Opinion
FSTCV176031570S
12-04-2018
Heather ST. JOHN v. The CLASSIC CONDOMINIUMS
UNPUBLISHED OPINION
OPINION
POVODATOR, JTR
This is an action based on an alleged sexual assault that occurred in the apartment that the plaintiff shared with an unrelated male (who had no direct involvement in the events in question). The plaintiff originally sued her assailant, David Fogel, as well as three entities associated with management, operation and security in the building in which her unit was located. The moving defendants previously moved to strike the claims against them, claiming they had no duty with respect to the assault that actually took place within the apartment unit rather than in an area subject to their control. The court denied that motion, as the complaint did not focus on what happened in the apartment unit but rather the negligence of the defendants in allowing the assailant to get to the apartment (through common areas under the control of the moving defendants). The court’s decision on that motion, in turn starting with the defendants’ then-summary of the case, is a useful starting point for further analysis/discussion:
On October 25, 2017, Mr. Fogel pleaded guilty to five misdemeanors-assault in the third degree; reckless endangerment in the first degree; criminal trespass in the first degree; unlawful restraint in the second degree; and breach of peace in the second degree. Therefore, for purposes of this motion, there does not appear to be any dispute that some form of assault occurred on the evening in question (although as recited in the objection filed by defendant VPNE Parking Solutions, LLC, Mr. Fogel has disclaimed at least portions of the version of events recited by the prosecutor and to which he assented in connection with disposition of his criminal charges). Therefore, while there was no admission to any charge having a specific sexual element, it appears to be appropriate to identify him as an assailant as opposed to an alleged assailant, given his guilty plea to assault (with no suggestion that it might come within the scope of § 4-8A of the Connecticut Code of Evidence).
Plaintiff’s claims stem from an alleged sexual assault that occurred within the bedroom of her apartment. As a result of the alleged sexual assault, she filed this action against the owner, property manager, concierge and alleged assailant. Although her claims against the alleged assailant may be tenable, her claims against the owner and property manager must fail because neither the owner nor property manager owed her a legally cognizable duty. In fact, Connecticut case law is clear-a landlord’s duty is dependent upon its exclusive control of the area or its exclusive ability to prevent the unlawful conduct. Neither the owner nor the property manager had exclusive control over the Plaintiff’s bedroom. In addition, neither the owner nor the property manager had the exclusive ability to prevent unlawful conduct in the Plaintiff’s bedroom. To wit, neither the owner nor the property owner had a legally cognizable duty to Plaintiff and the Counts against them must be stricken.
If the plaintiff were claiming that the defendants had a duty to control persons who entered her bedroom, or controlled persons who actually entered into her condominium unit, the argument might have some plausibility. The plaintiff does not address her complaints to the defendant’s negligence in such a narrow geographical sense-her claims are that the defendants were negligent in allowing the assailant to enter the building and pass through the building so as to be able to get to her condominium unit.
Paragraph 5 identifies the defendants as in control of the premises located at 25 Forest Street. The complaint alleges that the assailant was allowed to enter the premises, where he followed the plaintiff to and into the elevator and to her unit, where he assaulted her. At the risk of oversimplification, the allegations of negligence do not start at the entrance to her condominium unit, as suggested by the defendants’ assertions that they had no control over the inside of her unit-the allegations of negligence end at the entrance to her unit. Thus, the plaintiff alleges that the defendants were negligent by failing, inter alia, to control access of unauthorized persons to the premises, failing to have protocols (or following protocols) concerning access by nonresidents, and otherwise ensuring that only guests and other authorized persons gained access to the interior of the building (the premises that they controlled, maintained, etc.) All of these claims of negligence focus on conduct and conditions outside of her unit and within the alleged (and therefore presumed to be true) domain of the moving defendants.
