Opinion
FSTCV116007687S.
11-26-2012
John B. MUNNICK, III v. TOWN OF GREENWICH et al.
UNPUBLISHED OPINION
ALFRED J. JENNINGS, JR., Judge Trial Referee.
PROCEDURAL/FACTUAL BACKGROUND
On March 10, 2011, the plaintiff, John B. Munnick III, filed his three-count revised complaint, alleging negligence and nuisance against TPF Development Corp. and statutory liability pursuant to General Statutes § 13a-149 against the Town of Greenwich. In the Second Count, labeled " negligence, " the plaintiff alleges the following. On or about January 29, 2009, the plaintiff slipped and fell " on an accumulation of snow and ice located in the area of the public sidewalk, adjacent to the side parking lot entrance of 600 East Putnam Avenue, Greenwich, Connecticut ..." The plaintiff suffered various injuries as a result. At all relevant times, the defendant owned, maintained, managed and controlled the subject property, 600 East Putnam Avenue. The plaintiff's injuries were caused by the negligence and carelessness of the defendant in that the defendant, inter alia: plowed, or failed to properly clear, snow so as to obstruct the pedestrian walkway/parking lot in violation of Greenwich ordinance § 11-7; failed to apply salt or other abrasive material to the snowy/icy condition in order to prevent the slipping hazard; failed to properly maintain and adequately inspect the sidewalk in question and failed to post adequate warnings or barriers around the slipping hazard. In the Third Count, labeled " nuisance, " the plaintiff alleges, inter alia, that the defendant's " fail[ure] to properly clear the snow on or near the sidewalk/parking lot of 600 East Putnam Avenue ... or in unreasonably piling snow in the area of the sidewalk/parking lot created a condition that had a natural tendency to be a continuing, dangerous, snowy/icy slipping hazard." Said dangerous condition, the complaint alleges, caused the plaintiff's injuries.
This motion for summary judgment concerns only the defendant TPF Development Corp., which shall therefore for convenience be referred to as " the defendant."
The plaintiff does not specify whether the word " nuisance" in count three refers to public nuisance or private nuisance. Nevertheless, because the plaintiff has not alleged that the defendant caused " an unreasonable interference with the plaintiff's use and enjoyment of his ... property"; see Shukis v. Board of Education, 122 Conn.App. 555, 586, 1 A.3d 137 (2010); the claim can only be interpreted as a public nuisance claim.
On February 8, 2012, the defendant filed this motion for summary judgment accompanied by a supporting memorandum of law. On July 20, 2012, the defendant additionally filed the affidavit of Robert Fong, vice president for the defendant. On July 25, 2012, the plaintiff filed a memorandum of law in opposition to the motion accompanied by copies of pages from the transcript of the plaintiff's deposition, a copy of photographs used in the plaintiff's deposition indicating the location of the plaintiff's fall and a copy of a 911 call report sheet. On July 27, 2012, the defendant filed a reply memorandum. The court heard oral argument on the motion on July 30, 2012.
DISCUSSION
" 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.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Washington v. Blackmore, 119 Conn.App. 218, 220, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the " inferences which could be reasonably and logically drawn from them ... United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).
In support of its motion, as to the Second Count sounding in negligence, the defendant argues that summary judgment should be granted because the plaintiff has alleged that he fell on a public sidewalk, and, under state common law, a private landowner is not liable for injuries caused by an unsafe condition on an abutting public sidewalk. Moreover, the defendant contends, an exception to this rule, which, under General Statutes § 7-163a, permits municipalities to shift liability to abutting landowners by statute, does not apply because the applicable municipal ordinance, Greenwich ordinance § 11-7, does not expressly shift liability to abutting landowners. In support of its motion as to the Third Count sounding in nuisance the defendant argues that summary judgment should be granted because " there is no evidence in admissible form to establish that any positive act by [the defendant] or any of its agents ... caused the plaintiff's fall."
