Cortese v. Wal-Mart Stores East, Limited Partnership et al
Filing
47
ORDER granting 28 Walmart and East Windsor's Motion for Summary Judgment. The clerk is directed to terminate Wal-Mart Stores East, L.P., and East Windsor Properties, L.P. as parties to this action. Signed by District Judge Stefan R. Underhill on 3/27/2024. (Markowitz, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VITO CORTESE,
Plaintiff,
No. 3:22-cv-408 (SRU)
v.
WALMART STORES EAST, L.P., et. al.,
Defendants.
RULING ON WAL-MART STORES EAST, L.P. AND EAST WINDSOR PROPERTIES,
L.P.’S, MOTION FOR SUMMARY JUDGMENT
This case arises out of an injury sustained by the plaintiff, Vito Cortese (“Cortese”), when
his shopping carriage fell into a pothole in the parking lot of a shopping center located on
Prospect Hill Road in East Windsor, Connecticut. Cortese brings four identical premises liability
claims against Wal-Mart Stores East, L.P. (“Walmart”), East Windsor Properties, L.P. (“East
Windsor”), Big Y Foods, Inc. (“Big Y”), and Prospect Hill Properties, L.P. (“Prospect Hill”).
Walmart and East Windsor have moved for summary judgment, alleging that they did not have
possession and control over the property where the pothole was located, and therefore cannot be
liable to Cortese. For the reasons that follow, Walmart and East Windsor’s motion for summary
judgment is granted.
I.
Background
On February 16, 2022, Cortese filed suit in state court, alleging that he was injured on
March 14, 2020 in a parking lot at 67-69 Prospect Hill Road in East Windsor, Connecticut when
his shopping cart fell into a pothole, striking his left knee and causing a tear of his meniscus. See
Compl., Doc. No. 1. Cortese asserts four identical causes of action against four parties that he
alleges each “owned, leased, rented, controlled, possessed, operated, managed, and/or
maintained” the premises: Walmart, East Windsor, Big Y, and Prospect Hill. Walmart removed
the case to federal court on March 19, 2022, asserting diversity jurisdiction. See Def’s Notice of
Removal, Doc. No. 1.
The parking lot where the plaintiff’s injury took place was in a shopping center that
spanned two addresses: 67 and 69 Prospect Hill Road in East Windsor. See Walmart & East
Windsor’s Rule 56(a)(1) Statement, Doc. No. 30, at ¶ 9-10. At the time of the injury, 69 Prospect
Hill Road was owned by East Windsor and leased to Walmart, and 67 Prospect Hill Road was
owned by Prospect Hill and leased to Big Y. See Walmart Ground Lease, Exhibit 1, Doc. No. 301; Prospect Hill Lease, Exhibit 2a, Doc. No. 30-3. In addition, East Windsor and Prospect Hill
had entered into an agreement in 1995 titled “Easements with Covenants and Restrictions
Affecting Land” (the “ECR”). See ECR, Exhibit 2a, Doc. No. 30-3, at 54-65.
The ECR contemplated that the two properties would be developed in conjunction with
one another as a commercial shopping center. Id. The ECR granted to each party a non-exclusive
easement over the common areas of the other party’s parcel of land, for use as a shared parking
lot. Id. at 55-56:
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Finally, the ECR outlined the parties’ obligations for maintenance of the common areas of the
shopping center, stating that “the parties hereto shall maintain the Common Areas in good
condition and repair” and that the “respective owners shall pay the maintenance expense of their
tracts.” Id. at 58-59.
On December 12, 2022, the parties conducted a site visit, accompanied by an expert land
surveyor Alan Bongiovanni, to determine the location of the pothole that caused the plaintiff’s
injury. See Doc. No. 30, at ¶¶ 15-16. During the course of that visit the plaintiff identified the
location of the pothole, and Mr. Bongiovanni then concluded that the area containing the pothole
was entirely on the parcel owned by Prospect Hill and leased to Big Y. Id. at ¶¶ 20-21. Despite
the fact that Cortese had parked his car and sustained his injury near the front of the Walmart
store, which at the time of the incident had since closed, it is undisputed that the location
identified by Cortese as the site of the pothole was on the parcel owned by Prospect Hill and
leased to Big Y. See Opp’n., Doc. No. 37, at 6 (“Big Y does not currently dispute that the Site
Plan describing the Big Y Parcel depicts certain portions of Common Area that extend directly in
front of the Walmart Building Area, yet forms the parcel leased to Big Y.”).
