Opinion
No. CV05-5001375S
August 2, 2007
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
The plaintiff seeks damages for injuries allegedly sustained on March 13, 2005, when he fell from a staircase located within property owned by the defendant known as 906 State Street, Building A, Unit 4, in New Haven. The staircase in question leads from the living room of the apartment rented from the defendant by Robin Dorman and Kevin Schiff to a door that connects with a second floor apartment. That door, however, has been locked from both sides throughout the period of Dorman and Schiff's tenancy. Dorman had testified that she remembered that door's being open at the time that she first looked at the apartment prior to signing the lease, but it was undisputed that the door had been locked at all times thereafter. The stairway, in other words, was for all practical purposes a "stairway to nowhere."
Dorman and Schiff's lease with the defendant included provisions that the tenants "have examined the property and [are] satisfied with its physical condition. [We] acknowledge that you have made no promises to repair or improve the property," and that the landlord "may enter the property at reasonable times to provide services or to inspect, repair, improve or show if" upon reasonable notice. The tenant specifically releases the landlord from liability "for any injury and damage which is not caused by [the landlord's] negligence or improper conduct."
When, a little over two years after Dorman and Schiff began their tenancy, they decided to vacate the apartment with the knowledge and consent of the defendant, they enlisted the aid of Dorman's mother, Nancy Levine, and Levine's boyfriend, the plaintiff, Donald Shea. Shea had gone up the stairway in question to retrieve a pillow, which was located near the top of the stairs, and he lost his balance as he was starting to descend. He instinctively reached for a handrail, of which there was none, and fell to the living room floor, sustaining serious injuries. He contends that the defendant was negligent in that she allowed the stairway to exist without vertical guards and handrails on its open side, thereby creating an unreasonably unsafe and dangerous condition. He also contends that this failure violated the Connecticut Basic Building Code and General Statutes Sec. 47a-7. The defendant has denied the allegations of the complaint and has asserted a special defense of comparative negligence.
The plaintiff now seeks a prejudgment remedy in an amount sufficient to cover his damages should he prevail at trial. The defendant concedes that she was uninsured for such an event. The court therefore must determine whether the plaintiff has demonstrated probable cause to believe that a judgment will be rendered in his favor against this defendant.
The plaintiff's expert, Michael Miller, a professional engineer, testified that the Connecticut Building Code of 1978 required at least one handrail for any stairway which can serve as a "means of ingress or egress." Because the stairway could theoretically be used for egress from the apartment by somebody who was at the top of the stairs, Miller opined that the staircase, even though it ended at a locked door at its tipper end, was nevertheless one that required a handrail under the Code.
The defendant testified that to her knowledge, the door between the upstairs apartment and the apartment where the accident occurred had always been locked. She claimed that she herself never even had a key to the door. She testified that she had never received any prior complaints about the stairway and does not even recall whether there was a bannister there when she bought the building.
The plaintiff himself testified to significant injuries resulting from the fall. He also introduced medical records documenting his treatment. He testified that he cannot drive, cannot work, has sustained hearing and memory loss, is always tired, has difficulty walking and has trouble sleeping. The plaintiff is presently 78 years old.
Nancy Levine, the mother of the tenant Robin Dorman, testified that she has known the plaintiff for some 17 years and has lived with him for 13 years. She stated that he was very physically active and powerful before the accident, but that now he moves slowly and loses his balance. He has difficulty with his hearing, and their social life has diminished because he does not want to leave the home due to his hearing problem.
The defendant argues on several grounds that the plaintiff is not entitled to a prejudgment remedy because he is unlikely to prevail at trial. She first contends that the stairway, which she considers to be nothing more than a decorative architectural feature, was not in violation of the Code because it did not, in fact, provide ingress or egress to anything given that the door at the top of the stairs was locked. She claims that because the staircase was not used as a means of ingress or egress to and from the two separate apartments within the unit, it was not subject to the Code's requirements for stairways. While it is true that the use of the stairway as a means of egress would be available only to a person who happened to be perched at the top of the stairs at the time that egress was sought, the court nonetheless believes that this fact is a sufficient basis for a finding of probable cause to believe that at trial, the stairway would be found to meet the criteria for a "means of egress." For purposes of this hearing, therefore, the court concludes that here is probable cause to believe that the staircase was a means of egress from part of the apartment, that it was therefore subject to the building code, and that it was defective.
The defendant also argues that she cannot be held liable because of lack of notice of the claimed defect and points out that she herself does not even recall whether there was or was not a railing for the staircase when she was last on the premises prior to the execution of the lease with Dorman and Schiff. She also notes that the lease provides that she is prohibited from entering the premises without reasonable notice or knowledge of an emergency, that she has not in fact entered the apartment since the signing of the lease, that she never received any complaints about the stairway, and that she therefore cannot be charged with notice of any defect. For purposes of a prejudgment remedy application, however, this court feels there is sufficient evidence upon which to conclude there is probable cause to believe that the defendant had been aware of the fact there was a stairway in the demised premises, that there was no handrail on the open side of this stairway, and that she would therefore be charged with notice of the defect.
The defendant also claims that paragraph 18 of the lease, which requires the tenants to "comply with all laws, orders, rules and requests of all government authorities . . ." somehow relieves the defendant of any obligations that she might have under the Code and under Section 47a-7 of the General Statutes. While the lease may have required the tenants to abide by all laws once they took possession, however, the defendant offers no authority for the proposition that this obligation would have extinguished any obligations that she would have had at the time that she leased the premises to the tenants.
The defendant argues that the plaintiff's injuries were due to his own negligence. Although comparative negligence will certainly be an issue at trial, the evidence presented at this hearing was not such as to provide a basis for defeating a finding that there is probable cause to believe that the plaintiff is likely to prevail at trial.
