Opinion
CV166066166S
01-31-2018
Paul WASHINGTON v. Giuseppe RAGOZZINO et al.
UNPUBLISHED OPINION
OPINION
Wilson, J.
I
FACTS
The plaintiff, Paul Washington, commenced this premises liability action by service of writ, summons and complaint against the defendants, Giuseppe Ragozzino, Rosina Ragozzino, Roland Andoni, Basmir Babani, Kafe Tirona, LLC, and Kostaq Kollchaku. The complaint was returned to court on November 14, 2016, and alleges the following facts. On October 8, 2015, the plaintiff was an invitee at a social club operated by Kafe Tirona, LLC (tenant) called Café Tirona Social Club (the premises). The tenant leased the premises from the defendants, Giuseppe Ragozzino and Rosina Ragozzino. While on the premises, the plaintiff was savagely attacked and beaten and suffered severe and painful injuries as a result. The defendants owned, leased, controlled, operated, managed, occupied, and/or maintained the premises. The defendants were (1) doing business as the tenant, (2) participating with others in doing business as the tenant, and/or (3) allowing others to do business as the tenant on the premises in return for a fee. The defendants negligently caused the plaintiff’s injuries by (1) failing to inspect the premises and maintain it in an adequately safe condition, (2) failing to provide adequate supervision to prevent injuries to invitees of the social club, and/or (3) posing danger to the plaintiff by allowing and/or inviting individuals onto the premises whom they knew, or should have known, had a propensity to be raucous and over-exuberant.
The lease agreement stated that the lease was solely for the purpose of operating a social club on the premises by Roland Andoni. An amendment to the lease, dated July 24, 2015, stated that Giuseppe Ragozzino amended the lease to make Kafe Tirona, LLC the tenant. All other provisions of the lease remained the same. There are several other defendants in this action, however, none of them are relevant for purposes of this motion for summary judgment. Additionally, while the lease is signed by only Giuseppe Ragozzino, both Giuseppe and Rosina Ragozzino are landlords of the premises.
The plaintiff also alleges that the defendants were negligent in failing " to clean the premises, and/or to make sure the floors were not slippery and that they remained dry and free of debris and other slipping and/or tripping hazards," compl., count one, and ¶ 5(g); failing to provide adequate lighting at the premises; compl., count one, ¶ 5(f). The court fails to see the relevancy of these allegations given that the plaintiff has failed to allege an injury arising out of a slip and fall on a wet floor, or from tripping due to inadequate lighting. The aforementioned allegations have no bearing on the cause of the plaintiff’s injuries, and the court, therefore, will not consider them in its analysis.
On August 1, 2017, the defendants filed a motion for summary judgment on the ground that there are no genuine issues of material fact that the defendants were not in control of the inside of the premises where the plaintiff was allegedly attacked, and are entitled to judgment as a matter of law because they did not owe a duty to protect the plaintiff from being attacked. In support of their motion, the defendants attached a memorandum of law, the lease agreement between the defendants and the tenant (lease), and a certified transcript of the deposition testimony of the plaintiff. On October 12, 2017, the plaintiff filed an objection. In support of his opposition to the defendants’ motion for summary judgment, the plaintiff submitted a copy of the lease, which was the same as the version submitted by the defendants, and a certified transcript of the deposition testimony of Giuseppe Ragozzino. Oral argument was heard on the motion on October 16, 2017, at short calendar.
On October 10, 2017, the plaintiff filed a motion for extension of time (no. 134) to respond to the defendants’ motion for summary judgment until October 26, 2017. On October 12, 2017, the defendants filed an objection (no. 135) to the plaintiff’s motion for extension of time on the basis of the scheduling order (no. 123), which required that responses to dispositive motions be filed by September 29, 2017. On October 12, 2017, the defendants filed a caseflow request asking that the court, Wilson, J., rule on the plaintiff’s motion given that the matter was marked ready for oral argument for October 16, 2017. The court did not rule on the motion because no action was necessary (No. 136.01) as the plaintiff responded to the defendants’ motion for summary judgment on October 13, 2017 (No. 137).
