Opinion
CV146047296S
01-19-2016
Maritza Cruz v. Amy Counsel et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#129)
Robin L. Wilson, J.
FACTS
On August 8, 2014, the plaintiff, Maritza Cruz, filed a two-count revised complaint against the defendants, Amy Counsel and the city of New Haven (city), alleging, in count one, a cause of action against Counsel under a theory of premises liability, and, in count two, a claim against the city pursuant to the defective highway statute, General Statutes § 13a-149. The plaintiff alleges the following facts in support of count one. The plaintiff was an invitee on property located at 52 Vernon Street in New Haven, Connecticut, which was " owned, maintained, managed or controlled" by Counsel. On July 2, 2012, while walking on the grassy strip of land located between the road and sidewalk in front of 52 Vernon Street, the plaintiff tripped and fell on an object protruding from the ground, sustaining injuries. The plaintiff's injuries were caused by Counsel's negligence because Counsel, among other things, caused the presence of the dangerous condition on her premises and allowed the condition to persist despite it posing a danger to invitees; failed to provide adequate warnings or protections; failed to remove the object; and otherwise failed to exercise reasonable care under the circumstances.
The original complaint, dated April 4, 2014, and filed on May 22, 2014, also alleged a premises liability action against Calvin Counsel (Calvin). On June 24, 2014, counsel for Calvin moved to dismiss the claim for lack of subject matter jurisdiction, on the ground that Calvin was deceased prior to the commencement of the action. The motion was supported by a memorandum of law and a sworn affidavit from Melvin Counsel (Melvin), in which Melvin stated that Calvin, his father, died in 1990. The plaintiff did not contest Melvin's affidavit. The docket does not indicate any ruling on this motion. A review of the audio recording, however, indicates that the court, Vitale, J., granted the motion to dismiss from the bench at the August 25, 2014 short calendar. A couple weeks before the motion was granted, on August 8, 2014, the plaintiff filed a revised complaint that again named Calvin as a defendant to count one. For the sake of clarifying the record, it is clear that the court, Vitale, J., correctly granted the motion to dismiss; it is well settled that a court lacks subject matter jurisdiction over a claim brought against a deceased person. See, e.g., Noble v. Corkin, 45 Conn.Supp. 330, 333, 717 A.2d 301 (1998) (" proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity, " and, thus, " do not invoke the jurisdiction of the trial court" [internal quotation marks omitted]); Smith v. Baumann, Superior Court, judicial district of New Haven, Docket No. CV-10-6011085-S, (September 16, 2010, Wilson, J.) (50 Conn. L. Rptr. 621, 623) (" the judges of the Superior Court have held that the issue of whether a court has jurisdiction over an action that was commenced against a deceased defendant pertains to the court's subject matter jurisdiction" [internal quotation marks omitted]). In addition, this court may raise an issue of subject matter jurisdiction sua sponte. Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). Accordingly, count one of the plaintiff's revised complaint, to the extent it alleges a cause of action against Calvin, is dismissed for lack of subject matter jurisdiction.
General Statutes § 13a-149 provides in relevant part: " Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation."
The plaintiff alleges the following additional facts in support of count two. The city, pursuant to § 13a-149, owes a duty to maintain, repair, and exercise reasonable care over public roadways, including " sidewalks, curbs, roads and grassy area[s] dividing roads and sidewalks" that are held open for public use. On July 2, 2012, the " grassy patch of land dividing the roadway and public sidewalk" in front of 52 Vernon Street was open for public use and was " within the control and authority" of the city. A dangerous and defective condition--an object protruding a few inches from the ground--existed on the strip of land. The plaintiff's injuries " were solely caused" by the city's breach of its statutory duties.
In the city's answer, filed on October 2, 2014, the city admits that it owes a duty to maintain " most public roads and sidewalks within its jurisdiction . . . in reasonably safe condition for travel, " but denies that this duty is imposed by § 13a-149.
The plaintiff filed a timely notice of intent to sue with the city's town clerk, indicating her cause of action and the basis for her claims. The notice is attached to the revised complaint as exhibit A.
