Opinion
No. CV 085008040
February 3, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT No. 138
On September 18, 2009, the defendant, Arrow Paper Party Stores, Inc., filed this motion for summary judgment and a memorandum of law in support, as well as accompanying evidence. On October 7, 2009, the plaintiff, Anastacia Seuferling, filed an objection to the motion and a memorandum in opposition, as well as accompanying evidence. On November 11, 2009, the defendant filed a reply to the plaintiff's objection.
Arrow Paper Party Stores, Inc. is one of four defendants named in this action. Another defendant, Fitness Nutrition, Inc. d/b/a Work Out World, has filed a similar motion for summary judgment, which is addressed in a different memorandum of decision. This motion for summary judgment was filed only by Arrow Paper Party Stores, Inc.; accordingly, Arrow Paper Party Stores, Inc. will be referred to as "the defendant" hereinafter.
The plaintiff alleges the following facts in her amended complaint, dated June 5, 2009. On November 6, 2007, the plaintiff was a patron of the defendant's store, which is located in a plaza. The plaintiff caught the tip of her sneaker on an uneven ridge in a pedestrian crosswalk within the parking lot of the plaza. The plaintiff fell, and the fall resulted in injuries to the plaintiff's finger, as well as multiple contusions and abrasions. The plaintiff's injuries required surgery and additional medical care, and some of the injuries may be permanent in nature.
The first count of the amended complaint alleges a negligence claim against Plaza Enterprises, LLC. The second count alleges a negligence claim against the defendant. The third count alleges a negligence claim against Engineered Construction International, Inc. The fourth count alleges a negligence claim against Fitness and Nutrition, Inc. d/b/a Work Out World.
LAW OF MOTION FOR SUMMARY JUDGMENT
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
DISCUSSION
The defendant argues that summary judgment should enter because the defendant did not owe a legal duty to the plaintiff. The defendant argues that it did not possess or control the area in which the plaintiff was injured, thus, the defendant had no duty for the purposes of a negligence cause of action. In response, the plaintiff argues that the defendant had a non-delegable duty to her as a business invitee, regardless of an agreement with a landlord regarding the maintenance of the parking area. The defendant argues in response that the case law cited by the plaintiff is distinguishable because, in the present case, the parking lot is not a part of the leased premise and the defendant's use of the parking lot was non-exclusive. Additionally, the defendant argues that no material issue exists as to control over the parking lot because deposition testimony establishes that the parking lot was under the exclusive control of Plaza Enterprises, LLC.
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003).
"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, 251, 802 A.2d 63 (2002). "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 . . . Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003).
The plaintiff argues that case law supports her position that the defendant owed her a duty of care as a business invitee. The plaintiff cites Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), cert. dismissed, 254 Conn. 786, 759 (2000), as an example of a defendant tenant's duty to business invitees in a parking lot. In that case, the plaintiff slipped and fell on a plastic shopping bag in the parking lot of a Waldbaum's Foodmart (Waldbaum's). Id., 138. Waldbaum's moved for summary judgment, arguing that, pursuant to its lease agreement, the landlord for the leased property had the duty to keep the parking lot free from debris. Id., 140. The trial court granted Waldbaum's motion, and the plaintiff appealed. Id., 140-41.
In determining that Waldbaum's owed the plaintiff a duty of care, the Appellate Court reasoned that "[t]he 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 . . ."Waldbaum'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., 149-50.
Tarzia stands for the proposition the possessor of a premises has a non-delegable duty of reasonable care to business invitees on the premise. In Tarzia, this non-delegable duty sprung from the fact that the plaintiff was a customer of Waldbaum's. An analogous situation exists in the present case. The plaintiff alleges that she was a business invitee of the defendant, and that a duty of reasonable care exists on account of this relationship. The evidence presented by the defendant does not establish the fact that the plaintiff was not a business invitee. Further, the plaintiff presents evidence that her purpose for being on the premise was to shop in the defendant's store, and the defendant knew that the parking lot was in need of repair. The plaintiff's status as a business invitee gave rise to a duty of reasonable care. As the court in Tarzia stated, the issues of whether the defendant breached its duty and whether there is a causal connection between the breach and the plaintiff's alleged injuries are questions for a fact-finder. The defendant has not met its burden of showing it is entitled to judgment as a matter of law; accordingly, the motion for summary judgment is denied.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #140
On October 7, 2009, the defendant, Fitness Nutrition, Inc. d/b/a Work Out World, filed this motion for summary judgment and a memorandum of law in support, as well as accompanying evidence. On October 21, 2009, the defendant filed a supplemental memorandum of law in support of its motion for summary judgment. On October 26, 2009, the plaintiff, Anastacia Seuferling, filed an objection to the motion and a memorandum in opposition, as well as accompanying evidence. On October 28, 2009, the defendant filed a second supplemental memorandum of law and reply to the plaintiff's objection. On November 18, 2009, the defendant filed a third supplemental memorandum of law and additional reply to the plaintiff's objection.
