193 Conn.App. 697
Conn. App. Ct.2019Background
- In 2007 Robbins (tenant) executed a 15‑year commercial lease (20,750 sq ft) with two successive 5‑year options; base rent initially $15,562.50/month (CPI adjustments and pro rata taxes applied). Robbins’s practice (REC) remodeled the premises into an eye surgery center by Dec. 2009 at a reported improvement cost used by the court of $1,186,267.
- A September 2013 roof/downspout flood and recurring plumbing leaks disrupted operations; REC paid roughly half rent beginning Sept. 2013 and reoccupied all repaired areas by Oct. 2014.
- Beginning April 23, 2015, repeated sewage backups (known system defects, sags, insufficient pitch) flooded the lower level; city health official ordered closure after major June 29, 2015 overflow; REC vacated June 30, 2015.
- Commerce Park sued Robbins for unpaid rent (AC 41398); REC sued Commerce Park and property manager RDR for negligence and related claims (AC 41543). The cases were consolidated and tried to the court.
- Trial court: found constructive eviction as of late April 2015 (no rent due from April 23, 2015 onward), awarded Commerce Park back rent for Nov 2014–Apr 22, 2015 (court computed $89,484.37), and awarded REC damages for landlord gross negligence (initially $958,041.92). On appeal the court affirmed liability rulings but reversed the rent and damage calculations: remanded rent calculation and reduced REC’s damages to $741,847.34 (excluded two unexercised option terms).
Issues
| Issue | Robbins/REC (Plaintiff) Argument | Commerce Park (Defendant) Argument | Held |
|---|---|---|---|
| Whether rent abatement was justified Nov 2014–Apr 22, 2015 (tenantability) | Administrative offices remained unusable for intended office use after Oct 2014, so continued partial abatement was justified | Space was tenantable for REC’s business uses; needing renovations to restore original admin layout did not make it untenantable | Court’s factual finding that no abatement was justified after Oct 2014 was supported by evidence and affirmed |
| Calculation of unpaid rent for Nov 2014–Apr 22, 2015 (credit & rent base) | Trial court failed to credit partial payments and used outdated base rent; CPI adjustments and tax share alter monthly obligation | Court discretion; appellant failed to seek articulation | Appellate court found calculation unsupported (ignored payments and CPI/tax adjustments); reversed and remanded for new damages hearing |
| Constructive eviction (did tenant vacate because of backups and allow landlord reasonable time?) | Vacated because of repeated sewage backups; landlord had notice of defects and opportunity to fix | Robbins intended to leave before backups and didn’t allow reasonable time to cure | Trial court’s finding of constructive eviction (tenant vacated due to sewage and landlord had notice/time) was supported and affirmed |
| Use of “gross negligence” as basis for recovery and pleading sufficiency | Indemnity/waiver excludes ordinary negligence but not gross negligence; negligence count sufficed to litigate degree of negligence | Connecticut doesn’t recognize a separate tort of gross negligence and REC did not plead it | Court may distinguish gross conduct within negligence claim to defeat contract waiver; awarding damages on gross negligence theory was proper and pleading was adequate |
| Measure of damages for tenant’s loss of improvements and inclusion of lease option periods | REC entitled to loss‑of‑use of improvements measured against expected tenancy (including anticipated option periods) | Including unexercised options was improper if tenant was in breach | Using loss‑of‑use of improvements was an acceptable measure, but inclusion of two unexercised 5‑year options was legally erroneous; damage award reduced accordingly |
Key Cases Cited
- Welsch v. Groat, 95 Conn. App. 658 (Conn. App. 2006) (tenantability is a factual inquiry considering use and extent of interference)
- Matthiessen v. Vanech, 266 Conn. 822 (Conn. 2003) (Connecticut has not recognized degrees of negligence as separate torts; recklessness defined)
- Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (Conn. 2005) (statement that Connecticut does not recognize degrees of negligence as separate causes of action)
- Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357 (Conn. 2015) (discussion of recklessness vs. negligence)
- 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611 (Conn. 2010) (definition of gross negligence cited)
- Gans v. Olchin & Co., 109 Conn. 164 (Conn. 1929) (measure of damages case cited but not held exclusive)
- Pack 2000, Inc. v. Cushman, 311 Conn. 662 (Conn. 2014) (standard for enforceability of option where lessee’s compliance is condition precedent)