II
DISCUSSION
A
GENERAL PRINCIPLES
" Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
" While [a party’s] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).
The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012) (" [w]hether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard" ). Where both parties have submitted identical copies of the same document as evidence to be considered by the court in support of their respective positions on a party’s motion for summary judgment, " both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the [document] before the court was in fact authentic." Id., 506-07.
The defendants argue that there are no genuine issues of material fact that the tenant possessed, controlled, or maintained, to the exclusion of the defendants, the inside area of the premises where the plaintiff allegedly sustained injuries, and that as a matter of law, the defendants cannot be liable to the plaintiff in a negligence action because the defendants did not owe him a legal duty or duty of care. Specifically, the defendants argue that the lease definitively expresses that the tenants retained control of the inside of the premises. The defendants argue that the sole responsibility that remained with the defendants was to maintain and repair the roof, structural elements, and exterior of the building, as well as remediation of any pre-existing environmental conditions, such as lead and asbestos. The defendants argue that because the plaintiff’s injury was not related to the structure of the premises, the defendants do not owe the plaintiff a duty to keep him safe from attacks from other patrons on the premises. The defendants cite several provisions of the lease in their memorandum of law in support of their motion for summary judgment and reply memorandum.
Moreover, in their reply memorandum, the defendants argue the provisions allowing the tenants full control over the day-to-day operations inside the leased space are common in commercial leases, and that those provisions do not mean that the lease is somehow ambiguous or unclear with regard to control over the interior of the leased premises. Defs.’ Reply Mem., 3.
In the defendants’ reply memorandum, they further argue that the plaintiff’s objection was untimely. Practice Book § 17-45 provides in relevant part: " [A]ny adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence." In Martinez v. Zovich, 87 Conn.App. 766, 770 n.3, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005), the Appellate Court stated that because the " defendant did not demonstrate that the plaintiffs’ delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter, the court chose not to grant the defendant’s motion on that procedural ground." " Superior Courts have relied on Martinez to allow them discretion in considering whether to consider untimely filed memorandums in opposition to a motion for summary judgment." Leone v. Portland, Superior Court, judicial district of Middlesex, Docket No. CV-12-6008054-S (May 9, 2015, Domnarski, J.) (58 Conn.L.Rptr. 201, 202 n.3). In the present case, the defendants have failed to demonstrate that the untimely filing of the plaintiff’s objection to the motion for summary judgment was prejudicial to their defense. Therefore, this court will exercise its discretion and consider the plaintiff’s objection to the defendants’ motion for summary judgment.
The plaintiff argues that there is a genuine issue of material fact as to whether the defendants owed a duty to the plaintiff because the issue of control of the premises was not definitively expressed in the lease, and therefore, would not be properly resolved by summary judgment.
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). " [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).
" With respect to the governing legal principles, [t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... The existence of a duty is a question of law ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ... [L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof ... Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ... 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 ... Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law ." (Emphasis added.) Colon v. Autozone Northeast, Inc., 148 Conn.App. 435, 438-39, 84 A.3d 1234 (2014).
" If the language of the lease definitively establishes that the landlord did not reserve control of that portion of the premises which is claimed to have been defective and caused injury, then the defendant landlord is entitled to prevail on the motion." Angelo v. Southland Corp., Superior Court, judicial district of New Haven, Docket No. CV-04-04853185-S (October 5, 2005, Corradino, J.) (40 Conn.L.Rptr. 94, 96). " In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible." (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 309, 991 A.2d 1105, cert. denied, 289 Conn. 933, 10 A.3d 517 (2010). " [W]hen the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party’s subjective perception of [its] terms." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 8, 931 A.2d 837 (2007).
