Marciano v. Olde Oak Village Condominium Assn., Inc.

MARY MARCIANO v. OLDE OAK VILLAGE
CONDOMINIUM ASSOCIATION, INC.
(AC 38543)
Lavine, Sheldon and Flynn, Js.

Syllabus

The plaintiff condominium owner sought to recover damages from the defen-
dant condominium association under a theory of premises liability after
she sustained personal injuries from a fall while exiting the rear of
her condominium unit. The plaintiff alleged in her complaint that the
defendant had possession and control over the premises where she fell.
The condominium association declaration provided that each condomin-
ium owner was responsible for the maintenance, repair, and replacement
of the area three feet parallel to the rear boundary of his or her unit.
The plaintiff failed to respond to the defendant’s requests for admissions
that, inter alia, the location where she fell was less than three feet from
the rear boundary of her condominium unit. The trial court granted the
defendant’s motion for summary judgment and concluded that, by virtue
of the plaintiff’s failure to respond to the defendant’s requests for admis-
sions, she was deemed to have admitted that the maintenance of the
area where she fell was her responsibility, and that the defendant was
not in possession or control of that area. On the plaintiff’s appeal from
the summary judgment rendered in favor of the defendant, held that
the trial court properly concluded that there was no genuine issue of
material fact that the defendant did not have possession and control
over the area on which she fell and that the defendant was entitled to
judgment as a matter of law; by failing to respond to the defendant’s
requests for admissions, the plaintiff was deemed to have admitted that
she was responsible for maintaining the area where she fell, which
defeated her assertion that the defendant had a duty to maintain the
site of the incident.
Argued May 16—officially released July 25, 2017

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
brought to the Superior Court in the judicial district of
New Haven, where the court, Alander, J., granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Robert J. Santoro, with whom, on the brief, was
Andrew S. Knott, for the appellant (plaintiff).
Leah M. Nollenberger, with whom was Robert G. Cle-
mente and, on the brief, Lorinda S. Coon, for the appel-
lee (defendant).
Opinion

PER CURIAM. The plaintiff, Mary Marciano, appeals
from the grant of summary judgment by the trial court in
favor of the defendant, Olde Oak Village Condominium
Association, Inc. The plaintiff had sought damages from
the defendant for its alleged negligence after she suf-
fered personal injuries from a fall on April 14, 2012,
while exiting her condominium unit from a rear
entrance. The plaintiff alleged in her complaint that the
defendant had possession and control over the premises
where her fall took place. On appeal, the plaintiff claims
that the court erroneously concluded that there was no
genuine issue of material fact that the defendant did
not have possession and control over the area on which
she fell. We affirm the judgment of the trial court.
Our standard of review is set forth in Practice Book
§ 17-49, which provides in relevant part that 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.’’
‘‘[T]he scope of our review of the trial court’s decision
to grant the plaintiff’s motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.) DiPie-
tro v. Farmington Sports Arena, LLC, 306 Conn. 107,
116, 49 A.3d 951 (2012).
Our resolution of the plaintiff’s claim hinges on our
examination of her complaint, which alleges that the
defendant was responsible for the upkeep of the lawn
on which the plaintiff fell and that her fall was due to
the ‘‘negligence and carelessness of the defendant’’ due
to its failure to maintain the area in which the plaintiff
fell and warn the plaintiff of a dangerous condition.
As the trial court noted in its October 20, 2015 memo-
randum of decision granting the defendant’s motion for
summary judgment, the parties were in agreement ‘‘that
the defendant had the duty to use reasonable care to
maintain in a reasonably safe condition those areas of
the premises over which it exercised control.’’ The court
also noted that the condominium association declara-
tion, which was admitted into evidence in support of
the defendant’s motion for summary judgment, pro-
vided that each condominium owner shall be responsi-
ble for the maintenance, repair, and replacement of
certain limited common elements, which included the
area three feet parallel to the rear boundary of the unit.
The plaintiff failed to timely answer the defendant’s
requests for admissions and did not file any objection
to the requests or seek to further extend the March 1,
2014 deadline set by the court for the plaintiff’s answer.
Those requests stated, inter alia, ‘‘[y]our fall occurred
when you stepped on a rock on the ground at the bottom
of your rear deck stairs,’’ and that ‘‘[t]he location of the
rock on the ground where you fell is less than three
feet from the rear boundary of your unit.’’1 The court
concluded that, by virtue of the plaintiff’s failure to
respond to these requests for admissions, the plaintiff
was deemed to have admitted that maintenance of the
area in which the plaintiff fell was the responsibility of
the unit owner and the defendant was not in possession
and control of the area of the fall.
‘‘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.
. . . Thus, the dispositive issue in deciding whether a
duty exists is whether the [defendant] has any right
to possession and control of the property.’’ (Citation
omitted; internal quotation marks omitted.) Sweeney v.
Friends of Hammonasset, 140 Conn. App. 40, 50, 58
A.3d 293 (2013). When a party has not timely responded
or objected to a request for admission or sought to
amend or withdraw that admission, then ‘‘any presump-
tion of truth in the plaintiff’s assertion in her complaint
that the defendant had a duty to maintain the site of
the incident [is] defeated.’’ Filipek v. Burns, 76 Conn.
App. 165, 168, 818 A.2d 866 (2003); see also Practice
Book § 13-24 (a) (‘‘[a]ny matter admitted under this
section is conclusively established unless the judicial
authority on motion permits withdrawal or amendment
of the admission’’). In light of the facts the plaintiff is
deemed to have admitted, the court properly concluded
that there was no genuine issue of material fact and
that the defendant was entitled to judgment as a matter
of law.
The judgment is affirmed.
1
In addition, by virtue of her failure to timely respond to the defendant’s
requests for admissions, the plaintiff is deemed to have admitted that she
was ‘‘responsible for the maintenance of the area’’ in which she fell pursuant
to the condominium declaration, and that the defendant ‘‘was not responsible
for maintaining the area three feet parallel to the rear boundary of [the
plaintiff’s] unit.’’