repair under the Lease (¶¶ 16, 18, 23).
For the same reason, RDR’s failure to make repairs to the sewer pipes was not reckless and did not violate CUTPA.
CPA’s liability in negligence was waived under the Lease ¶ 16(b), and CPA would not be liable unless its conduct sinks to the level of " gross negligence" or recklessness.
In post-trial briefs, Robbins and REC raised for the first time claims of negligence per se based on alleged violations of the Connecticut Public Health Code. These claims were not alleged in the pleadings, nor were they tried; the Court declines to reach them.
In Atelier Constantin Popescue, LLC v. J.C. Corp., 134 Conn.App. 731, 742 (2012), the Appellate Court upheld a finding that the landlord’s conduct was grossly negligent and thus was not subject to an exculpation provision in a lease:
" Our Supreme Court has stated that gross negligence is " very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence ... [T]his court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically [wilful] in its nature ... Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment; hence, it requires proof of something more than the lack of ordinary care. It implies an extreme departure from the ordinary standard of care, aggravated disregard for the rights and safety of others, or negligence substantially and appreciably greater than ordinary negligence." (Citations omitted; internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 631 n.11, 987 A.2d 1009 (2010)."
A duty of care may arise from contract if it was foreseeable that harm of the general nature suffered would result from the landlord’s conduct:
" ‘A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act ... There is no question that a duty of care may arise out of a contract, but when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract.’ The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.’ " 134 Conn.App. at 757 (citations omitted).
The failure to repair the sewer system or to carry out a preventative maintenance program breached CPA’s duties under the Lease and was more than " mere neglect" but a conscious choice to risk future floods and expose REC to repeated disruption of its business. Compare, 19 Perry Street, LLC, 294 Conn. at 631. It was foreseeable that CPA’s decision not to make the repairs to the sewer system recommended by the sewer contractor in violation of its repair obligations under the Lease (¶¶ 16, 18, 23) and common-law duty, or its failure to carry out a preventative maintenance program outlined by the contractor as an alternative, would result in future sewage overflows in the basement space occupied by REC. It was also foreseeable that periodic sewage floods into the space would seriously disrupt Robbins’ and REC’s ability to conduct a medical practice in the offices and to use the operating rooms rendering the space untenantable. CPA’s conduct was grossly negligent.
B. Recklessness
The Supreme Court defined " recklessness" in Mathiessen v. Vanech, 266 Conn. 822, 832-33 (2003):
" ‘Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent ... More recently, we have described recklessness as ‘a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ...’
‘While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ " (Citations omitted).
Recklessness is further along the continuum of wrongful conduct than gross negligence; conduct may be grossly negligent but not involve " an extreme departure from ordinary care." Mathiessen, 266 Conn. at 832-33. CPA’s decision in June 2014 not to heed the expert’s advice was grossly negligent but did not constitute reckless conduct. Although CPA’s conduct was more than mere negligence, it did not sink to the level of " highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Id. CPA probably anticipated there would be a sewer backup from time to time that either its maintenance crew or its sewer contractor could handle. CPA probably did not anticipate the devastating series of sewage floods in the spring and summer of 2015 that culminated in the space being shut down by the health department in late June. CPA’s failure to remedy the defects in the sewer pipes within a reasonable period after the April 2015 video inspection revealed multiple sags in the main sewer line and its failure to thoroughly clean the space after the floods leading to mold infestation would be reckless conduct, but by that time REC had already vacated the space and so has no claim. Compare, Monsees v. Peta, 2012 WL 1139175 *5 (Conn.Super. 2012) (Martin, J.) (recklessness claim against landlord alleged).
CUTPA
Although there may be cases where a landlord’s failure to remedy known defects in the premises or where a landlord or property manager makes misrepresentations about the condition of the premises or repairs or the intention to remedy defects that would violate the Connecticut Unfair Trade Practices Act, see e.g., Milford Paintball, LLC v. Wampus Milford Assoc., LLC, 156 Conn.App. 750, 759 (2015), here the facts proven show mere negligence and breach of contract by CPA without aggravated circumstances but not a CUTPA violation which requires proof of unfair or deceptive conduct that would violate the " cigarette rule." See Ulbrich v. Groth, 310 Conn. 375, 409 (2013); Retrofit Partners I v. Lucas Indus., Inc., 47 F.Supp.2d 256, 271 (D.Conn. 1999) (Goettel, J.) (" a simple contract breach is not sufficient to establish a violation of CUTPA" ); Thames River Recycling, Inc. v. Gallo, 50 Conn.App. 767, 786 (1998) (negligence alone is not sufficient to violate CUTPA). The evidence also failed to show that CPA or RDR deceived Robbins or REC as to repairs to the sewer system. No CUTPA violation was proven.
REC was not party to the Lease so could not bring an action for breach of the Lease or breach of a covenant of good faith and fair dealing. The losses sustained were by REC not Robbins, the tenant.