" Control must relate to the condition and location of the injury." DiFranco v. CT Expo Center, LLC, Superior Court, Docket No. CV-08-5002937-S (October 6, 2010, Fischer, J.). See, e.g., Farrell v. McDonald’s Corp., Superior Court, judicial district of New Britain, Docket No. CV-98-0491505-S (February 14, 2000, Graham, J.) (26 Conn.L.Rptr. 586, 588) (" [T]he right to repair the building in the event of fire or other casualty ... [failed] to raise an issue of material fact as to who had control over the removal of ice and snow from the exterior of the premises where the fall is alleged to have occurred. The control must relate to the condition and location of the injury" ); see also Smith v. Housing Authority, 144 Conn. 13, 16-17, 127 A.2d 45 (1956) (" It is claimed that there was evidence before the jury of an agreement between the parties that the landlord had the right to inspect the premises and the exclusive right to make repairs therein, and that the tenant would refrain from making any repairs at all. As a matter of law, an agreement of that nature would be the equivalent of retention by the landlord of control of the leased premises for the purpose of making repairs" ).
B
POSSESSION AND CONTROL
While there is no provision in the lease which explicitly gives control to the tenant, the court finds that other provisions in the lease demonstrate that the tenants were in both possession and control at the time of the alleged attack. Provision twenty of the lease, " Quiet Enjoyment," provides that " [the landlord] covenants with the [tenant] that [the landlord] has good right to lease said premises in manner aforesaid, and that [the landlord] will suffer and permit said [tenant] ([the tenant] keeping all the covenants on [the tenant’s] part, as herein contained) to occupy, possess and enjoy said leased premises during the terms of this [lease], without hindrance or molestation from [the landlord], or any person claiming by, from or under [the landlord]." (Emphasis added.) Additionally, paragraph six of the lease, entitled " Repairs and Alterations" provides that " [the tenant] covenants that throughout the term of this [lease], [the tenant] will take good care of the demised premises, including any alterations, changes, and improvements at any time erected thereon, and to keep same in good order and condition, and shall promptly make, at [the tenant’s] sole cost and expense, all repairs and replacements to all non-structural elements of the demised premises ... [the landlord] shall maintain and repair the roof, structural elements, and exterior of the building." (Emphasis added.) The landlord also retained limited control over responsibility for remediation of pre-existing environmental conditions. See Lease, § 6(b).
The defendants and the plaintiff submitted identical copies of the lease as evidence to be considered by the court, and both parties reference the lease in their supporting briefs. Therefore, the court will consider the lease as evidence. See Bruno v. Whipple, supra, 138 Conn.App. 506-07.
Fiorelli v. Gorsky, supra, 120 Conn.App. 300, 301 involved two plaintiffs, one of which was allegedly injured in a motor vehicle accident in the parking lot on the premises owned by the defendants and leased by a tenant bank, which had been assigned rights under the lease from an original tenant. Our Appellate Court affirmed the Superior Court’s decision to grant the defendants’ motion for summary judgment on the ground that there was no genuine issue of material fact that the owner of the premises did not retain control of the demised premises, which included the parking lot. Id., 310. In support of their motion for summary judgment, the defendants submitted the ground lease between the defendants and the original tenant, a letter from the original tenant regarding the assignment of its rights to the tenant bank, and an affidavit from the defendants. Id., 301 n.2. The court held that it " [understood] the lease, when read as a whole, to give the lessor of the leased premises complete control and possession ..." Id., 306. The court cited a paragraph in the lease which provided that " [the tenant] hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the [demised premises ]." (Emphasis added.) Id., 309. Additionally, the court quoted the portion of the affidavit where the landlord defendants averred that " [the original tenant had] agreed to construct a bank branch with adjacent parking and all landscaping, and [the original tenant] assumed possession and control of the leased property ..." Id. The plaintiffs did not present any evidence to contradict the affidavit or the terms of the lease. Id. The court held that, the trial court " correctly determined that the defendants did not retain possession and control of the premises, and therefore did not owe the plaintiffs a duty of care." Id., 310.