A fair reading of the complaint faults the defendants not for failing to control access to the plaintiff’s unit at the doorway to her unit, but rather in allowing the assailant to get to her unit. The defendants have not negated the existence of a duty to control access to the interior of the building, either as a matter of law or based on the facts as alleged. To the contrary, the court is required to accept the plaintiff’s allegations that the defendants were responsible for the premises, which for purposes of this litigation, would appear to be all common areas (from the entryway to the building, through the access to the elevators and to the door to her unit). In a sense, the defendants’ arguments appear to begin at the boundary where the actual claim ends.
The defendants have not established that they lacked any duty to the plaintiff relating to the common areas of the premises (particularly access to and security in the common areas), and therefore they have not established that the plaintiff’s complaint is legally insufficient based on a claimed lack of duty to the plaintiff.
The same defendants now have moved for summary judgment, asserting similar claims, but this time augmented by facts (rather than relying on claimed pleading insufficiency), in turn claimed to be based on the plaintiff’s deposition. The plaintiff’s deposition transcript was the only factual document submitted in support of the motion; in connection with the reply to the plaintiff’s opposition, the defendant also submitted a copy of the police report relating to the underlying incident, relying on the recitation in that document of the events as recounted by the plaintiff to the police, several experts in after the incident had occurred. In connection with her objection to the motion, the plaintiff has submitted excerpts from her own deposition, focusing more narrowly on the aspects of that deposition relevant to the issues currently before the court.
Procedural Issues
The court has recited its earlier decision at length, because the plaintiff has raised some procedural issues relating to that decision, and the general concept of a motion challenging legal sufficiency.
The plaintiff claims that the court should apply the doctrine of "law of the case," relying on the decision on the motion to strike as the basis for such an approach. Conversely, the plaintiff contends that the motion for summary judgment is effectively a disguised motion to strike, challenging the existence of a duty or otherwise challenging the legal sufficiency of the complaint, invoking the tension between a motion to strike and a motion for summary judgment as articulated in Larobina v. McDonald, 274 Conn. 394, 404-05 (2005) (and more recently, see Reyes v. Bridgeport, 152 Conn.App. 528, 541-42 (2014)). In the latter regard, the plaintiff claims that she is being deprived of an opportunity to replead, should the court determine that there is an insufficiency in her complaint.
The court does not believe that the concept of "law of the case" is applicable in this situation. The determination of the court, with respect to the denial of the motion to strike, was limited to the legal sufficiency of the complaint-assuming everything alleged in the complaint were true, and giving the plaintiff the benefit of all reasonable inferences from those allegations, did the plaintiff state a legally cognizable/sufficient cause of action? In connection with a motion to strike, the court is not concerned with actual facts, but instead is confined to consideration of the existing record in the pleadings, assuming alleged facts to be true. For example, for purposes of a motion to strike, the court must accept the plaintiff’s characterization of the assault as a sexual assault; in connection with a motion for summary judgment, the defendants could attempt to offer evidence that the assault never took place, or that it is not properly characterizable as a sexual assault, or could otherwise challenge the factual accuracy of the allegations in the complaint.
With respect to the claim that the plaintiff is being deprived of an opportunity to plead over, should the court rule against her, the court is not addressing legal sufficiency of the complaint-already addressed-but rather the ability of the facts to support those claims, applying the summary judgment standard relating to the existence of a material issue of fact. If the defendants are able to establish, as to any or all of the required elements of the plaintiff’s cause of action, that there is no material factual issue and that based on those undisputed facts, the plaintiff cannot prove such element or elements, then the defendants would be entitled to judgment in their favor. That is not a disguised motion to strike.
More narrowly, the plaintiff has not identified how the current motion for summary judgment is a camouflaged motion to strike. The plaintiff does not clearly identify any legal issue or legal insufficiency claim that is masked by this motion for summary judgment. Although there is a claim that the plaintiff would want an opportunity to plead over should the court ruled against her on this motion, there is no identification of what those corrective/supplemental allegations might be. More importantly, the plaintiff does not explain why she could not establish the existence of a material issue of fact as to those as-yet-not-pleaded allegations. From a different perspective, the plaintiff has not sought leave to amend her complaint to make such changes in advance of any ruling by the court, whether before argument on the motion for summary judgment or since. See, e.g., Conference Center Ltd. v. TRC-The Research Corp. of New England, 189 Conn. 212, 216-17, 455 A.2d 857 (1983) (recognizing that "a trial court may be well-advised to exercise leniency when amendments are proffered in response to a motion for summary judgment, rather than on the eve of trial ..." before proceeding to recognize that it is a matter of discretion for the court); see, also, Collum v. Chapin, 40 Conn.App. 449, 453-54 (1996) (recognizing that a trial court has discretion to allow an amendment even after a decision is rendered on a motion for summary judgment).
