Opinion
FSTCV156024633S
08-29-2016
Deborah Kovach v. The Norwalk Hospital Association et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT CITY OF NORWALK
Donna Nelson Heller, J.
The plaintiff Deborah Kovach commenced this premises liability action, returnable March 3, 2015, against the defendants The Norwalk Hospital Association (the Association), Norwalk Hospital (the Hospital), the City of Norwalk (the City), and The Connecticut Light and Power Company (CL& P) to recover monetary damages for injuries she sustained on the night of January 26, 2013 when she fell while walking her dog. In her amended six-count complaint (#117.00), filed on July 21, 2015, the plaintiff asserts claims for negligence against the Association (first count); negligence against the Hospital (second count); negligence against the City (third count); negligence against CL& P (fourth count); nuisance against the City (fifth count); and statutory negligence against the City (sixth count). The City filed an answer with four special defenses to the amended complaint on December 24, 2015 (#144.00). The Association and the Hospital (collectively, the Hospital defendants) filed an answer with special defense to the complaint on January 13, 2016 (#146.00). CL& P filed an answer with special defense on January 19, 2016 (#150.00).
On December 23, 2015, the City filed a motion for summary judgment with a supporting memorandum of law and related exhibits (#140.00; #141.00; #142.00; #143.00). The City filed a supplemental memorandum in support of its motion for summary judgment on January 25, 2016 (#153.00). The plaintiff filed a memorandum of law in opposition to the City's motion for summary judgment on February 16, 2016 (#162.00). The City filed a reply memorandum in further support of its motion for summary judgment on March 10, 2016 (#167.00). The Hospital defendants and CL& P also moved for summary judgment (#151.00; #154.00).
The court entered orders on July 11, 2016 denying the Hospital defendants' motion for summary judgment (#151.01) and CL& P's motion for summary judgment (#154.01).
The defendants' motions for summary judgment were before the court on the March 14, 2016 short calendar. The court heard argument from counsel for the parties and reserved decision at that time. By order entered on July 11, 2016, the court granted the City's motion for summary judgment and stated that this articulation would follow (#140.01).
Discovery objections (#163.00) and a motion for protective order (#156.00; #159.00) were also on the short calendar and have been addressed separately.
I
The following material facts are not in dispute: The plaintiff resided on Rhodonolia Park, a residential street in Norwalk, Connecticut, at the time of the incident that gave rise to this litigation. On the night of January 26, 2013, the plaintiff took her dog out for a walk on Rhodonolia Park so that it could relieve itself. During their walk, the plaintiff and her dog entered onto a grassy area owned by the Hospital, located between the paved roadway of Rhodonolia Park and a chain link fence that borders the Hospital's parking lot. The plaintiff claims that the area was dark, and a nearby streetlight, owned by CL& P, was not functioning. The plaintiff's dog wrapped its leash around a tree as it explored the grassy area. When the plaintiff attempted to untangle the dog's leash, her foot hit something--believed by the plaintiff to be a tree root. The plaintiff fell and sustained injuries in the fall.
In the third count of the amended complaint, sounding in negligence, the plaintiff alleges that the City owned, operated, maintained, and controlled the utility poles that lit an area of property at Rhodonolia Park that was designated for and open to pedestrians to walk with and without their dogs. The plaintiff further alleges that the dangerous condition of the area, including nonfunctioning streetlights and protruding tree roots that constituted trip hazards, had been present for some time, and the City knew, or should have known upon reasonable inspection and/or supervision, that it should have been remedied. She claims that the City, by and through its agents, authorized agents, servants and/or employees, was negligent in that it failed to maintain the walkway in the area of the plaintiff's fall in a reasonably safe condition; failed to repair the nonfunctioning streetlights, thus making the area dangerous and in a defective condition; failed to block off the trip hazards, including the tree roots; failed to properly warn of the danger presented by the nonfunctioning streetlights and the tree root trip hazards when it knew, or the exercise of reasonable care should have known, of its existence; improperly kept the area open for use despite the nonfunctioning streetlights and tree roots; failed to properly and promptly repair the streetlights when it knew, or in the exercise of reasonable care should have known about the danger that was created; and failed to otherwise exercise due care with respect to the matters alleged.
