Opinion
CV166011029S
01-17-2018
Gladys BARROS v. TOWN OF COLUMBIA
UNPUBLISHED OPINION
OPINION
Farley, J.
In this slip and fall case, the defendant municipality moves for summary judgment based on its claim that governmental immunity for discretionary acts bars the claims asserted in the plaintiff’s amended complaint and that there are no applicable exceptions to that immunity. The court concludes that governmental immunity does bar the claims asserted in the amended complaint and the defendant’s motion is granted. The court does not agree, however, with the defendant’s position that the deficiencies in the amended complaint cannot be cured by repleading. Consequently, although the motion for summary judgment is granted, the plaintiff has the right to file an amended complaint within thirty days of the issuance of this decision, or within thirty days of the court’s ruling on a motion to reargue should such a motion be timely filed.
PROCEDURAL AND FACTUAL BACKGROUND
On October 31, 2016, the plaintiff, Gladys Barros, filed the operative two-count amended complaint against the defendant, the town of Columbia. In count one, the sole remaining count, the plaintiff alleges that, pursuant to General Statutes § 52-557n, the defendant is liable for the injuries the plaintiff suffered when, on Monday January 26, 2015, she fell on the icy walkway outside of the Saxton B. Little Free Library in Columbia, a walkway maintained by the defendant. In particular, the plaintiff alleges that she fell in the " same location previously known to the Defendant through actual or constructive notice through other persons complaining about the same icy spot and/or having fallen in said same spot." She alleges the defendant negligently and carelessly: (a) caused, allowed, or permitted the walkway " to be or become icy, defective, depressed, uneven, unsafe, and dangerous for the use by the public"; (b) caused, allowed, or permitted ice to accumulate on the walkway; (c) failed to remedy the icy condition of the walkway when reasonably necessary under the circumstances; (d) failed to erect or maintain proper safeguards to warn the plaintiff; (e) failed to remedy or repair the alleged conditions when reasonably necessary under the circumstances; (f) failed to warn the plaintiff; (g) failed to make proper and reasonable inspection; (h) maintained the walkway in the alleged condition; and (i) " failed to use drainage to prevent the accumulation of water, which would then freeze." The amended complaint alleges further that " the duty imposed upon the defendant Town to maintain the premises in a safe condition for individuals such as the plaintiff was ministerial in nature ..." Alternatively, the plaintiff alleges that, if the duty is discretionary, the plaintiff was " an identifiable person subject to imminent harm, " an exception to the governmental immunity that would otherwise apply. The plaintiff also alleges the defendant is liable under General Statutes § 52-557n(b)(8).
On September 25, 2017, the court granted the defendant’s motion to dismiss the second count of the amended complaint after plaintiff’s counsel stated at short calendar that the plaintiff had no objection.
General Statues § 52-557n(a)(1) provides in relevant part: " (a)(1) ... a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ..."
General Statutes § 52-557n(b)(8) provides in relevant part: " Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ... (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ..."
The plaintiff testified at her deposition that she had observed the same walkway the previous Friday and Saturday. On those occasions, she saw snow and ice approximately one-foot deep on either side of the walkway, and gray, dirty compacted snow about two inches deep from edge to edge along the entire walkway leading to the library entrance. She arrived at the library on Monday, January 26, 2015, at approximately 10:00 a.m., and used the walkway in question to gain access to the library. She testified that the walkway was in the same condition on Monday as it had been the previous Friday and Saturday. She stayed for approximately one hour. When she left the library, again using the subject walkway, she slipped on ice and fell.
