Pollard v. City of Bridgeport

204 Conn.App. 187

252 A.3d 869

Lajeune POLLARD

v.CITY OF BRIDGEPORT et al.

AC 43260

Appellate Court of Connecticut.

Argued November 30, 2020

Officially released April 27, 2021

John T. Bochanis, for the appellant (plaintiff).

John P. Bonanno, for the appellee (defendant Seaside Village Homes, Inc.).

Lavine, Prescott and Elgo, Js.^*

LAVINE, J.

"An abutting landowner is ordinarily under no duty to keep the sidewalk in front of his [or her] property in a reasonably safe condition for public travel. Tenney v. Pleasant Realty Corp. , 136 Conn. 325, 329, 70 A.2d 138 (1949). An abutting landowner can be held liable, however, in negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner's positive acts. See Gambardella v. Kaoud , 38 Conn. App. 355, 359, 660 A.2d 877 (1995)." Abramczyk v. Abbey , 64 Conn. App. 442, 446, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). In the present case, we conclude, as a matter of law, that the abutting landowner is not liable for the injuries sustained by a traveler on a public sidewalk who trips and falls over a defect in the sidewalk caused by the roots of a tree growing on the landowner's property, as the growth of tree roots is not a positive or affirmative act of the landowner.

In this trip and fall personal injury action, the plaintiff, LaJeune Pollard, appeals from the summary judgment rendered in favor of the defendant Seaside Village Homes, Inc. (Seaside). On appeal, the plaintiff claims that the trial court improperly granted summary judgment because genuine issues of material fact exist as to whether Seaside is liable for her injuries (1) due to its negligence or (2) for maintaining a nuisance that caused the defect in the sidewalk. On the basis of our review of the record, we conclude that there is no genuine issue of material fact that Seaside undertook no positive or affirmative act that caused the defect in the sidewalk where the plaintiff alleged that she fell. We, therefore, affirm the judgment of the trial court.

The following facts as discerned from the record are relevant to our resolution of the plaintiff's appeal. On or about February 20, 2018, the plaintiff served a complaint on Seaside and the codefendant, the city of Bridgeport (city).¹ The complaint sounded in three counts: count one alleged negligence against the city; count two alleged negligence against Seaside; and count three alleged nuisance against Seaside. In all counts of the complaint, the plaintiff alleged that, at approximately 5 p.m. on September 29, 2017, she was walking on the sidewalk in front of 82 Cole Street in the city when she fell due to the uneven, raised and deteriorated condition of the sidewalk. As a result of her fall, the plaintiff alleged that she sustained serious injuries to her knees that required medical attention, including surgical repair of her right knee. As a further result of her fall, the plaintiff alleged that she lost time from her employment, incurred medical bills and damages, lost the enjoyment of life's activities, and experienced pain and suffering.

In count one, the plaintiff alleged that the city breached its duty to inspect, repair, maintain and keep its sidewalks in a reasonably safe condition, including the area where she fell, which is owned, controlled, and maintained by the city.² In count two, the plaintiff alleged that the premises or property "in front of 82 Cole Street ... was owned, controlled and/or maintained by [Seaside] ...."³ The plaintiff further alleged that Seaside "was charged with the duty to keep and maintain its property in a reasonably safe condition including the area" where she fell. She also alleged in paragraph 5 that her fall and resulting injuries were the direct result of the negligence of Seaside or its agents in one or more of the following ways, in that they (a) failed to inspect, correct or remedy the defective condition, (b) failed to use reasonable care to maintain the area where she fell in a reasonably safe condition, (c) failed to warn pedestrians of the defective condition, (d) allowed the area where she fell to deteriorate to a defective condition, (e) failed to have sufficient personnel to maintain, correct or remedy the defective conditions, and (f) actively caused or created the defective condition of the sidewalk. In count three, the plaintiff alleged that her injuries "were the result of a nuisance created by [Seaside, its agents or employees]" in that the "defective condition [of the sidewalk] was a continuing danger created by [Seaside]" or that "[t]he use of the ... described premises permitted by [Seaside] was unreasonable and/or unlawful."⁴

On March 12, 2018, Seaside filed an answer in which it denied the material allegations of the complaint and asserted three special defenses.⁵ On November 18, 2018, the city took the plaintiff's deposition, during which she testified that she "was walking and ... was forced forward from the raised sidewalk ...." The plaintiff identified the raised sidewalk that allegedly caused her to fall in a photograph.

On April 15, 2019, Seaside filed a motion for summary judgment claiming that it was entitled to summary judgment as a matter of law because it cannot be held liable, either by statute or under common law, for the plaintiff's injuries allegedly arising from a defect in a public sidewalk.⁶ The parties appeared before the trial court on June 24, 2019,⁷ and July 15, 2019, to argue the motion for summary judgment. On July 15, 2019, the court issued an order stating that it had considered the motion for summary judgment and granted it "[a]s to both counts [two] and [three]" because there was "[n]o breach of duty by the abutting landowner, and an inability to meet the test for nuisance (Count [Three]). Allowing a tree to grow does not breach a duty of care. Duty to keep the sidewalk in repair, by statute, rests with the city of Bridgeport."⁸

The plaintiff appealed, claiming that the court improperly had determined that (1) no genuine issues of material fact existed as to whether Seaside was negligent with respect to the defective condition of the sidewalk in front of 82 Cole Street and (2) no genuine issues of material fact existed as to whether Seaside maintained a nuisance that caused injuries to her. In response, Seaside contends that there is no genuine issue of material fact as to whether it is liable for the plaintiff's injuries because, as a matter of law, the duty to maintain and repair sidewalks belongs to the city and there are no genuine issues of material fact that Seaside did not undertake an affirmative or positive act that created the alleged defect in the sidewalk. We agree with Seaside.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.)

Dreher v. Joseph , 60 Conn. App. 257, 259–60, 759 A.2d 114 (2000). "The test is whether a party would be entitled to a directed verdict on the same facts." Batick v. Seymour , 186 Conn. 632, 647, 443 A.2d 471 (1982).

"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Doty v. Mucci , 238 Conn. 800, 805–806, 679 A.2d 945 (1996). 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 issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) Trotta v. Branford , 26 Conn. App. 407, 412–13, 601 A.2d 1036 (1992). "The facts at issue are those alleged in the pleadings. ... The purpose of [a] complaint is to limit the issues to be decided at the trial of a case and [it] is calculated to prevent surprise." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Vaillancourt v. Latifi , 81 Conn. App. 541, 545, 840 A.2d 1209 (2004).

"On appeal ... [b]ecause the trial court rendered judgment ... as a matter of law, our review is plenary and we must 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.) Dreher v. Joseph , supra, 60 Conn. App. at 260, 759 A.2d 114.

I

The plaintiff's first claim is that the trial court improperly granted the motion for summary judgment because material questions of fact exist as to whether Seaside is liable in negligence for the defective sidewalk. We do not agree.

During the course of the July 15, 2019 hearing, the court granted the motion for summary judgment with respect to count two stating: "While there is a duty of an abutting landowner to conduct his affairs so as not to injure a traveler in the lawful use of the highway, the allegations of duty in paragraph 5 of the complaint clearly do not apply. There is no duty on the part of an abutting landowner to inspect a highway, which is the duty of the municipality, to repair or to maintain it or to warn ... [of] the dangerous [or] defective condition. The only thing that the abutting landowner has an...