Jaime Maddalena v. Town of Southington et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, AS AMENDED (# 110 & # 116 )

I. History and Nature of the Proceedings

This action arises out of an alleged incident in which the plaintiff, Jaime Maddalena, was injured while playing basketball at Panthorn Park on Burritt Street in Southington, Connecticut.   On April 30, 2009, the plaintiff filed a five-count amended complaint against the defendants, the town of Southington, Richard L. Egidio, Sr., superintendent of parks for the town of Southington, and William J. Masci, director of recreation for the town of Southington.¹

The amended complaint alleges the following facts:  On March 24, 2008, at 5 p.m., the plaintiff was playing basketball on the basketball courts located at Panthorn Park, when she fell due to a crack in the basketball court, thereby causing her to sustain and suffer personal injuries and losses.   She alleges that the condition of the basketball court where she fell was intentionally created and maintained by the defendants, was inherently dangerous and constituted a nuisance, the natural tendency of which was to create danger and inflict injury upon people lawfully using the same as members of the general public.   She further alleges that the defendants created or participated in the creation of the nuisance in that they acted positively when they attempted to fill in the cracks with sealant, opened the park to the public and chose not to erect barricades or signs.²  Counts one, two and four attempt to set forth causes of action sounding in nuisance alleging that the defendants are liable for the plaintiff's damages pursuant to General Statutes § 52-557(n).³  Counts three and five are directed at the town of Southington and allege that the town is liable to the plaintiff for the damages caused by Egidio (count three) and Masci (count five) pursuant to General Statutes § 7-465.

On October 1, 2008, the defendants filed an answer and one special defense.   The special defense alleges that at all times pertinent, the plaintiff assumed the risk of playing on a basketball court with an alleged defect known to her.   On January 9, 2009, the defendants filed their amended motion for summary judgment directed against all counts of the amended complaint, which was supported by a memorandum of law;  an affidavit of Egidio;  a copy of the plaintiff's responses to defendant's request for admissions dated September 29, 2008;  and a copy of the transcript of the deposition of the plaintiff, which took place on December 15, 2008.   On April 30, 2009, in addition to filing the amended complaint, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment, supported by a copy of the transcript of the deposition of Egidio, which took place on November 17, 2008;  and a copy of the transcript of the deposition of the plaintiff, which took place on December 15, 2008.   On June 18, 2009, the defendants filed a supplemental memorandum of law in reply the plaintiff's memorandum of law in opposition.   On July 7, 2009, the defendants filed their amended motion for summary judgment which incorporated by reference their memorandum and exhibits from their January 9, 2009.   After an extensive review of the court file, in particular, the allegations contained in the plaintiff's amended complaint;  the memoranda and accompanying documents filed by each of the parties;  the cases cited by each and giving due consideration to the arguments of counsel, the court will, for reasons hereinafter stated, grant the defendants' motion for summary judgment.

II. Summary Judgment

“[T]he 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.”  (Internal quotation marks omitted.)  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).  “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.)  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).

“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.”   (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).

“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 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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, supra, 279 Conn. 318-19.  “The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.App. 863, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).

III. Claims of the Parties

The defendants make two arguments as to why this court should enter judgment in their favor:  (1) judgment should enter as the deterioration of the recreational facility does not constitute a positive act so as to hold a municipality liable for nuisance;  and (2) judgment should enter as there is no dispute regarding the fact that the plaintiff assumed the risk of injury caused by the alleged nuisance.   The plaintiff responded by arguing that her allegations are sufficient for a nuisance claim against a municipality and, in the alternative, that whether or not any of the essential elements exist to constitute a nuisance is ordinarily a question of fact.   In response to the argument that judgment should enter as she assumed the risk, the plaintiff argues that this is a question of fact properly reserved for a jury.

IV. Discussion

“A common-law nuisance claim consists of four core elements:  (1) the condition complained of had a natural tendency to create danger and inflict injury upon 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.)  Elliot v. Waterbury, 245 Conn. 385, 420, 715 A.2d 27(1998);  see also Petsey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).  “In addition, because the plaintiff's injury was not related to a right which [the plaintiff] enjoys by reason of [her] ownership of an interest in land ․ and, therefore, cannot be sustained as a private nuisance, the plaintiff has the additional burden associated with establishing a public nuisance, namely, proving that the nuisance interferes with a right common to the general public.”  (Internal quotation marks omitted.)  Elliott v. Waterbury, supra, 421.

“Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ․ [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ․ The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.   A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.”  (Internal quotation marks omitted.)  Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).

General Statutes § 52-557n(a)(1)(e) provides, in relevant part, that “[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ․ acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․” “[I]n order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance.”  (Emphasis added;  internal quotation marks omitted.)  Elliott v. Waterbury, supra, 245 Conn. 421.  “[L]iability can be imposed on the municipality only in the event that, if the condition constitute [s] a nuisance, it was created by some positive act of the municipality.”   (Internal quotation marks omitted.)  Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).  “[F]ailure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality.”  (Internal quotation marks omitted.)  Id.

