Opinion
No. CV 08-5007871S
April 14, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A.
In this case the defendant has filed a motion for summary judgment. The complaint alleges that it is the record owner of premises known as 100 Hemingway Street in New Haven. It further alleges that the plaintiff was on the premises as an employee of a tenant, First Student, Inc. The plaintiff claims she was descending a stairway on the premises which lead from Hemingway Street to the building where First Student is located when she slipped and fell down the stairs, which were in an icy and dangerous condition. The complaint further alleges that the fall was due to the carelessness and negligence of the defendant and sets forth several specifications lying in common-law negligence. As a result of the fall the plaintiff alleges she sustained injury.
The defendant has now filed a motion for summary judgment in which it claims that "it did not owe a duty to the plaintiff because it did not have possession and control over the premises on the date the plaintiff claims she was injured" — therefore judgment should enter in favor of Hemingway as a matter of law."
The standards governing whether such a motion should be granted are well-known. If there is a genuine issue of material fact it should not be granted since litigants have a constitutional right to a jury trial. However, if no such issue exists the motion should be granted in order to avoid the burden and expense of unnecessary litigation.
B.
Situations where liability attaches when a person is injured on leased premises has long been well established in our state. The case of LaFlamme v. Dalleseo, 261 Conn. 247, 256-57 (2002) quoting from earlier cases sets forth the law:
The general rule regarding premises liability in the landlord-tenant context is that "landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . ." Landlords (however) generally (do) not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant. The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances. Thus, unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue. In other words, if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances.
Panorini v. Johnson, 158 Conn. 92, 98 (1969) is an often cited case and succinctly states the law:
Unless it is definitively expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in light of all the significant and attendant facts which bear on the issue.
What can be deduced from these two cases is that (1) the lessor owes a duty of reasonable care only to those portions of the leased premises over which it has retained control and (2) if there exists a lease between the parties, whether the lessor has retained control or whether the lessee is to have possession and control is determined by the express language of the lease, see on this point Rogers v. Great Atlantic Pacific Tea Co., 148 Conn. 104, 106-08 (1961). It becomes an issue of fact for the trier and not a question of law for the court only where the lease does not definitively resolve the issue of control between landlord and tenant, Panorini at 158 Conn. page 99. Of course it should be noted that even where there is a written lease which lodges full control in the lessee, liability can attach to the lessor if in fact the lessor exercised actual control, Martel v. Malone, 138 Conn. 385, 391 (1951).
Why is liability imposed on a tenant in possession and control and not on the lessor-owner of land? In Connecticut Law of Torts, Wright, Inkerman, Fitzgerald § 46 page 108, it says the basis for the rule is that "the possessor is ordinarily the party responsible for the reason that the person in possession is in a position of control and is best able to prevent harm," also see Prosser Keaton on Torts 5th ed, § 57, page 386.
Common sense application of this rationale for the rule dictates that where there is a hidden defect on the leased premises that is or should have been known to the lessor but unknown and undiscoverable to the tenant, the lessor is liable to any tenant or employee or invitee of the tenant injured by the defect, cf Miner v. McNamara, 81 Conn. 690, 694 (1909), Shedga v. Hartford-Connecticut Trust Company, 131 Conn. 186, 190 (1944). Also see Thomas v. Roper, 162 Conn. 343, 349-50 (1972). In other words if the goal of tort law in general and in this context in particular is to prevent harm, mere possession and control could not fairly impose liability on the tenant for a condition it did not know of and thus could not be responsible for correcting. The landlord, knowing of the defect is the only party that could have been expected to correct or remove it and should be liable for failure to do so, given the general arm of tort law.
The court will now try to apply the foregoing to the issues raised by this case.
C.
For the purpose of applying the foregoing analysis the allegations of the amended complaint must be separated into two types of claim. The first three subparagraphs of paragraph 5 alleged that the defendant was negligent:
(a) In that it caused or allowed and permitted the stairs on its premises to become unsafe, icy and dangerous for use by its tenants and guests.
(b) In that it failed to regularly inspect the condition of the stairs on its premises leading from Hemingway Street to the building located on its premises.
(c) In that it failed to properly maintain the stairs on its premises, leading from Hemingway Street to the building located on its premises.
A catchall subparagraph, h, regarding the duty to warn, apparently refers to or may refer to the just mentioned allegations in addition to the design defects alleged elsewhere which will be discussed shortly.
As to the allegations of a, b, c and possibly h, they are governed by the law first discussed by the court. Did the defendant have possession and control of the premises or was such possession and control lodged with the tenant? As indicated the lease must be examined. Paragraph 13 entitled "Quiet Enjoyment" represents that the defendant as owner of the premises has the right to execute the lease and "grant the demised estate." Paragraph 5 states "the tenant shall at its own expense maintain in good repair (i) the grounds of the premises . . ." Paragraph 10 requires the tenant to "maintain a policy of commercial general liability and property damage insurance for the premises." The introductory paragraph to the lease makes clear that the "demised" premises included the building leased by First Student Inc. and the land and appurtenances on it, which would include the stairs on which the plaintiff claims she fell. There is no language in the lease that the court could discover which would allow a claim that the defendant retained possession and control of any portion of the leased premises, including the stairs on which the alleged slip and fall occurred. Quiet enjoyment means exactly what it says in this regard. Such a covenant "assures that the lessee shall have legal, quiet, and peaceable possession and enjoyment of the leased premises, as far as regards the lessor . . ." "The covenant of quiet enjoyment operates as a shield for the lessee in protecting his (sic) possessory interests in his (sic) leasehold." Sullivan v. Nameaug Walk-In Medical Center Inc., 35 Conn.App. 185, 190 (1994). At common law a tenant holding under a covenant of quiet enjoyment . . ." has a fee in the demised premises (and) is entitled to the quiet and peaceable possession and enjoyment of the premises during the term of the lease and the right obligates the landlord, or anyone claiming under the landlord, to refrain from interference with tenant's possession during the tenancy, subject to any rights reserved to the lessor," "Landlord and Tenant," 49 Am.Jur.2d, § 477, page 485.