On May 6, 2015, Counsel moved for summary judgment as to count one of the plaintiff's revised complaint, on the ground that she did not owe the plaintiff a duty of care because the city had exclusive possession and control over both the defective condition and the strip of land where the defect was located. In support of her motion, Counsel submits a memorandum of law, a sworn affidavit from Melvin Counsel, excerpts from the plaintiff's deposition transcript, and the city's responses to Counsel's requests for admissions. The plaintiff has not filed an objection to Counsel's motion for summary judgment. The city filed an objection to Counsel's motion on July 13, 2015, supported by a memorandum of law, sworn affidavits from Dominic Tammaro and Bruce Fischer, a copy of the notice of intent to sue filed by the plaintiff, and a photograph depicting the alleged defect that caused the plaintiff's injuries. This court heard argument at short calendar on October 13, 2015.
Counsel incorrectly directed her motion for summary judgment at count one of the plaintiff's original complaint, dated April 4, 2014, rather than at count one of the plaintiff's revised complaint. The court will address Counsel's motion as it applies to count one of the revised complaint.
Because the basis for Counsel's motion for summary judgment is that legal responsibility for the plaintiff's injuries rested not with her but with the city, the city has standing to oppose the motion. " [T]he status of a party as a co-defendant [does not] preclude it from resisting a motion for summary judgment filed by a co-defendant . . . To have standing to challenge [a co-defendant's] motion for summary judgment, the [opposing co-defendant] must have a direct interest in the motion and the motion must have the potential to adversely affect their interest in the present action . . . Where a defendant in his motion claims fault does not lie with him or her but with a co-defendant, the latter party certainly has a direct interest in the motion." (Internal quotation marks omitted.) Dawson v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-08-5016831-S, (October 26, 2009, Wilson, J.).
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" 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 . . . 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 . . . It is not enough . . . 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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
Counsel argues that she is entitled to judgment as a matter of law as to count one of the revised complaint because she did not owe the plaintiff a duty of care. Specifically, Counsel contends that she did not possess or control the strip of land where the alleged defect was located because the strip is within the city's right-of-way line. Counsel further argues that she did not exercise control over the alleged defect or contribute to its presence on her property, because the defect is the remnant of a municipal street sign that was left in the ground by the city after the city removed a street sign from her property. Accordingly, Counsel submits that responsibility for the maintenance of the strip of land, and for the safe removal of the metal sign stump, lay exclusively on the city.
In opposition, the city contends that Counsel's argument regarding her duty of care is legally flawed and that unresolved factual disputes regarding possession and control render summary judgment inappropriate. The city agrees that it owns a public easement over the strip of land at issue, and that it owes a duty to maintain the strip in reasonably safe condition for travelers, but argues that these admissions do not as a matter of law absolve Counsel of all legal responsibility because the law permits both the city and Counsel to owe a duty of care as to the same area of land. According to the city, the law presumes that Counsel, as the owner of the property abutting the strip, retains the right to possess and control the strip in any manner that does not render the surrounding roadways unsafe for public travel. The city contends that Counsel has not submitted any evidence to rebut this presumption, and, therefore, that a factual issue remains regarding whether Counsel owes a duty to maintain the strip of land in a reasonably safe condition. In the alternative, the city argues that the affidavits submitted in support of its objection create a factual dispute regarding whether Counsel exercised possession and control over the defective condition either by removing the street sign and leaving the metal stump, or by painting the stump white.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). " [T]he existence of a duty of care is a prerequisite to a finding of negligence . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 538-39, 51 A.3d 367 (2012).
" Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property . . . Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013); see also Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780 (1934) (" [l]iability for an injury due to defective premises ordinarily depends upon the power to prevent the injury by making repairs, and therefore rests primarily upon him who has control and possession" [internal quotation marks omitted]). To determine whether a party has control over a particular area, our juries are permitted to consider, inter alia, " acts of maintenance, such as fixing, repairing, cleaning, painting, performing upkeep--or the power to direct those activities . . ." Schlierf v. Abercrombie & Kent, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-05-5003467-S, (July 2, 2012, Dooley, J.) (54 Conn. L. Rptr. 291, 292).
Furthermore, " more than one person or entity can be in control of a premises at the same time. Where control is joint, responsibility for injuries suffered by a person upon the premises may be shared by more than one person or entity." Id.
Where a landowner's property runs adjacent to the municipality's right-of-way line--that is, public easement--our Supreme Court has observed that the " abutting owner is presumed under the law of this state, no evidence having been offered to the contrary, to own the fee of the land to the center of the highway. Therefore, as to the land within the limits of the highway, an abutting owner has all rights not incompatible with [the municipality's] public easement . . . A highway is nothing but an easement, comprehending merely the right of all the individuals in the community to pass and repass, with the incidental right in the public to do all of the acts necessary to keep it in repair . . . The adjoining proprietors have a right to every use [of the land that is] . . . consistent with the easement ." (Citations omitted; emphasis added; internal quotation marks omitted.) Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355-56, 114 A.2d 216 (1955).
