Lisa DeWolf v. Town of Newington et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

FACTS

On February 24, 2012, the plaintiff, Lisa Dewolf, filed a complaint against the defendants, Town of Newington (Newington) and Mark Ripley, the supervisor of cemeteries for Newington.   The plaintiff's original one-count complaint contained allegations of negligence against both of the defendants.   In addition, the final paragraph of the original complaint stated:  “Pursuant to C.G.S. §§ 7–101a and 7–465, respectively, notice was given to the Town Clerk for the Town of Newington and to the Office of the Supervisor of Cemeteries for the Town of Newington on February 11, 2011 of the plaintiff's intention to commence this action, copies of which are attached hereto as Exhibit A.” ¹ On April 5, 2012, the defendants filed a request to revise.   The plaintiff objected in part, the court sustained the plaintiff's objection, and the plaintiff filed a revised complaint on April 30, 2012.   The plaintiff's revised complaint contained two counts of negligence, each pertaining to one of the defendants, and each including a final paragraph identical to the final paragraph in the original complaint.   On January 10, 2013, the defendants filed a motion for summary judgment with regard to the plaintiff's revised complaint and memorandum of law in support of the motion.   The plaintiff then filed a request for leave to amend the complaint and second amended complaint (operative complaint) on January 15, 2013.   While the defendants objected to the request for leave to amend the complaint on January 22, 2013, the court overruled the defendants' objection on January 25, 2013.   The only change in the operative complaint was the addition of General Statutes § 52–557n ² to the first count against the defendant Newington.

In count one of the operative complaint, the plaintiff alleges the following relevant facts.   On September 18, 2010, the plaintiff's mother was buried in a burial plot on top of the previously interred vault of the plaintiff's father at the West Meadow Cemetery in Newington, Connecticut.   The defendant Newington, through its authorized agents, servants, and/or employees, owned, operated, maintained, and controlled the West Meadow Cemetery.   On November 17, 2010, the soil on top of the grave was not properly compacted, creating an unstable surface on top of the grave that gave way when the plaintiff stepped on the grave.   As a result, the plaintiff's right leg sank into the grave up to her right knee and she fell and twisted her left leg.   The plaintiff sustained injury as a result of the negligence and carelessness of the defendant Newington.   In count two, the plaintiff alleges the following relevant facts.   The defendant Ripley was the supervisor of cemeteries for the defendant Newington and, therefore, was the agent, servant, and employee of the defendant Newington.   As the supervisor of cemeteries, the defendant Ripley had a duty to maintain the West Meadow Cemetery in a reasonably safe condition for its intended uses, including visitation by pedestrian mourners.   On November 17, 2010, the soil on top of the grave was not properly compacted, creating an unstable surface on top of the grave that gave way when the plaintiff stepped on the grave.   As a result, the plaintiff's right leg sank into the grave up to her right knee and she fell and twisted her left leg.   The plaintiff sustained injury as a result of the negligence and carelessness of the defendant Ripley.

On March 4, 2013, the defendants filed a motion for summary judgment with regard to the plaintiff's operative complaint on the grounds that there is no genuine issue of material fact that the plaintiff's claims are barred by the applicable statute of limitations, that the defendants owed no duty to the plaintiff because she was a trespasser at the time of the alleged incident, and that the plaintiff's claims are barred by governmental and qualified immunity.   In their motion, the defendants incorporate their motion for summary judgment, memorandum of law, and supporting documentation previously filed on January 10, 2013, as well as the argument set forth in paragraph 3 of their objection to the request for leave to amend, filed on January 22, 2013.   The defendants submitted the following evidence in support of their motion:  (1) a copy of Bruce Till's affidavit, (2) a copy of the town of Newington cemetery fund income statement, (3) a copy of the defendant Ripley's affidavit, (4) a copy of Stephen Tofeldt's affidavit, (5) a copy of Dennis McDonald's affidavit, (6) a copy of pages 5, 57, 61, 62, and 63 of the plaintiff's deposition, (7) a copy of § 194–7 of the Newington Code of Ordinances, and (8) a copy of the 2010 farmer's almanac.