If the plaintiff had sought to amend her complaint, the court would have a better understanding of how it is claimed that this motion for summary judgment implicates legal sufficiency rather than the actual facts and whether the facts are undisputed or present a material issue for determination by a fact finder. Based on the current record, however, the court sees no impediment to addressing the merits of the defendants’ motion.
Applicable Law
The general principles guiding the court in deciding a motion for summary judgment are sufficiently well-established as not to require any lengthy recitation. See, e.g., Martinez v. Premier Maintenance, Inc., 185 Conn.App. 425, 434-35 (2018). In simplistic terms, the issue is whether the moving party has established the absence of the existence of any material issue of fact, and that based on undisputed material facts, it is entitled to judgment in its favor.
Of particular significance in this case is that in evaluating the evidence presented by the parties, the court is required to construe the evidence in a manner most favorable to the nonmoving party, including giving the nonmoving party the benefit of all reasonable favorable inferences; Bozelko v. D’Amato, 186 Conn.App. 278, 282 (2018). In other words, the burden on the defendants is to establish that, even if the evidence is viewed in a manner adverse to their position, there are no material issues of fact and they are entitled to judgment in their favor.
Discussion
The defendants do not challenge the proposition that they could have liability if it were established that they had breached a duty owed to the plaintiff. The defendants also do not seriously challenge the proposition that they might or do have certain duties owed to the plaintiff with respect to the common areas of the building under their control. (Their words as quoted in the decision on the motion to strike: "Connecticut case law is clear-a landlord’s duty is dependent upon its exclusive control of the area or its exclusive ability to prevent the unlawful conduct.") Their contention, however, is that they did not breach any duty that might have been owed to the plaintiff, and that their conduct could not have been a proximate cause of the injuries allegedly sustained by the plaintiff. To put this motion in context with the previous motion to strike (if perhaps on a simplified basis), the motion to strike had attempted to argue that because the assault had taken place within the apartment unit, they had no duty to the plaintiff. Now, in this motion for summary judgment, they are not glossing over what transpired in the common areas of the building, but rather asserting that as a factual matter, based on their interpretation of the plaintiff’s deposition, there was no breach of any duty owed to the plaintiff and/or there was no proximate cause (as a matter of law), based on what transpired in the common areas of the building.
The defendants’ approach suffers from a fundamental flaw. Their recitation of facts, claimed to be based on the transcript of the plaintiff’s deposition, paraphrases or summarizes the plaintiff’s testimony in a manner most favorable to the defendants’ theory of the case. In evaluating a motion for summary judgment, the court is required to construe the evidence in a manner most favorable to the nonmoving party-here, the plaintiff and not the defendants. Perhaps simplistically, if the outcome of the motion-or the case at the time of trial-depends upon whether the facts are construed in favor of the plaintiff or in favor of the defendants, then there is a material issue of fact. That uncertainty cannot be resolved by way of summary judgment. A defendant moving for summary judgment needs to say, in effect: Even if the plaintiff is correct as to the facts, and giving the plaintiff the benefit of all reasonable favorable inferences from those facts, she cannot prevail as a matter of law.
The court will focus on the salient facts. The plaintiff had spent the evening with a few other people, principally her roommate and his girlfriend, and Mr. Fogel. Mr. Fogel and her roommate were good friends, and the plaintiff was introduced to Mr. Fogel by her roommate, as a possible date. The court will start its discussion of relevant facts as the evening was ending, somewhere around (or after) midnight.