With respect to the grassy strips of land that separate the road and sidewalk, " [m]any of our residential streets are so laid out that there are grass plots between the sidewalk and the curb . . . which not infrequently contain trees, flowers or ornamental shrubs which serve the purpose of making the street more attractive to those who live upon it or pass through it. These areas so devoted to ornamentation [rather than travel] are still a part of the highway, and the municipality is bound to use reasonable care to keep them in reasonably safe condition for travelers." Corcoran v. New Haven, 108 Conn. 63, 66, 142 A. 569 (1928); see also Ferreira v. Pringle, 255 Conn. 330, 351, 766 A.2d 400 (2001) (noting that remnant of street sign protruding from grassy embankment between curb sidewalk was within municipality's right-of-way line). Nevertheless, because these strips of land are not areas of the highway intended for public travel, abutting landowners retain the right to use, possess, and maintain the land, provided that their use does not interfere with the municipality's obligation to maintain the surrounding roadways in safe condition for travel. See Allen v. Mussen, 129 Conn. 151, 156, 26 A.2d 776 (1942) (" [s]ince it is not intended that there shall be travel upon [the grass plots between the curb and sidewalk], objects may be maintained upon them [by the abutting landowner] which would be obstructions if they were upon the traveled portion of the street, and since the public are not expected to pass over such areas, they may be protected and guarded against use by travelers by suitable guards" [internal quotation marks omitted]); Corcoran v. New Haven, supra, 68 (" a property owner ha[s] the right to cultivate any portion of the highway in front of his property not wrought for public travel, either to beautify the locality or for any other legitimate purpose, subject to the right of the public to use all of the highway as occasion might require").
In Allen v. Mussen, supra, 129 Conn. 151, the plaintiff tripped and fell on wire netting the defendants had constructed over the strip of land between the curb and sidewalk in front of their property. Id., 152. The trial court held that the defendants were not liable for the plaintiff's injuries because, inter alia, the wire netting was located on an area not primarily designed for public travel, and the wire netting did not create a dangerous obstacle for travelers. Id., 153. Among the arguments raised by the plaintiff on appeal was that the municipality exercised exclusive authority to maintain the grass plot and that, by constructing the wire netting within the limits of the highway, the defendants committed trespass. Id., 156-57. The court rejected this argument. Relying on the principle that the defendants, as abutting landowners, are presumed to have " retained all rights not incompatible with the [municipality's] public easement"; id., 155; as well as " the fact that the grass plot was one that had existed for a number of years which an ordinance required the defendants to keep mowed"; id., 156; the court concluded that " the [trial] court very properly made the . . . finding that the city permitted the abutting owners to maintain this strip." Id., 156-57. The court went on to observe that " [i]n maintaining this grass strip the defendants were doing just what the city itself might properly have done under its easement, and . . . were doing it with the city's permission . . . The duty of an abutting owner in such a case as this and of a municipality are alike to use reasonable care to keep the premises reasonably safe." Id., 157.
Our Supreme Court has never overruled Allen . See Wilson v. New Haven, 213 Conn. 277, 281 n.1, 567 A.2d 829 (1989) (distinguishing Allen and holding that abutting landowner did not owe duty of care regarding raised and broken piece of sidewalk where no local ordinance required landowner to maintain area, plaintiff fell in area designed for public travel rather than grassy patch of land between road and sidewalk, and where abutting landowner did not create structure that caused hazardous condition).
A similar result occurred in Thompson v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV-00-0376593, (July 2, 2004, Wolven, J.) (37 Conn. L. Rptr. 364). In Thompson, the plaintiff, while walking on the strip of land between the curb and sidewalk, stepped into a hole covered by grass and sustained injuries. Id. The plaintiff sued the municipality and abutting landowner, but because the landowner's presence could not be secured for trial, trial proceeded only against the municipality. Id. The court began by acknowledging that the strip of land " constitutes a public right of way, for which the [city] would have some maintenance obligations . . . Accordingly, this matter is controlled by . . . § 13a-149." (Citation omitted; internal quotation marks omitted.) Id. In order to recover against a municipality under § 13a-149, the plaintiff must establish that " the party whom the plaintiff is suing [is] the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.) Id., quoting Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998). The court held that the plaintiff failed to show that the city was the party responsible for the defect: " The testimony did not demonstrate that the [c]ity had a duty to inspect each grassy area which adjoins a public street or sidewalk for potential hazards to travel, or that the [c]ity was responsible for mowing these areas." Thompson v. Bridgeport, supra, 37 Conn. L. Rptr. 365. Instead, the court observed, " the property owner has the responsibility for the lawn care of this strip of grass." (Emphasis added.) Id. The court went on to reject the categorical proposition that the city " had the duty to maintain and keep in repair all the grassy strips which abut the city streets and sidewalks, even when privately owned. The evidence demonstrates that the city did not generally have a duty to maintain these pieces of land." Id.
