6 Mash.Rep. 412, 2017 WL 2351325 (Mash. Pequot Tribal Ct.)
Mashantucket Pequot Tribal Court.

Catherine COLEBUT
v.
Earl Roy COLEBUT, et al.

MPTC–CV–PI–2015–149.
|
May 12, 2017.

Synopsis

Background: After allegedly tripping and falling in driveway of her uncle’s home, plaintiff brought negligence action against her uncle and tribe. Tribe moved for summary judgment.

Holdings: The Tribal Court, Edward B. O’Connell, J., held that:

issues of fact existed as to whether Tribe lacked any control over defendant’s premises, and

issues of fact existed as to whether Tribe had constructive notice of alleged dangerous condition.

Motion denied.

MEMORANDUM OF DECISION RE MASHANTUCKET PEQUOT TRIBAL NATION’S MOTION FOR SUMMARY JUDGMENT

EDWARD B. O’CONNELL, Judge.

This is a premises liability action sounding in negligence. The plaintiff, Catherine L. Colebut, alleges that she was visiting her uncle, Earl Ray Colebut, when she tripped and fell on an uneven area of the driveway of his home located at 509 Pequot Trail in Mashantucket, and sustained injuries. She brings this action in two counts. In Count One, she alleges that Mr. Colebut was negligent in a variety of ways, including a failure to maintain and repair his driveway. In Count Two, she alleges that the Mashantucket Pequot Tribal Nation a/k/a Mashantucket Pequot Tribe “owned, possessed, maintained and/or controlled” the property located at 509 Pequot Trail, and that it was negligent in repairing and maintaining the driveway, resulting in the plaintiff’s fall and injuries.

The Mashantucket Pequot Tribe moves for summary judgment on Count Two, asserting that it did not possess or control 509 Pequot Trail at the time the plaintiff’s injuries occurred. It contends that by way of a “Conveyance” dated December 17, 2010, the Tribe conveyed all its right, title and interest in the dwelling, fixtures and improvements located at 509 Pequot Trail to Mr. Colebut, and that at the time the plaintiff fell more than three years later, on August 12, 2014, the Tribe had no duty or obligation to maintain the property. Moreover, the Tribe asserts that it did not have notice of any alleged defects or dangerous conditions. It contends that there is no genuine issue of material facts as to whether the Tribe had post-conveyance control of Mr. Colebut’s property, or whether it had notice of any defects, and moves for summary judgment.

The plaintiff and the defendant Earl Roy Colebut1 respond that the “Conveyance” provided that Mr. Colebut’s right to occupy the premises is “subject to the provisions of the Alternate Housing Program” of the Tribe, and the rules and regulations of that Program. They assert that the provisions of the Alternate Housing Program evidence a reserved authority for the Tribe to manage and oversee the property, and that the Tribe thereby maintained control over the property. They also assert that certain maintenance actions of the Tribe constitute constructive notice of the defect, and that the Tribe negligently failed to act by not exercising its reserved right of inspection. They contend that genuine issues of material fact exist, and that summary judgment cannot be granted in these circumstances.

“The role of a summary judgment motion is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for a trial.” Nikoloudakis v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 495, 496 (2007). “A motion for summary judgment may not be granted unless the court determines 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.” See M.P.R.C.P. 56(c); Mahan v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 499, 502 (2007) citing Bauer v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 119, 1 Mash. 86 (1995). “In ruling on a motion for summary judgment, the function of the trial court is not to decide issues of material fact, but rather to determine whether any such issues exist.” Mahan, 4 Mash.Rep. at 502 (internal quotation marks omitted).

“A ‘material’ fact is a fact which will make a difference in the result of the case.” Hill v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 218, 221 (2009) citing Mahan, 4 Mash.Rep. at 502. A dispute over a material fact is genuine if the evidence is such that a reasonable trier of fact could rule in favor of the nonmoving party. See Scanlon v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 211, 217 (2009).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as to a matter of law.” Heydari–Darafshian v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 189, 192 (2009) citing Bauer, 1 Mash.Rep. at 120, 1 Mash. 86. “The 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.” Id.