Fitness Nutrition, Inc. d/b/a Work Out World is one of four defendants named in this action. Another defendant, Arrow Paper Party Stores, Inc., has filed a similar motion for summary judgment, which is addressed in a different memorandum of decision. This motion for summary judgment was filed only by Fitness Nutrition, Inc. d/b/a Work Out World; accordingly, Fitness Nutrition, Inc. d/b/a Work Out World will be referred to as "the defendant" hereinafter.
The plaintiff alleges the following facts in her amended complaint, dated June 5, 2009. At some time prior to November 6, 2007, the defendant renovated its retail space, located in Great Plains Plaza. The renovations included excavation and paving work in the parking lot. On November 6, 2007, the plaintiff was a patron at the Great Plains Plaza. The plaintiff caught the tip of her sneaker on an uneven ridge in a pedestrian crosswalk within the parking lot of the plaza. The plaintiff fell, and the fall resulted in injuries to the plaintiff's finger, as well as multiple contusions and abrasions. The location of the plaintiffs fall was at or around the area of the parking lot that was excavated and paved. The plaintiff's injuries required surgery and additional medical care, and some of the injuries may be permanent in nature.
The first count of the amended complaint alleges a negligence claim against Plaza Enterprises, LLC. The second count alleges a negligence claim against Arrow Paper Party Stores, Inc. The third count alleges a negligence claim against Engineered Construction International, Inc. The fourth count alleges a negligence claim against the defendant.
LAW OF MOTION FOR SUMMARY JUDGMENT
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
DISCUSSION
The defendant argues in its first memorandum in support that the landlord owned the parking lot and was responsible for the lot's maintenance, and that the parking lot was under the exclusive control and management of the landlord. Additionally, the defendant argues that the landlord was responsible for the construction completed in the parking lot. In its second memorandum, the defendant argues that it had no duty to the plaintiff because she was not a patron of the defendant's establishment at the time of the injury.
The plaintiff argues in response that the defendant owed her a non-delegable duty of care because the plaintiff was a business invitee in the Great Plains Plaza. The plaintiff argues that the defendant failed to take reasonable steps to prevent her from injuries that could be reasonably anticipated to arise from the condition of the parking lot. Additionally, the plaintiff argues that the defendant had control over the parking lot because the defendant shared in the cost of maintenance and repair of the parking lot and the landlord expected that the tenants of the shopping center, including the defendant, would notify the landlord of any defects in the parking lot.
In its third and forth memorandums, the defendant argues that under the terms of the lease agreement, the landlord, not the defendant, had exclusive control over the parking lot, regardless of the agreement regarding payment of maintenance fees. Further, the defendant argues that it had no control because the parking lot was not included in its leased premise. Additionally, the defendant reiterates its argument that it did not owe the plaintiff a duty of care as a business invitee because the plaintiff was not a patron of the defendant's establishment at the time of the incident.
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003).
"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, 251, 802 A.2d 63 (2002). "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 . . . Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue. (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003).
The plaintiff argues that case law supports her position that the defendant owed her a duty of care as a business invitee. The plaintiff cites Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999), cert. dismissed, 254 Conn. 786, 759 A.2d (2000), as an example of a defendant tenant's duty to business invitees in a parking lot. In that case, the plaintiff slipped and fell on a plastic shopping bag in the parking lot of a Waldbaum's Foodmart (Waldbaum's). Id., 138. Waldbaum's moved for summary judgment, arguing that, pursuant to its lease agreement, the landlord for the leased property had the duty to keep the parking lot free from debris. Id., 140. The trial court granted Waldbaum's motion, and the plaintiff appealed. Id., 140-41.
In determining that Waldbaum's owed the plaintiff a duty of care, the Appellate Court reasoned that "[t]he 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 . . .
"Waldbaum'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., 149-50.
Tarzia stands for the proposition the possessor of a premises has a non-delegable duty of reasonable care to business invitees on the premise. In Tarzia, this non-delegable duty sprung from the fact that the plaintiff was a customer of Waldbaum's. The situation in the present case is distinguishable. The plaintiff does not allege that she was a business invitee of the defendant, but rather alleges that she was an invitee of the plaza itself. The defendant has submitted evidence that the plaintiff was not a patron at its store at the time of the incident. See Plaintiff's Response to Request for Admissions, September 14, 2009, p. 1-2. The plaintiff has not submitted any evidence in response that she was a customer of this particular defendant. The defendant had no duty of reasonable care to the plaintiff because the plaintiff was not a patron of the defendant.
In the present case, it would be overinclusive and unreasonable to impose a duty of care on the defendant. Extension of the holding in CT Page 4297 Tarzia to a situation such as in the present case would mean that any business in the shopping center would be responsible to patrons of any other establishment, regardless of the distance between the injury and their store front or their ability to monitor the area. When a plaintiff is a patron at a business establishment, that business has a duty to protect the patron from any foreseeable harms. When a plaintiff is not a patron, however, it is unreasonable to impose a duty on a defendant business because the business cannot foresee an injury to another store's customer. In the present case, the defendant has no duty to the plaintiff because the plaintiff was not a customer at the defendant's store. Accordingly, the motion for summary judgment is granted.