The ownership of the utility poles is not in dispute. CL& P admitted in its answer to the amended complaint that it owned two utility poles located in and around Rhodonolia Park (#150.00).
In the fifth count of the amended complaint, sounding in nuisance, the plaintiff repeats the allegation that the City owned, operated, maintained, and controlled the utility poles that lit the area of property at Rhodonolia Park where she fell, and she further alleges that, on or before January 26, 2013, the City, through its agents, apparent agents, servants and/or employees, by its affirmative acts, installed and maintained trees, tree roots, and nonworking lighting in the area designated for dog walking, thus creating a nuisance. She claims that the City's affirmative actions created an unlit area with protruding tree roots in the area designated for dog walking. She also alleges that the City permitted and/or maintained the nuisance as it existed on January 26, 2013, and that the City failed to remedy the nuisance it had created and failed to warn users in the area designated for dog walking of the nuisance.
In the sixth count of the amended complaint--a claim for statutory negligence against the City pursuant to the municipal liability statute, General Statutes § 52-557n--the plaintiff again alleges that the City owned, operated, maintained, and controlled the utility poles that lit the area of property at Rhodonolia Park where she fell, and she further alleges that, at all relevant times, the City had a ministerial duty to maintain the safety of the property for its guests, licensees, and/or invitees, including but not limited to the plaintiff. She claims, upon information and belief, that the dangerous condition of the area, including nonfunctioning streetlights and protruding tree roots that were trip hazards, had been present for some time, and, as such, the City knew, or should have known upon reasonable inspection and/or supervision, that it should have been remedied.
The plaintiff alleges that the City, by and through its agents, authorized agents, servants and/or employees, was negligent for failing to maintain the area where she fell; failing to repair the nonfunctioning streetlights; failing to block off the trip hazards, including the tree roots; and failing to warn of the danger presented by the nonfunctioning streetlights and tree roots. She also claims that the City violated several municipal ordinances in failing to properly maintain the trees and tree roots in the area, failing to maintain and repair the streetlights, and failing to remedy the tree root trip hazard and the nonfunctioning streetlights. The plaintiff testified at her deposition that she wrote to the City's department of public works on December 3, 2012 and asked the City to have the streetlights on Rhodonolia Park repaired.
The plaintiff alleges that the City failed to properly maintain the trees and tree roots and/or remedy the tree defect in violation of City of Norwalk Ordinance (Ordinance) § § 112, 112-1, 112-2, and 112-4(c); failed to properly maintain the trees and tree roots and/or remedy the tree defect in violation of the policies and procedures of the tree warden, the public work committee, the common council, the parks and recreation department, and the tree advisory committee; failed to properly maintain the streetlights and/or remedy the lighting defect in violation of Ordinance Article XV: Streets, Sidewalks and Building Lines § 1-428; failed to properly maintain the streetlights and/or remedy the lighting defect in violation of Ordinance § § 86 and 86-1; failed to properly maintain the lighting and/or remedy the defect in violation of the policies and procedures of the public work committee, the common council, and the parks and recreation department; failed to remedy the absence of working streetlights and the tree root trip hazards in an area in which the City regulates the removal of dog feces through Ordinance, chapter 15: animals and fowl, article IA: dog feces; failed to remedy the absence of working streetlights and the tree root trip hazards in an area in which the City regulates the removal of obstructions and nuisances through Ordinance, chapter 95: streets and sidewalks, article I, § 95-3; and failed to remedy the absence of working streetlights and the tree root trip hazards which posed a serious or immediate danger to the health or safety of the community in violation of Ordinance, § § 58A-l and 58A-2.
