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McFarline v. Mickens

Court of Appeals of Connecticut

October 10, 2017

ELLEN MCFARLINE
v.
PATRICK W. MICKENS, JR., ADMINISTRATOR (ESTATE OF JANET MICKENS)

          Argued April 19, 2017

         Procedural History

         Action to recover damages for the alleged negligence of the defendant's decedent, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Blue, J., granted the defendant's motion for summary judgment and rendered judgment thereon; thereafter, the court denied the plaintiff's motion for reconsideration, and the plaintiff appealed to this court. Affirmed.

          Richard M. Franchi, for the appellant (plaintiff).

          Maciej A. Piatkowski, for the appellee (defendant).

          Lavine, Keller and Bishop, Js.

         Syllabus

         The plaintiff sought to recover damages from the defendant administrator of the estate of M for injuries she sustained when she tripped and fell on a public sidewalk that was adjacent to property owned by M. She alleged that a dangerous, defective and unsafe condition existed, namely, a broken and cracked concrete sidewalk with grass growing wildly through the crack, and that the crack was concealed by the wildly growing grass, which hindered her ability to safely use the sidewalk. Under the common law, an abutting landowner is under no duty to keep a public sidewalk in front of his property in a reasonably safe condition, except where a municipality confers liability on the abutting landowner through a statute or ordinance, or where the defect or unsafe condition was created by a positive act of the abutting landowner. The defendant filed a motion for summary judgment, claiming that, under the facts as alleged by the plaintiff, M owed no duty to the plaintiff to maintain the sidewalk. Specifically, he claimed that the city of Meriden was bound to keep the sidewalk in repair pursuant to the municipal highway defect statute (§ 13a-149), and that the positive act exception to the general rule absolving landowners of liability for defective sidewalks did not apply because M did not create the unsafe condition on the public sidewalk. The trial court granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Held:

         1. The trial court properly rendered summary judgment in favor of the defendant: the plaintiff's claim that issues of material fact remained that precluded the granting of the motion for summary judgment was unavailing, as a resolution of the issue of whether the plaintiff was injured because the wildly growing grass obstructed her view of the crack in the sidewalk was not material to the disposition of the motion for summary judgment because the defendant did not dispute that the plaintiff's injury was caused by the broken concrete sidewalk with grass growing through it; moreover, because municipalities have the primary duty to maintain public sidewalks in a reasonably safe condition and such liability cannot be shifted to the abutting landowner absent an express charter provision, statute, or ordinance, and the plaintiff had abandoned any claim before the trial court that a city ordinance concerning grass cutting had shifted liability to the abutting landowner, M owed no duty to the plaintiff to maintain the sidewalk absent evidence of a positive act that caused or contributed to the plaintiff's accident, and the pleadings and other documents filed in the summary judgment proceeding did not suggest that an affirmative act by M caused the grass to grow on the sidewalk.

         2. The plaintiff could not prevail on her claim that the trial court, by citing in its memorandum of decision on the motion for summary judgment to its prior decision in an unrelated case, erroneously considered facts outside the record of this case and thereby violated her right to due process of law; although the court cited its prior decision in the unrelated case for the proposition that growing grass was not a positive act by the property owner because grass grows by itself, there was no indication that it considered the facts in that prior case in lieu of the facts presented by the parties, it was not improper for the court to look to the facts of that similar case for legal guidance in resolving the case before it, and the plaintiff's claim that her right to due process was violated because the court did not give her notice that it intended to rely on that prior case was frivolous and unavailing.

         3. The trial court did not abuse its discretion by denying the plaintiff's motion to reargue the motion for summary judgment: although that court, in ruling on the motion for summary judgment, noted that the plaintiff had alleged an incorrect date of her fall in her complaint, the court expressly stated that the incorrect date was not the subject of the defendant's motion for summary judgment, and did not render summary judgment on the basis of that erroneous date, and, therefore, reargument on the basis of the correct date of the plaintiff's fall would not have affected the court's judgment; moreover, to the extent that the plaintiff challenged the trial court's denial of her motion to amend her complaint to correct the date of the fall and other errors, the trial court never ruled on that motion and, by denying the motion to reargue, let the judgment in favor of the defendant stand, which eliminated any possible basis for granting the motion to amend.

          OPINION

          KELLER, J.

         In this negligence action, the plaintiff, Ellen McFarline, appeals from the summary judgment rendered by the trial court in favor of the defendant, Patrick W. Mickens, Jr., administrator of the estate of Janet Mickens (Mickens). The plaintiff claims that the court, in granting the defendant's motion for summary judgment, erred by (1) failing to consider the pleadings, affidavits and other proof submitted in deciding that there is no genuine issue as to any material fact; (2) considering facts outside the confines of this case; (3) violating her right to due process of law by failing to allow her to review evidence from other cases that the court utilized in deciding the motion for summary judgment; (4) failing to apply the ‘‘test'' set forth in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), when determining if there was a chain of causation that included the defendant's negligence in sequence with a highway defect; and (5) denying her postjudgment motions to amend her revised complaint and to reargue the motion for summary judgment.[1] We affirm the judgment of the court.

