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Fisk v. Town of Redding

Appellate Court of Connecticut

April 19, 2016

GREGG FISK
v.
TOWN OF REDDING ET AL

         Argued December 8, 2015

          Action to recover damages for public nuisance, brought to the Superior Court in the judicial district of Fairfield, where the defendants filed special defenses; thereafter, the named defendant filed a cross complaint against the defendant M. Rodando, Inc.; subsequently, the court, Radcliffe, J., denied the motions for summary judgment as to the complaint and cross complaint filed by the defendant M. Rodando, Inc., granted the motion for summary judgment filed by the defendant BL Companies, Inc., and granted the plaintiff's motion to strike the special defenses of comparative negligence; thereafter, the court denied the plaintiff's motion to reargue and rendered partial judgment in favor of BL Companies, Inc., and the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff, who had sustained injuries when he fell off a retaining wall that was constructed with no protective fencing, sought to recover damages for public nuisance from the defendants, the town and its contractor, as well as the defendant B Co., which had been hired by the town as a design contractor for a municipal project that involved the construction of the retaining wall. The trial court granted B Co.'s motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court.

         Held that the trial court properly granted B Co.'s motion for summary judgment, that court having properly determined that there was no genuine issue of material fact that B Co. lacked control over the property: the court properly concluded that B Co., as design contractor, had no control over the property at the time the plaintiff sustained his injuries and, thus, was not a user of the wall and could not, as a matter of law, be liable in public nuisance; although the plaintiff claimed that B Co. had control of the property because it had significant input into the design and construction of the project, a nuisance is a condition of the property, rather than an act that creates it, and even if there was an issue of material fact here as to whether B Co. designed the wall or whether its role in the project had ceased at the time of the plaintiff's injury, the plaintiff presented no evidence to rebut the statement of B Co.'s affiant, which was supported by evidence submitted by B Co., that it had no control over the physical property, there was no evidence of any delegation to B Co. of authority over the wall, and although B Co. may have inspected the property, made recommendations and relayed orders, it was under the supervision of the town.

         A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff).

         Jared Cohane, with whom was Luke R. Conrad, for the appellee (defendant BL Companies, Inc.).

         Alvord, Keller, and Schaller, Js. SCHALLER, J. In this opinion the other judges concurred.

          OPINION

          SCHALLER, J.

          [164 Conn.App. 648] The plaintiff, Gregg Fisk,[1] appeals from the summary judgment rendered in favor of the defendant BL Companies, Inc.,[2] in his absolute public nuisance action. The plaintiff alleged that he was injured [164 Conn.App. 649] when he fell off a retaining wall that was constructed as part of a municipal construction project for which the defendant was the design contractor. The court rendered summary judgment on the ground that the defendant, as a design contractor, was not a user of the wall and, therefore, as a matter of law could not be liable in public nuisance. On appeal, the plaintiff claims that the court erred in granting summary judgment. We affirm the judgment of the trial court.

         The record reveals the following undisputed facts and procedural history. By substitute complaint, filed on October 7, 2014, the plaintiff alleged that he was injured when he fell off a retaining wall that was constructed with no protective fencing by M. Rondano, Inc. (Rondano), as contractor for the town of Redding (town). The defendant had been hired by the town to design, engineer, inspect and supervise the " Streetscape Project" (project) of which the wall was a part. The complaint alleged in separate counts against the town, Rondano, and the defendant that the wall was constructed on public land and constituted a public nuisance. In its answer, the defendant denied, inter alia, that it was required to supervise the project, that it was responsible for site safety, and that it had control over the retaining wall.

         On September 17, 2014, the defendant filed a motion for summary judgment on the ground that it could not, as a matter of law, be deemed to have been in control of the project and therefore could not be liable under a nuisance theory. In support of the motion, the defendant filed a memorandum of law outlining its legal claims, and attached an affidavit of Derek A. Kohl, a principal of the defendant; portions of an agreement between the defendant and the town; [3] a construction report; [164 Conn.App. 650] specifications for roads, bridges and incidental construction by the Department of Transportation (department) dated January, 2010; a letter dated July 5, 2011, from the defendant on behalf of the town to the department; a document entitled scope of services; and several Superior Court cases. Kohl's affidavit averred that the defendant was the architect for the project and was primarily responsible for architectural and engineering services and did not install, perform or put into motion any physical act upon the wall. He further averred that the defendant did not have the ability to control the contractor or the construction site, or to advise as to site safety; those responsibilities were allocated to the contractor during the construction until the responsibilities reverted to the town.[4] The agreement specifies that the contractor will maintain the construction area throughout the duration of the project.

         The plaintiff filed a memorandum in opposition to the motion for summary judgment on September 26, 2014. He argued in the alternative that each defendant had control of the project, that design engineers can be liable in public nuisance for defective or dangerous construction that they create by their design, that the defendant had control over the project until it was completed in 2012, and that the project was not even substantially completed until October, 2011, after the plaintiff's fall. In support of these contentions, the plaintiff filed a certificate of compliance from the department dated October 25, 2011; a certificate of acceptance of work dated January 18, 2012; sections of the department's bridge design manual; the defendant's meeting minutes from June 16, 2011; further portions of the agreement between the town and the defendant; a department consultant administration and project [164 Conn.App. 651] development manual; an April 6, 2010 letter from the defendant regarding the status of the project; an excerpt from the deposition of Natalie Ketcham; [5] a department project manual for the project with the defendant's copyright notification; a department construction manual; the defendant's meeting minutes dated October 4, 2011; the affidavit of Brandon Smith; the affidavit of Skylar Smith with attached photographs of the wall; and a document entitled " Fielding deposition."

         The court granted summary judgment in favor of the defendant in a memorandum of decision on December 5, 2014.[6] Citing State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 527 A.2d 688 (1987) ( Tippetts ), it concluded that the plaintiff could not establish that the defendant was a user of the property in question when the plaintiff sustained injury. It noted that the plaintiff had failed to assert claims of professional negligence against the defendant. The plaintiff filed a motion to reargue on December 23, 2014, which the court denied on January 5, 2015.[7] ...


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