The plaintiff claims that the City has policies, procedures, statutes, ordinances, and regulations that govern the creation, maintenance, and remediation of the hazardous trees and tree roots and the inadequate lighting in the area designated for dog walking. The plaintiff contends that she was an identifiable victim at risk of imminent harm, in that she was a member of a protected class, in a limited geographical area, for a limited duration, at risk of falling due to trees and/or tree roots and inadequate lighting.
The City denies that it was negligent, as alleged in the third count of the amended complaint, or that it created a nuisance, as alleged in the fifth count. It further denies that it was negligent within the meaning of General Statutes § 52-557n or that the plaintiff was an identifiable victim at risk of imminent harm, as alleged in the sixth count. The City asserts four special defenses: governmental immunity pursuant to common law and General Statutes § 52-557n(a)(2)(B) (first special defense); that the plaintiff's exclusive remedy is pursuant to the defective highway statute, General Statutes § 13a-149, which requires notice to be filed within ninety days of the incident as a condition precedent to maintaining an action (second special defense); governmental immunity pursuant to General Statutes § 52-557n(b) (third special defense); and contributory negligence (fourth special defense).
II
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." Practice Book § 17-49. " 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.) Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 5, 942 A.2d 334 (2008).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). " When a motion for summary judgment is supported by affidavits and other documents, an adverse party . . . must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Citation omitted.) Bartha v. Waterbury House Wrecking Co, Inc., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).
" 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]." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). " While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Roe #1 v. Boy Scouts of America Corp., 147 Conn.App. 622, 640, 84 A.3d 443 (2014).
III
The City has moved for summary judgment with respect to the negligence claims set forth in the third and sixth counts of the amended complaint on several grounds. It argues that the plaintiff's claims against it are moot because the Hospital has admitted that it owned and maintained the property on which the plaintiff fell. To the extent that any of the claims remain, however, the City contends that it is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B). Alternatively, it argues that it has immunity pursuant to subdivisions (1) and (4) of § 52-557n(b) because the plaintiff fell on unimproved land that existed in its natural state. The City also maintains that summary judgment should enter in its favor because the plaintiff's exclusive remedy is a claim under General Statutes § 13a-149. In addition, the City claims that the plaintiff cannot demonstrate proximate cause or establish that it had actual or constructive notice of the alleged defective or dangerous condition.
In response, the plaintiff argues that genuine issues of material fact exist as to whether the City has an interest in the property on which she fell; whether the City's acts were ministerial or discretionary; whether she fell on an exposed tree root on the property; and whether the property in question is unimproved. She contends that she has offered sufficient circumstantial evidence of proximate cause. The plaintiff also maintains that General Statutes § 13a-149 is inapplicable here.
A
" In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). " The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The common-law negligence claim asserted against the City is a claim for defective premises liability. " 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." LaFlamme v. Dallessio, supra, 261 Conn. at 251. " The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises . . . 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 . . . Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court." (Citations omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. at 294.
It is undisputed that the Hospital owns the property on which the plaintiff fell on the night of January 26, 2013. The plaintiff has offered no evidence to demonstrate that the City had possession or control of the property or that a genuine issue of material fact remains as to the possession or control of the property, notwithstanding the Hospital's admission that it is the owner. As the City neither owned nor possessed the property in question, it had no duty to maintain the property in a reasonably safe condition. Therefore, the City is entitled to summary judgment in its favor on the third count of the amended complaint for defective premises liability.
B
To the extent that the plaintiff's claim against the City for statutory negligence under General Statutes § 52-557n(a)(1), as set forth in the sixth count of the amended complaint, arise from the City's purported ownership of the property on which the plaintiff fell, that claim has also been rendered moot by the Hospital's admission that it is the owner of the property. Certain of the allegations in the sixth count, however, appear to be based upon other alleged negligent actions or failures to act on the part of the City. With respect to these claims, the City contends that it is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B).
