Opinion
CV146008870
07-14-2016
Denise McGuire v. Town of Putnam et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#142) AND OBJECTIONS BY PLAINTIFF (#147) AND BY THE TOWN OF PUTNAM (#148)
John D. Boland, S.J.
Plaintiff's third amended complaint alleges that she slipped and fell on a public sidewalk on the east side of Main Street in the town of Putnam. Her first count charges that the town's employees failed in any one of a number of ways to properly inspect and maintain the sidewalk, and that the municipality is therefore liable to her for the injuries she claims she sustained. Alternatively, she claims that the defendant Congregational Church of Putnam, United Church of Christ, was either neglectful (second count) or created a nuisance (third count) by its affirmative acts altering the condition of the sidewalk in the process of removing snow or otherwise maintaining the sidewalk, and that the church is therefore solely or jointly accountable to her.
Before the court at this moment is the church's motion for summary judgment seeking a judgment in its favor on the liability allegations of the complaint. Both plaintiff and the Town have formally objected to the motion.
I. Standards for Determining a Motion for Summary Judgment
In ruling upon a motion for summary judgment, the court adheres to the process recently articulated in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711-12, 66 A.3d 860, as follows:
Practice Book § 17-49 provides 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." A party moving for summary judgment is held to a " strict standard." 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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 . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 17-45 (citations omitted).
In application of that process, the court requires of each moving party a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations as they presently stand, and, if the moving party makes at least a prima facie showing that such is the case, then to require of each opposing party a showing revealing that there is evidence to establish that material facts are genuinely disputed and cannot be resolved summarily.
II. Details of the Complaint, the Motion and the Objections
While it is the general rule, as articulated in Smith v. Town of Greenwich, 278 Conn. 428, 435, 899 A.2d 563 (2006), that " an abutting landowner . . . [is] under no duty to keep the public sidewalk in front of [its] propert[y] in a reasonably safe condition for public travel, " the focus in this case is upon an exception which the Court immediately noted in that decision: " [a]n abutting landowner . . . can be held liable . . . in either negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowners' positive act."
The first and second drafts of the complaint alleged that an ordinance in effect in the town of Putnam requiring adjacent landowners to maintain sidewalks furnished an additional basis upon which to predicate liability to plaintiff on the part of the church. The present iteration of the complaint is silent as to that theory.
The public sidewalk serving Main Street in Putnam runs in a north-south direction in front of the church property, apparently without interruption along the entire boundary of that tract. At oral argument, without objection, plaintiff supplied the court with a photograph of the sidewalk. The walk appears to be about six feet wide, lying between the curb and a low stone wall. The detail of its construction significant to this case is the placement of a single row of bricks along its westerly edge, parallel to and butting up against the curb. The bricks are approximately 4 by 12 inches in size, and are laid side by side over the entire span of the sidewalk. Though no party provided a count of the total number of individual bricks, that number is obviously in the hundreds. The function of this row of bricks appears to be purely aesthetic.
In her operative complaint, plaintiff claims that she tripped and fell " due to the condition and position of the bricks" in that one-foot strip. The second count of her complaint alleges that the behavior which would constitute a " positive act" as recognized by Smith consists of one or more of the following actions undertaken by the church's grounds crew: 1) they maintained the brick portion of the sidewalk in such a manner that bricks were incorrectly angled and irregularly spaced, creating gaps between bricks; or 2) they inspected the sidewalk and found the incorrectly angled and spaced bricks, but did nothing about it; or 3) they repaired or corrected the defective portion of the bricks but did so in an unworkmanlike manner; or 4) they filled in the area where bricks were missing with sand or stone dust but did so in an unworkmanlike manner, thus resulting in bricks that were and continued to be incorrectly angled and irregularly spaced.
Neither party commented upon the topic of inspection at all in the material submitted on this motion. Consequently, and since the church had no duty to " inspect" the sidewalk or render any reports as to its condition, the court considers this particular allegation to be moot and will not address it further in this memorandum.
As to the third count, plaintiff does not repeat the allegations of negligence set forth above. Instead, she asserts that to the extent that remedies were undertaken they were performed in an unworkmanlike manner resulting in bricks that were incorrectly angled and irregularly spaced, with gaps between bricks, and that this situation constituted a public nuisance because it had a natural tendency to cause injury to the public.
Thus, as gleaned from the complaint, plaintiff's theory of liability depends upon proof that the crew either " maintained, " " repaired, " or " filled in" the holes on the sidewalk in one or another unworkmanlike manner.
In support of the present motion, the church has supplied portions of the deposition testimony of two persons associated with this defendant, namely William Pearsall and Bruce LaBelle, as well as of the town's manager, Douglas Cutler. The two churchmen concur that the bulk of any work this defendant has done in the area in question was at the hands of Mr. Pearsall, a volunteer, and according to his testimony no one on the church's behalf maintained the brick portion on any regular basis. When, on occasion, he or another church agent would find a loose brick on the lawn, he would return it to the hole from which it had apparently emerged. The Cutler deposition established that the town considered the sidewalk maintenance to be the duty of its work crews, and that to his knowledge no work on the sidewalk strip had been expected of church agents.