Similarly, in Farrell v. McDonald’s, supra, 26 Conn.L.Rptr. 588, the court granted the defendant landlord’s motion for summary judgment after concluding that " [two paragraphs in the lease] clearly and unambiguously [stated] that the [lessees were] to maintain the entire premises in good condition and repair ." In Farrell, the court concluded that " no provisions in the lease or franchise agreement [contradicted] those paragraphs." (Emphasis added.) Id. Also, in Pan v. Brennan Associates, Superior Court, judicial district of Fairfield, Docket No. CV-98-0356818-S (November 20, 2000, Melville, J.), the court held that the terms of the lease definitively expressed that the tenant retained exclusive possession and control over the premises in a case where " [s]everal provisions of the lease clearly and unambiguously [stated] that the lessee [was] to maintain the interior of the leased premises in good condition and repair ." (Emphasis added.)
In the present case, the plaintiff alleges that he was attacked while an invitee on the premises. See Compl., Count One, ¶ 4. The defendants have submitted a certified copy of the plaintiff’s deposition testimony, throughout which the plaintiff repeatedly acknowledges that the attack happened " inside" of the premises. As an example, the following exchange occurred between the plaintiff’s counsel and the plaintiff. " Q And did the incident happen inside [of the premises]? A Yes, it did." Pl.’s Dep., 41, lines 1-3. The plaintiff has not offered any contradictory evidence on this point. Following Farrel, DiFranco, and Angelo, the relevant question is, therefore, whether the defendants retained control over the defective condition inside of the premises.
In the absence of contradictory affidavits that establish a genuine issue of material fact, the deposition testimony of the plaintiff submitted by the defendants is sufficient to support an entry of summary judgment. See Collum v. Chapin, supra, 40 Conn.App. 450 n.2.
In the present case, paragraph twenty of the lease explicitly states that the tenant is entitled to possession, free of molestation from the defendants. Moreover, provision six of the lease, like those provisions in Fiorelli, Farrell, and Pan, demonstrate that the tenant was responsible for maintaining and repairing the inside of the premises, excluding its structural components. Indeed, the tenant, as the tenant in Pan, must make repairs at its own expense. The landlord retained only limited control over the structural elements of the premises, the exterior, and pre-existing environmental issues.
On the basis of the evidence submitted by the defendants, the court finds that the lease definitively expresses that the defendants were not in control of the inside of the premises at the time of the alleged attack. The court will therefore look to other provisions in determining whether the lease, read as a whole, does not definitively resolve the issue of control, thereby creating an issue of fact. See, e.g., Hoffman v. Maynard, Superior Court, judicial district of New London, Docket No. CV-09-6002301 (January 25, 2012, Cosgrove, J.) (provisions in lease expressly indicated that tenant was in exclusive control of premises, and court looked at whole lease to determine whether lease definitely resolved issue of control).
Of note, the plaintiff alleges that the defendants were involved in the tenant’s business. See Compl., Count One, ¶ 3. The defendants argue that there is no evidence of any involvement, participation, possession, or control by the defendants in the operation of the tenant’s business or the inside of the premises. The defendants have submitted evidence that it had a landlord tenant relationship with the tenant. See Lease, Addendum. Additionally, the defendants denied such allegations. Defs.’ Answer, Count One, ¶ 3. In response, the plaintiff offers no evidence that raises a genuine issue of material fact that the defendants were involved in the tenant’s business operations. In fact, in his memorandum in opposition to the defendants’ motion for summary judgment, the plaintiff points out that " when asked about what efforts had been made to determine what was happening on his Property, [Giuseppe Ragozzino] admitted that he’d done absolutely nothing ..." Pl.’s Mem. in Opp’n, 8. On the basis of the evidence submitted, the defendants have met their burden of showing that there is no genuine issue of material fact that the defendants were not involved in the tenant’s business operations at the time of the alleged attack. Indeed, the evidence submitted by both parties demonstrates that the defendants were not involved in the tenant’s operations.
C
PROVISIONS CONCERNING RIGHT TO INSPECT AND REPAIR
Provision twenty-four, entitled " Right to Inspect" provides that " [the landlord], or landlord’s agents, shall have the right to enter the demised premises at reasonable hours in the day or night to examine the same upon giving [the tenant twenty-four] hours notice, except in cases of emergency, where no notice shall be necessary, or to run telephone or other wires, or to make such repairs, additions or alterations as [the landlord] shall deem necessary for the safety, preservation or restoration of the improvements, or for the safety or convenience of the occupants or users thereof (there being no obligation, however, on the part of the [landlord] to make any such repair, additions or alterations) ..."