The lease makes clear that the tenant, First Student Inc., had possession and control of these premises, including the stairs on which the fall occurred. The plaintiff does not appear to contest this in its December 3, 2008 opposition to the defendant's motion for summary judgment. In fact the brief concentrates on the existence of design defects in the stairs. In its heading to the final portion of its brief the plaintiff, in fact, argues "C. Possession and Control at the premises is not an issue when the design deficiencies pre-existed the lease agreement."
Nor is there any claim here that despite the lease the landlord in fact exercised possession and control of the premises.
The foregoing leads the court to conclude there is no viable basis for the allegations made in 5a, b, and c and against the defendant. Ice and snow and the obligation to maintain stairs is hardly a design deficiency issue outside the penumbra of the responsibilities imposed on a tenant as a result of its possession and control of demised premises to the exclusion of the lessor.
D.
But as noted the plaintiff does not base its argument on the issue of possession and control. The plaintiff relies on certain design deficiencies or defects in this case which for the purposes of discussion can be said to have existed before and at the time it leased the premises to First Student Inc. In its brief the design defects claimed consisted of "excessive riser heights lack of hand rails, inadequate lighting, and color coding of step nosings." It is argued that these defects were known or should have been discoverable upon reasonable inspection.
The plaintiff's argument states an incomplete version of the applicable law. Masterson v. Atherton, 149 Conn. 302, 306-07 (1962), sets forth the applicable law:
Ordinarily a tenant takes the demised premises as he finds them, and the landlord is not liable for defective conditions (that is, conditions making the premises not reasonably safe for the reasonably to be anticipated uses which the tenant would make of them) within the demised area . . . (but) the rule does not apply to defects, whether resulting from faulty design or from disrepair existing at the beginning of the tenancy if they (a) were not discoverable on reasonable inspection by the tenant and (b) were defects with a knowledge of which the landlord was chargeable (emphasis by this court).
Also see Civale v. Meriden Housing Authority, 150 Conn. 594, 596-97 (1963).
In other words, the fact that the defect preceded the lease does not by itself impose liability on the landlord, nor does the fact that the lessor knew of the defect. The defect must also be concealed as a defect from the tenant, but known to the landlord and must be of such a character that "the tenant could not discover (the defect) by reasonable diligence." Gallagher v. Button, 73 Conn. 172, 176-77 (1900).
In Connecticut Law of Torts Wright, Fitzgerald, Ankerman 3d ed., Section 57, it states the rule applies allowing liability against the landlord where there is a concealed defect not discoverable on reasonable inspection not only to the tenant but to "others who enter the premises in the right of a tenant," page 148. This would include a tenant's employee. But the converse applies. If the requirements of the exception to the general rule are not met, the tenant, its guest or employee have no right to sue the landlord in negligence. Any other rule would vitiate the common-law imposition of liability on the tenant if it has exclusive control and possession-the hidden defect exception is after all only an exception to the general rule against imposing liability on the lessor.
Again, Gallagher, Civale and Masterson make explicit that the exception based on the existence of a defect which would avoid the general rule of not imposing liability on a lessor not in possession and control only applies if the defect is concealed and it was not discoverable by the tenant's reasonable inspection — that the lessor knew of the defect or that it existed at the inception of the lease (a given in all these cases no matter which way they go) is not relevant to the analysis.
Here it would appear obvious that the alleged defects or deficiencies were not concealed and quite open to observation by any prospective tenant — risers of excessive height, lack of hand rails, inadequate lighting and color coding on step noses. On the basis of the foregoing discussion it would appear that the defendant should prevail on its motion.
But one other argument must be dealt with. The plaintiff cites Section 60 of Connecticut Law of Torts. At page 154 it says "while liability to persons on the premises depends in the main upon control or possession, situations may arise where the landlord may be liable to persons off the premises for the leasing of premises upon which a nuisance had been constructed or maintained . . . In such cases the landlord and tenant are usually concurrently liable." A reading of this section applies to situations where, for example, the general public is endangered by construction of a building in such a way as to permit water to flow on to a sidewalk or public highway allowing ice to form.
But this stairway was on not off the demised premises and the plaintiff was not a member of the general public but an employee of the tenant, First Student, Inc. Such an individual has a right to Workers' Compensation or can proceed against the employer outside the act where appropriate, Suarez v. Dickmont Plastics Corp., 245 Conn. 255 Conn. 280-81 (1997); Recalde v. Emhart Industries, Inc., 24 CLR 126 (1999).
Even as to the foregoing rule under Section 60, that section cites Valin v. Jewell, 88 Conn. 151, 154-55 (1914), for the proposition that ". . . a tenant, who is cleaning the sidewalk in front of the leased premises and falls on ice caused by water draining from the (leased) house onto the walk; is not in the same favored category as the traveler on the highway." Not only was the injured party here on premises but she was an employee of the tenant and for the purposes of these various rules stands in the tenant's shoes.
The motion for summary judgment is granted.