The revised complaint alleges that ... the Plaintiff was a pedestrian walking along the public sidewalk ..." (Second Count, ¶ 4); and that the Plaintiff slipped on an accumulation of snow and ice " located in the area of the public sidewalk." (¶ 5).
The plaintiff counters, as to the Second Count, that even accepting the defendant's legal argument, that is, that the applicable municipal ordinance fails to transfer liability to property owners, there remains a genuine issue as to whether the exact location of the plaintiff's fall was on the abutting sidewalk. Specifically, the plaintiff argues that there remains an issue as to where he fell based on the following. First, during his deposition, when asked to circle the location of his fall on a photograph, the plaintiff circled an area that included both the sidewalk and the defendant's parking lot. Second, the plaintiff stated at this deposition that he could not pinpoint the exact spot where he fell, and when he fell he was looking straight ahead. Finally, a 911 call report sheet, documenting a bystander's phone call arising from the incident, stated that the bystander stated that the plaintiff had fallen on private property.
The plaintiff further counters, as to both counts, that a private landowner can be " liable in negligence or public [nuisance]" by engaging in positive acts that cause an unsafe condition on a public walkway. The plaintiff further argues that there still remains a question of fact as to what caused the icy condition on the sidewalk because the defendant, despite a deposition request by the plaintiff, failed to produce the person with the most knowledge of the defendant's snow removal procedures.
In its reply memorandum, the defendant asserts the following. First, the plaintiff's inability to attest to the location of his fall does not create a sufficient question of fact to survive a summary judgment motion because the proper manner for the plaintiff to create a sufficient question of fact in this regard would be to file an affidavit attesting to the location of his fall. Second, the plaintiff has misconstrued his burden of proof in that " [b]efore the defendant can be held liable, the plaintiff must prove with affirmative evidence that he fell on property for which the defendant was legally responsible." Third, the 911 call report sheet upon which the plaintiff relies, because it includes a witness' report of the incident, is hearsay and, thus, not properly considered in a motion for summary judgment.
" At common law there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon streets or sidewalks such as the accumulation of snow or ice. Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons ... Therefore if the liability is or can be shifted from the municipality to the individual it must be accomplished by statutory or charter provision or by ordinance adequately authorized by such provision, and, being the creature of statute or such ordinance, it can be no greater than that specifically imposed thereby." (Citations omitted.) Willoughby v.. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937). " In 1981, the legislature enacted General Statutes § 7-163a, which not only permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks, but also empowers the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance." Dreher v. Joseph, 60 Conn.App. 257, 261-62, 759 A.2d 114 (2000). Greenwich Ordinance § 11-7, entitled " Snow and ice removal; safe condition required; penalty, " provides in relevant part: " All owners ... of land or buildings adjoining which there has been constructed a sidewalk shall at all times keep the sidewalk free from snow and ice ... Any person who fails to comply with the provisions of this Section shall be fined twenty-five dollars ..." " Imposition upon abutting owners of a duty to clear walks of snow and ice, with a provision of a penalty by fine and costs for failure to do so or for clearing the same by the municipality and collection of the cost from the abutting owner, is not sufficient to render the individual, instead of the city, liable for injuries sustained by reason of snow or ice thereon." (Emphasis added.) Willoughby v. New Haven, supra, 123 Conn. at 451.
General Statutes § 7-163 a, entitled " Municipal liability for ice and snow on public sidewalks, " provides in relevant part: " (a) Any town ... may, by ordinance, adopt the provisions of this section ...