The deposition testimony of all three is submitted in an uncertified form, as is the plaintiff's submission of an unabridged copy of the Pearsall deposition. " Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them"; Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Given the mutual lack of objection to this informality here, the court will thus consider rather than exclude these items.
Plaintiff countered by at first filing only the unabridged version of the Pearsall deposition and an affidavit of her expert. As indicated, she also presented the court at oral argument with a photograph. Her counsel indicated on the photograph the exact spot where her fall occurred. The court notes in the photograph that: 1) the hole which plaintiff identifies as the site of her fall lies fifty or more feet from the vantage point of the photographer; 2) in the strip but closer to that point two other holes are unmistakably visible, as is a rough patch of bricks approximately five feet in length; and 3) as opposed to having a single, discrete defect, the brick strip is well-worn throughout its course.
In support of its motion, the church argues that Pearsall's random and sporadic replacement of bricks does not equate to maintenance or repair of the strip, and that plaintiff has no other legal or factual basis upon which to hold this defendant liable. By way of response in her written and oral objection to the motion, plaintiff advances a second theory of liability which arises from discovery although it is not suggested by the complaint in its present form. Pearsall testified that he or other church members would routinely attend to the removal of snow on the sidewalk, including keeping a path open over the brick strip to allow parishioners and others access from the street. He indicated that a snow blower was the usual tool for this purpose, although he claims that he would use a shovel for the portion over the bricks. When asked at the deposition " is it possible that you've occasionally strayed into the brick area with the snow blower?" he replied " I suppose it could happen." It is on the strength of that exchange that plaintiff has submitted the affidavit of her expert, Douglas Fisher. Fisher identifies himself as an engineer, and he opines, citing Pearsall, that " it does appear that the snow blower may have crossed onto the brick portion of the sidewalk" and " [i]f that occurred, it can result in additional movement of the bricks, replacement of sand and loosening of the bricks, all of which can add to the changes of position making it easier for holes in the sidewalk to develop."
Although the town of Putnam objected to the pending motion on legal grounds, the only evidence it submitted consists of portions of the Pearsall deposition identical to those already in the record. Therefore at this juncture, all of the evidence as to " positive acts" which plaintiff attributes to the behavior of the agents of this defendant and which would bring the case within the exception to the rule against adjacent landowner liability is set forth in the preceding three paragraphs. Plaintiff contends that one or another of these " positive acts" might have caused the defect which led to her fall. She and the town argue that summary judgment is inappropriate because there is a genuine issue of material fact which a jury must decide.
III. Discussion
As a general rule, any defendant moving for summary judgment in a case of this genre must reckon with the holding in Gambardella v. Kaoud, 38 Conn.App. 355, 660 A.2d 877 (1995). Its plaintiffs had alleged that their injuries were caused by the defendants " in that said defendants caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof . . ." The trial court granted summary judgment to defendants who averred that none of them had created any condition of the sidewalk that was unsafe, nor that they had maintained the sidewalk so as to cause the unevenness or cracks upon which plaintiffs tripped. Calling these averments " little more than denials of the facts alleged in the plaintiffs' complaint, " and deeming them " an insufficient basis for the rendition of summary judgment, " the appellate court reversed. Defendants, that court held, had not met their burden of providing evidence to establish the absence of a material factual dispute.
In Gambardella 's wake, various trial court decisions have given short shrift to motions for summary judgment supported by sworn denials of the material allegations of negligence or nuisance contained in a slip-and-fall plaintiff's complaint. An inexhaustive list citing that authority includes Velardi v. Elm City Manufacturing Jewelers, Inc., Superior Court, judicial district of New Haven, Docket No. CV13 6038023, (January 22, 2015; Wilson, J.), which involved a claim that defendant had caused plaintiff's fall by leaving a hose across a public path. The court rejected its motion for summary judgment, since defendants " did not challenge" but " merely den[ied]" the factual basis of plaintiff's allegations. In Montefuscoli v. Ryan, Superior Court, judicial district of Fairfield at Stamford, Docket No. CV11 6008923, (May 24, 2013; Tobin, J.T.R.), in which plaintiff slipped on ice on a public sidewalk two days after a private abutter had removed the snow therefrom, the court denied that defendant's motion for summary judgment premised upon mere denials of liability. It did so in spite of the weakness of the plaintiff's claims: " [i]n order to find for the plaintiff, a finder of fact would have to believe the defendant's testimony that he had attempted to remove snow from the sidewalk, but find that, in some manner, these positive actions had been responsible for the presence of ice on the sidewalk two days later . . . [but] it is not up to the court to determine the strength of a plaintiff's case, however weak, but merely to determine whether the moving party has sustained his burden of demonstrating the absence of an issue of material fact." See, also, Ferreira v. State, Superior Court, judicial district of Waterbury, Docket No. 32 26 19, (January 6, 1997; Moraghan, J.) (" The only evidence produced in connection with this allegation comes in the form of affidavits submitted by the defendants. In these affidavits it was averred that none of the defendants have ever altered the landscaping or grading of the property, or the natural flow of runoff waters from the property. These pronouncements . . . are an insufficient basis for rendering summary judgment"); Clement v. Joseph F. Kelly Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV01 0387909, (November 19, 2002, Wolven, J.) (question of who created dangerous condition on sidewalk is a question of fact and " affidavit denying the positive acts of negligence" is not enough to show an absence of any material fact); and Suntino v . Webster Bank National Ass'n, Superior Court, judicial district of New Haven, Docket No. CV04 5000175, (June 8, 2005; Martin, J.)(" In this case, the plaintiff alleges that the defendant 'caused or allowed and permitted said public sidewalk to be or become depressed, uneven, unsafe, and dangerous for use of the public.' Pursuant to Gambardella, these are allegations of affirmative acts that are sufficient to raise the material question whether the defendant caused the sidewalk to become defective").