On June 13, 2023, Walmart and East Windsor filed the instant motion for summary
judgment, doc. no. 28. The motion is opposed by both Cortese, see doc. no. 38, and codefendants Prospect Hill and Big Y. See Doc. No. 37.
II.
Standard of Review
Summary judgment is appropriate when the record demonstrates that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must
present affirmative evidence to defeat a properly supported motion for summary judgment).
When ruling on a summary judgment motion, the court must construe the facts of record in the
light most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398
U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d
Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the
nonmoving party”). When a motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving party may not rest upon the
mere allegations or denials of the pleadings but must present sufficient probative evidence to
establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving
party submits evidence that is “merely colorable,” or is not “significantly probative,” summary
judgment may be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact. Regarding materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
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irrelevant or unnecessary will not be counted. Id. at 247-48. To present a “genuine” issue of
material fact, there must be contradictory evidence “such that a reasonable jury could return a
verdict for the non-moving party.” Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23; accord
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s
burden satisfied if he can point to an absence of evidence to support an essential element of
nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary
judgment may enter. Celotex, 477 U.S. at 323.
III.
Discussion
Cortese’s negligence claims against each defendant sound in premises liability. It is well
established that, under the law of premises liability, a defendant’s “possession and control” of the
land subjects that defendant to liability to persons injured on the land. See Lin v. Nat'l R.R.
Passenger Corp., 277 Conn. 1, 20 (2006). See also Morin v. Bell Ct. Condo. Ass'n, Inc., 223
Conn. 323, 327 (1992) (“A possessor of land has a duty to an invitee to reasonably inspect and
maintain the premises in order to render them reasonably safe.”). Pointing to the seemingly
undisputed fact that Cortese’s injury occurred in an area of the shared parking lot in front of the
closed Walmart store that was owned by Prospect Hill and leased to Big Y, Walmart and East
Windsor argue that they are entitled to summary judgment in their favor because they had no
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possession or control over the premises and therefore owed no duty to Cortese. See Mem. in
Support of Mot., Doc. No. 29, at 6-7.
However, under Connecticut law, “possession and control” is not limited to ownership.
“One who asserts and maintains control of property may be liable for defective conditions
existing thereon, though he has in fact no title to it.” Thelin v. Downs, 109 Conn. 662, 664
(1929). See also Rosa v. American Oil Co., 129 Conn. 585, 589 (1943) (“it is upon control and
possession of the premises, as distinguished from title, that a defendant's liability is predicated in
[a premises liability] case”). Expanding on the meaning of the terms “possession” and “control”,
Connecticut courts have explained that “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,” Doty v. Shawmut Bank, 58 Conn. App. 427, 432 (2000),
and “possession cannot be fairly construed as anything short of the exercise of dominion and
control similar to and in substitution for that which ordinarily would be exerted by the owner in
possession.” Hancock v. Finch, 126 Conn. 121, 123 (1939). Moreover, a defendant need not
have exclusive possession in order to have control and possession for the purposes of
establishing a duty of care. See Lin, 277 Conn. at 16 n.10. Prospect Hill and Big Y therefore
oppose summary judgment on the grounds that, despite lacking an ownership or leasehold
interest in the shared premises where the plaintiff’s injury occurred, Walmart and East Windsor
had the right to, and did, exercise possession and control over that area of the shared premises
pursuant to the ECR, creating a genuine dispute of material fact as to which defendant(s) owed a
duty to Cortese. See Opp’n., Doc. No. 37, at 10-14.
