Colon v. Autozone Northeast, Inc. , 148 Conn. App. 435 ( 2014 )

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VICTOR COLON v. AUTOZONE
NORTHEAST, INC., ET AL.
(AC 35397)
Alvord, Keller and Bishop, Js.
Argued January 6—officially released February 25, 2014
(Appeal from Superior Court, judicial district of
Fairfield, S. Richards, J.)
John T. Bochanis, for the appellant (plaintiff).
William S. Wilson II, for the appellee (named
defendant).
Opinion
PER CURIAM. The plaintiff, Victor Colon, appeals
from the summary judgment rendered by the trial court
in a negligence and premises liability action in favor of
the defendant AutoZone Northeast, Inc. (AutoZone).1
On appeal, the plaintiff claims the trial court improperly
rendered summary judgment in favor of the defendant
because material questions of fact existed as to
whether: (1) the defendant had control of the area
where the plaintiff was assaulted; and (2) the defendant
should have foreseen that a dangerous condition
existed when customers exited the defendant’s store.
We affirm the judgment of the trial court.
The relevant factual and procedural background is
as follows. The plaintiff alleged that he was assaulted
by an unknown assailant on or about July 14, 2009, in
the parking lot outside of the defendant’s store at a
strip mall located at 300 North Avenue, Bridgeport. On
July 14, 2011, the plaintiff brought a negligence and
premises liability action against the defendant. The
defendant filed an answer denying the allegations, and
asserted as a special defense that the plaintiff failed to
state a cause of action against the defendant upon which
relief could be granted because the defendant did not
have possession or control over the parking lot in which
the plaintiff allegedly was assaulted.2 On May 23, 2012,
the defendant filed a motion for summary judgment
solely on the ground that it ‘‘owed no duty to the plaintiff
because it did not have possession or control over the
parking area where the plaintiff was allegedly
assaulted’’ and therefore was entitled to judgment as a
matter of law. The plaintiff filed an objection, and the
defendant filed a reply. Oral argument was heard on
the motion and on December 26, 2012, the court granted
the defendant’s motion for summary judgment in a writ-
ten memorandum of decision. The court concluded that
under the terms and conditions of the lease, the defen-
dant was not in control or possession of the parking
lot and owed no duty of care to the plaintiff, and, there-
fore, no genuine issues of material fact existed and
the defendant was entitled to summary judgment as a
matter of law. This appeal followed.
On appeal, the plaintiff reiterates his claims that
material questions of fact existed as to whether the
defendant had control of the area where the plaintiff
was allegedly assaulted, and whether the defendant
should have foreseen that a dangerous condition
existed when customers exited the store. We are not
persuaded.
We begin by setting forth our standard of review.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . [T]he scope of our review of the trial court’s
decision to grant the [defendant’s] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Romprey v. Safeco Ins. Co. of America, 310 Conn.
304, 312–13, 77 A.3d 726 (2013).
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; causa-
tion; 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 plain-
tiff, the plaintiff cannot recover in negligence from the
defendant.’’ (Internal quotation marks omitted.) Mirja-
vadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278(2013). ‘‘[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.’’ (Citations omitted; internal quotation marks
omitted.) Mills v. The Solution, LLC, 138 Conn. App.
40, 59–60, 50 A.3d 381, cert. denied, 307 Conn. 928, 55
A.3d 570 (2012). ‘‘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.’’ Fiorelli v. Gorsky, 120
Conn. App. 298, 309, 991 A.2d 1105, cert. denied, 298
Conn. 933, 10 A.3d 517 (2010).