General Statutes § 52-557n(a)(1) provides in pertinent 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: (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 . . ." General Statutes § 52-557n(a)(1). Under subdivision (2) of § 52-557n(a), " [e]xcept 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." General Statutes § 52-557n(a)(2).
When a negligence claim is asserted against a municipal defendant, such as the City in this case, the court must first determine whether the municipality's alleged acts or omissions were ministerial or discretionary in nature. " [W]hile a municipality is generally liable for the ministerial acts of its agents, § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the 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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117-18, 19 A.3d 640 (2011).
" [M]unicipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010). " In order to create a ministerial duty, there must be a city charter, provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner." (Citation omitted; internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 224, 131 A.3d 771 (2016). " In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity . . . A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." (Internal quotation marks omitted.) Id.
The plaintiff alleges that the City, by and through its authorized agents, servants, and/or employees, was negligent in that it failed to maintain the walkway in the area where the plaintiff fell in a reasonably safe condition; failed to repair the streetlights, thus making the area dangerous and in a defective condition; failed to block off trip hazards; failed to properly warn of the danger presented by the absence of working lights and trip hazards; and improperly continued to keep the area open for use despite the nonfunctioning lights and tree roots. The plaintiff further alleges that the City, by such negligent acts and omissions, violated several municipal ordinances, identified as Ordinance § § 112-1, 112-2, and 112-4(c); Article XV, § 1-428; Chapter 95, Article I, § 95-3; § 86-1; Chapter 15, Article IA; and § § 58A-1 and 58A-2. The plaintiff also claims that the City violated the policies of the tree warden, the public works committee, the common council, the parks and recreation department, and the tree advisory committee without specifically citing any particular policies or procedures.11
In response, the City contends that, to the extent any duties are imposed by the various municipal ordinances cited, nothing in the ordinances or in the General Statutes referenced therein prescribes the manner in which it is to carry out its duties or limits its use of judgment or discretion in performing those duties. Thus, according to the City, such duties are discretionary, not ministerial, and it is entitled to governmental immunity under General Statutes § 52-557n(a)(2)(B).
A number of the municipal ordinances cited by the plaintiff are inapplicable, such as the ordinances directed at blighted property and removing dog feces.
For example, the plaintiff claims that the City violated Ordinance § 112-2, which defines the duties and authority of the City's tree warden. This ordinance makes reference to General Statutes § 23-59, which addresses the powers and duties of wardens. Section 23-59 provides in pertinent part that " [w]henever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden's control, the tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough and the selectmen or borough warden shall order paid to the person performing such work such reasonable compensation therefor as may be determined and approved in writing by the tree warden . . ." (Emphasis added.) General Statutes § 23-59. The express language of the statute provides that the tree warden may exercise judgment in determining when the public safety requires pruning or removal of trees or shrubs. Nothing in the statute dictates the timing, frequency, or method of fulfillment of the tree warden's duties.
Under Ordinance § 86-1, also cited by the plaintiff, the City's common council has general supervisory authority over the public lighting of streets, highways, sidewalks, and public grounds and the power to authorize the removal or discontinuation of lighting within its supervision. The ordinance does not prescribe the manner in which the common council is to carry out this supervision or dictate how often it is to do so. There is nothing in the ordinance that limits the common council's discretion in exercising its general powers so as to create a ministerial duty. Section 86-1 makes reference to Ordinance, Article IV, § 1-189, which sets forth the general powers of the common council. Article IV, § 1-189 provides in pertinent part that " [t]he Council shall have power to make, alter, repeal and enforce ordinances, to pass and rescind resolutions, rules, votes and orders and to take such action as may be necessary or expedient . . . to regulate the erection and maintenance of lamp posts . . . electric light poles . . . [and] to provide for public lighting of streets and to protect the same from injury." (Emphasis added.) Ordinance, Article IV, § 1-189.