A non-exclusive easement over a piece of land, though, much like legal title, is also
inconclusive evidence of “possession and control” over that land. See, e.g., Sellick v. Hall, 47
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Conn. 260, 271-72 (Conn. 1879) (concluding that one party’s “right to a mere easement,
involving no presumptive possession” of the property in question was insufficient establish
possession and control, and “[t]he question thus becomes one of actual possession and control,
and thus a question for the jury.”). Actions taken to a piece of land—such as the maintenance
activities that Prospect Hill and Big Y allege Walmart undertook on the relevant area of the
property—can serve as additional evidence of whether the actor had possession and control over
the land. See Doc. No. 37, at 7, 13 (Alleging that the area where the plaintiff was injured “had
been maintained, which maintenance included paving, sweeping, snow and ice removal, and
paintings of markings and lines” and that “Big Y has submitted evidence revealing that for a
period of many years leading up to the Plaintiff’s incident, Walmart, and not Big Y Foods or
Prospect Hill, undertook to maintain [that area]”); Schlierf v. Abercrombie & Kent, Inc., 2012
WL 3089387, at *2 (Conn. Super. Ct. July 2, 2012) (“[I]n determining whether a defendant
‘controls’ the premises where the injury occurred, our juries are instructed that they may
consider such things as: acts of maintenance, such as fixing, repairing, cleaning, painting,
performing upkeep.”). However, the relevance of those actions must also be considered in the
context of the actual rights and obligations granted under the ECR. The Second Circuit in Sutera
v. Go Jokir, Inc. collected cases from other jurisdictions that held that the owner of an easement
can be held liable for injuries to third parties on the subject property if “in light of the rights
granted under the easement, as well as the activities undertaken pursuant to those rights[,] the
dominant owner has sufficient control to warrant treatment as a landowner for tort purposes.” 86
F.3d 298, 305 (2d Cir. 1996).
The “control” test for premises liability that the Second Circuit described in Sutera led
that court to conclude that, under New York law, when a property is subject to a non-exclusive
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easement and both the dominant and servient owners exercise their rights to use and maintain the
property, both owners owe a duty to third parties and may be held jointly liable. Id. at 306
(“Because defendant exercised its rights and had the authority to ensure that the common areas
were well-maintained, this case is similar to Cesario, [in which] . . . both defendants owed the
duty of a landowner.”). Relying on Sutera and two Connecticut Superior Court decisions that
held, respectively, that the owner of a servient estate and the owner of a dominant estate may be
held liable for injuries to third parties, Big Y and Prospect Hill argue that the defendants in this
case may be held jointly liable to Cortese and therefore the claims against Walmart and East
Windsor should proceed. See generally Supp. Br. of Big Y and Prospect Hill, Doc. No. 45 (citing
Fabi v. Firm, LLC, 2011 WL 803103 (Conn. Super. Ct. Jan. 28, 2011), and McMellon v. Ball &
Socket Liquidating Tr. Inc., 2001 WL 477286 (Conn. Super. Ct. Apr. 20, 2001)). As the Superior
Court conceded in Fabi, “[n]either the Appellate Court nor the Supreme Court has clarified the
manner in which our law of premises liability is applied in relation to the owner of a servient
estate when a third party is injured upon an easement.” 2011 WL 803103, at *3. The same lack
of clarity from higher Connecticut courts exists regarding the obligations of the owner of a
dominant estate under Connecticut law.
But those two Connecticut Superior Court cases, read together, endorse Sutera’s
conclusion that the question of whether the owner of an easement or the owner of a servient
estate owes a duty of care to third parties is not answered through a rigid test, but depends on the
rights and obligations conferred by the agreement creating the easement and the actions taken by
each party. They do not, however, stand for the proposition that Sutera’s approval of joint and
several liability in premises liability cases applies under Connecticut law. Connecticut abolished
joint and several liability in 1986. Conn. Gen. Stat. § 52-572h(c) (“In a negligence action to
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recover damages resulting from personal injury . . . each party against whom recovery is allowed
shall be liable to the claimant only for such party's proportionate share of the recoverable
economic damages.”). Sutera, in contrast, arises under New York law, where joint and several
liability does apply to negligence claims. See CPLR § 1601(1) (New York’s modified joint and
several liability statute). The court in Sutera also cites to cases from other jurisdictions that have
adopted a similar “control” test for premises liability cases that allows an easement holder and
servient estate owner to be jointly liable to third parties, again all from jurisdictions that
seemingly permit joint and several liability. Sutera, 86 F.3d at 305 (collecting cases);
Restatement (Third) of Torts: Apportionment Liab. § 17 (2000) (table of states’ joint and several
liability laws). Finally, Connecticut law also does not allow the apportionment of liability
amongst multiple tortfeasors in premises liability cases, because the property owner has a nondelegable duty to inspect and maintain the property. See Smith v. Town of Greenwich, 278 Conn.
428, 456 (2006).
