DocketNumber: No. CV96 006 64 98
Judges: GROGINS, JUDGE.
Filed Date: 8/9/2000
Status: Non-Precedential
Modified Date: 7/5/2016
The defendant moves for summary judgment as to both counts on the ground that there is no genuine issue of material fact and he is entitled to judgment as a matter of Law. The plaintiff objects to summary judgment and submits a memorandum of law.
"[S]ummary 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." (Internal quotation marks omitted.) Riverav. Double A Transportation, Inc.,
The defendant argues that it purchased the premises in question in August of 1997 and that at that time, the plaintiff was already a tenant. (Defendant's Memorandum, p. 1.) The defendant also argues that "[t]he tenant who is in possession of the premises is ordinarily the proper party defendant. . . . [T]he proper party defendant would be the tortfeasor." (Defendant's Memorandum, p. 2.) The defendant also argues that "the lessee takes the demised premises with all the obvious defects." (Defendant's Memorandum, p. 2.) The defendant argues that since the plaintiff became aware of the risk in June of 1996, he cannot now claim a hidden risk. The defendant further argues that, upon being alerted to the problem, he notified all proper public agencies to remedy the situation. The defendant also argues that "the lessor is only liable to the tenant . . . if he has retained control or a portion of the premises, or if he has leased the premises with concealed defects or with defects known to him alone. . . . Clearly there can be no negligence action against this Defendant." (Defendant's Memorandum, p. 3.) Finally, the defendant argues that "[s]ince the only possible ground here for liability would be negligence, Plaintiff's right of recovery may always be barred by Plaintiff's own contributory negligence."
The plaintiff argues that he entered into a lease with Great Country Bank in 1995 for the premises in question. The plaintiff further argues that the defendant became the successor in interest to the 1995 lease. The plaintiff argues that the defendant retained control over the premises, including the heating ventilation and air conditioning (HVAC) and that the toxic fumes emanated through the HVAC system. The plaintiff further argues that the defendant did nothing to prevent the toxic fumes CT Page 9606 from entering the plaintiff's business. The plaintiff argues that a landlord is liable to a tenant for personal injuries due to the defective condition of the premises or lack of repair where the landlord retains control over the part of the premises which is claimed to be defective. The plaintiff argues that whether the lessor has reserved control of the premises is a question of fact unless clearly expressed in the lease. The plaintiff argues that there is a genuine issue of material fact as to the defendant's liabilities as an absentee landlord.
"``Connecticut subscribes to the common-law view that a landlord is under no obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects therein in the absence of an agreement, express or implied to the contrary. . . . One of the many exceptions to this rule, however, is where the landlord retains control of a portion of the demised premises. In such a case the landlord must use reasonable care to keep that portion of the premises in a reasonably safe condition. . . In order to demonstrate a breach of this duty the plaintiff must show that the defendants had actual knowledge of the defect or that they were chargeable with constructive notice of it, because, had they exercised a reasonable inspection of the premises, they would have discovered it.' (Citations omitted.) Pollack v. Gampel,
The plaintiff submits an affidavit in which he states, "I told the property management agent at Main Street Development Corporation of [the toxic fumes] problem several times, but they never fixed the problem." (Plaintiff's Affidavit, ¶ 10.) The defendant in his affidavit also states that the plaintiff complained about the fumes. (Defendant's Affidavit, ~ ¶ 8.) The defendant clearly had knowledge of the problem. The plaintiff argues that the toxic fumes emanated from the HVAC system and states in his affidavit that the defendant had control over this system. (Plaintiff's Affidavit, ¶ 6.) The defendant does not refute this. The 1995 lease between the plaintiff and Great Country Bank states that the landlord shall be responsible for all exterior and structural repairs to the building. (Plaintiff's Exhibit 1, ¶ 12B.) The 1998 lease between the plaintiff and the defendant states that the lessor will not be required to make any repairs necessitated by the tenant's negligence or default. (Plaintiff's Exhibit 3, § 7, ¶ B.) This lease, however, does not state who is responsible for the HVAC system.
"Whether the defendant retained control of this area is essentially a matter of intention to be determined in the light of all the significant circumstances." Kirby v. Zlotnick,
The defendant also argues that the plaintiff only has a claim in negligence and not in nuisance. "In Bentley v. Dynarksi,
"The leading trial level decision concerning this question is Jubb v.Maslanka,
"Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question." State v.Tippetts-Abbett-McCarthy-Stratton, supra,
This court agrees with the overwhelming majority of Superior Court decisions that allow a cause of action in nuisance against a landlord if the landlord retains control of the premises where there is an alleged defect. Therefore, the defendant's motion for summary judgment as to count two is denied.
The question of whether the defendant retained control over the property is a question of material fact. The defendant's motion for summary judgment as to counts one and two, therefore, is denied.
GROGINS, J.