This testimony conflicts with the weather analysis report composed by the plaintiff’s expert, James Bria, which was submitted by the plaintiff in opposition to the motion for summary judgment. At oral argument on the motion, however, the defendant took the position that the expert report cannot be used to oppose summary judgment because it is not authenticated. Although the court has discretion to consider the report; Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012); it will not consider it because it has not been properly authenticated. See Bruno v. Geller, 136 Conn.App. 707, 714, 46 A.3d 974 (" before a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be" [internal quotation marks omitted]), cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
On February 17, 2017, the defendant filed its motion for summary judgment asserting that there is no genuine issue of material fact that it is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B), because the duties alleged in the amended complaint are discretionary, not ministerial. The motion argues further that the exception to governmental immunity for an identifiable person subject to imminent harm is not applicable, and that § 52-557n(b)(8) does not give rise to municipal liability based on a failure to inspect and maintain municipal property. The defendant has not filed an answer to the amended complaint and its motion is cast in terms of the sufficiency of the allegations of the amended complaint. Nevertheless, the defendant also submitted with its motion two signed and sworn affidavits of the Columbia facilities manager, Bud Meyers, dated February 6, 2017, and February 7, 2017. In pertinent part, these affidavits assert that " there were no mandatory policies or directives in place" related to the alleged acts of negligence in the complaint.
General Statutes § 52-557n(a)(2)(B) provides in relevant part: " [A] political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
The plaintiff did not respond to the defendant’s claim that § 52-557n(b)(8) is inapplicable to this case. Consequently, the court deems that claim abandoned by the plaintiff. In any event, § 52-557n(b)(8) does not apply to municipally owned property such as the property involved in this case. See e.g., Collins v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6028449-S (December 14, 2016, Povodator, J.); Niemitz v. Barkhamsted, Superior Court, judicial district of Litchfield, Docket No. CV-06-5000208-S (February 21, 2008, Pickard, J.); Videll v. New London, Superior Court, judicial district of New London, Docket No. CV-03-0565386-S (May 17, 2005, Hurley, J.T.R.).
On August 31, 2017, the plaintiff filed an opposition to the defendant’s motion for summary judgment, arguing that the duty of the defendant’s employees to remove ice and snow from a public walkway, pursuant to the policies and practices of the defendant is ministerial, not discretionary. Attached to the opposition are the entire certified deposition transcripts of the plaintiff and Meyers. The plaintiff argues that Meyers’ testimony establishes that the duties at issue in this case were ministerial. The pertinent details of his testimony are included in the discussion below. The court heard oral argument at short calendar on September 25, 2017.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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 ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell -Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
Where a defendant successfully challenges the legal sufficiency of the allegations of a complaint by means of a motion for summary judgment, the motion may be granted and judgment entered in favor of the defendant when " the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Where it is apparent from the evidence submitted and the parties’ arguments in connection with a motion for summary judgment that the legal deficiency identified by the defendant may be cured by repleading, the plaintiff must be given an opportunity to replead upon the granting of the motion. American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009).
The defendant argues that it is entitled to summary judgment because it is protected by governmental immunity pursuant to § 52-557n(a)(2)(B). The defendant maintains that the duties alleged in the amended complaint are discretionary rather than ministerial. In particular, the defendant argues that its employees’ duties to inspect and maintain the subject walkway, to clear the walkway of ice and snow, to erect or maintain safeguards and to provide warnings are discretionary because there is no mandatory policy, code, ordinance, rule, or regulation that required such actions be performed in any particular way. The plaintiff argues that these duties are ministerial because the defendant is required to take some action when its employees become aware of the existence of ice or snow on the walkway. Specifically, the plaintiff argues that Meyers’ deposition testimony establishes that once he has notice of snow or ice that requires removal, he has no discretion but to remove the snow, assign the removal of the snow to his subordinate, close the walkway, or post warning signs.
The court’s analysis is guided by the following principles. " [Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages ... One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties ... [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014).
The determination as to whether a municipality or municipal officer is entitled to governmental immunity pursuant to § 52-557n(a)(2)(B) depends on whether the act or omission is ministerial or discretionary. Id.; Hull v. Newtown, 327 Conn. 402, 408 (2017). " The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted; internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 162. " Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive ... Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive." (Citation omitted.) Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).
The application of this standard to the evidence presented in connection with a motion for summary judgment is frequently a question of law necessarily dependent upon predicate facts. " Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the factfinder ... there are cases where it is apparent from the complaint ... [that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant to ... § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ... Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 162. In other words, " [t]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense ... [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 313, 101 A.3d 249 (2014); see Finn v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-16-6060769-S (September 13, 2017, Ecker, J.) (65 Conn.L.Rptr. 281).