As the group was leaving the area of a bar, about to disperse for the evening, Mr. Fogel propositioned the plaintiff for a sexual encounter, which was rebuffed. From that point on, the parties do not agree on what transpired (at least as presented in the summary judgment submissions)-while the differences are not huge, they are potentially significant (material).
The defendants’ version is that as the plaintiff and Mr. Fogel walked the short distance to the building in which the plaintiff’s apartment was located (again, also the apartment of her roommate who was a friend of Mr. Fogel), they were walking side-by-side. The plaintiff opened the security door to the building, and let Mr. Fogel in. Mr. Fogel and the plaintiff walked together through the lobby, past the concierge, and to the elevators. They got into the elevator together, and went up to the floor on which the plaintiff’s apartment was located. The plaintiff and Mr. Fogel exited the elevator together, and then entered the apartment, the plaintiff intentionally allowing him to enter, ostensibly to wait for the plaintiff’s roommate to return. At some time after both individuals were in the apartment, the assault ensued.
The plaintiff’s version differs in almost every respect. She walked to her apartment well ahead of Mr. Fogel (estimate of 10-15 feet). She was not aware that he was right behind her as she unlocked the security door to the building and entered. She was unaware that he was behind her as she approached and entered the elevator. She was aware that he entered the elevator after she did, and thought that he was probably going to try to meet up with her roommate (who had left the area of the bar earlier than she had, and therefore was likely to have already arrived at the apartment). She did not notice him getting off the elevator, but assumes that he was in the hallway behind her. She unlocked and opened the door to her apartment, and walked in. The door to the apartment closed by itself, but slowly, and she was unaware that Mr. Fogel had entered the apartment behind her. After she walked around the apartment a bit, she realized that her roommate was not yet home, and subsequently was assaulted by Mr. Fogel.
The defendants’ position is that the plaintiff having consensually accompanied Mr. Fogel from the outside of the building all the way through the common areas and into her apartment-essentially, escorted him in-she cannot claim any breach of duty, or, if there were a technical breach, that it could not have been a proximate cause of her injuries. The defendants do not dispute that the standard policy/procedure was that visitors were required to sign in at the front desk, as a security measure. The defendants do not dispute that Mr. Fogel was not required to sign in or otherwise account for his presence in the building that night. Implicitly, the defendants contend that the policy was not applicable if a visitor were actually being escorted/accompanied by a tenant, but even if the policy was applicable in such a situation, they would have been no difference in ultimate outcome as an escorted guest undoubtedly would have been allowed to proceed through the building with the tenant. The plaintiff, in turn, does not appear to contend that the defendants had any duty to monitor a guest as and after he entered the apartment unit by consent of the plaintiff, effectively conceding the point that there was no duty, once Mr. Fogel crossed the threshold into her apartment if the entry had been permissive-but that assumes that he was on the premises with appropriate authorization/permission.
The plaintiff claims that something analogous occurred the next morning. She testified that it was her understanding that Mr. Fogel had returned the next morning, and had not been stopped by building security.