         The facts underlying this action, which the plaintiff commencedonJanuary2, 2015, are neither complicated nor, for purposes of summary judgment, in dispute. The action arises out of injuries that the plaintiff sustained while she was walking on a public sidewalk in Meriden on May 14, 2013. The sidewalk was adjacent to premises owned by Mickens.[2] In her revised complaint of April 29, 2015, the plaintiff alleged that, ‘‘a dangerous, defective and unsafe condition existed on the aforementioned sidewalk . . . namely, a broken and cracked concrete sidewalk and adjacent curb with grass growing wildly through the crack and broken sections. . . . [The plaintiff] was walking on the aforementioned sidewalk when she came in contact with the defective, dangerous and unsafe condition, that being the broken and cracked concrete and a section of the broken concrete under her foot did break away from the curb causing her to slip and fall and causing her injuries and damages . . . .'' The plaintiff alleged that the sidewalk ‘‘is used by the public to transgress over.'' The plaintiff alleged that she sustained physical injuries, principally to her right leg, that necessitated medical treatment and that interfered with her employment and normal life pursuits.

         The plaintiff alleged that Mickens was negligent in that she ‘‘allowed and permitted the . . . [defect] to exist and remain . . . failed to repair and or remedy the . . . [defect] in a timely manner . . . allowed and permitted individuals to use the sidewalk although she knew or reasonably should have known of the presence of the . . . [defect] . . . failed to properly maintain the . . . premises including the sidewalk and curb . . . failed to inspect the premises including the side- walks and curbs . . . failed to warn those upon said premises, including the plaintiff, of the presence of the aforementioned [defect] . . . failed to place devices, signs and or tape, so that as to make the [defect] visible and readily apparent to individuals . . . she failed to place devices, signs and or tape, so as to physically prevent individuals from using said sidewalk . . . failed to cut the grass on the sidewalk and/or remove any grass that was hiding defects on the sidewalk . . . [and] failed to have the curb properly constructed . . . pursuant to building ordinances in . . . Meriden.''

         Following discovery, the defendant moved for summary judgment. In his memorandum of law in support of his motion, the defendant argued that he was entitled to judgment as a matter of law because, under the facts as alleged by the plaintiff, Mickens owed no duty to the plaintiff to maintain the sidewalk. The defendant asserted that ‘‘Connecticut law is clear that an abutting landowner is not liable for the unsafe condition of an adjacent public sidewalk unless the unsafe condition is actually caused by the abutting landowner. See Robinson v. Cianfarani . . . 314 Conn. [521, 529, 107 A.3d 375 (2014)] . . . .'' The defendant observed that because the plaintiff did not assert in her complaint that Mickens caused the sidewalk defect by any ‘‘positive actions, '' Mickens did not owe a duty to the plaintiff to repair or warn of the defect. The defendant further reasoned that to the extent that Meriden ordinances imposed responsibilities on abutting landowners to maintain sidewalks, in the absence of state statutory authority, such ordinances cannot be interpreted as having shifted liability from Meriden and onto the defendant.[3] Even if the city of Meriden could shift liability by ordinance, the defendant argued, those ordinances did not sufficiently express the intent to shift liability.

         In her memorandum in support of her objection to the motion for summary judgment, the plaintiff argued that the defendant's motion for summary judgment addressed only one of the causes of the plaintiff's injuries, specifically, the crack in the sidewalk. She argued that grass growing on the sidewalk, as alleged, was not a defect under our municipal defective highway statute, General Statutes § 13a-149[4] and, therefore, it was ‘‘the responsibility of the landowner to remove . . . [it] and to make the property safe for pedestrians . . . .'' The plaintiff argued § 180-42 of the Meriden City Code, which requires the abutting landowner to keep grass or weeds properly cut or removed in the area of the sidewalk, was controlling and that it shifted the burden of sidewalk maintenance to Mickens.[5] The plaintiff also asserted that there was a genuine issue of material fact as to whether the defendant's failure to remove the ‘‘wildly growing grass'' on the sidewalk was a proximate cause of her injury.

         The court agreed with the defendant and granted the motion for summary judgment. The court reasoned that Mickens owed no duty to the plaintiff because ‘‘the positive act exception to the general rule absolving property owners of liability for defective sidewalks cannot be established in the case of growing grass, since grass grows by itself.'' The court also observed that the ‘‘Meriden grass-cutting ordinance [on which the plaintiff relied] . . . does not shift liability to the individual with the specificity required by Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937), and [that, in any event, the plaintiff] . . . expressly abandoned her reliance on the ordinance at argument.''

         The plaintiff thereafter filed motions to amend her revised complaint and to reargue the motion for summary judgment, the contents of which we discuss in part III of this opinion. The court denied the motion to reargue. The record does not reflect that the court rendered a disposition on the motion to amend the revised complaint. This appeal followed. Additional facts will be provided as necessary.

         I

         We first address the plaintiff's related claims that the court erred in granting the defendant's motion for summary judgment (1) by failing to consider the pleadings, affidavits and other proof submitted in deciding that there was no genuine issue as to any material fact, and (2) by failing to apply the definition of a highway defect as set forth in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, when determining whether there was a chain of causation that included the defendant's negligence in sequence with a highway defect. We disagree.

         We observe the following principles relating to motions for summary judgment. Summary judgment shall be granted ‘‘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.'' Practice Book § 17-49. A fact is material when it will make a difference in the outcome of a case. DiPietro v. Farm-ington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). The party moving for summary judgment bears the burden of demonstrating the absence of any genuine issue of ...


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