Opinion
MMXCV176017059
08-02-2018
Anna Marie SPADA v. Michael ALBANIS
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendants, Michael and Anna Albanis, have moved for summary judgment on the grounds that there are no material issues of fact and they are entitled to judgment as a matter of law. The plaintiff’s Revised Complaint was stricken on February 8, 2018 for failing to state a cause of action. The plaintiff filed a Second Revised Complaint on February 23, 2018, which was essentially the same as the Revised Complaint.
Factual and Procedural Background
The Revised Complaint alleged in pertinent part:
2. About 7 years ago in or about October of 2008, Plaintiff began renting her apartment from Defendants and landlords Michael Albanis and Anna Albanis located at 10 High Street, Apt. D in Deep River, Connecticut 06417.
3. Sometime between 2008 and 2010 while living at the premises, Plaintiff noticed a loose floorboard with a nail sticking out located inside of the living room near the radiator and window.
4. Plaintiff then contacted Defendants via telephone and left a voicemail regarding the defective floor conditions including the loose floorboard and nail. Defendants made no attempt to fix the loose floorboard or remove the nail.
5. In the meantime, Plaintiff tried her best to avoid that area in the living room.
6. On or about January 12, 2015, Plaintiff was in the living room of the premises with her friend, Dave Wilson, near the door and windows when she stepped on a loose floorboard with a nail sticking out.
* * * *
10. As a direct result of Plaintiff’s fall over the loose floorboard and nail, Plaintiff tore her left ACL, now has to wear a brace and has difficulty walking.
The Revised Complaint also alleged that on or about January 15, 2016, because of the aforementioned injury, the plaintiff’s knee "buckled," causing her to fall and injure her wrist and fracture her left arm. Subsequently, on or about December 20, 2016, the plaintiff’s knee "buckled" again, causing her to fall on her wrist and further fracture her arm.
The court granted the motion to strike on the grounds that a tenant "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." Gore v. People’s Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995). The court further held that the plaintiff could not recover under Connecticut General Statutes § 47a-7(a)(2) because loose floorboard which had existed in the premises for 5-7 years while the plaintiff lived in the premises could not be held to render the premises "uninhabitable" within the meaning of § 47a-7(a)(2).
After the Revised Complaint was stricken, the plaintiff filed a Second Revised complaint, which was identical to the Revised complaint except that paragraph 3 thereof provided:
3. Sometime between 2008 and 2010 while living at the premises, Plaintiff noticed a loose floorboard with a nail sticking out located inside of the living room near the radiator and window. This condition was either present when the Plaintiff took possession of the premises, or arose sometime after the Plaintiff took possession of the premises. Added language of Second Revised Complaint is italicized.
Discussion of the Law and Ruling
Pursuant to Practice Book § 17-49, "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." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999) (quoting Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 600 A.2d 810 (1995) ). A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14, 728 A.2d 1114 (1999), (citing Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990) ). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Miller v. United Technologies Corp., 233 Conn. 732, 745, 600 A.2d 810 (1995).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principals of substantive law, entitle him to a judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); Charlemagne v. Progressive Northwest Ins. Co., 63 Conn.App. 596, 599, 777 A.2d 741 (2001). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). The existence of a genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). "It is not enough for the opposing party merely to assert the existence of a disputed issue." Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986). Likewise, a party’s conclusory statements in affidavits or other pleadings do not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1172 (1987) (‘[s]ummary judgment procedure, generally speaking, is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial’). If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996) (directed verdict appropriate if evidence is ‘so weak’ that ‘the jury could not reasonably and legally have found that the plaintiff had proved each of [the essential] elements’); Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991) (directed verdict appropriate ‘when the plaintiff has failed to produce any evidence of an essential element of his cause of action’).
To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action. See, e.g., Robinson v. Cianfarani, 314 Conn. 521, 524-25, 107 A.3d 375 (2014) ("[a] material fact ... [is] a fact which will make a difference in the result of the case"); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 6, 357 A.2d 484 (1975) (test for granting summary judgment ‘is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts’); see also Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013) ("[w]hen 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" [internal quotation marks omitted] ).
If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of that plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case. See Santopietro v. New Haven, supra, 239 Conn. at 225, 682 A.2d 106. It logically follows that, in evaluating a defendant’s motion for summary judgment, a trial court’s task does not necessarily end upon its finding that a genuine factual dispute exists as to one or some essential elements of a plaintiff’s cause of action. If a defendant has substantively addressed additional essential elements in support of his motion, so too should the trial court in determining whether summary judgment is appropriate.Stuart v. Freiburg, 316 Conn. 809, 822-24, 116 A.3d 1195 (2015).
In Gore v. People’s Savings Bank, supra, 373, the court examined traditional principles of landlord premises liability in order to determine whether violations of § § 47a-7, 47a-8, and 47a-54f constituted negligence per se. The court held, inter alia, that a tenant "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 ... This rule, however, 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." (Internal quotation marks omitted.) Id., 374; see Ciavaglia v. Bolles, 38 Conn.Supp. 603, 606, 457 A.2d 669 (App.Sess. 1982) (holding that plaintiff’s claim of fit and habitable conditions were unavailing because premises were under exclusive possession and control of tenant).
The plaintiff’s addition to the complaint which alleges that the defect may have been present at the time the tenancy began appears to be an effort to fit within the language of Gore italicized above. There are several problems with this effort. First, the plaintiff has appended her affidavit to her opposition to summary judgment. That affidavit does not contain any facts to support the allegation that the defect existed at the beginning of the tenancy. In addition, the loose floorboard and nail were, as a matter of law, clearly discoverable upon reasonable inspection by the tenant. Therefore, the alleged defect does not fit within the Gore exception. Moreover, the plaintiff admits that she did discover the loose floorboard. "[A]ctual knowledge, by the tenant, of a given defect is fatal to his case, even if the defect were not discoverable upon reasonable inspection." Masterson v. Atherton, 149 Conn. 302, 307, 179 A.2d 592 (1962).