Damages
1. Damages Awarded to CPA
With respect to the period September 2013 to October 2014, there should be a partial rent abatement that, based roughly on the area affected, justifies the reduced rent paid by REC. There were five and three quarter months, however, November and December 2014 and January, February and April 2015 through April 22, 2015, when there were no grounds to abate the rent. Failure to pay the full rental for those months was a breach of the Lease, and CPA was damaged to the extent rents for those months were reduced unilaterally by the tenant in the amount of $73,921.87 ($15,562.50 per month for five months minus $3,890.63 for the last week of April 2015). See generally Rokalor, Inc. v. Conn. Eating Enterprises, Inc., 18 Conn.App. 384, 389-90 (1989) (unpaid rent is proper measure of damages for breach of lease).
The leaks from toilets in the upper floors, although disruptive, were not grounds to abate rent because they were not sufficiently severe to render the premises untenantable.
2. Damages to REC
Quantifying the damages to be awarded to REC for CPA’s gross negligence is challenging. REC’s damage claims for the sewer problems fall into two categories: lost profits and lost value of tenant improvements to the abandoned space.
No damages are awarded for the ground water and runoff seepage through the porous foundation and resulting mold because REC has failed to establish loss for which the water infiltration was a substantial factor.
Lost profits based on reasonable assumptions are an accepted measure of damages for interruption of a business caused by wrongful conduct. See generally, Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 67 (1998). " Lost profits may be calculated based on past profits but a plaintiff cannot recover for the mere potential of profitability." Powder Coating Consultants v. The Powder Coating Institute, 2012 WL 6681290 *3 (D.Conn. 2012) (Edginton, J.). Assumptions must be based on the evidence, not on speculation or conjecture, and must establish damages with reasonable certainty. Beverly Hills Concepts, Inc., 247 Conn. at 69-77. " Although we recognize that damages for lost profits may be difficult to prove with exactitude ... such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty." Beverly Hills Concepts, Inc., 247 Conn. at 75-76. See also Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 123 (2011). The testimony of REC’s expert witness does not support an award of damages based on lost profits for a reasonable period caused by the constructive eviction of Robbins (and through her REC). There was insufficient evidence as to the net loss to REC from transitioning its business to a new space. There also was evidence that suggested Robbins reconfigured her business based on decisions not caused by the events leading to the constructive eviction. REC’s expert’s analysis was based on extrapolation from the worksheets of REC’s insurer CNA, which valued the business interruption caused by the September 2013 downspout flood for the six weeks REC was shut down following the flood. The expert took the analysis by CNA’s adjuster for this earlier period ending March 31, 2014, and used the adjuster’s calculations designed to adjust loss from the September 2013 flood, not the sewage overflows in the spring of 2015. The expert adopted the assumptions underlying the CNA negotiated numbers, reviewed some data from REC’s 2013-16 QuickBooks ledger entries, used the adjuster’s assumed collections rate and extrapolated future lost profits as a mathematical exercise based on certain financial data without analysis of the actual business. The expert assumed " but for" the casualties the past and future results would be the same, without analyzing actual results or any reasons for variations in the data. The assumptions the expert made for the period April 2015 to April 2017 do not afford a basis for awarding lost profit damages with reasonable certainty for damages caused by the constructive eviction.
Damages for loss of the use of tenant improvements have been awarded where a landlord’s misconduct has forced a tenant to abandon the premises and thus deprived a tenant of the beneficial use of the improvements for the remaining term of a lease. See 31 Tobey Road, 2016 WL 5798712 *7. In that case, the court awarded damages to a tenant and its principal after mold and flooding from a leaky roof constructively evicted the tenant. Id. The court calculated those damages by determining the percentage of time the tenant had used the improvements as compared to the time they had the right to use them under the lease and applied that percentage to the cost of the improvements. Id. Because the tenant had used the improvements before constructive eviction for only four years out of the ten-year term under the lease (five-year lease term plus five-year option), the court awarded 60 percent of the improvements’ cost as damages. Id. Here, as of April 2015, REC had used the improvements to the leased space for five years and four months out of a twenty-two-year term (ten years after completion of the improvements plus two five-year options). Therefore, REC’s damages are 75.8 percent of the improvement cost which totals $899,190 ($1,186,267 x 75.8 percent).
The Court opted to use the improvement cost from REC’s tax return rather than the unsubstantiated and unsupported $2,000,000 improvement costs estimated by Robbins or the lower contractor cost stipulated by the parties.
Conclusion
CPA may recover $89,484.37 in damages from Robbins for unpaid rents. REC may recover from CPA damages in the amount of $899,190 for its gross negligence. [*] Editor’s Note: The opinion referenced in this order, dated February 2, 2018, is attached to this Order, dated March 5, 2018. See " Attachment: opinion filed in the consolidated case, Commerce Park Associates, LLC v. Robbins Eye Care Center, P.C. Dkt. # FBT CV-14-4052827 S."