McFarline v. Mickens

177 Conn.App. 83

173 A.3d 417

Ellen MCFARLINE

v.Patrick W. MICKENS, Jr., Administrator (Estate of Janet Mickens)

AC 39339

Appellate Court of Connecticut.

Argued April 19, 2017

Officially released October 10, 2017

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

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

Lavine, Keller and Bishop, Js.

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 commenced on January 2, 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 sidewalks 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–149⁴ 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. at 179, 592 A.2d 912, 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. Farmington 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 material fact.

Lopes v. Farmer, 286 Conn. 384, 388, 944 A.2d 921 (2008). The trial court must view the evidence in the light most favorable to the nonmoving party. Id.

Appellate review of the trial court's decision to grant summary judgment is plenary. Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[W]e must [therefore] decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013).

We dispose of each of these related claims as follows.

A

The plaintiff repeatedly asserts in a conclusory manner that, despite the court's judgment, two genuine issues of material fact remain. First, the plaintiff claims that there is a genuine issue of material fact with respect to whether the wildly growing grass that concealed the crack in the sidewalk hindered her ability to safely use the sidewalk and that, if it did not hinder her, the condition of the sidewalk did not meet the definition of a highway defect so as to confer liability exclusively on the city of Meriden. Whether the plaintiff was injured because the grass obstructed her view of the crack, or whether, for instance, the grass came into contact with her foot, causing her to slip and fall, however, is simply not material to a disposition of the motion for summary judgment in this case. See DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. at 116, 49 A.3d 951 (fact is material if it makes difference in outcome of case). In part I B of this opinion, we discuss why the issue is not material and is...