We have carefully reviewed the record and briefs in
this case and agree with the trial court that the defen-
dant met its burden of proving that there are no genuine
issues of material fact and that it is entitled to judgment
as a matter of law. The defendant asserted that its
demised premises did not include any portion of the
‘‘Common Areas’’ of 300 North Avenue, which its lease
expressly defined as including ‘‘all automobile parking
areas, driveways, entrances and exits . . . .’’ In support
of its claim, the defendant submitted a copy of the lease,
affidavits, and other supporting evidence to establish
that it did not have control or possession over the park-
ing lot in which the plaintiff was allegedly injured, and
therefore owed no duty of care to the plaintiff.3 The
plaintiff, however, did not provide the trial court with
any evidence to show that there was a genuine issue
of material fact as to whether the defendant had posses-
sion or control over the parking lot, and the court found
that his ‘‘memorandum in opposition to the defendant’s
motion for summary judgment fail[ed] to include any
contradictory affidavits and contain[ed] only bald state-
ments of fact . . . .’’ ‘‘The party opposing summary
judgment must present a factual predicate for his argu-
ment to raise a genuine issue of fact.’’ (Internal quota-
tion marks omitted.) Mills v. The Solution, LLC, supra,
138 Conn. App. 62. ‘‘[B]are assertions by the nonmovant
are not enough to withstand summary judgment.’’
(Internal quotation marks omitted.) Macellaio v. New-
ington Police Dept., 145 Conn. App. 426, 436, 75 A.3d
78 (2013). Here, the defendant successfully demon-
strated the absence of a material dispute as to the pos-
session and control of the parking lot, and the plaintiff
failed to present any factual predicate to raise an issue
of material fact.4 Accordingly, the trial court properly
rendered summary judgment in favor of the defendant.
The judgment is affirmed.
1
The plaintiff also named Three Hundred North, LLC (Three Hundred
North), as a defendant in the complaint. It has been established that Three
Hundred North is the current owner and landlord of the property at 300
North Avenue, Bridgeport, and that AutoZone and Three Hundred North
are parties to a lease agreement for AutoZone’s store at 300 North Avenue.
Three Hundred North was not a party to the underlying motion for summary
judgment, nor is it a party to this appeal. Therefore, we refer to AutoZone
as the defendant in this opinion.
2
The defendant also asserted by way of special defenses that ‘‘[a]ny
injuries, losses, or damages which the plaintiff may have suffered . . . were
directly and proximately caused by his own negligence,’’ and that the plain-
tiff’s actions ‘‘may be time barred by the applicable statute of limitations.’’
3
Article 10 of the lease provides in relevant part: ‘‘All of said Common
Areas shall be for the general use, in common of tenants, their agents,
employees, customers and invitees. [The defendant], its agents, employees,
customers and invitees are hereby granted the right to use all of [the]
Common Areas for their intended purposes . . . . Landlord shall have the
right to change the area, level, location and arrangement of the Common
Areas, provided such changes do not adversely affect [the defendant], and
to restrict parking by tenants, their officers, agents and employees to desig-
nated parking areas. . . . Landlord shall keep the Common Areas in the
Shopping Center (including without limitation, sidewalks, driveways, ser-
vices areas, curbs and parking areas) in good order and repair, reasonably
free from snow, ice and debris and reasonably lighted during the normal
business hours of the major tenants, including [the defendant], in the Shop-
ping Center. Landlord agrees to carry public liability insurance covering the
parking areas and other Common Areas . . . . Landlord agrees to save and
hold [the defendant] harmless from any loss or suit brought by any person
for injuries sustained, or property damage arising out of Landlord’s negli-
gence with respect to the landlord’s duties under Article 10.’’
The lease also stated that the defendant’s demised premises ‘‘are to be
located in the cross hatched area outlined in red on Exhibit A.’’ The cross
hatched area in exhibit A, which was submitted to the trial court by the
defendant along with a sworn affidavit attesting to its truth and accuracy,
does not include any ‘‘Common Areas’’ such as the parking lot and sidewalk.
4
Likewise, the plaintiff failed to submit any admissible evidence to raise
a material question of fact as to whether the assault was or should have
been foreseeable. Accordingly, his claim that the alleged criminal attack
was foreseeable and his proposition based upon Ford v. Hotel & Restaurant
Employees & Bartenders Union, 155 Conn. 24, 229 A.2d 346 (1967), that
the defendant ‘‘[could] be liable for dangerous conditions adjacent to its
property if it should have foreseen a dangerous condition’’ must fail.