In the present case, then, with respect to the Second Count, sounding in negligence, to be entitled to summary judgment on the ground stated by the defendant, the defendant would have to show, first, that Greenwich Ordinance § 11-7 does not expressly shift liability to abutting landowners and, second, that the location of the plaintiff's fall was the abutting public sidewalk. The defendant must establish the absence of an issue as to the location of the plaintiff's fall because the plaintiff has pleaded the complaint broadly enough so as to encompass either the defendant's property or the abutting public sidewalk as the location of the fall. The defendant, however, has conflated the plaintiff's burden of proof at trial with its own initial burden of proof as the party moving for summary judgment. The fact that, after almost two years of being in litigation, the plaintiff remains vague about the precise location of the fall, and can rely on its own imprecision to avoid summary judgment does seem incongruous, but at this point the burden is on the defendant as moving party to show no issue of fact on that key issue. " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). Here, defendant has submitted no evidence addressing the location of the plaintiff's fall. Therefore, because the defendant has failed to establish the absence of an issue as to the location of the plaintiff's fall, the defendant has failed to satisfy its initial burden in moving for summary judgment. Consequently, the defendant's motion for summary judgment on the Second Count fails.
The ground upon which the defendant's motion relies, as to the Second Count, is that the applicable municipal ordinance does not shift liability to the defendant, which presupposes that the fall occurred on the public sidewalk.
The complaint alleges in counts two and three that " the plaintiff slipped on an accumulation of snow and ice located in the area of the public sidewalk, adjacent to the side parking lot entrance of 600 East Putnam ..." (Emphasis added.) In count two only, the complaint alleges " the [d]efendant failed to properly clear snow on its property and/or sidewalk thereby creating a dangerous, snowy/icy slipping hazard." (Emphasis added.) Finally, in count three, the complaint alleges that the defendant " fail[ed] to properly clear the snow on or near the sidewalk/parking lot ... or ... unreasonably pil[ed] snow in the area of the sidewalk/parking lot ..." (Emphasis added.)
The return date of this action was January 4, 2011.
See Wilson v. New Haven, 213 Conn. 277, 281 (1989), where, in similar circumstances, a finding of no genuine issue of fact was affirmed, the Supreme Court saying, " The complaint is very specific identifying the site of the accident, and there is no dispute over this location." Id. at 281.
Although the plaintiff has presented evidence showing a dispute as to this issue, because the defendant has failed to discharge its initial burden, the court need not consider the plaintiff's evidence.
The Third Count sounds in nuisance, which the court has construed to be a claim of public nuisance. With respect to this count, because the defendant has failed to establish the absence of an issue as to the location of the plaintiff's fall, to be entitled to summary judgment, the defendant would have to show that irrespective of whether the location of the plaintiff's fall was the public sidewalk or the defendant's property, the defendant would be entitled to judgment as a matter of law, that is, that the location of the plaintiff's fall is not material.
Because the complaint, fairly read, encompasses that the fall took place either on the public sidewalk, or the defendant's property, the defendant need not establish the absence of a genuine issue that the fall did not occur outside of these areas.
Assuming the location of the fall was the public sidewalk, the only means by which the plaintiff could hold the defendant liable in nuisance is by showing that the defendant engaged in positive acts that caused the plaintiff's injuries. Accordingly, the defendant must establish the absence of a genuine issue as to the fact that it did not engage in any positive acts that caused the plaintiff's fall. To establish this, the defendant has submitted the affidavit of Robert Fong, who states that he is the vice president for the defendant. Fong further states that at the time of the plaintiff's alleged fall, the defendant had leased the subject property, 600 East Putnam Avenue, to a commercial tenant. He also avers that, at the time, the defendant did not maintain the property, the commercial tenant was in possession and control of the property and the defendant did not perform any snow or ice removal services at the property. Considering these statements of Fong, if the alleged piling of snow was caused by snow removal, it could not have been caused by a positive act of the defendant because the defendant did not perform snow removal at the property. Moreover, if the defendant did not maintain, possess or control the property, and the commercial tenant did, the only reasonable inference that can be drawn is that the defendant was not the source for any other positive acts upon the property that would have caused the snow to pile. The defendant, as the movant, therefore, has satisfied its initial burden by establishing the absence of a genuine issue that it did not engage in any positive acts that caused the plaintiff's fall. In response to the evidence presented by the defendant, the plaintiff has failed to present evidence of its own. Rather, the plaintiff argues that the defendant's failure to comply with the plaintiff's deposition request for a knowledgeable person as the deponent, in itself, establishes a genuine issue of fact. This is unavailing, however, because to establish the existence of a genuine issue of material fact once the movant has discharged its initial burden requires the nonmoving party to present evidence contradicting the movant's evidence. If the plaintiff was dissatisfied with the knowledge possessed by Mr. Fong as the deponent, he could have moved under Practice Book § 17-45 for an extension of time to depose a more knowledgeable person. He did not do so. Therefore, the defendant has established the absence of an issue that it did not engage in any positive acts to create the alleged nuisance. Accordingly, to the extent that the plaintiff's injuries occurred on a public sidewalk, the defendant is entitled to judgment as a matter of law on the Third Count.
