Opinion
No. CV05-5000916
July 13, 2006
MEMORANDUM OF DECISION
Before this Court is the Defendant's Motion for Summary Judgment, brought by co-Defendant B.A Investments, LLC [hereinafter, B.A Investments]. The Plaintiff, Nakisha McClendon, fled on May 5, 2006 her Objection to the Motion. After reviewing briefs and supplemental Memoranda of law filed by counsel, as well as hearing oral argument, this Court grants the Defendant's Motion for Summary Judgment.
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and if so, whether the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. See also Mozeleski v. Thomas, 76 Conn.App. 287 (2003).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Mozeleski v. Thomas, supra, 289-90 (citing H.O.R.S.E. of Connecticut v. Washington, 258 Conn. 553, 568-59 (2001)).
In this case, the Plaintiff claims that she tripped and fell on a defective sidewalk in front of 71 Warrenton Avenue, Hartford, CT. She has alleged, inter alia, that the sidewalk is a public sidewalk which the City of Hartford, named as a co-Defendant, owned, maintained, controlled and possessed and therefore had a duty to maintain in a reasonably safe condition. In her complaint, the Plaintiff has made similar allegations against the co-Defendant, B.A. Investments, who owns the property abutting the sidewalk.
The Co-Defendant, City of Hartford, has filed nothing with the Court regarding its position on the Motion for Summary Judgment.
The Defendant, B.A. Investments, has filed its motion for summary judgment claiming that the Plaintiff has failed to establish that B.A. Investments owes a duty to her to keep the sidewalk upon which she was injured reasonably safe. Indeed, "[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85 (1994). "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." Id. 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. Pion v. Southern New England Telephone, 44 Conn.App. 657, 660 (1997). As such, and like the court in RK Constructors, this court's "analysis in this case begins and ends with the first element, duty." RK Constructors, supra, 384-85.
In their briefs and in oral argument to the court, both parties do not dispute that B.A. Investments is an abutting landowner with no duty to keep the public sidewalk in front of its property in a reasonably safe condition. Wilson v. New Haven, 213 Conn. 277, 280 (An abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel.). Moreover, the Municipal Code of the City of Hartford neither imposes such a duty on abutting property owners nor attempts to shift liability to them for a defective sidewalk. Id. See Municipal Code of City of Hartford, c. 13, Division I. Article II, Sidewalk, Curb, Gutter Construction and Repair. Indeed, both parties acknowledge that B.A. Investments would not be liable for any injuries that result from a defective sidewalk, unless by some positive act, it created the unsafe condition which resulted in an injury. Wilson v. New Haven, supra, 213 Conn. 277. See also Giambardella v. Kaoud, 38 Conn.App. 355 (1995). See also Plaintiff's Memorandum of Law In Opposition to Defendant's B.A. Investments, LLC Motion for Summary Judgment, pp. 6-7.
As such, the Defendant has submitted an affidavit by Thomas Shelto, a Manager of B.A. Investments, asserting that the Defendants did not construct, install, or build the sidewalk in question, nor did they alter, repair or take any positive acts affecting the condition of the sidewalk. He further denied that the Defendants performed any act which caused the concrete slabs in the sidewalk to be of differing heights.
Citing Giambardella, the Plaintiff argues that this court may not rely on the affidavit of Mr. Shelto, claiming that it is self-serving and "offers only hollow, empty statements" and akin to a "mere recitation of the general denials or lack of knowledge plead by the Defendant in its Answer" to the complaint. Plaintiff's Memorandum of Law, supra, p. 8. In Giambardella however, the Court reversed the trial court's granting of summary judgment where the plaintiff had in fact alleged specific evidence which supported their claim that the defendant took positive acts affecting the condition of the sidewalk. As such, in that case, the defendants' general denials were an insufficient basis for the granting of summary judgment, given that there were material issues of fact in dispute. Giambardella v. Kaoud, supra, 38 Conn.App. 359-60.
In this case, the defective condition alleged in the complaint is described as being concrete slabs which were of uneven heights. The Defendant's affidavit, far from consisting of general denials or hollow, empty statements, describes in detail the above information which Mr. Shelto, as a manager of the property, can credibly assert regarding the Defendant's activity relative to the sidewalks.
Moreover, the Plaintiff here has failed to allege or proffer any specific evidence that the Defendants made any positive acts affecting the condition of the sidewalk, in particular, acts which would result in the uneven height of the concrete slabs. The Plaintiff has not produced any affidavits or evidence that would be admissible at trial to contradict the Defendant's contentions. City of New Haven v. Pantani, 89 Conn.App. 675, 680 (2005). Instead, the Plaintiff asks this court to consider the response of co-Defendant, Hartford, to Interrogatory Number 3 Question: "Identify the person(s) responsible for the maintenance and inspection of the premises at the time and place where the [P]laintiff claims to have been injured." Answer: "The abutting property owner of the building located at 71 Warrenton Avenue, which would be B.A. Investments, L.L.C."
Co-Defendant Hartford's response, however, fails to raise a material issue of fact and simply asserts a conclusion of law. Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue. Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn.App. 162, 168 (1992).
It is not enough that one opposing a motion for a summary judgment claims that there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit . . . Further, "[i]t is not enough . . . merely to assert the existence of such a disputed issue . . . [instead] the genuine issue aspect requires the party to bring forward before trial evidentiary facts, or substantial evidence outside of the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.
Id. at 168-69 (internal quotation marks and citations omitted).
Given the absence of any material fact which would establish a duty on the part of B.A. Investments to maintain the public sidewalks fronting its property, the Plaintiff cannot, as matter of law, prove its negligence claim against the Defendant.
The Motion for Summary Judgment filed by Defendant B.A. Investments is hereby GRANTED.