Ordinance, chapter 95, Article I, § 95-3, similarly provides that the director of public works is " authorized to take such action as he deems necessary " to fulfill his duty of removing obstructions and nuisances from streets and sidewalks. (Emphasis added.) Ordinance, chapter 95, Article I, § 95-3. Again, the express language of the ordinance makes clear that the director has discretion to take the action that he or she considers to be necessary to ensure that sidewalks and streets are free of nuisances and obstructions. Nothing in the ordinance qualifies or limits this discretion or dictates the timing, frequency, or method of fulfillment of the director's duties.
While " [t]he existence of a breach of a ministerial duty may be established by showing the defendant possessed prescribed procedures or policies to which it failed to adhere"; Haberern v. Castonguay, Superior Court, judicial district of Hartford, Docket No. CV-02-0820429-S (May 27, 2005, Wagner, J.T.R.) [39 Conn.L.Rptr. 441, ]; the plaintiff has not established that the City had any " prescribed procedures or policies" that it failed to observe. In addition, the plaintiff has offered no evidence to show that any of the City's discretionary duties under the municipal ordinances that she cited were somehow transformed into ministerial duties in this case. The plaintiff has not demonstrated that she or any other resident of the City previously called attention to the hazardous tree root on the property so as to make the City's duty to address it a ministerial one or to raise a genuine issue of material fact as to the nature of the City's duty. Similarly, although the plaintiff claims to have put the City on notice in December 2012 regarding the nonfunctioning streetlight, she has offered no evidence to demonstrate that the City had any particular duty with respect to the streetlights owned by CL& P or to raise a genuine issue of material fact concerning the City's obligations in this regard. Where the City has expressly stated that it is not responsible for the repair and replacement of the streetlights in the Rhodonolia Park area, and CL& P has admitted that it owns the streetlights in question, the plaintiff cannot simply rest on the allegations in the amended complaint to show that a genuine issue of material fact exists.
See Wisniewski v. Darien, 135 Conn.App. 364, 374-75, 42 A.3d 436 (2012) (" Although the town maintains no written policies directing the conduct of its tree warden, the town's assistant director of public works . . . testified at trial that the general direction provided to [the tree warden] upon receipt of a complaint 'is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?' Moreover, [the tree warden] himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty to perform an inspection.").
The City reports that it has no record of receiving the plaintiff's December 2012 letter.
Absent any language in the cited municipal ordinances mandating the manner in which the City is to perform its duties with respect to trees, tree roots, and/or streetlights, or limiting the City's discretion in the performance of such duties, and absent any other evidence on which the nature of the City's duties might be contested, there is no basis to conclude that the City's otherwise discretionary duties were ministerial and required the City to remediate a protruding tree root on the Hospital's property and CL& P's nonfunctioning streetlight.
C
Finding that the City's alleged acts or omissions were discretionary and not ministerial does not, however, conclude the court's analysis with respect to whether the City is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B). The plaintiff contends that her claim falls within the exception to General Statutes § 52-557n(a)(2)(B) because she was an identifiable person who was at risk of imminent harm.
The identifiable victim/imminent harm exception to governmental immunity arises when it is " apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . [T]his exception [has been construed] to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [T]his test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. All three of these factors . . . must be met for a plaintiff to overcome qualified immunity." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. at 118.
" An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person . . . The exception is applicable only in the clearest cases . . . Although the identifiable person contemplated by the exception need not be a specific individual, the plaintiff must fall within a narrowly defined identified [class] of foreseeable victims." (Citations omitted; internal quotation marks omitted.) Thivierge v. Witham, 150 Conn.App. 769, 779, 93 A.3d 608 (2014). Indeed, " [t]he only identifiable class of foreseeable victims that [the Connecticut Supreme Court] ha[s] recognized for . . . purposes [of the foreseeable victim/imminent harm exception] is that of school children attending public schools during school hours. In determining that such schoolchildren were within such a class, [the Supreme Court] focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). The courts have refused to expand " this class to parents or children engaged in school-sponsored activities outside of mandatory school hours . . ." Jahn v. Board of Education, 152 Conn.App. 652, 668, 99 A.3d 1230 (2014).