The defendant's principal objection to the granting of a prejudgment remedy in this case, however, is grounded not in the previously recited arguments but rather in the notion that liability for defective premises depends on possession and control, not ownership. "[A] necessary condition precedent to the imposition of liability is control over the portion of the premises upon which lies the alleged defective condition. Therefore an essential averment in a complaint predicated upon an alleged defective condition existing on premises is an allegation that the defendant had some control over the alleged defective condition and hence a right as well as a duty to remedy the condition." Cieszynski v. Franklin Corporation, 25 Conn.Sup. 342, 345 (1964). Nevertheless, the "obligation to repair on a landlord's part will not be created by a right of entry or reservation of a right to repair in a lease," Palimas v. Areas Realty Co., 130 Conn. 687, 692 (1944). See also, Friedman on Leases, 3d ed., Vol 1, § 10.05, pp. 630-31.
At common law, a landlord was under no implied obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects therein where the landlord had not made any warranty or contract relative to the condition of the demised premises or the repair of defects. Pignatario v. Meyers, 100 Conn. 234, 237 (1924); 32 Am.Jur. 526, Landlord and Tenant, 662; 52 C.J.S., Landlord and Tenant, 417(3). Responsibility for the proper care over portions of the premises within the leased area may rest with the lessor however, if, with the acquiescence of the lessee, he retains control, and an agreement between the parties as to the landlord's right to inspect the premises together with his exclusive right to make repairs therein and the tenant's total abstention from making any repairs would be the equivalent of retention of control of the leased premises. Smith v. Housing Authority, 144 Conn. 13, 16-17 (1956).
The defendant argues persuasively, however, that by virtue of the lease agreement in this case, possession and control rests exclusively with Dorman and Schiff, the tenants. See Farlow v. Andrews. 154 Conn. 220, 225 (1966); LaFlamme v. D'Alessio, 65 Conn.App. 1, 6-7 (2001). She argues not only that as a general proposition "a landlord has no liability for premises entirely demised to a tenant" but also that this concept specifically includes stairways used for access to and egress from a building on property entirely occupied by a tenant. Guadalupe v. Summers, CV98-68083S, 2000 W.L. 1183646, at *1 (Conn.Super. Nov. 16, 2000). Because the incident in this case occurred entirely within premises that were occupied, possessed and controlled by the tenants, Kevin Schiff and Robin Dorman, the defendant claims that she has no liability for the plaintiff's injuries. Because she cannot be held liable, she argues further, the plaintiff cannot demonstrate probable cause to believe in the likelihood of his prevailing against her at the trial, and the application for a prejudgment remedy should therefore be denied.
Even if a lessor has surrendered complete control of the premises, however, he or she could still be liable for undisclosed dangerous conditions that were known or should have been known to her. See Restatement 2d Torts, § 358, which would impose liability if the "lessor knows or has reason to know of the condition or realizes or should realize the risk involved." Section 358(1)b. Arguably, this defendant knew or had reason to know that there was a stairway without a railing on the premises, but so did the tenants. Under Connecticut case law, the caveat emptor rule does "not apply to defects which are the result of faulty design or disrepair and which existed at the beginning of the tenancy, were not discoverable by the tenant on reasonable inspection, and were known, either actually or constructively to the landlord." Civale v. Meriden Housing Authority, 150 Conn. 594, 597 (1963); See also Masterson et al. v. Atherton, 149 Conn. 302, 305 (1962); Ayala v. B B Realty Co., 32 Conn.Sup. 58, 61 (1974).
In this case, assuming, arguendo, that there is probable cause to believe that the plaintiff will prevail in his argument that a) the design of the "stairway to nowhere" was defective, b) the defect existed at the beginning of the tenancy, and c) the defect was known to the landlord, the court is nevertheless compelled to conclude that plaintiff has not given the court probable cause to believe that he can establish that the defect was not one that was "discoverable by the tenant on reasonable inspection." For more than two years, Dorman and Shiff lived in the apartment and either knew or could not have helped but notice that the stairway lacked a railing. Moreover, they acknowledged in the lease that they had examined the property and were satisfied with its physical condition.
In Thomas v. Roper, 162 Conn. 343, 349-50 (1972), our Supreme Court held that "there is no implied warranty of habitability given to a tenant, but rather, he takes the premises as he finds them and bears the risk of any defective conditions which are within the area under his exclusive possession and control." The absence of a railing was, or should have been, as least as obvious to the tenants as it was to their landlord. Among the risks of a defective condition that tenants assume is that someone may be injured as a result of the known defect.
The court has read with care Judge Sferrazza's memorandum of decision in Guadulupe v. Summers, supra. Comprehensively and, in this court's view, accurately, Judge Sferrazza discusses the same principles that are involved in this matter, and this court therefore adopts the reasoning expressed in that opinion. The tenants assumed the responsibility for maintaining the apartment in a habitable condition, which includes, at a minimum, addressing and bringing to the attention of the landlord any defects that warranted repair and warning guests of any known hazards. From the evidence presented at this hearing, they did not do so, despite the fact that the absence of the handrail was at least as obvious to them over the two years that they leased the premises as it was to landlord, who spent relatively little time there before, and no time at all after, the execution of the lease.
Upon the execution of that lease, the defendant gave possession and control to Dorman and Schiff. Her continued ownership of the premises did not confer on her any of the obligations that were transferred to the plaintiff upon the execution of the lease. The liability for the plaintiff's injuries may therefore rest with the plaintiff himself, the tenants, neither, or both, but the plaintiff has not established probable cause to conclude that he is likely to prevail in his claim against the defendant in the course of a trial on the merits.
For the above reasons, the application for a prejudgment remedy is denied.