DocketNumber: No. CV95 0147384 S
Citation Numbers: 1997 Conn. Super. Ct. 6479
Judges: D'ANDREA, J.
Filed Date: 6/23/1997
Status: Non-Precedential
Modified Date: 4/18/2021
The defendant, John Lium, has filed a motion for summary judgment as to the plaintiff's amended complaint on the ground that the plaintiff has failed to state a claim against Lium for which relief can be granted. In support of this motion, the defendant submitted a memorandum of law, along with the affidavit of John Lium and excerpts from the deposition transcript of Rose Ortiz. The plaintiff filed an opposing memorandum of law, along with excerpts from the deposition transcripts of Michael Propersi and Rose Ortiz.
"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." (Citation omitted; internal quotation marks omitted.) Home Ins. Co.v. Aetna Life Casualty Co.,
The defendant, John Lium, first argues that because he was not in possession or control of the parking lot where the plaintiff was allegedly injured, he did not owe a duty to the plaintiff. The defendant relies in part on Lazarin v. Shawmut Bank of Connecticut,
CT Page 6481 Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. 522875 (July 12, 1994, Hennessey, J.) (
Liability for injuries due to defective premises is predicated upon possession and control of the premises, as opposed to mere ownership. Mack v. Clinch,
In the present case, Garbo's leased space at 581 West Putnam Avenue from Aries for the purpose of operating its restaurant, and John Lium was Garbo's president. Affidavit of John Lium, ¶ 4. The plaintiff has alleged that Lium and Garbo's were in possession and control of the parking lot and parking lot lights when she was allegedly injured. Although Lium submitted an affidavit in which he attests that neither he nor Garbo's was in possession or control of the parking lot or the parking lot lights, the plaintiff submitted an excerpt from the deposition transcript of Michael Propersi in which he testified that he was responsible for some of the lighting fixtures in the parking lot, while other lighting CT Page 6482 fixtures were the responsibility of the proprietors of Marlo's Cafe. Deposition Transcript of Michael Propersi, p. 62. Furthermore, unlike in Lazarin v. Shawmut Bank of Connecticut,
supra,
In order to prevail on a motion for summary judgment, "[t]he movant must [make a showing] that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Miller v. United Technologies Corp.,
The defendant also argues that even if he did owe a duty to the plaintiff, he did not breach that duty. According to the defendant, the plaintiff was not a business invitee because she had no relationship whatsoever with Lium or Garbo's on the day of the accident. Even if the plaintiff were a business invitee, the defendant argues that he did not breach any duty to the plaintiff because she was aware of the lighting condition in the parking lot prior to the accident. Finally, the defendant argues that the plaintiff was a licensee, rather than an invitee, and that he did not breach any duty owed to the plaintiff as a licensee because he had no reason to be aware of her presence and the alleged dangerous condition was well known to the plaintiff prior to the accident.
"In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." Morin v. Bell CourtCondominium Assn., Inc.,
"An invitee is either a public invitee or a business visitor." 2 Restatement (Second), Torts § 332(1) (1965). "A public invitee is a person who is invited to enter or remain on land as a member of CT Page 6483 the public for a purpose for which the land is held open to the public." Kolaniak v. Board of Education,
In the present case, the plaintiff alleges in the complaint that she was an invitee. Although the plaintiff testified at her deposition that she had no business dealings with the defendant on September 8, 1993; June 28, 1996 Deposition Transcript of Rose Ortiz, pp. 31-33; this does not resolve the issue of whether the plaintiff was a public invitee. "The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land to enter the land or remain on the land." Corcoran v. Jacovino,
Even if the plaintiff was an invitee, the defendant argues that he fulfilled his obligation to the plaintiff because she was aware of the lighting condition in the parking lot prior to the accident. See Warren v. Stancliff,
Deposition transcripts are insufficient to support a motion for summary judgment. Esposito v. Wethered,
"The duty that a . . . [possessor of land] owes to a licensee, [however,] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Assn., Inc., supra,
The plaintiff testified at her deposition that she worked at the Connecticut Institute of Art, a tenant at 581 West Putnam Avenue, and therefore visited the premises on a daily basis. June 28, 1996 Deposition Transcript of Rose Ortiz, p. 65. Therefore, there is a genuine issue of material fact as to whether the defendant had actual or constructive knowledge of the plaintiff's presence on the premises.
Where the licensor has actual or constructive knowledge of the licensee's presence, the licensor has a duty to "warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe." Morin v. Bell CourtCondominium Assn., Inc., supra,
Based upon the foregoing, the defendant's motion for summary judgment is denied.
D'ANDREA, J.
MacK v. Clinch , 166 Conn. 295 ( 1974 )
Warren v. Stancliff , 157 Conn. 216 ( 1968 )
Panaroni v. Johnson , 158 Conn. 92 ( 1969 )
Corcoran v. Jacovino , 161 Conn. 462 ( 1971 )
Roberts v. Rosenblatt , 146 Conn. 110 ( 1959 )
Farlow v. Andrews Corporation , 154 Conn. 220 ( 1966 )