" The rule has been narrowly applied outside of the public school context . . . and [the] few cases in which a specific plaintiff has been held to be an identifiable victim are largely limited to their facts." (Citations omitted; internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 862, 137 A.3d 765 (2016). See Grady v. Somers, 294 Conn. 324, 328, 356, 984 A.2d 684 (2009) (town resident who was injured at transfer station not within class of foreseeable victims because he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so); Jahn v. Board of Education, supra, 152 Conn.App. at 666-68 (injured student not within class of foreseeable victims when injury occurred at swim meet, after normal school hours, which was an extracurricular, non-mandatory activity that required a participation fee); Thivierge v. Witham, supra, 150 Conn.App. at 780 (cannot construe exception so broadly as to apply to visitor to dog owner's property who was bitten by dog after municipal officer's alleged failure to enforce restraint order, as any number of potential victims could have come into contact with dog after order issued).
Central to the court's inquiry regarding whether a particular person is an identifiable victim under the exception is whether that person was legally required to be on the premises where the injury occurred. " [U]nder our case law . . . we have interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue . . ." (Internal quotation marks omitted.) Texidor v. Thibedeau, supra, 163 Conn.App. at 862. See Durrant v. Board of Education, supra, 284 Conn. at 109 (" There is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled." (Emphasis omitted.)).
No genuine issue of material fact exists as to whether the plaintiff voluntarily walked her dog on the Hospital's property on the night of January 26, 2013. No evidence has been offered to suggest that she was in any respect required to be there. " A plaintiff's mere presence as an invitee on the property where he or she sustains an injury is not sufficient to make him or her a member of an identifiable class of foreseeable victims for purposes of the exception to governmental immunity." Texidor v. Thibedeau, supra, 163 Conn.App. at 863. Accordingly, the plaintiff was not within a class of identifiable victims for purposes of the identifiable victim/imminent harm exception to governmental immunity under General Statutes § 52-557n(a)(2)(B).
With respect to the second prong of the exception--whether the harm was imminent--our Appellate Court recently explained that " [t]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm . . . This test focuses on the 'magnitude of the risk, ' not on the temporal or geographical scope of that risk . . . In short, the question is whether a situation is so dangerous that it merits an immediate response." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 165 Conn.App. 44, 70-71, 138 A.3d 1012, cert. granted, 322 Conn. 907, 143 A.3d 603 (2016) (citing and quoting Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014)). Applying this standard, the court finds that the plaintiff has failed to make a threshold showing of imminent harm.
Accordingly, the identifiable victim/imminent harm exception to governmental immunity is not applicable here. The plaintiff's claim for statutory negligence against the City is barred by the doctrine of governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B).
D
In view of the undisputed fact that the Hospital owns the property on which the plaintiff fell, together with the court's determination that the City is entitled to governmental immunity with respect to the plaintiff's negligence claims, the court does not need to reach the additional grounds upon which the City seeks summary judgment as to the third and sixth counts of the amended complaint.
IV
The City has also moved for summary judgment as to the fifth count of the amended complaint, styled as a claim for nuisance. It contends that the plaintiff has failed to demonstrate any affirmative or positive acts by the City that would support a cause of action for nuisance. In response, the plaintiff argues that a genuine issue of material fact exists as to whether the City created and maintained a nuisance.