" [W]here the right of the lessor to enter the leased premises and make repairs is limited, the lessor does not retain control and possession of leased property." Hoffman v. Maynard, supra, Superior Court, Docket No. CV-09-6002301. In Farrell v. McDonald’s Corp., supra, 26 Conn.L.Rptr. 588, the court held that the lessor did not reserve control and possession of the premises in a case where the lessor could only enter during reasonable business hours to inspect the premises and repair the building in the event of fire or other casualty. In Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 664-65, 368 A.2d 6 (1976), our Supreme Court held that the Superior Court did not err in concluding that the landlord did not reserve control over the premises, despite provisions in the lease agreement that gave the landlord " the right to enter into and upon said premises, or any part thereof, at all reasonable hours for the purpose of examining the same, or making such repairs or alterations therein as may be necessary for the safety and preservation thereof." (Internal quotation marks omitted.)
In comparison, in Hooks v. Thermospas, Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-5029236-S (December 6, 2010, Woods J.), the court denied the lessor’s motion for summary judgment because it found that there was a genuine issue of material fact as to whether the lessor retained control and possession of the trailer on which the plaintiff was allegedly injured. The court in Hooks found that the lessees were limited in their use of the trailer while the lessor was granted unlimited access to the trailer and stairway under paragraphs three and four of the lease agreement. Paragraph three provided that the " [lessee] shall not alter the manner of installation or location of the [equipment] without written consent of [the lessor]. [The ] Lessor shall have the right to inspect the [equipment ] during the term of this agreement ." (Emphasis added.) Paragraph four provided that the " [lessee had] the right to peaceably and quietly hold, use and enjoy the [equipment], subject to the terms and conditions of this [agreement]." Moreover, the provisions of the lease in Hooks provided that the lessee had " the responsibility of maintaining the equipment, but its control over the manner in which the trailer [was] maintained [was] restricted. Furthermore ... the [lessor placed] upon itself the obligation of making repairs of structural or mechanical defects if notified by the [lessee] within two business days ..." (Emphasis added.)
In Charest v. Burger King Corp., Superior Court, judicial district of Hartford, Docket No. CV 91 395749 (March 3, 1993, Aurigemma, J.) (8 Conn.L.Rptr. 756, 757), the plaintiff " attempted to create a genuine issue of material fact by pointing to a portion of § 5.2 of the lease ... which [permitted] the lessor or its agents to enter the premises for purposes of making repairs in the event that the lessee [failed] to do so." The court in Charest, however, held that " absent some evidence presented by a plaintiff that the lessor ... did, in fact, make repairs to the premises, reliance on the ... language in the lease [was] insufficient to create an issue of material fact in the face of evidence submitted by [the lessor] that it did not make repairs during the lease period." Id., 757-58. " Several Superior Court decisions have cited this proposition approvingly." Hoffman v. Maynard, LLC, supra, Superior Court, Docket No. CV- 09-6002301 (" the lease provision giving the defendant [lessor] a limited right to repair along with the evidence showing that only [the lessee conducted] repairs, [showed] that the defendant did not retain control of the premises under that provision" ); Farrell v. McDonald’s Corp., 8 Conn.L.Rptr. 588 (absent evidence that lessor ever repaired building, paragraph in lease which gave lessor right to repair building in event of fire or other casualty did not establish control by lessor).
In the present case, the lease provisions provide for a limited right to enter and inspect at reasonable hours of the day or night upon giving twenty-four hours notice, except in cases of emergency, where no notice is required. The language is similar to the language in Monarch and Farrell, in that the right to inspect is limited to reasonable hours, with the limited exception of emergencies. The language in the lease in the present case is not similar to the language in the lease in Hooks, which gave the lessor of the equipment an unqualified right to inspect during the term of the agreement. Following Monarch and Farrel, the court finds that the limited right to inspect does not create a genuine issue of material fact that the defendants retained control.