“[T]here can be no actionable negligence ... unless there exists a cognizable duty of care.” Celentano v. Mashantucket Pequot Gaming Enter., 6 Mash.Rep. 189, 192 (2014). “The existence of a duty of care is a threshold question of law to be determined by the Court.” Id. “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 47, 58 A.3d 293 (2013).

Where “the plaintiff’s allegations stem from an injury caused by a dangerous condition on the premises, liability is dependent on possession and control of the dangerous premises.” Sweeney v. Friends of Hammonasset, 140 Conn.App. at 49, 58 A.3d 293; see also LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “Liability for injuries caused by defective premises ... does not depend on who holds legal title, but rather on who has possession and control of the property.” LaFlamme, 261 Conn. at 251, 802 A.2d 63. “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.” Sweeney v. Friends of Hammonasset, 140 Conn.App. at 50, 58 A.3d 293.

“In considering control of the premises one can look to acts of maintenance, upkeep, inspection, restricting or allowing entry to the property and the use of the premises.” “More than one entity can be in control of a premises at the same time, and thus responsibility for injuries upon the premises may be shared by more than one entity.” Windecker v. Roscoe Family L.P., CV000504023S, 2002 WL 1573414 at *3 (Conn.Super.Ct. June 14, 2002, Quinn, J.).

The principal requirement for summary judgment is the absence of a genuine issue of material fact. See Nikoloudakis and Mahan, supra. Here, that standard translates to whether there is a genuine issue as to the lack of the Tribe’s control of Mr. Colebut’s property, at the time of Ms. Colebut’s injury. The Tribe contends that it did not control the Property because its interest in the Property was extinguished once title passed to Mr. Colebut. In support of this assertion, the Tribe points to the “Conveyance” which transferred the Tribe’s interest in the “dwelling, structure and improvements” on the land to Mr. Colebut. See Motion for Summary Judgment, Exhibit A. The Tribe contends that because Ms. Colebut’s injury resulted from an improvement, i.e., the alleged defect in the paved driveway, and because the Tribe’s control over improvements was extinguished upon conveyance, it cannot be liable.

In response the plaintiff contends that Tribal control of the property can be inferred from maintenance activities such as lawn mowing and snow plowing. In addition, the plaintiff asserts that the terms of the Alternative Housing Occupancy Agreement and the Alternate Housing Program’s Rules and Regulations indicate that the Tribe retained control subsequent to the conveyance, since it reserved the right to inspect the Property and the option to conduct maintenance and make improvements on the Property. In reply the Tribe asserts that the Occupancy Agreement was only effective for the duration of the Agreement, which terminated once title passed to Mr. Colebut. The Tribe also contends that even if it had control of the Property, it had no actual or constructive notice of the alleged defect.

An instrument titled “Conveyance to Earl Roy Colebut, Jr.,”2 dated December 17, 2010, is attached as an exhibit to the Tribe’s motion for summary judgment. Motion for Summary Judgment, Exhibit A. In the first paragraph “the Mashantucket Pequot Tribal Nation hereby grants, sells and conveys to Earl Roy Colebut, Jr. all right, title and interest possessed of the Mashantucket Pequot Tribal Nation” in the dwelling, structures and improvements located at 509 Pequot Trail. Despite this sweeping language, Mr. Colebut acknowledges, in the second paragraph of the Conveyance, that “the right to occupy such land is subject to the provisions of the Alternate Housing Program of the Mashantucket Pequot Tribal Nation, including the rules and regulations of such Alternate Housing Program as they may be amended from time to time.” See Motion for Summary Judgment, Exhibit A.

The Alternate Housing Occupancy Agreement and Alternate Housing Program Rules and Regulations are also attached as exhibits to the Tribe’s motion for summary judgment. The Program is described as “homebuyer agreement” with a “lease with the option to purchase.” Regulations, § VI(1). The procedures for a transfer of ownership to the homebuyer upon successful completion of the homebuyer’s obligations include a “mutual release of obligations under the Alternate Housing Occupancy Agreement”, Regulations, § VIII(1), but also contemplate that the conveyance would include “restricted covenants applicable to ownership”. Regulations, § VIII(2). The Occupancy Agreement may be terminated for breach (Article VIII, § 8.1), at the option of the Housing Authority (Article VIII, § 8.2), or at the option of the homebuyer (Article VIII, § 8.3). The Agreement is silent regarding termination upon a conveyance by the homebuyer.