In the present case, Counsel makes three submissions in support of her contention that she did not have possession and control over either the area of land where the plaintiff was injured, or the alleged defect that caused the plaintiff's injuries. First, Counsel submits the sworn affidavit of Melvin Counsel (Melvin). Melvin states, inter alia, that he resides on the first floor of the property located at 52 Vernon Street; that Counsel, his mother, owns the property; that the city installed a road sign on the grassy strip of land between the street and sidewalk in front of 52 Vernon Street; and that, prior to the plaintiff's injuries, the city removed the sign and left a metal stump protruding from the ground. Second, Counsel submits excerpts from the plaintiff's deposition transcript, in which the plaintiff testified that she did not notice the metal stump because it " was all covered with grass, " and that she " know[s]" the stump is a remnant of a street sign because she frequently observes street signs on the sidewalks and because, on a prior occasion, she witnessed her mother trip on a similar metal stump while walking. Finally, Counsel submits the city's responses to Counsel's requests for admissions. The city admits that it owns a right-of-way that encompasses the strip of the land where the plaintiff's injuries occurred; that, with respect to " the street and sidewalk area in front of 52 Vernon Street, " it is " responsible to exercise reasonable care" to maintain the areas in reasonably safe condition for travelers, " subject to the limitations set forth in Corcoran v. New Haven, supra, 108 Conn. 63; and that, to the extent it placed street signs on the strip of land at issue, it is responsible for the maintenance and removal of the street signs.
Counsel improperly submitted uncertified copies of the plaintiff's deposition transcript. Because the city has not raised an objection, the court in its discretion, will consider the plaintiff's deposition testimony for purposes of this motion. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
Although this evidence bears on Counsel's possession and control over the defect itself, and on whether she--or the city--caused the defect to be present on her property, the overwhelming amount of evidence submitted is completely silent on the critical issue of whether she had possession and control over the grassy strip of land from which the defect protruded. To this latter point, Counsel relies solely on the city's admissions that the strip of land is within its right-of-way and that it owes a duty to maintain the strip in a reasonably safe condition for travelers. As demonstrated in the above cited cases, however, a municipality does not, as a matter of law, have exclusive rights over these strips of land. Rather, the abutting landowner is presumed, absent contrary evidence, to retain the right to utilize the strip in any manner that does not interfere with the municipality's obligation to keep the surrounding roadways safe for public travel. See Allen v. Mussen, supra, 129 Conn. 155-57; Corcoran v. New Haven, supra, 108 Conn. 68. Counsel has failed to submit evidence sufficient to rebut the presumption that she retained such rights in this case.
The fact that the allegedly dangerous condition protruded from an untraveled area of the highway distinguishes the present case from our Appellate Court's decision in Abramczyk v. Abbey, 64 Conn.App. 442, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). The plaintiff in Abramczyk was injured when he tripped over a raised water pipe that was located " immediately adjacent to a walkway on the defendant's property over which the city ha[d] a right-of-way." Id., 446. The court held that the cases holding that an abutting landowner does not owe a duty of reasonable care with respect to defective public sidewalks " are sufficiently analogous to this case, which deals with a public right-of-way located on the defendant's property . . ." Id. Unlike in Abramczyk, the plaintiff here was not injured on a defect located on a public sidewalk or in an area immediately adjacent" to a sidewalk. Rather, the alleged defect was located in the grassy strip of land between the curb and sidewalk, which is not an area of the highway intended for public travel. Moreover, the plaintiff was traversing the untraveled area when she sustained her injuries. Our Supreme Court has acknowledged this distinction between the traveled and untraveled areas of the highway for purposes of determining the rights and duties of the municipality and abutting landowner. See Wilson v. New Haven, 213 Conn. 277, 281 n.1, 567 A.2d 829 (1989); Allen v. Mussen, supra, 129 Conn. 156. Accordingly, Abramczyk, as well as the cases that hold that private landowners are not liable for defective public sidewalks, are inapposite.