Turning to the defendants’ right to make repairs, similar to the landlord in Monarch, the defendants in the present case reserved the right to make repairs, additions, or alterations as they deemed necessary for the safety, preservation, or restoration of the improvements. The lease also states that the defendants could make repairs, additions, or alterations as the defendants deemed necessary " for the safety or convenience of the occupants or users thereof." Lease, § 24. Following Bristol, the " court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity." Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., supra, 284 Conn. 8. In construing the lease as a whole and in " such a manner as to give effect to every provision," ; (internal quotation marks omitted) Fiorelli v. Gorsky, 120 Conn.App. 309; the court finds that this language clearly refers to protection from structural defects or defects having to do with the physical condition of the premises. It is clear that this language is not referring to safety in terms of security, as was the case in Martinez v. Bart Realty, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6049499-S (March 7, 2016, Wilson, J.) (61 Conn.L.Rptr. 831). In Martinez, a patron was allegedly injured during a bar fight and was hit in the face with a bottle. The plaintiff alleged premises liability against the landlord and the tenant bar. Id. This court held that the lease was not definitive on control since there were provisions " in which the [lessor] specifically [reserved] control over security of the premises." Id., 832. The present case is distinguishable from Martinez, because there is no mention of security in the entire lease, and the defendants’ limited reservation of authority to make repairs does not amount to a reservation of authority to fix inadequate security measures which might have prevented the alleged attack on the plaintiff.
Moreover, unlike in Hooks, while the defendants in the present case reserved the right to make repairs which they deemed necessary, the lease explicitly states that there is " no obligation ... on the part of the [landlord] to make any such repair, additions or alterations ..." Lease, § 24. In comparison, the court in Hooks noted that while the lessee ultimately had the responsibility of maintaining the leased equipment, the lessor restricted the manner in which the equipment was repaired, and took on the obligation of making repairs if the lessee notified the lessor within a specified time.
Furthermore, there is no evidence submitted that shows that the landlord actually made any repairs inside the premises. According to Giuseppe Ragozzino’s deposition testimony, the defendants live in Florida. See Ragozzino Dep., p. 15, lines 8-9. Indeed, Giuseppe Ragozzino indicated that he sends his friend to the property once a month; Id., p. 29, lines 22-24; to inspect the exterior of the premises, including the outside lights, the parking lot, and the structure of the building. See id., p. 31, lines 4-8. He also confirmed that his friend never went into the tenant’s premises. See id., p. 30, lines 21-25. Therefore, in accordance with Charest, and several other Superior Court cases that follow it, the court finds that there is no genuine issue of material fact as to control on the basis of provision twenty-four in the lease.
D
PROVISIONS CONCERNING CONSENT AND RULES/REGULATIONS
Several provisions in the lease require the tenant to obtain consent from the defendants prior to taking action with respect to the property. Others require the tenant to follow certain rules and regulations. Provisions cited to by the plaintiff include Provisions entitled " Signs," " Use," " Sound," " Refuse," " Record," " Assignment and Subletting," and " Insurance."
Provision nine, entitled " Signs," provides that the " [tenant] shall not place, or cause or allow to be placed, any sign or signs of any kind whatsoever in or about the entrances to said leased premises, except in, or at such place or places as may be indicated by said [landlord], and consented to by [the landlord], in writing, which consent shall not be unreasonably withheld; provided further that [the tenant] shall remove the same at the termination of its tenancy at its own cost and without damage to [the landlord’s] building."
