2019 WL 4130786 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
Catherine L. COLEBUT
Earl Roy COLEBUT, et al.
AUGUST 29, 2019
MEMORANDUM OF DECISION
Edward B. O’Connell, Judge
Late in the evening of August 12, 2014, the plaintiff arrived at Mr. Colebut’s home to stay with him overnight. The plaintiff typically would visit Mr. Colebut to assist him with paying bills, grocery shopping, cooking, scheduling and attending medical appointments, and would help care for him in his home. On this particular occasion, the plaintiff had planned to stay with her uncle overnight so that she could assist him with tasks of this nature before leaving the following morning for a two-week work-related vacation. The plaintiff estimated that she arrived at Mr. Colebut’s home after nightfall, sometime prior to her uncle’s bedtime, which was usually between 9:00 and 9:30 p.m. When she arrived at the home, she parked alongside her nephew’s car instead of where she would usually park when she would visit. After she exited her car and went to retrieve items from the back seat of her car, she tripped on an uneven surface of the driveway, where the paved surface meets the unpaved, grassy area abutting it. The plaintiff was able to prevent herself from falling to the ground, but as a result of her stumble, she sustained injuries to her leg.
Her injuries were severe and should not be ignored or minimized. She immediately felt that there was something wrong with her left leg, experiencing numbness, and had to be taken by ambulance the emergency room of William W. Backus Hospital in Norwich, Connecticut. There, she was diagnosed with a Schatzker type V tibial plateau fracture in her left knee and had to remain in the hospital while the swelling in her leg subsided to allow her to undergo surgery. After the surgery was performed on August 19, 2014, the plaintiff was discharged to a rehabilitation facility for several weeks and participated in daily physical therapy to regain functionality in her leg. The plaintiff was prescribed in-home physical therapy sessions after she was discharged from the rehabilitation facility and required assistance with day-to-day tasks. The plaintiff missed a total of twenty-two (22) weeks from work as a result of these injuries.
After the defendant Earl Ray Colebut died in February of 2017, the court granted the plaintiff’s motion to substitute the executor of his estate, Ray Earl Colebut-Ingram, as a defendant in this action. Thereafter the plaintiff and the defendant estate reached a settlement agreement as to Mr. Colebut’s liability, and this action was withdrawn as to the defendant Earl Ray Colebut and his estate.
The sole remaining defendant is the Mashantucket Pequot Tribal Nation (“the Tribe”). The plaintiff alleges that her fall was caused by the carelessness and negligence of the Tribe in that it:
(a) allowed dangerous conditions to exist in the driveway area at 509 Pequot Trail in Mashantucket, Connecticut;
(b) knew or should have known the failure to repair and/or maintain the driveway ... resulted in an uneven surface along the edge of the driveway creating a dangerous condition, yet failed to take adequate measures to repair and/or maintain the driveway to alleviate the uneven surface along the edge of the driveway;
(c) failed to adequately inspect the driveway area ... to discover the existence of the dangerous condition;
(d) failed to block off or barricade the driveway area ... in order to prevent people, including the Plaintiff, Catherine Colebut, from walking in that area; [and]
(e) failed to warn the Plaintiff, Catherine Colebut, of the dangerous condition in the driveway area....
Complaint, Count Two at ¶6.
The Tribe denies that it was careless or negligent. In addition it denies the plaintiff’s allegation that it owned, possessed, maintained or controlled 509 Pequot Trail at the time of the plaintiff’s fall, and alleges as affirmative defenses the plaintiff’s own contributory negligence and carelessness.
Previously the defendant Tribe moved for summary judgment, contending that about four years before the plaintiff fell, on December 17, 2010, it conveyed the 509 Pequot Trail property, including all dwellings, structures and improvements, to Earl Roy Colebut, and since that conveyance it has not possessed, maintained or controlled the property. The plaintiff opposed the motion, asserting the Mr. Colebut’s right to occupy the premises was subject to the Tribe’s “Alternate Housing Program,” which contained provisions evidencing a reserved authority for the Tribe to manage and oversee the property, and that the Tribe thereby maintained control over the property. The plaintiff also contended that certain maintenance actions of the Tribe constituted constructive notice of the defect, and that the Tribe negligently failed to act by not exercising its reserved right of inspection.
The court held that the provisions of the documents entitled “Conveyance” and “Alternative Housing Program” and “Alternate Housing Occupancy Agreement” and “Alternate Housing Program Rules and Regulations” created a genuine issue of material fact as to whether the Tribe lacked any control of the premises after conveyance. The court also held that, assuming arguendo that the Tribe retained post-conveyance control of the premises, there was a genuine issue of material fact as to whether the defect existed for a sufficient length of time to be discovered by a reasonable inspection or whether the Tribe had constructive notice. The court denied summary judgment, and the case went to trial.
The foundation of the plaintiff’s claim against the Tribe is that it “owned, maintained, possessed and/or controlled” the property conveyed to Earl Roy Colebut at 509 Pequot Trail in Mashantucket, Connecticut, and that because it controlled the premises, it owed a duty of care to the plaintiff.
“[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.). Colebut v. Colebut, 6 Mash. Rep. 412, 415, 416 (2017).