In response, on August 15, 2013, pursuant to Practice Book § 17–45, the plaintiff filed a memorandum of law in opposition and submitted the following evidence:  (1) a copy of the operative complaint, (2) a copy of the defendant Ripley's interrogatory response # 17 and production response of four photographs, (3) a copy of expert gravedigger Russell Rankin's report and photograph, (4) a copy of General Statutes § 52–557n, (5) a copy of § 194–10C of the Newington Code of Ordinances, (6) a copy of the U.S. Department of Labor Occupational Safety and Health Administration Interpretation Letter dated November 16, 2009, (7) a copy of the town of Newington cemetery fund income statement, (8) a copy of pages 48, 52, 53, and 54 of Bruce Till's deposition, (9) a copy of pages 25, 26, 27, 29, 30, 33, 34, 37, 42, 43, and 44 of the defendant Ripley's deposition, and (10) a copy of the plaintiff's affidavit.   The defendant subsequently filed a reply memorandum.   The matter was heard at the short calendar on November 18, 2013.

DISCUSSION

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.”  Practice Book § 17–49.  “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.   The courts hold the movant to a strict standard ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.”  (Emphasis added;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In their memorandum of law in support of the motion for summary judgment, the defendants argue that there is no genuine issue of material fact that the plaintiff's claims are barred by the applicable statute of limitations.   The defendants argue that courts have applied a two-year statute of limitations to personal injury claims made pursuant to General Statutes § 52–557n and that the operative complaint, citing § 52–557n, was not filed until more than two years after the date of the alleged injury.   The defendants also argue that the proposed amendment does not relate back to the original complaint.

The defendants also argue that there is no genuine issue of material fact that they owed no duty to the plaintiff because she was a trespasser at the time of the alleged incident.   The defendants argue that the plaintiff admitted she was in the cemetery at 8:00 p.m., that § 194–7 of the Newington Code of Ordinances states the cemetery is open from sunrise to sunset, and that the court can take judicial notice of the fact that the sun set at 4:30 p.m. on November 17, 2010.   In addition, the defendants argue that the plaintiff did not have the permission of the defendant Ripley, the sexton, to be in the cemetery after it had closed.   The defendants further argue that neither Mr. Tofeldt nor Mr. MacDonald, two cemetery employees, were aware the plaintiff was in the cemetery on November 17, 2010 and that the defendant Ripley has not received any complaints about trespassers constantly intruding into that area of the cemetery from police or area residents.   The defendants argue that ignorance of the law is no excuse and that they owed no duty to the plaintiff on which to predicate liability because the undisputed facts show that the plaintiff was in the cemetery without permission after it had closed to the public.

The defendants also argue that there is no genuine issue of material fact that the plaintiff's claims are barred by governmental and qualified immunity.   The defendants argue that the plaintiff's citation to General Statutes §§ 7–465 and 7–101a precludes her reliance on § 52–557n.   Additionally, the defendants claim that neither § 7–465 nor § 7–101a provides for a direct cause of action in negligence against a municipality.   According to the defendants, both statutes are indemnification statutes and the municipality's liability, if any, is derivative only.

The defendants further argue that they are still entitled to judgment as a matter of law, even assuming the plaintiff alleged a claim pursuant to § 52–557n or an indemnification claim pursuant to § 7–465.   The defendants argue that as to any indemnity claim against the defendant Newington pursuant to § 7–465, the defendant Ripley is entitled to qualified immunity for alleged acts involving the exercise of judgment and discretion.   The defendants also argue that as to any claim pursuant to § 52–557n, the defendant Newington is entitled to immunity.   The defendants argue that at common law, municipalities were liable for negligently performing ministerial acts, for tortious conduct in the performance of proprietary, for-profit functions, and for the intentional creation of a nuisance and that the plaintiff's claims do not fall into any of these three exceptions to immunity.   In addition, the defendants argue that the plaintiff's claim does not fall into the identifiable person, imminent harm exception to discretionary act immunity.

In response, the plaintiff argues that her claim is not barred by the statute of limitations because her complaint was amended to include a citation to § 52–557.   The plaintiff further argues that she was an invitee and not a trespasser at the time of her injury because she was using the cemetery for its intended purpose as a member of the public.