In Fiorelli v. Gorsky, supra, 120 Conn.App. 309, our Appellate Court concluded that the defendant did not retain control of the premises after considering how " [the] plaintiffs presented no evidence contrary to [the defendant’s] affidavit or the lease terms. They merely referred to sections of the contract under which the lessor needed the defendants’ approval prior to taking some action." Those sections included one which provided " [t]hroughout the term of this [lease], [the tenant] shall not demolish, change, improve, alter or add to the improvements on the [demised premises], or erect new buildings or other improvements thereon ... except pursuant to plans and specifications first approved in writing by [the landlord ], such approval not to be unreasonably withheld, and otherwise in compliance with this [paragraph] and the other terms and conditions of this [lease]." (Emphasis added; internal quotation marks omitted.) Id., 307. Another provision provided that the " [tenant] shall not, without first obtaining the written consent of [the landlord ], place or permit to be placed signs and advertising matter in, on or about the [demised premises]." (Emphasis added; internal quotation marks omitted.) Id. It follows, then, that under Fiorelli, provisions requiring that a tenant obtain consent or permission from the landlord prior to taking some action with respect to the premises, do not necessarily create a genuine issue of material that the landlord retained control.
Moreover, in Fiorelli, a provision requiring that the " [tenant] shall observe all reasonable rules and regulations established from time to time by [the landlord] for the [demised premises] and the [shopping center] of which the [demised premises] is a part," ; (internal quotation marks omitted) Fiorelli v. Gorsky, supra, 120 Conn.App. 307; was insufficient to establish an issue of material fact that the landlord retained control. See id., 309; see also Green v. Berman, Superior Court, district of New London, Docket No. CV-12-6014881 (February 21, 2014, Devine, J.) (57 Conn.L.Rptr. 685, 687) (lease provision " requiring the lessee to comply with all applicable laws and ordinances, is not sufficient to disrupt the possession and control of the tenant" [citations omitted; internal quotation marks omitted] ).
In Jewell v. Sunset Café, LLC, Superior Court, judicial district of Hartford, Docket No. CV-13-6042285-S (March 27, 2015, Scholl, J.), which is factually similar to the present case, the plaintiff was allegedly shot by another patron at a café, which leased land from the defendant landlord. The plaintiff claimed " that because the lease [provided] that the premises should be used as a dining establishment, that the premises [were] to be used for lawful purposes, and the lessor [would] not bring any dangerous article on to the premises, [suggested] that the defendant landlord retained control over the premises." The court concluded that " the plaintiff [did] not point to any provision in the lease which would indicate that [the defendant landlord] had any duty to provide the safety and security measures she [claimed] it was negligent in not providing."
In the present case, the court concludes that in following Fiorelli, Jewell, and Green, the provisions in the lease requiring the tenant to obtain the defendants’ consent prior to taking action, as well as those that require the tenant to follow regulations and rules set forth by the defendants, do not create a genuine issue of material fact that the defendants retained control over the inside of the premises.
E
PROVISION CONCERNING NUISANCE
Provision eight, entitled " Nuisance" provides that " [the tenant] will not carry on, or permit, upon said leased premises, any offensive, noisy or dangerous trade, business, manufacture or occupations, or any nuisance." Lease, § 8, 4.
" The essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury ... Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ... Typical examples of public nuisances are pollution and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." (Citations omitted; emphasis added; internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn, 313, 369, 780 A.2d 98 (2001).
" A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land ... The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
In the present case, the nuisance provision requires that the tenant not carry on any nuisance, including any offensive, noisy, or dangerous trade. This provision is similar to those cited to in Jewell v. Sunset Café, LLC, supra, Superior Court, Docket No. CV-13-6042285-S, which required that the landlord use the premises only as a dining establishment, that the premises be used for lawful purposes, and that the tenant not bring dangerous articles on to the premises. Following the court’s decision in Jewell, and as previously discussed, the court finds that the nuisance provision does not create an issue of material fact that the defendants retained control simply because it mandates that the tenant use the premises for a particular business and in a lawful manner.