The Occupancy Agreement provides that the Tribe retains the option to conduct maintenance activities on a homebuyer’s property and may also provide utilities. Article V, Sections 5.2 and 5.3. Article V indicates that the Tribe has some post conveyance control of Mr. Colebut’s Property. Counsel for the Tribe correctly points out that Article V addresses warranty items. However, a closer reading of the Article reveals that while it places an obligation on the Tribe for maintenance of warranty items, it gives the Tribe the option to conduct other maintenance. Article V, Sections 5.2(B)(2) and (C). See also Article V, Section 5.3 (Tribe may provide utilities); Section 5.5 (homebuyer may not make structural changes to the home without first consulting the Tribe and obtaining prior permission for such work).

In the context of this action, “the word “control” has no legal or technical meaning distinct form that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee.” Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. at 50, 58 A.3d 293. Here, the provisions of the Conveyance and the Regulations and the Occupancy Agreement make reference to a reserved authority for the Tribe to manage, inspect and oversee the condition of the premises at 509 Pequot Trail. The Tribe’s reserved option to conduct post-conveyance maintenance is sufficient to create a genuine issue regarding the Tribe’s claim that it lacked any control of the premises after conveyance. Whether in fact is had such control must be resolved at trial.

The Tribe also contends that, assuming arguendo that it had control of the premises, it had no notice, actual or constructive, of any alleged defect on the property at 509 Pequot Trail. “Whether the defendant had constructive notice of a dangerous condition turns on whether the condition existed for a length of time sufficient for the defendant’s employees, in the exercise of due care, to discover the defect in time to have remedied it.” Brown v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 79, 81 (2008). “It is not necessary that there be an abundance of evidence to show a sufficient length of time for the discovery of a dangerous condition, but there must be sufficient direct or circumstantial evidence.” Id. at 82. Mr. Colebut’s affidavit attached to his objection states that he regularly observed the Tribe’s public works department perform landscaping work “on or adjacent to the property at 509 Pequot Trail.” See Affidavit of Early Roy Colebut, at Paragraph 6. Similarly, the plaintiff’s affidavit states that she tripped and fell on an uneven surface in the driveway area, which had not been altered in the previous three years while she was visiting her uncle. See Affidavit of Plaintiff at Paragraphs 5 and 7. Whether there was any defect which in fact existed for a sufficient length of time to be discovered by reasonable inspection is a question of fact which should not be taken from the finder of fact at this time.

The Court finds that the plaintiff has met her burden of demonstrating that there is a genuine issue of material fact as to whether the Tribe retained post-conveyance control of 509 Pequot Trail, and if so, whether the Tribe had constructive notice of the alleged dangerous condition. The defendant Tribe’s motion for summary judgment is denied.

This ruling has no effect on the ultimate result. See Wang v. Mashantucket Pequot Gaming Enterprise, MPTC–CV–PI–2015–100, 6 Mash.Rep. 305, 310, 2015 WL 6080789 at *4 (Mash. Pequot Tribal Ct. Sept. 17, 2015) (some issues are better addressed at trial than on motion for summary judgment and their merits remain unaffected by an adverse ruling at this stage).

All Citations
6 Mash.Rep. 412, 2017 WL 2351325

Footnotes
1	At oral argument, Counsel for the Tribe indicated that she considered Mr. Colebut to lack standing to object to the Tribe’s Motion. The Court will consider Mr. Colebut’s objection to the extent that it makes the same arguments as the plaintiff’s objection. See Residences at Bay Point Condominium Ass’n, Inc. v. Standard Fire Ins. Co., No. 13–02380, 2013 WL 6252692, at *7 (D.N.J. Dec. 4, 2013); Hall v. Norfolk Southern Ry. Co., No. 1:06–CV–0607–JOF, 2007 WL 2765540, at *4 (N.D.Ga. Sept. 18, 2007) (issue of co-defendant’s standing need not be considered where the motion is opposed by plaintiff and the co-defendant makes the same arguments as the plaintiff).
2	“Earl Roy Colebut, Jr.,” is understood to be the same person as “Earl Roy Colebut,” the defendant in this case.