The plaintiff argues that because the cemetery hours are not posted on any signs at the entrance of the cemetery, there is no gate at the entrance of the cemetery, the cemetery's hours were not posted on the defendant Newington's website, and a booklet containing the cemetery's hours was not provided to family members of the deceased at the time of burial, there exists an issue of material fact as to whether the plaintiff's status on the land was that of a trespasser.

The plaintiff further argues that her compliance with the notice requirements of §§ 7–465 and 7–101a do not preclude her reliance on § 52–557n.   The plaintiff argues that the defendants are not immune from liability under § 52–557n(2)(B) because the preparation and maintenance of graves is a ministerial act that does not require the exercise of discretion.   The plaintiff also argues that the defendant Newington is liable for the negligent acts of its cemetery employees, even if the acts are discretionary, because the facts of this case fall within the imminent harm exception to discretionary act immunity.   The plaintiff further argues that the exception to governmental immunity provided under § 52–557n(a)(1)(B) applies, because the defendant Newington derived a profit from its operation of the cemetery.   Finally, the plaintiff argues that the defendant Newington's actions in allowing the existence of unstable graves within the cemetery constituted a public nuisance pursuant to § 52–557n(a)(1)(C).

A. Statute of Limitations and Relation Back Doctrine

Section 52–557n does not make any reference to a statute of limitations.   Courts have found, however, that the statute of limitations for actions brought pursuant to § 52–557n is set out in General Statutes § 52–584 and is two years.   See Sumrell v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV–10–457648–S (March 8, 2004, Skolnick, J.);   Rizio v. Trumbull, Superior Court, judicial district of Fairfield, Docket No. CV 97–0339965–S (December 2, 1999, Melville, J.).  Section 52–584 provides, in relevant part, “[n]o action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․

In the present case, the plaintiff did not include § 52–557n as the statutory basis for her negligence claim until the second amended complaint, which was filed more than two years after the date of the alleged injury.   The court will first address whether the amended claim relates back to the original complaint.

“[A]n amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ․ To relate back to an earlier complaint, the amendment must arise from a single group of facts.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 559–60, 51 A.3d 367 (2012).  “It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010).   An amended complaint does not relate back to the original complaint when “the defendant would have been required to gather different facts, evidence, and witnesses to defend the amended claim.”   Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991).

In the present case, at the time of amendment the plaintiff simply added § 52–557n as the statutory basis for her negligence claim in the operative complaint.   The plaintiff did not change any facts in the negligence count and the occurrence upon which she bases her claim is unchanged.   The court finds that the claim for damages under § 52–557n relates back to the previous timely filed complaint, and accordingly is not barred by the statute of limitations.

B. General Statutes §§ 7–465 and 7–101a do not preclude reliance on § 52–557n

Our Appellate Court has held that “although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings.”  (Emphasis in original.)  Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001).   In Spears v. Garcia, our Appellate Court found that the trial court had improperly granted the defendants' motion for summary judgment because the plaintiffs' citation to and reliance on § 52–557n in their memorandum of law in opposition “sufficiently apprised the defendants that the plaintiffs were relying on § 52–557n to abrogate governmental immunity.”  Id.

Our Appellate Court shed further light on this issue in Gaudino v. East Hartford, 87 Conn.App. 353, 865 A.2d 470 (2005), a case relied on by the defendants.   In Gaudino v. East Hartford, the plaintiffs argued that the fact that they cited § 7–465 in their complaint did not matter because they relied on the correct statute, § 52–557n, in their opposition to the motion for summary judgment.  Id., 358.   In affirming the judgment of the trial court, our Appellate Court explained “Spears is distinguishable from this case.   In that case, the plaintiff's complaint was ambiguous in that it did not mention any statutory authority that abrogated governmental immunity ․ In contrast, the plaintiffs in the present case included in their complaint a clear citation to § 7–465, the statute on which they were relying.”   (Citations omitted.)  Id., 359.   The Appellate Court held that “[t]he plaintiffs could have pursued an action against the municipality under either § 7–465 or § 52–557n.   They cannot, however, alter the statute under which their claim was based without amending their complaint.   This they failed to do.”  (Emphasis added.)  Id.