In applying this standard, our appellate courts have generally held that maintenance, inspection, and repair are discretionary acts in the absence of a mandate prescribing the manner in which the acts are to be performed. See e.g., Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (defendants’ acts discretionary in nature because what constitutes reasonable, proper or adequate inspection of a dwelling involves exercise of judgment); Brusby v. Metropolitan District, 160 Conn.App. 638, 656, 127 A.3d 257 (2015) (maintenance and repair of sewer were discretionary in the absence of mandate prescribing manner in which sewer system was to be maintained); Segreto v. Bristol, 71 Conn.App. 844, 857-58, 804 A.2d 928 (city’s allegedly negligent design and maintenance of stairwell was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
In this case, Meyers’ deposition testimony and his February 6, 2017 affidavit establish that the defendant did not have a ministerial duty created explicitly by a statutory provision, town charter, rule, ordinance, or other written directive. In his affidavit Meyers states, on the basis of his knowledge as the defendant’s facilities manager, that there were no mandatory policies or directives in place that prescribed: the allocation of public works resources; when or how the walkways were to be shoveled; when or how sand, salt, or other abrasives were to be applied to the walkways; whether and, if so, how or when warnings, signs or other safeguards were to be provided regarding snow and ice; when or how frequently the walkways were to be inspected; or the use of drainage on walkways. The plaintiff has failed to refute this evidence and impliedly concedes that there was no mandatory written policy concerning any of the duties alleged in the amended complaint.
Instead, the plaintiff relies upon Wisniewski v. Darien, supra, 135 Conn.App. 373-74, for the proposition that absent the existence of a mandatory written policy, a ministerial duty may be found in a municipal employee’s testimony. In Wisniewski, the plaintiffs alleged that they suffered injuries when a tree toppled onto their car. They claimed that the town and its agents were liable because they had previously received several complaints concerning the condition of the trees along the roadway and were negligent in failing to take remedial action. Id., 366-67. On appeal from a jury verdict in favor of the plaintiffs, the defendants argued that the trial court improperly refused to direct verdicts in their favor because the duties of the tree warden were discretionary as a matter of law. Id., 369. The Appellate Court affirmed the trial court and concluded that " [a]lthough the town maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works ... testified at trial that the general direction provided to [the tree warden] upon receipt of a complaint is always the same, look at the tree, make a determination ... Moreover, [the tree warden] himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty to perform an inspection." (Internal quotation marks omitted.) Id., 374-75.
Based upon Wisniewski, the plaintiff argues that the duties alleged in the amended complaint are ministerial because Meyers’ deposition testimony establishes that once he has notice of snow and ice that require removal, he has no discretion but to remove the snow and ice, assign that task to his subordinate, or close the walkway and post warning signs. Accordingly, the sole remaining issue is whether there is a genuine issue of material fact that Meyers’ testimony evidences a mandatory policy concerning snow and ice removal. The amended complaint, however, is much broader than that. The amended complaint is, in part, predicated upon the existence of a defect or depression in the walkway that created a condition whereby snow and ice would accumulate on the walkway. It alleges the defendant breached a broad range of duties involving the inspection and maintenance of the walkway, not just the removal of snow and ice after a storm. The plaintiff’s presentation on summary judgment, however, was strictly focused on the defendant’s duties in the wake of a snowstorm, not the overall inspection and maintenance of the walkway.
It is undisputed that Meyers exercises discretion in many respects in connection with the inspection, maintenance, and posting of warnings upon the walkways. He consistently testified at his deposition, and in his February 6, 2017 affidavit, that he is tasked with exercising his best judgment and discretion as to these tasks. Even with respect to snow and ice, Meyers testified that whether and when he clears snow and ice after a storm, inspects, or provides warnings of ice and snow conditions is determined by his exercise of discretion. The exercise of his discretion is, in turn, contingent upon the existence of several variables, including but not limited to: priority of tasks; the need to clear snow at other buildings; the availability of assistance; the condition of the walkways; the time of the week and day; other emergencies; and the quantity of accumulated snow. He further testified that he has the option to do nothing in response to a perceived defective condition upon a walkway if, based upon his judgment, no action was necessary.