As an exception to the general rule of non-liability of abutting owners for injuries sustained on a public sidewalk, it is held that " [A]butting property owners can be held liable in negligence or public nuisance for injuries resulting from an unsafe condition of a public sidewalk caused by [their] positive acts ..." (Emphasis added.) Gambardella v. Kaoud, 38 Conn.App. 355, 358, 660 A.2d 877 (1995); see, e.g., Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006) (stating that one such positive act would be to pile snow so as to " change the volume or the course of the watery melt that refreezes to create the dangerous condition that results in injury"). " Absent a specific intent on the part of a municipality to transfer liability to a landowner, the only path to establishing an abutter's liability is to state a claim for negligence or public nuisance for injuries resulting from ... the positive acts of the defendant." (Internal quotation marks omitted.) Swain v. Leninski, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99 0432164 (June 6, 2002, Arnold, J.).
Next, even if the location of the fall was the defendant's property, the plaintiff's nuisance claim would not be viable as a matter of law. " A plaintiff must prove four elements to succeed in a [public] nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury on person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 561-62, 23 A.3d 1176 (2011). " In addition the plaintiff must prove that the condition or conduct complained of interferes with a right common to the general public." (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn.App. 585, 587, 1 A.3d 137 (2010). " The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." Pestey v.. Cushman, 259 Conn. 345, 356 n. 5, 788 A.2d 496 (2002). Importantly, however, " [o]ne who enters premises at the express or implied invitation ... does not come upon them in the exercise of any public right ..." Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939). " The mere fact that private property is being used as a place of business to which members of the public are invited does not convert a nuisance existing thereon into a public nuisance." LaPalme v. Tottle, 16 Conn.Supp. 121 (1949), citing Webel v. Yale University, supra, 125 Conn. at 524. " The overwhelming majority of cases ... have held that privately owned parking lots made available to the public by businesses to attract customers do not involve a public right, thereby foreclosing causes of action sounding in public nuisance. Wrighten v. Rapid Car Wash, Inc., Superior Court, judicial district of New London, Docket No. CV 06 5001056 (November 6, 2007, Hurley, J.T.R.) (44 Conn. L. Rptr. 464, 466).
Accordingly, Connecticut courts have held that privately owned property, even in a circumstance where the public is invited for commercial or retail purposes, is not within the realm of places where members of the public may exercise their public rights. See, e.g., Wrighten v. Rapid Car Wash, Inc., supra, 44 Conn. L. Rptr. at 466. In the present case, as alleged in the complaint, the defendant, a corporation, owned the property abutting the public sidewalk. The complaint fails to allege any additional facts to suggest that the defendant's property, or the portion thereof pertaining to the present case, the parking lot, was distinctly " public" so as to distinguish it from the types of properties, including parking lots, that Connecticut courts have held could not give rise to actions in public nuisance. Consequently, even if the location of the plaintiff's fall were the defendant's property, the plaintiff's claim of public nuisance against the defendant would not be viable as a matter of law, and the defendant, therefore, is entitled to judgment on the Third Count.
CONCLUSION
For the foregoing reasons, then, the defendant TPF Development Corporation's Motion for Summary Judgment is denied as the second Count sounding in negligence, and granted as to the Third Count sounding in nuisance.
" (c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had ... and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury ..." (Emphasis added.)