In the present case, the plaintiff included the following paragraph in both her original and revised complaints:  “Pursuant to C.G.S. §§ 7–101a and 7–465, respectively, notice was given to the Town Clerk for the Town of Newington and to the Office of the Supervisor of Cemeteries for the Town of Newington on February 11, 2011 of the plaintiff's intention to commence this action, copies of which are attached hereto as Exhibit A.” The plaintiff, however, filed a request for leave to amend her complaint and second amended complaint, which included a citation to § 52–557n, on January 15, 2013, and this second amended complaint is the operative complaint on which the defendants have moved for summary judgment.   As the plaintiff in this case, unlike the Gaudino plaintiffs, amended her complaint to include the statutory basis for abrogation prior to the motion for summary judgment being considered, the defendants' reliance on Gaudino is misplaced.

C. The Duty Owed to a Trespasser

“The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property.”  Salaman v. Waterbury, 246 Conn. 298, 304–05, 717 A.2d 161 (1998).  “It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct.”  (Emphasis added;  internal quotation marks omitted.)  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998).³  “The basis of the restricted liability of a landowner to a trespasser upon his property ․ rests on the fact that the landowner has dominion over the land and a higher right to its use than does the trespasser, and that consequently the trespasser is to be taken to have assumed the risk of conditions upon the property ․” (Citations omitted.)   McPheters v. Loomis, 125 Conn. 526, 532, 7 A.2d 437 (1939).

There is, however, an equally well established exception to this general rule.  “[I]f the owner ․ know[s] that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest.”  (Internal quotation marks omitted.)  Maffucci v. Royal Park Ltd Partnership, supra, 243 Conn. 559.   In other words, “[a] possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.”  (Internal quotation marks omitted.)  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 333, 612 A.2d 1197 (1992).

Our Supreme Court has found that “liability in negligence for a dangerous condition on land will attach only if the possessor has actual or constructive knowledge that trespassers constantly intrude[d] upon a limited area of the land.”  (Internal quotation marks omitted.)  Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 560.  “Actual knowledge of trespassers on a limited area of the land is not necessary if the possessor has constructive knowledge of their presence ․ To prove constructive knowledge of the plaintiff's presence on the premises, [however] the plaintiff must prove a level of knowledge equivalent to actual knowledge ․ A possessor of land has no duty to anticipate the presence of trespassers.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 562–63.   Our Supreme Court has, therefore, held that “[a]bsent a duty of the defendants to anticipate trespassers, the plaintiff must have presented evidence of some facts within the defendants' knowledge from which they should have known of the presence of trespassers routinely intruding into or upon [that particular area].”  Id., 564.

In the present case, it is undisputed that the plaintiff was in the cemetery after it had closed to the public, and that the plaintiff did not have the permission of the defendant Ripley, the sexton and supervisor of cemeteries for the town of Newington, to be in the cemetery after it had closed.⁴  In addition, the defendant Ripley's signed and sworn affidavit states that “[s]ince becoming Sexton of the cemetery and prior to November 10, 2010, I had not received complaints from area residents or the Town police department of individuals trespassing in the cemetery and especially in that area of the cemetery where the [grave of the plaintiff's mother] is located ․” Finally, the plaintiff presented no evidence that the defendants were aware of prior trespasses to this particular area in the cemetery.   There is insufficient evidence to show that trespassers constantly intruded into that area of the cemetery or that the defendants were aware, or should have been aware, of any previous intrusions.   In the absence of this essential predicate, the defendants owed no duty to the plaintiff other than to refrain from injuring her intentionally or by wilful, wanton, or reckless conduct.

The plaintiff argues that because the cemetery hours are not posted on any signs at the entrance of the cemetery, there is no gate at the entrance of the cemetery, the cemetery's hours were not posted on the defendant Newington's website, and a booklet containing the cemetery's hours was not provided to family members of the deceased at the time of burial, there exists an issue of material fact as to whether the plaintiff's status on the land was that of a trespasser.   However, “[i]t is a familiar legal maxim that everyone is presumed to know the law and ignorance of it excuses no one.”  Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542, 192 A.2d 206 (1963).   This maxim applies to municipal codes and ordinances in this state.   See id.  “The familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea back of them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's minds.”  Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 A. 564 (1937).