On the other hand, Meyers testified that his discretion to rectify the snow and ice accumulated on the walkways is not absolute and may be restricted in several respects. He testified that, in this respect, he does not have discretion to defer the inspection, maintenance, and posting of warnings on walkways indefinitely because his job responsibilities mandate that he undertake such actions in a reasonable time and manner. To establish there is a point at which Meyers is required to act, the plaintiff relies upon his acknowledgment that he had no discretion to completely ignore a significant snowfall or postpone indefinitely his obligation to remove snow and ice from a walkway, at least not one that is regularly in use during the winter. Meyers conceded that it is his responsibility to see that snow and ice are cleared from such walkways following a significant storm, from edge to edge along the length of the walkway. He also answered several hypothetical questions posed by plaintiff’s counsel supporting the proposition that, depending on the circumstances, there is a point in time after a storm when the duty to clear a walkway becomes nondiscretionary. Meyers was asked, for example, how he would respond if he saw that a walkway was totally covered with ice and snow in the middle of a workday following a storm. In response, Meyers stated that he " would be making sure we got product down on it to alleviate any kind of problem, " and that if he saw it he would rectify it. Asked whether he has the option to " do nothing" when he sees a walkway is totally covered in snow and perceives it is dangerous, Meyers stated: " I would say that I do have the option but it would be to do something . Something should be either said, relayed, or whatever if I see that."
Numerous Superior Court decisions have wrestled with the question of whether particular circumstances give rise to the existence of a ministerial duty in the absence of a specific written mandate. In the context of ice and snow removal, most courts have concluded that the duty is discretionary. In Finn v. Hamden, supra, 65 Conn.L.Rptr. 281, however, this trend was analyzed in the broader context of the development of the law on the subject of governmental immunity for discretionary acts. The court noted the recent trend away from assigning juries the responsibility to distinguish ministerial from discretionary acts in these cases, notwithstanding prior appellate authority to the contrary. Id., 283. In Beach v. Regional School District Number 13, 42 Conn.App. 542, 555, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996), the court upheld a jury finding that snow removal was a discretionary function under the particular circumstances of that case. The court held " [t]he determination of whether official acts or omissions are ministerial or discretionary is a question of fact for the factfinder." Id., 553. While courts must ascertain, nevertheless, under what circumstances this issue becomes a question of law, the task is further complicated by what the court said in Kolaniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992): " A determination as to when to clear a sidewalk ... is not a discretionary function." The court made that statement where there was evidence that the local board of education had issued a written bulletin to all custodians and maintenance personnel prior to the winter months, which " was clear- they were to keep the walkways clear of snow and ice." Id. Nevertheless, it is unclear why such a broad directive in writing would impose a ministerial duty, whereas the same broad but unwritten responsibility is considered discretionary as a matter of law. As the court said in Finn v. Hamden, supra, 284, " [i]t strikes the court as counter-intuitive to consider snow-shoveling or sanding under most circumstances to be a ‘discretionary’ activity. When it snows, common sense and routine experience tell us that every landowner must remove snow and ice from any sidewalk that is likely to be used by a pedestrian." Indeed, Meyers did not need a written directive to understand that was his job.
See e.g. White-Reilly v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-15-6018786 (July 5, 2017, Tyma, J.) (granting summary judgment based upon governmental immunity where procedure for snow and ice removal was subject to the assessment by municipal agent based upon varying and unique weather-related circumstances); Chester v. Groton, Superior Court, judicial district of New London, Docket No. CV-13-6017004-S (October 21, 2014, Cole-Chu, J.) (same); McGeorge v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-10-6011462-S (March 29, 2012, Fischer, J.) (same); see also Arnold v. Manchester, Superior Court, judicial district of Hartford, Docket No CV-12-6028839-S (October 29, 2015, Wiese, J.) (61 Conn.L.Rptr. 238) (defendant’s admission in deposition that he had to treat ice if he was aware of its presence, when viewed in context with the remainder of his deposition, were insufficient to create a ministerial duty); Niemitz v. Barkhamsted, supra, Superior Court, Docket No CV-06-5000208-S (defendant’s admission in deposition that if he was aware of ice he would not have " leeway" to treat it, does not convert duty to ministerial because it is " no more than a common-sense acknowledgment that his job includes treating ice").