In the present case, the plaintiff makes the argument that when the defendants attempted to fill in the cracks with sealant, opened the park to the public and chose not to erect barricades or signs, these were the “positive act” so as to impose liability on the municipality.   The court disagrees.   It is clear to this court that the cracks in the basketball court where the plaintiff allegedly fell were not created by the defendants but were created by mother nature and the elements.   See Egidio affidavit dated December 23, 2008.   To hold the defendants responsible for any attempts they might have made to remedy the situation, when they would clearly not be at fault if they had not done anything at all, would be improper and contrary to established legal precedent relative to this area of municipal liability.

The plaintiff, on the other hand, urges this court to adopt a holding similar to that as in Lyles v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 970340593 (November 22, 2000, Skolnick, J.) (29 Conn. L. Rptr. 61), and Evans v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 010446895 (June 4, 2002, Arnold, J.).   While Lyles v. Stamford, supra, is informative on the issue of public nuisance, the court finds it to be distinguishable from the present and not supportive of the plaintiff's argument.   In Lyles v. Stamford, the court's decision to deny the defendant's motion for summary judgment turned upon whether the use of the land was “reasonable,” not whether the alterations to that land were “positive acts.”   Furthermore, Evans v. New Haven, supra, Docket No. CV 010446895, is inapplicable to the present case as it dealt with a motion to strike, which calls for the application of a different legal analysis.   Recently, Justice Katz explained the distinction as follows:

We begin with certain basic principles that distinguish the procedural devices of a motion for summary judgment and a motion to strike.  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 ․ 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.  Practice Book [§ 17-46].   In contrast, [a] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly, rather than narrowly.  (Citation omitted;  internal quotation marks omitted.)

American Progressive Life and Health Ins. Co. of New York et al. v. Better Benefits, LLC et al., 292 Conn. 111, 119-20 (2009).

In other words, in considering a motion to strike, a trial court's decision must be based upon the facts alleged and those which could reasonably be inferred from the allegations in the complaint.   On the other hand, when a motion for summary judgment is presented to said court, its decision is based, not upon what facts may be alleged in the operative complaint, but whether those factual allegations are susceptible to being proven so as to create a genuine issue of material fact.   In this case, it is incontestable that neither the town of Southington nor any of the defendant employees of that town performed any positive act that resulted in the plaintiff's fall.   The plaintiff has failed to present any evidentiary foundation to the contrary.

V. Conclusion

“Under the applicable common law ․ a municipality is liable for maintaining a nuisance only if, in fact, the municipality both created and maintained the nuisance by some positive act.”  (Emphasis added.)  Starr v. Commissioner of Environmental Protect, 226 Conn. 358, 388, 627 A.2d 1296 (1993);  and the “failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality.”  (Internal quotation marks omitted.)  Keeney v. Old Saybrook, supra, 237 Conn. 164.   There simply is no evidence from which a trier of fact could conclude, as a matter of law, that the alleged dangerous condition was created by some positive act of the defendants.   The defendants are entitled to judgment as a matter of law as to counts one through five of the plaintiff's amended complaint.

The court need not reach the merits of either party's arguments as it relates to assumption of risk, having granted the defendants' motion for summary judgment for the plaintiff's inability to connect any positive act on the part of the defendants to the plaintiff's injuries.   Be that as it may, however, as a general rule, “[a]ssumption of risk becomes a question of law when the only logical and reasonable conclusion to be drawn from the evidence is that the injured party, with knowledge and appreciation of the risk, voluntarily encounters it.”  (Emphasis added.)  Greene v. Difazio, 148 Conn. 419, 425 (1961).   It is clear from reading of her deposition that the plaintiff was well aware of the cracks on the surface of the basketball court, yet, nevertheless, made a conscious choice to shoot the basketball and to jump for the rebounds despite the obvious danger.   Based upon the evidence presented it would be difficult for this court to find as a matter of law that the plaintiff did not appreciate the nature of the risk before she decided to shoot hoops.

For the foregoing reasons, the defendants' motion for summary judgment, as amended, is hereby granted.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. The plaintiff filed her original five-count complaint on June 16, 2008.   On April 30, 2009, the plaintiff filed a request for permission to amend her complaint (# 111.5), to which the defendants filed their objection (# 112).   However, at short calendar on July 21, 2009, counsel agreed that the amended complaint was the operative complaint.   At the court's request an amended motion for summary judgment was thereafter filed (# 116)..  FN1. The plaintiff filed her original five-count complaint on June 16, 2008.   On April 30, 2009, the plaintiff filed a request for permission to amend her complaint (# 111.5), to which the defendants filed their objection (# 112).   However, at short calendar on July 21, 2009, counsel agreed that the amended complaint was the operative complaint.   At the court's request an amended motion for summary judgment was thereafter filed (# 116).

FN2. The italicized allegations were inserted via the operative amended complaint..  FN2. The italicized allegations were inserted via the operative amended complaint.

FN3. Count one is directed at the town of Southington, count two is directed at Egidio and count four is directed at Masci..  FN3. Count one is directed at the town of Southington, count two is directed at Egidio and count four is directed at Masci.

Trombley, Wilson J., J.