The plaintiff also argues that she was an implied invitee of the cemetery, relying on Dym v. Merit Oil Corp., 130 Conn. 585, 589, 36 A.2d 276 (1944).   In Dym, the plaintiff was injured when she fell into a grease pit while attempting to use an unlocked bathroom at a gas station that was still lighted shortly after closing time.   Our Supreme Court assigned no error to a finding that the plaintiff was an implied invitee, reasoning that the jury “reasonably could have concluded that the defendant acquiesced in the use of the toilet by the plaintiff at the time by reason of a mutual benefit ․ Offering such facilities tends to build up a good will between the proprietor and the customer.”  (Citations omitted.)  Dym v. Merit Oil Corp., supra, 130 Conn. 589.   The present case is distinguishable because it involves a municipal entity with a town ordinance that clearly states that “[t]he cemeteries shall be open each day from sunrise until sunset.   All persons shall leave the grounds of the cemeteries at or before closing time, unless expressly authorized by the Sexton.”   Newington Code of Ordinances § 194–7.   Although as in Dym a private business may arguably obtain a benefit from having customers use its restroom even when the business is closed, there is no evidence to suggest that a town cemetery obtains any such benefit from having unauthorized individuals come into the cemetery after it has closed, an activity which is expressly prohibited by the ordinance.

Based on the foregoing, there is no genuine issue of material fact that the defendants owed no duty to the plaintiff on which to predicate liability.   The plaintiff was in the cemetery after it had closed to the public, without the permission of the sexton, and as such, was a trespasser.   Accordingly, the defendants' motion for summary judgment is granted.

CONCLUSION

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

BY THE COURT

Gleeson, J.

FOOTNOTES

FN1. Section 7–101a(a) provides, in relevant part, “[e]ach municipality shall protect and save harmless any municipal officer ․ from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence ․ on the part of such officer or such employee while acting in the discharge of his duties.”Section 7–465(a) provides, in relevant part, “[a]ny town ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”.  FN1. Section 7–101a(a) provides, in relevant part, “[e]ach municipality shall protect and save harmless any municipal officer ․ from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence ․ on the part of such officer or such employee while acting in the discharge of his duties.”Section 7–465(a) provides, in relevant part, “[a]ny town ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”

FN2. Section 52–557n(a)(1) provides, in relevant part, “[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․”Section 52–557n(a)(2) states:  “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct;  or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”.  FN2. Section 52–557n(a)(1) provides, in relevant part, “[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․”Section 52–557n(a)(2) states:  “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct;  or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

FN3. The plaintiff has pleaded no such allegations of intentional harm or wilful, wanton, or reckless conduct on the part of the defendants..  FN3. The plaintiff has pleaded no such allegations of intentional harm or wilful, wanton, or reckless conduct on the part of the defendants.

FN4. The defendants submitted § 194–7 of the Newington Code of Ordinances which provides, in relevant part, that “[t]he cemeteries shall be open each day from sunrise until sunset.   All persons shall leave the grounds of the cemeteries at or before closing time, unless expressly authorized by the Sexton.”   During oral argument at the short calendar on November 18, 2013, the plaintiff conceded that she was in the cemetery after sunset and therefore in the cemetery after it had closed.   In addition, the defendant Ripley's signed and sworn affidavit states, “[a]t no time did I expressly authorize Lisa DeWolf to be in the cemetery between sunset and sunrise on the evening of November 17, 2010.”.  FN4. The defendants submitted § 194–7 of the Newington Code of Ordinances which provides, in relevant part, that “[t]he cemeteries shall be open each day from sunrise until sunset.   All persons shall leave the grounds of the cemeteries at or before closing time, unless expressly authorized by the Sexton.”   During oral argument at the short calendar on November 18, 2013, the plaintiff conceded that she was in the cemetery after sunset and therefore in the cemetery after it had closed.   In addition, the defendant Ripley's signed and sworn affidavit states, “[a]t no time did I expressly authorize Lisa DeWolf to be in the cemetery between sunset and sunrise on the evening of November 17, 2010.”

Gleeson, Marcia J., J.