Sutera’s “control” test, therefore, is persuasive, but I must also take into account that,
under Connecticut law, a dominant and servient estate cannot both be held liable for an injury to
a third party on a property subject to an easement, either through joint and several liability or
through apportionment of liability. It therefore would be nonsensical to conclude that a dominant
and servient estate can both concurrently have possession and control over the property for
purposes of liability for injury to third parties. As stated previously, the Connecticut Supreme
Court does not require a party to have exclusive possession of a property in order to be a proper
defendant in a premises liability case, that party need only be “in control of the property.” Lin,
277 Conn. at 16 n.10; Gazo v. City of Stamford, 255 Conn. 245, 249 (2001). But the absence of
any basis to jointly hold multiple tortfeasors liable in a single premises liability case compels the
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conclusion that control must be exclusive under Connecticut law. Therefore, if in another case
the proper showing of “control” was made, it seems entirely possible that an easement holder
may be held liable to third parties for injuries occurring on that easement. However, considering
the rights and duties conferred under the ECR and the undisputed actions taken by each of the
defendants in this case, no reasonable jury could conclude in this case that Walmart and East
Windsor exercised control over the property on which Cortese’s injury occurred, to the exclusion
of Big Y and Prospect Hill.
Though stating that “the parties hereto shall maintain the Common Areas,” potentially
signaling a collective responsibility, the ECR assigns to each party the duty to pay the
maintenance expenses, lighting expenses, taxes, and insurance costs of the tract of the Common
Area that it owns. See ECR, Exhibit 2a, Doc. No. 30-3, at §§ 6(b)-(c), 8(b). The ECR also
permits each party to make alterations only to its own tract. Id. at § 6(d). Finally, under the ECR
each party agrees to indemnify the other against claims arising from injury on its own respective
tract. Id. at § 8(a). Those provisions all indicate that, under the terms of the agreement between
the defendants, Prospect Hill and Big Y retained the right and obligation to control the portion of
the Common Area that they own and lease. In fact, Prospect Hill and Big Y admit that they had a
duty to maintain their own parcel. See Doc. No. 36, at ¶ 23. Moreover, even drawing all
reasonable inferences in favor of Prospect Hill and Big Y, and therefore assuming that Walmart
did, in fact, pave, sweep, remove snow and ice, and paint markings on the area of the parking lot
where Cortese was injured, and did order a subsequent repair of the pothole, see doc. no. 36, at
11-12 ¶¶ 19-26, those basic maintenance acts would not be enough demonstrate that Walmart, as
opposed to Prospect Hill and Big Y, exercised the power to “manage, superintend, direct, or
oversee” the area of the parking lot as required under Connecticut law to demonstrate control,
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when compared to the obligations conferred under the ECR. Cf. Colon v. Metro-N. Commuter
R.R. Co., 242 F. Supp. 3d 65, 76-77 (D. Conn. 2017), aff'd, 778 F. App'x 7 (2d Cir. 2019)
(holding that a reasonable jury could conclude that the MTA had control over a portion of
railroad tracks where a plaintiff was injured, based on the MTA’s considerable police presence
along the railroad and its ownership of Metro-North, which controls the railroad right-of-way).
Therefore, because there is no dispute that Cortese’s injury occurred on the portion of the
Common Area that was in the possession and control of Big Y and Prospect Hill, summary
judgment is appropriate in favor of East Windsor and Walmart. Should Big Y seek to recover
against East Windsor or Walmart on account of its belief that Walmart, and not Big Y, is directly
responsible for the defective pothole that caused Cortese’s injury, its remedy lies in indemnity.
See Preferred Acc. Ins. Co. of N. Y. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 542
(1947) (holding that, where one party was actively negligent and the other was passively
negligent, meaning that their negligence constituted the violation of a positive duty, the latter has
a cause of action against the former for indemnity). As noted above, the ECR’s indemnity
provision requires each party to indemnify the other for claims arising out of injury occurring on
its own tract, see exhibit 2a, doc. no. 30-3, at § 8, perhaps preventing Big Y from asserting any
contractual right of indemnity against Walmart. However, Big Y may choose to assert a
common-law indemnity claim against Walmart. See Skuzinski v. Bouchard Fuels, Inc., 240
Conn. 694, 698 (1997) (reciting the elements of a common-law indemnity claim). Those
considerations, however, are of no import to the resolution of the instant motion for summary
judgment, because no claim for indemnity has yet been asserted.
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IV.
Conclusion
For the reasons described herein, Walmart and East Windsor’s motion for summary
judgment, doc. no. 28, is granted. The clerk is directed to terminate Wal-Mart Stores East, L.P.,
and East Windsor Properties, L.P. as parties to this action.
So ordered.
Dated at Bridgeport, Connecticut, this 27th day of March 2024.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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