DocketNumber: No. CV97 34 69 87
Citation Numbers: 1998 Conn. Super. Ct. 4640
Judges: SKOLNICK, JUDGE. CT Page 4641
Filed Date: 4/6/1998
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiff makes the following allegations in count one of the amended complaint. The plaintiff slipped, fell and suffered injuries at the McDonald's restaurant located at 1900 Fairfield Avenue, Bridgepert, Connecticut, because McDonald's negligently allowed a "wet, slippery, dangerous, unsafe, and defective condition" to exist on the floor of the restaurant. Specifically, a spilled liquid and a serving tray lying on the floor caused the plaintiff to fall and suffer injuries. At all relevant times, a franchise agreement existed between McDonald's and Deborah Sonnenschein and Sonnenschein Management Company. Deborah Sonnenschein and Sonnenschein Management Company are the agents of McDonald's.1 The premises known as 1900 Fairfield Avenue is owned by Principal Mutual
In support of its motion, McDonald's filed a supporting memorandum and affidavit of Peter L. Schaefer, a McDonlad's corporate attorney. The plaintiff filed an objection to the motion for summary judgment together with a memorandum and three exhibits. Thereafter, McDonald's filed a reply memorandum along with two exhibits. This court heard oral argument on January 20, 1998.2
"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 . . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere CT Page 4642 assertions or fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute for summary judgment." (Citations omitted; internal quotations marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co.,
McDonald's argues that it is entitled to summary judgment because it did not own, possess or control the McDonald's restaurant at the time of the plaintiff's fall, and therefore, it cannot be held liable upon a theory of negligence. McDonald's argues that the premises was owned by Principal Mutual. McDonald's further contends that the restaurant was possessed and controlled by Deborah Sonnenschein pursuant to a lease executed by McDonald's and Sonnenschein.3 The plaintiff responds that the existence of an agency relationship between McDonald's and Deborah Sonnenschein and Sonnenschein Management Group precludes summary judgment.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp. ,
"[L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof." Mack v. Clinch,
"[T]he common law imposes on landlords only a duty to maintain in reasonably safe condition those areas of their premises over which they exercise control . . . ." Gore v.People's Savings Bank,
Here, Article 2.03 of the lease between McDonald's (landlord) and Deborah Sonnenschien (tenant) provides: "Landlord promises that Tenant . . . will lawfully and quietly hold, occupy and enjoy the premises during the term of this Lease . . . ." Article 4.02 of the lease, entitled Maintenance and Repair, provides: "Tenant will, at its expense, (a) keep the entire Premises, all improvements, utility lines and Tenant's or Landlord's fixtures and equipment at all times in good repair, order or condition; (b) replace all broken, damaged or missing personal property, fixtures or equipment; and (c) at the end of the term of this Lease, whether by lapse of time or otherwise, surrender the premises in good repair, order and condition, ordinary wear and tear excepted . . . ."
It would appear that the instant lease establishes that Deborah Sonnenschein, not McDonald's, was in control of the premises. Moreover, the affidavit of Peter L. Schaefer, a McDonald's corporate attorney, indicates that McDonald's was not in control of the particular McDonald's restaurant where the plaintiff allegedly slipped, fell and was injured.4 Accordingly, CT Page 4644 McDonald's had no duty, as a matter of law, to maintain the premises and is entitled to summary judgment unless the plaintiff can establish that a genuine issue of material fact exists. See Oliver v. Health Rehab Prop. , supra, Superior Court, Docket No. 351198.
In his memorandum in opposition to the motion for summary judgment, the plaintiff does not argue that McDonald's had control or the subject McDonald's restaurant, indeed, the plaintiff explicitly notes that McDonald's gave possession and control of the subject premises to Deborah Sonnenschein and Sonnenschein Management Company. Rather, the plaintiff seeks to avoid entry of summary judgment by succinctly arguing that Deborah Sonnenschein and Sonnenschein Management are the agents of McDonald's, and therefore, genuine issues of material fact exist which preclude summary judgment.
"[N]ormally agency is a question of fact . . . . " Hallasv. Boehmke and Dobosz, Inc.,
Here, the plaintiff has produced no evidence indicating that an agency relationship existed between McDonald's and Deborah Sonnenscnein and Sonnenschein Management Company. Rather, the plaintiff's claim that an agency relationship existed and therefore precludes summary judgment is predicated upon the allegations of the amended complaint.
Furthermore, McDonald's has submitted evidence indicating that no such agency relationship existed. Article 8.01 of the CT Page 4645 lease between McDonald's and Deborah Sonnenschein explicitly states: "Tenant will have no authority, express or implied, to act as an agent of the Landlord or any of its affiliates for any purpose. Tenant is, and will remain, an independent contractor responsible for all obligations and liabilities of, and for all loss or damage to, the property connected with them and for all claims or demands based on damage or destruction of property or based on injury, illness or death of any person or persons, directly or indirectly, resulting from the operation of the McDonald's Restaurant located on the Premises."
"The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence."2830 Whitney Avenue Corp. v. Heritage Canal DevelopmentAssociates, Inc.,
The court concludes that there exists no genuine issue of material fact with respect to control of the subject premises. Accordingly, the Motion for Summary Judgment of McDonald's Corporation is granted.
DAVID W. SKOLZICK, JUDGE CT Page 4646
Panaroni v. Johnson , 158 Conn. 92 ( 1969 )
Robinson v. Weitz , 171 Conn. 545 ( 1976 )
Thomas v. Roper , 162 Conn. 343 ( 1972 )
MacK v. Clinch , 166 Conn. 295 ( 1974 )
United Oil Co. v. Urban Redevelopment Commission , 158 Conn. 364 ( 1969 )
Ziulkowski v. Kolodziej , 119 Conn. 230 ( 1934 )