Moreover, the alleged injury sustained by the plaintiff did not arise out of a nuisance- public or private. Therefore, any control that the defendants retained under this provision would not be related to the condition of the injury as is required. See Difranco v. CT Expo Center, LLC, supra, Superior Court, Docket No. CV-08-5002937-S. As previously stated, " [t]he essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury." Ganim v. Smith & Wesson Corp., supra, 258 Conn. 369. There is no evidence submitted that raises a question of fact that there was a continuing threat of attack at the tenant’s place of business. Moreover, " [n]uisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ... [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ..." Ganim v. Smith & Wesson Corp., supra, 258 Conn. at 369, 780 A.2d 98. The alleged attack in this case is not a typical public nuisance like pollution and obstruction of waterways, air and noise pollution, or maintenance of a fire or explosion hazard. Instead, the plaintiff alleges an isolated attack on him by another patron. See Compl., Count One, ¶ 3. Finally, private nuisance law is concerned with conduct which interferes with a person’s right to use and enjoy his or her land. See Pestey v. Cushman, supra, 259 Conn, at 357. The plaintiff did not have an interest in land at the premises. Accordingly, the court finds that the nuisance provisions in the lease do not create a genuine issue of material fact that the defendants retained control over the inside of the premises.
F
PROVISION CONCERNING RIGHT TO REGAIN POSSESSION
The plaintiff also points to provision twenty-five of the lease, entitled " Default by Tenant," which provides that in the event that the tenant fails to comply with covenants, agreements, terms or provisions contained in the lease, and fails to properly remedy the same, the defendants have the right to enter the property and take possession thereof.
The court in Green, held that " [t]he fact that a lease provides the lessor with the option to regain possession of the property does not, by itself, terminate the possession and control held by [the tenant]." Green v. Berman, supra, 57 Conn.L.Rptr. 687.
Accordingly, the court finds that the provision providing the option for the defendants to regain possession of the property does not create a genuine issue of material fact that the defendants retained control.
III
CONCLUSION
For the foregoing reasons, the court concludes that the lease between the tenant and the defendants clearly demonstrates that the defendants were not in control over the inside of the premises. Accordingly, the defendants’ motion for summary judgment on the ground that there are no genuine issues of material fact that the defendants did not retain control over the inside of the premises is granted, and therefore, as a matter of law the defendants did not owe a duty to the plaintiff.
Provision two, entitled " Use" provides that " [the tenant] covenants to comply with all reasonable rules and regulations which [the] landlord may at any times, and from time to time, impose upon the tenant, [the] tenant’s employees, agents, licensees and customers," ; Lease, § 2, ¶ 3. Provision two also provides that " [the] tenant shall have the right to use the leased premises solely for the purpose of operating a [Café Tirona] only for Roland Andoni. To the extent that [the tenant] wishes to use the leased premises for other purposes, [the] tenant shall first obtain the prior written consent of [the] landlord, which consent shall not be unreasonably withheld." (Emphasis removed.) Lease, § 2, ¶ s 1 and 2. Provision ten, entitled " Sound" provides that " [the tenant] shall not permit any music on said leased premises except for such as originates from a radio or television with the provision, however, that the volume of such music shall not interfere with the comfort of other tenants in the same building." Provision fifteen, entitled " Refuse" provides that " [the tenant] further covenants and agrees that no refuse, garbage, boxes, packages, waste paper, or other articles shall be allowed to accumulate or remain in or upon the leased premises. [The tenant] further covenants and agrees to hire and pay for trash removal by a reputable trash removal company." Provision sixteen, entitled " Record" provides that " [this] lease [agreement] shall not be recorded in the land records but [notice of the lease] may be recorded and the parties agree to join in the signing of the same if either party wants to record said [notice of the lease]." Provision seventeen, entitled " Assignment and Subletting" provides that " [the tenant] may not assign this [lease] or sublet said leased premises without the written consent of the [landlord], but such consent shall not be unreasonably withheld. In case of any such assignment or subletting, the assignee or sublessee, as the case may be, shall expressly assume and agree, in writing, to perform and/observe all of the terms, covenants and agreements of this lease on the part of the [tenant] to be performed and observed. No assignment or subletting shall in any way discharge, release or relieve the [tenant] of any of [the tenant’s] obligations or liabilities hereunder and the [tenant] shall continue to remain, fully liable upon all of the provisions of this [lease]. Provision twenty-three, entitled " Insurance" requires the tenant to have insurance. See Lease, § 2.