The construction of the Tribe’s conveyancing documents and Housing Program documents is a matter of first impression for this court. In the first paragraph of an instrument entitled “Conveyance to Earl Roy Colebut, Jr.1 dated December 17, 2010,” “the Mashantucket Pequot Tribal Nation hereby grants, sells and conveys to Earl Roy Colebut, Jr. all right, title and interest possessed by the Mashantucket Pequot Tribal Nation in that certain dwelling, structure and improvements, such as outbuildings, pools, and other similar improvements, located on and attached to the trust land of the Mashantucket Pequot Tribal Nation at 509 Pequot Trail, Mashantucket, CT 06338.” Despite this sweeping language, in the second paragraph of the Conveyance Mr. Colebut acknowledges that “said dwelling, structure and improvements do not include the land on which the dwelling, structure or improvements are located, and the right to occupy such land is subject to the provisions of the Alternative 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.” Pl.’s Exhibit 3.
The Alternate Housing Occupancy Agreement and Alternate Housing Program Rules and Regulations were also introduced as exhibits at trial. 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(B)(2). Article V indicates that the Tribe has some post conveyance control of Mr. Colebut’s Property. 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 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, 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.
At the trial, the Tribe’s Director of Public Works testified that the Tribe mows the grass along Pequot Trail about four or five feet off the curb line but does not mow the lawns of the properties. For two years, possibly 2011 and 2012, his department offered snow plowing for tribal elders including Mr. Colebut, but had to stop due to layoffs.
Mr. Colebut testified by deposition. He was 92 years old at the time. He had not complained to anyone about issues at his property or about anything he felt needed to be fixed. He testified that the Tribe does not do any work on his property.
The issues boiled down to whether the Tribe or Mr. Colebut had possession, management or control of the area of the driveway where the plaintiff fell. The Tribe acknowledged that the conveyance to Mr. Colebut does not include the land on which the dwelling, structure and improvements are located. “This follows from the simple fact that the Tribe cannot convey the land, which remains property held in trust for the Tribe [by] the United States.” Deft’s Brief, p. 16 (Emphasis in original.) The Tribe asserts, however, that “[p]ossession was in [Mr.] Colebut, solely ... and the plaintiff’s own evidence failed to establish that the Tribe “managed” or “controlled” the property.” The Tribe contends that all of the witnesses who testified at trial denied knowledge of any “control” over the property exercised by the Tribe.
The plaintiff, on the other hand, focuses on the language of the Conveyance and related documents. She asserts that Mr. Colebut received only the right to occupy the specifically described dwellings, structures and improvements described in the Conveyance, and that the Tribe continued to have a reserved authority to manage, inspect and oversee the remainder of the property at 509 Pequot Trail, including the driveway, pursuant to the provisions of the Alternate Housing Occupancy Agreement and Rules and Regulations. She contends that it is clear from the language of the Conveyance to Mr. Colebut that he did not obtain any interest in the driveway or the land abutting the driveway. She also contends that what Mr. Colebut received was an interest in the “dwelling, structure and improvements, such as outbuildings, pools and other similar improvements.” She also asserts that the driveway cannot be included among “similar improvements” as it is in no way similar to an improvement such as an outbuilding or a swimming pool.
In a sense both parties disclaim management, possession or control of the area of the driveway where the plaintiff fell. The Tribe disclaims as a matter of fact and as a matter of interpretation of the Conveyance and related documents. The plaintiff, on behalf of Mr. Colebut, disclaims as a matter of interpretation of the Conveyance and related documents. In the context of this action, the driveway is “no man’s land.”
If the driveway is an improvement to the property known as 509 Pequot Trail, and can be included among the “similar improvements” described in the Conveyance from the Tribe to Mr. Colebut, then it would be among the areas of 509 Pequot Trail subject to the occupancy and control of Mr. Colebut. So it is worthwhile to explore whether the driveway is in fact such an improvement.
In the context of determining the statute of limitations for architects and engineers, an “improvement to real property” is defined as “some physical addition to or alteration of the property in question in order to enhance or promote its use for a particular purpose.” Grigerik v. Sharpe, 247 Conn. 293, 307, 721 A.2d 526 (1998). Black’s Law Dictionary (Fifth Ed.) describes an improvement as “a valuable addition made to property (usually real estate) ... and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.”
Applying the foregoing definitions to the instant matter, if there were no driveway whatsoever at the 509 Pequot Trail property, and no means of getting a vehicle from the roadway to the dwelling, the construction and installation of a driveway to facilitate vehicular access to the dwelling would universally be considered an improvement. In the words of Grigerik v. Sharpe, supra., the driveway would enhance or promote the use of the property. Per Black’s Law Dictionary, the driveway would be a valuable addition, and would adapt the property for a new purpose.
Moreover, just as a swimming pool or an outbuilding, such as a garage or a barn, adds value and utility to a piece of property, so does a driveway add value and enhances the utility of a property. The court finds that the driveway at issue here is an improvement similar to an outbuilding and pool and was included in the Conveyance from the Tribe to Mr. Colebut.
Because the driveway is among the “dwelling, structures and improvements” received by Mr. Colebut in the Conveyance from the Tribe, it was subject to the occupancy and control of Mr. Colebut at the time of the plaintiff’s fall. Put another way, the driveway was not subject to the possession, management or control of the Tribe at the time of the plaintiff’s fall.
The foregoing finding is dispositive of the issues between the plaintiff and the defendant Mashantucket Pequot Tribal Nation. Judgment may enter for the defendant Mashantucket Pequot Tribal Nation.
“Earl Roy Colebut, Jr.” is understood to be the same person as “Earl Roy Colebut,” the defendant in this case.