In a reply, relying on an attached copy of the police report generated well after the incident which contained a recitation of the plaintiff’s reported version of events, the defendants emphasize that their version of events is consistent with the version of events recited in that police report. The defendant is thereby asking the court to treat an unsworn paraphrasing of her statement to the police as conclusively superseding her sworn testimony at a deposition-either alone or in combination with their interpretation of her deposition testimony. Also in their reply, in order to address the contention of the plaintiff that they did not fairly paraphrase the plaintiff’s deposition testimony, they quote approximately two pages of deposition testimony. Other than acknowledging that she was aware that Mr. Vogel had entered the elevator, and other than stating that she assumed he was coming to visit her roommate, there is nothing in the quoted testimony requiring an interpretation that comports with the defendants’ version of events-nothing clearly indicating that she accompanied him through the lobby in a manner suggesting that he was her guest, and nothing compelling a determination that she consented to his entry to the apartment or was even aware that he had entered the apartment prior to the door closing. A jury might choose to disbelieve her, but disbelief is not the equivalent of affirmative evidence of the contrary. Hartford v. McKeever, 314 Conn. 255, 271-73 (2014). The closest there is to affirmative evidence that might support the defendants’ position-and this, of course, relies on impermissibly construing the evidence in a manner most favorable to the defendants, the moving parties-is that the plaintiff had made certain assumptions: She assumed that Mr. Fogel had exited the elevator on her floor, assumed that he was intending to visit her roommate, and assumed that her roommate already was home. In the lengthy excerpt incorporated into the reply, the plaintiff did not testify that she saw her assailant exit the elevator, did not testify that she saw him on the same floor of the building, and did not testify she saw him follow her to the apartment door. Most critically, she did not testify that she intentionally or knowingly let him enter or was aware that he was entering behind her. The stated assumptions do not compel an inference of consent to allow Mr. Fogel to enter, or even an awareness that he was about to enter immediately behind her. In that light, the defendants’ reliance on the fact that the plaintiff did not tell him that he was not permitted to enter is of no real consequence-if she wanted to enter her apartment, of course she had to unlock and open the door, and she would have had no reason to tell someone not to enter, if she was not aware that the person intended to enter in the absence of an explicit invitation (and again, there is no testimony indicating that she knew of his close proximity as she opened the door).
The police report as submitted by the defendants, as an attachment to the reply, recites that both the plaintiff and her roommate gave voluntary statements which they signed. Neither statement has been submitted to the court.
In sum, the defendants’ version of events may be reasonable, and may be supported by the record, but it is not the version of events that the court is required to consider for purposes of this motion. The court is required to construe the evidence in a manner most favorable to the nonmoving party, and the version of events recounted by the plaintiff (as supported by the deposition transcript excerpts she submitted) is materially different than the defendants’ version (relying on paraphrasing and inferences). The defendants have provided no analysis based on the version of events consistent with inferences favorable to the plaintiff, or indeed consistent with the literal testimony of the plaintiff. The defendants, therefore, have not demonstrated the absence of any material issue of fact, entitling them to judgment.
As a result, the court need not determine whether the defendants’ version of events is reasonable and is supported by the record.
Conclusion
The issue for the court is not whether, should the defendants’ version of events be believed, a fact finder might find in favor of the defendants or even that a fact finder would be required to find in favor of the defendants. The problem is with the implicit premise that the defendants’ version of events is the proper frame of reference.
The plaintiff’s version of events is that she did not implicitly and certainly did not explicitly convey assent to the building management/security to allow Mr. Fogel to enter the building, and similarly did not assent to his entry into her apartment. Whether, under the circumstances of this case, that was a breach of duty that was a proximate cause of the eventual assault upon the plaintiff, is a factual issue that needs to be determined by the fact finder (jury).
In effect if simplistically, the objection to the motion for summary judgment filed by defendant VPNE (# 149.00) provides a synopsis of the issue as presented to the court-the two principal actors, the plaintiff and Mr. Fogel, have given conflicting versions of what happened on the night in question, by way of depositions. (That is further compounded by each having given at least one other statement that to varying degrees seems to conflict with their respective sworn deposition testimony.) What actually happened and whether there was a breach of a duty owed to the plaintiff are for the jury to decide, and then it is for the jury to decide (if it gets that far) whether any negligence on the part of the moving defendants was a proximate cause of the injuries sustained by the plaintiff. There are multiple material issues of fact, precluding summary judgment.
For all these reasons, then, the motion for summary judgment is denied.
Approximately one month after the guilty pleas, the claim against Mr. Fogel was reported settled and an appropriate withdrawal was filed.
As set forth in the opposition to this motion filed by another defendant (VPNE Parking Solutions, LLC), Mr. Fogel also has presented at least two versions of the events. He was canvassed at the time of his guilty pleas and agreed to the version of events as recited by the prosecutor, but at his deposition, he gave a somewhat different version of events, and disclaimed the accuracy of at least some of the facts as had been acknowledged in the criminal proceeding.