The allegations and averments that the plaintiff contacted the defendants to fix the alleged defect do not create a material issue of fact. The Connecticut Supreme Court has adopted the common-law principle that "[i]n the absence of a statute or covenant to the contrary, the lessor does not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the lessee. Rather the duty to make ordinary repairs rests upon the lessee." Thomas v. Roper, 162 Conn. 343, 348 (1972). This means that in the absence of a lease providing otherwise, it was the plaintiff’s responsibility to repair the defect, and not the responsibility of the defendants to do so, no matter how many times the plaintiff telephoned about same. The plaintiff has presented no evidence of any lease, or anything else which would vary her common-law obligation to keep her own premises in repair.
The plaintiff also seeks to recover under Connecticut General Statutes § 47a-7(a)(2), which provides that landlords have a duty to make all repairs necessary to put and keep the premises in a fit and habitable condition. The loose floor board in this case was clearly not the type of defect contemplated under § 47a-7(a)(2) because it did not materially affect the plaintiff’s safety or render the premises uninhabitable. See Housing Authority v. Olsen, 31 Conn.App. 359, 363 (1993) (Tenant making claim under 47a-7(a) must show condition materially affects his safety); Tucker v. Lopez, 38 Conn.Supp. 67, 69 (1982) (Tenant withholding rent must show condition materially affects his safety); Steinegger v. Rosario, 35 Conn.Supp. 151, 156 (1979). (Tenant must show that condition rendered the premises uninhabitable.)
The defendants argue that the statute of limitations presents an additional ground upon which to grant summary judgment. "Summary judgment may be rendered where the claim is barred by the statute of limitations." Pinette v. McLaughlin 96 Conn.App. 769, 772, 901 A.2d 1269 (2006). Under Connecticut General Statutes § 52-584, "No action to recover damages for injury to the person or to real or personal property, caused by negligence or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of except that a counterclaim may be interposed in any such action any time before the pleadings in such an action are finally closed."
Under § 52-584 the three-year limitation period begins to run from the date of the negligent act. McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 330-34, 471 A.2d 646 (1984); Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 172-73, 127 A.2d 814 (1956). The affidavit of the plaintiff establishes that the alleged defect has existed since 2010 at the latest. Thus, a minimum of seven years passed from the date of the alleged negligence to the date on which this action was filed.
The plaintiff argues that the statute of limitations is tolled under the continuing course of conduct doctrine. However, she has not plead a continuing course of conduct and has presented no evidence of anything which would create a continuing duty of the defendants to take any action with respect to the premises occupied and controlled by the plaintiff or of any special relationship between the plaintiff and the defendants.
The court in Fichera v. Mine Hill Corporation, 207 Conn. 204, 209-10, 541 A.2d 472 (1988), held that the continuing course of conduct doctrine did not apply to toll the statute of limitations against a builder from whom the plaintiffs purchased land, stating:
To support a finding of a "continuing course of conduct" that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. In Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983), we held that the alleged negligence of a contractor in failing to safeguard a dangerous hole left on the job site after it had completed its work ‘would not in itself establish that it had a continuing duty to warn of the danger or to safeguard the hole.’ We affirmed the summary judgment granted by the trial court in that case because the plaintiff had presented no facts, by affidavit or otherwise, that would reasonably have supported an inference that the duty to protect against the hazard left upon the premises extended for any substantial period beyond the time of the contractor’s departure from the site. Similarly, in Prokolkin v. General Motors Corporation, 170 Conn. 289, 301, 365 A.2d 1180 (1976), we held that the concept of a continuing ‘duty to warn’ of a defect as a basis for a claim of negligence that would toll the statute of limitations was inapplicable to a products liability action claiming strict liability for the sale of a defective product, where the statute runs from the date of sale, ‘the act or omission complained of’ General Statutes § 52-577.
Where we have upheld a finding that a duty continued to exist after the cessation of the ‘act or omission’ relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. See Giglio v. Connecticut Light & Power Co., supra, 180 Conn. at 242, 429 A.2d 486 ("repeated instructions and advice given to the plaintiff by the defendant" concerning a furnace it had previously converted and left in a defective condition); Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) (‘[w]hen ... injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated’); cf. Handler v. Remington Arms Co., supra (duty to warn of danger of defective cartridge, ‘an inherently dangerous article,’ held to continue in existence until time of injury).
The plaintiffs do not claim any relationship with the defendants that would create a duty continuing after the purchase of the lots other than that based upon the unfulfilled promises to construct various improvements upon the land of the defendants reserved as a recreational area. Such a contractual relationship, however, does not create a fiduciary obligation that might have imposed upon the defendants as the perpetrators of a fraud the continuing duty to disclose their prior lack of candor to the plaintiffs. Nor does the circumstance that the plaintiffs were the victims of deception, as the trial court found, impose such a duty of disclosure on the defendants. We are aware of no authority holding that the perpetrator of a fraud involving merely a vendor-vendee relationship has a legal duty to disclose his deceit after its occurrence and that the breach of that duty will toll the statute of limitations. Such a relationship does not give rise to obligations equivalent to those of a fiduciary.
The three-year statute of limitations was not tolled in this case by any continuing course of conduct. Therefore, if the plaintiff did have an actionable claim against the defendants, which she does not, said claim would be barred by the Connecticut General Statutes § 52-584.
For the foregoing reasons, summary judgment enters against the plaintiff in favor of the defendants, Michael and Anna Albanis.