" [G]enerally, the device used to challenge the sufficiency of the pleadings is a motion to strike; see Practice Book § 10-39; our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading [if a party has waived its right to file a motion to strike by filing a responsive pleading.]" (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535 n.10, 51 A.3d 367 (2012). " In the absence of a waiver by the plaintiff, the person pursuing summary judgment also must demonstrate that the plaintiff is unable to remedy this defect through repleading." (Citation omitted.) Carrasquillo v. Carlson, 90 Conn.App. 705, 714, 880 A.2d 904 (2005). A nonmoving party waives its objection to the use of a motion for summary judgment to attack the legal insufficiency of its allegations when it fails to object to this use in the trial court. See id. at 714 n.8; see also Larobina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522 (2005). The plaintiff has neither challenged the City's use of a motion for summary judgment to assert that her nuisance claim is legally insufficient nor argued that she can cure the insufficiency through repleading. Therefore, she has waived her right to object to the City's use of summary judgment against her nuisance cause of action, and she has failed to preserve her right to replead and cure defects in her amended complaint.
" [A] plaintiff must prove four elements to succeed in a 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 plaintiffs' injuries and damages." (Citation omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). " In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." Id.
The plaintiff's claim as set forth in the fifth count of the amended complaint is for common-law public nuisance. " A public nuisance involves conduct detrimental to public health and safety, whereas a private nuisance involves conduct that interferes with an individual's right to the use and enjoyment of land." (Citation omitted.) Gregorio v. Naugatuck, 89 Conn.App. 147, 150 n.4, 871 A.2d 1087, 1089 (2005). " [B]ecause 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." (Citations omitted; internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).
Although the plaintiff does not set forth a claim for statutory public nuisance, cases decided under General Statutes § 52-557n(a)(1)(C) are also instructive. Our Supreme Court found in Picco that our legislature intended to codify the common law of public nuisance when it enacted General Statutes § 52-557n(a)(1)(C). That section of the municipal liability statute provides in pertinent 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: . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ." General Statutes § 52-557n(a)(1)(C). The legal principles applicable to common-law nuisance are also applicable to an action brought under the statute. Read v. Plymouth, Superior Court, judicial district of New Britain, Docket No. CV-0S-5000158-S (July 26, 2010, Trombley, J.) (50 Conn.L.Rptr. 423, ). The statute, like the common law, requires a positive act. Picco v. Voluntown, supra, 295 Conn. at 152.
As our Supreme Court explained, in construing a claim for statutory nuisance, " at a bare minimum, [General Statutes] § 52-557n(a)(1)(C) requires a causal link between the 'acts' and the alleged nuisance. A failure to abate a nuisance does not fall within the meaning of the term 'acts, ' as used in § 52-557n(a)(1)(C), because inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force. Accordingly, the plain meaning of § 52-557n(a)(1)(C) leads us to conclude that provision imposes liability in nuisance on a municipality only when the municipality positively acts (does something) to create (cause) the alleged nuisance." (Emphasis in original; footnote omitted.) Picco v. Voluntown, supra, 295 Conn. at 149-50.
The City contends that the plaintiff's nuisance cause of action is legally insufficient because she fails to allege conduct on the part of the City that would constitute a positive act to support a cause of action for nuisance. The allegation in the amended complaint that the City " by its affirmative acts, installed and grew trees and tree roots" lacks any causal link between the alleged act--installing and growing a tree and tree roots--; and the creation of a nuisance--; protruding tree roots that allegedly tripped the plaintiff. See id. at 152 (" Notably missing from the allegations is any claim that the defendants did something to cause the tree to decay, to rot or a portion thereof to fall down" (emphasis in original)).
The plaintiff's allegation that the City " by its affirmative acts, installed and maintained non-working lighting" also cannot survive, given that CL& P has admitted that it owns the streetlight that was not working on the night of January 26, 2013, when the plaintiff fell. The plaintiff has offered no counteraffidavits or other evidence to question CL& P's admission or to imply that the City was somehow at fault in CL& P's installation or maintenance of the nonfunctioning streetlight. " [A] 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." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).
The plaintiff's claim against the City for nuisance is insufficient as a matter of law. Accordingly, the City is entitled to summary judgment in its favor on the fifth count of the amended complaint.
V
For the reasons set forth above, the City of Norwalk's motion for summary judgment (#140.00) is granted.