Moreover, a local ordinance requires landowners to maintain the grassy strips of land between the road and sidewalk in safe condition. Section 9-51(b) of the New Haven Code of Ordinances, entitled " Anti-Blight and Property Maintenance Ordinance, " prohibits " any owner of real property within the city" from allowing their premises to be " maintained in a manner that constitutes . . . a property maintenance violation as defined in this section." Section 9-51(d), which sets forth the standards for property maintenance, provides in relevant part: " The planting strip fronting the premises shall be maintained in a safe condition, neat, mowed as necessary, and free of litter, poison ivy, ragweed, and other noxious plant." New Haven Code of Ordinances, art. II, § 9-51(d)(1)(v). In enacting these requirements, the city effectively gave New Haven landowners permission to possess and control the areas of land that separate the curb and sidewalk, at least to the extent necessary to discharge their obligations under the ordinance. See Allen v. Mussen, supra, 129 Conn. 156-57 (holding that " the city permitt[ed] the abutting owners to maintain th[e] strip [of land between the curb and sidewalk], " where strip " was one that . . . an ordinance required the defendants to keep mowed"). Thus, Counsel's argument that the city has exclusive control over the strip of land between the curb and sidewalk lacks merit.
The term " planting strip" is not defined in the code. In context, however, the term appears to refer to the grassy strip of land between the road and sidewalk. Counsel does not argue to the contrary.
In sum, Counsel has failed to submit evidence sufficient to establish that she lacked " the power or authority to manage, superintend, direct or oversee" the area of land where the alleged defect was located. (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. 50. Accordingly, counsel has failed to establish that there are no issues of material fact regarding whether she owed the plaintiff a duty of care.
The nature of the duty owed by Counsel, and whether her conduct amounts to a breach of that duty, are not issues before the court. It is worth noting, however, that the plaintiff alleges in count one of her revised complaint that she was an invitee on Counsel's property, a characterization that neither Counsel nor the city appears to dispute for purposes of the present motion. If the plaintiff was in fact an invitee, Counsel owed a duty to " reasonably inspect and maintain the premises in order to render them reasonably safe, " and to " warn [the plaintiff] of dangers that the [plaintiff] could not reasonably expect to discover." (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. 48.
Although not critical to the disposition of this motion, summary judgment would be inappropriate even if the defect was located on the traveled part of the roadway because there are issues of fact regarding whether Counsel created the defect through her own " positive acts." " An abutting landowner is ordinarily under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel . . . 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." Abramczyk v. Abbey, 64 Conn.App. 442, 446, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). In order to determine whether conduct qualifies as a positive act, Superior Court decisions generally ask: " If the defendant did not exist, would the harmful outcome in question still have occurred in the way it did?" (Internal quotation marks omitted.) Krepcio v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-11-6020332-S, (August 8, 2012, Blue, J.) (54 Conn. L. Rptr. 441).
In the present case, it is clear that the removal of the street sign constitutes a positive act--if the party responsible for removing the street sign did not exist, the sign would not have been removed and the resulting tripping hazard would not have been created. Regarding which party removed the street sign, Counsel relies on Melvin's affidavit, in which Melvin avers that the city installed a street sign in front of 52 Vernon Street and subsequently removed it, leaving the metal stump behind. In response, the city submits, inter alia, a sworn affidavit from Bruce Fischer, the city's traffic operations engineer. Fischer states that, " to the best of [his] knowledge, " the city did not remove a road sign from the grassy strip of land in front of 52 Vernon Street at any time before July 2, 2012; that " [i]t is not the practice" of his division to remove a street sign and leave the anchoring portion of the sign protruding from the ground; that if a sign does go missing, " it is usually due" to acts of vandalism, weather, or acts of other unknown parties; and that, during his tenure as traffic operations engineer, " there have been some instances" where homeowners contacted him to indicate they had removed a street sign from their property. Viewing this evidence in the light most favorable to the city, Fischer's affidavit creates a genuine factual dispute regarding whether Counsel removed the street sign from the strip of land in front of her property and thereby created the condition that caused the plaintiff's injuries. Accordingly, Counsel's motion for summary judgment is denied.
The plaintiff testified in her deposition that she did not notice the metal stump because it was covered in grass. Because the failure to mow constitutes inaction, rather than a positive act, it does not trigger a duty of care.
CONCLUSION
For the foregoing reasons, Counsel's motion for summary judgment is denied.