Argued
April 11, 2019
Proceedings
Action
to recover damages for, inter alia, the defendants'
alleged negligence, and for other relief, brought to the
Superior Court in judicial district of Hartford, where the
court, Shapiro, J., granted the plaintiff's
motion to cite in Vernon W. Belanger et al. as defendants;
thereafter, the court granted the defendants' motion for
summary judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Reversed in part;
further proceedings.
Frank
C. Bartlett, Jr., for the appellant (plaintiff).
Christopher P. Kriesen, with whom was Ronald J. Houde, Jr.,
for the appellees (defendants).
DiPentima, C. J., and Prescott and Moll, Js.
OPINION
MOLL,
J.
The
plaintiff, Cynthia Cyr, appeals from the summary judgment
rendered by the trial court in favor of the defendants, VKB,
LLC (VKB), Shady Oaks Assisted Living, LLC (Shady Oaks
Assisted Living), Shady Oaks Rest Home, Inc. (Shady Oaks Rest
Home), Vernon W. Belanger, and Kay F. Belanger. On appeal,
the plaintiff claims that the court improperly rendered
summary judgment in favor of the defendants on all counts of
her amended complaint when it (1) failed to require the
defendants, as the movants for summary judgment, first to
establish that there was no genuine issue as to any material
fact, (2) determined that the defendants' alleged
affirmative acts did not create the defect in the sidewalk,
and (3) purportedly determined, as a matter of law, that a
business owner that invites individuals to enter and exit its
property at a particular location owes no duty to ensure that
such location is reasonably safe. We affirm in part and
reverse in part the judgment of the trial court.
The
following procedural history is relevant to our analysis of
the plaintiff's claims. On November 29, 2016, the
plaintiff commenced this action, sounding in negligence and
negligence per se, against the original defendants, VKB,
Shady Oaks Assisted Living, and Shady Oaks Rest Home. On
February 2, 2017, the original defendants filed an answer and
special defenses in response to the plaintiff's original
complaint. On February 6, 2017, the original defendants filed
a request for leave to amend their answer and special
defenses and appended the proposed amendment, which was
deemed to have been filed by consent, absent objection. On
February 10, 2017, the plaintiff filed a reply.[1] On December 29,
2017, the plaintiff filed a motion to cite in additional
defendants, Vernon W. Belanger and Kay F. Belanger, and to
amend the complaint, which was granted by the court on
January 17, 2018.
On
January 31, 2018, the plaintiff filed her amended complaint
and alleged, inter alia, the following. At all relevant
times, the defendants owned, and/or were in the possession
and control of, real property located at 344 Stevens Street
in Bristol (property). On May 28, 2015, at approximately
10:15 a.m., the plaintiff was walking on the sidewalk
abutting the property, when she tripped on an approximately
one and one-half inch lip between two sidewalk segments
(defect) and fell, sustaining physical injuries, principally
to her left hand, which necessitated medical treatment and
interfered with her employment and enjoyment of life's
activities. The parties do not dispute that the sidewalk at
issue is a public sidewalk.
On the
basis of the foregoing factual allegations, the plaintiff
asserted the following claims: (1) negligence as to VKB
(count one); (2) negligence per se as to VKB (count two); (3)
nuisance as to VKB (count three); (4) negligence as to Shady
Oaks Assisted Living (count four); (5) negligence as to Shady
Oaks Rest Home (count five); (6) nuisance as to Vernon W.
Belanger (count six); and (7) nuisance as to Kay F. Belanger
(count seven). The plaintiff alleged alternative theories as
to how the alleged defect in the sidewalk was created. On the
one hand, in counts one and two (directed to VKB), count four
(directed to Shady Oaks Assisted Living), and count five
(directed to Shady Oaks Rest Home), the plaintiff alleged
that the defect ‘‘developed as a result of the
settling of one adjacent segment.'' On the other
hand, in count three (directed to VKB), count six (directed
to Vernon W. Belanger), and count seven (directed to Kay F.
Belanger), the plaintiff alleged, respectively, that VKB, or
its predecessor(s) in interest, Vernon W. Belanger, and/or
Kay F. Belanger, through one or more of their agents,
servants, and/or employees, constructed the sidewalk with the
resulting defect. In each of the respective counts, the
plaintiff alleged that the defendants were responsible for
keeping the abutting sidewalk in a safe condition for the use
of the public.
The
defendants did not move to strike any of the plaintiff's
claims. On March 12, 2018, however, the defendants filed an
amended motion for summary judgment (motion), and a
supporting memorandum of law, as to all counts of the
plaintiff's amended complaint. The motion was not
accompanied by any supporting affidavits or documentary
evidence. The defendants argued that they were entitled to
judgment as a matter of law because (1) Bristol Code of
Ordinances § 21-37[2](city ordinance) shifts only the duty of
repairing an abutting sidewalk from the municipality to an
abutting landowner and does not shift liability for injuries
resulting from an unsafe condition of the sidewalk, (2) there
is no common-law duty owed by abutting landowners to the
public for sidewalk defects, and (3) there is no evidence,
and the plaintiff cannot prove, that the defendants created
the alleged defect so as to fall within an exception to the
general rule that liability remains with the municipality in
cases involving public sidewalk defects.
On
April 19, 2018, the plaintiff filed an objection and a
memorandum of law in opposition to the motion, as well as the
affidavit of Frank C. Bartlett, Jr., Esq., and several
exhibits. On May 7, 2018, the defendants filed a reply
memorandum of law, as well as the affidavit of Ronald J.
Houde, Jr., Esq., and several exhibits. That same day, the
court held a hearing on the motion. On June 15, 2018, the
court granted the defendants' motion, rendering summary
judgment in favor of the defendants on all counts.
The
trial court's memorandum of decision reflects the
following analysis. Having reviewed the general principles
regarding the liability of abutting landowners for injuries
sustained on a defective public sidewalk, the court first
concluded that, although the city ordinance imposes a duty on
the defendants to maintain the sidewalk, it does not shift
liability from the municipality to the defendants for the
plaintiff's fall. The court then addressed the
plaintiff's argument that there existed a genuine issue
of material fact as to whether the defendants caused the
sidewalk defect by performing a positive act. Specifically,
the court stated that ‘‘[t]he plaintiff does not
allege, and has not presented evidence to show, that the
sidewalk was constructed or repaired deficiently . . .
.'' The court went on to reject the plaintiff's
additional arguments, namely, that the defendants owed her a
duty of care by (1) voluntarily undertaking to inspect the
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