The church's material, including the two affidavits, is sufficient to allow adjudication of its motion, in light of the holding in Escourse v. 100 Taylor Ave., LLC, 150 Conn.App. 819, 92 A.3d 1025 (2014). That case explained what submissions in support of a motion for summary judgment amount to more than a " mere denial, " and thus elude the treatment Gambardella otherwise would dictate. The moving defendant there did not simply deny the plaintiff's allegations that he had plowed snow in an area where that plaintiff fell; he affirmatively indicated what he had done, namely, that he had plowed in a nearby area but not at the precise site of the fall. This additional data, the court held in affirming a summary judgment granted to him, overcame the deficit noted in Gambardella, which " does not stretch so far as to discount, wholesale, personal affidavits that assert admissible facts, made on personal knowledge, in opposition to a plaintiff's allegations; " 150 Conn.App. 819, 826, 92 A.3d 1025. In contrast to that of the Gambardella movants, the court views the evidence offered by the church here as going far enough beyond mere denial of the plaintiff's allegations. Pearsall's affirmative testimony that he only replaced bricks randomly and occasionally, and that he utilized a shovel and avoided the brick strip when using a snow blower, amount to more than " mere denials" of plaintiff's allegations of negligence or nuisance. Thus the court will decide whether on the present submissions there are any genuine issues of material fact which a jury must determine.
The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury; Mirjavadi v . Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013). As to the maintenance and inspection claims framed by the complaint, the church mainly argues that it had no duty to persons situated as was plaintiff. If it were the case that neither Pearsall nor any other church agent had touched any brick, the court would agree with this argument under the authority of the rule in the Smith case. Absent the handling of the bricks, no principle of positive law imposed upon the church any duty to maintain or take any other action with respect to any holes in the brick strip.
The evidence, however, is clear that Pearsall did act by picking up a brick or bricks and setting them back into holes in the brick strip. In doing so, even as a volunteer, he gave rise to a duty to " act with reasonable care in completing the task assumed"; Grenier v. Commissioner of Transportation, 306 Conn. 523, 547, 51 A.3d 367 (2012). Grenier is a complex case arising from the deaths of four Yale students in a crash on I-95. This appeal involved their estate's claims against a national fraternity and its local chapter, which were alleged to have arranged the transportation although having no obligation to do so. The Court went on to explain that " [o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person . . . is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking";
Grenier (as well as apparently all of the authorities it cites in support of that principle) involved transporting passengers in a motor vehicle. The scope of the duty it recognized may be said to be generally coextensive with reasonable driving behavior. The decision reversed a trial court summary judgment in favor of the moving defendants, holding that whether or not there had been a breach of that duty was a question for the jury.
In the present case, this court concludes that in voluntarily replacing the bricks, the church's agent entered into a duty to " act with reasonable care in completing the task assumed." This court is not aware of any uniform standard known to govern the act of handling a defect discovered in a public sidewalk, and so even the scope of the church's duty needs to be defined before a factfinder can weigh whether or not the duty has been breached. Considine v. City of Waterbury, 279 Conn. 830, 858-9, 905 A.2d 70 (2006) instructs that " [c]ontained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . Put another way, the question of what a reasonable person would have done under the circumstances is a question to be determined by the trier of fact, except where the individual's conduct 'clearly has or has not conformed to what the community requires, and that no reasonable [trier of fact] could reach a contrary conclusion.'" (Citations omitted.)
Because the church believed it had no duty to plaintiff, it has not briefed whether the issue of conformity to what the community requires can summarily be determined not to have been breached. Plaintiff, for her part, perceiving that the church has a duty of maintenance broader than the one this court believes exists, likewise has not briefed the standard to which the volunteer actions of the ground crew might be held. Given the nature and purpose of the present motion, that is an oversight without immediate consequences to her, although she must be prepared to prove that standard as part of her presentation at trial.
Because there is a genuine issue of material fact as to the standard of care expected of the church, and whether that standard was met in this instance, the motion for summary judgment is denied.