There is a disputed factual issue as to the condition of the walkway, how long accumulated snow and ice remained there, and the defendant’s knowledge of any such condition. Meyers’ affidavits state that, prior to the plaintiff’s fall, the facilities division did not receive any report or complaint concerning the condition of the subject walkway and that Meyers did not observe snow and ice on the walkway. He testified that to the best of his knowledge the walkway was cleared from edge to edge. He based this knowledge upon his habit of entering the library every morning as part of his usual routine. He had no present recollection, however, whether he actually saw snow on the walkway or whether he followed his usual routine that day. Meyers’ testimony is contradicted by the deposition testimony of the plaintiff. She testified that there had been a substantial accumulation of compacted snow on the walkway in question for at least three days prior to her fall. Whatever length of time the condition she described was present, the question arises whether the circumstances were such that the defendant had no reason to completely neglect its obligation to clear accumulated snow and ice on the walkway. If there was nothing else to keep the defendant from fulfilling that straightforward responsibility, the court concludes that it may be no more a discretionary duty than it was in Kolaniak and a jury should resolve that factual question. See Haynes v. Middletown, supra, 314 Conn. 313 (governmental immunity is question of law unless there are unresolved factual issues material to the applicability of the defense); Grignano v. Milford, 106 Conn.App. 648, 659-60, 943 A.2d 507 (2008) (defendant’s knowledge of defect was predicate to determination of whether defendant’s duty to warn was ministerial or discretionary).
The difficulty presented in this case is that the plaintiff’s amended complaint is not as specifically focused as the theory she presented in opposition to the defendant’s motion for summary judgment. The amended complaint does not clearly allege that, despite an unmitigated duty to clear the walkway, the defendant failed to do so under circumstances that either did not involve the exercise of discretion as a matter of law, or at least present a jury question as to whether the duty was ministerial. The amended complaint, moreover, includes allegations that the defendant allowed a depression to form in the walkway, making it more likely that snow and ice would accumulate there, and failed to remedy that alleged defect. It also broadly alleges that the defendant negligently failed to inspect and maintain the walkway and failed to " use drainage to prevent the accumulation of water, which would then freeze." Discretionary act immunity protects the defendant from liability for these broadly alleged duties and the defendant is entitled to summary judgment on those claims. Because they can be eliminated from the amended complaint and, based on the facts presented on summary judgment, more specific allegations may be pleaded that may give rise to a jury question, the plaintiff should be afforded an opportunity to replead. American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 121.
The plaintiff’s complaint alleges that, should the duties at issue be deemed discretionary, the exception for identifiable persons subject to imminent harm applies. The defendant’s motion for summary judgment maintains that this exception does not apply and the plaintiff failed to brief that issue, so the court considers that claim abandoned as it relates to the broad allegations of the amended complaint. Moreover, the exception requires the existence of three elements: " (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ..." St. Pierre v. Plainfield, 326 Conn. 420, 435, 165 A.3d 148 (2017). None of those essential three elements are alleged in the amended complaint and the evidence submitted on summary judgment fails to establish they exist.
CONCLUSION
The defendant’s motion for summary judgment is granted, but because the evidence presented on summary judgment suggests the plaintiff’s complaint can be amended to give rise to a genuine issue of material fact concerning whether the defendant’s duty to clear snow and ice from the walkway was discretionary or ministerial, the plaintiff may file an amended complaint reflecting those facts within thirty days of the issuance of this decision, or within thirty days of the court’s ruling on a motion to reargue should such a motion be timely filed.