Opinion
No. 03 0470219 S
August 17, 2004
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
This action arose from a fall down that occurred on November 10, 2000 while the plaintiff, Theresa Myers, was walking on a walkway located adjacent to a public highway known as Providence Street in New Haven, Connecticut. In the First Count the plaintiff has alleged that the City of New Haven is responsible for the walkway area where the plaintiff fell. The City of New Haven has denied responsibility.
In the Second, Third and Fourth Counts, of the Revised Complaint dated January 23, 2003, the plaintiff has brought an action against Anna Stanley, the abutting landowner, alleging that in the alternative to this area being under the possession or control of the City, it is under the control of the defendant Stanley. The defendant Anna Stanley has moved for summary judgment with regard to the Second, Third and Fourth Counts of the plaintiff's Revised Complaint. The defendant specifically argues that as an abutting landowner, in the absence of statute or ordinance, she is under no duty to maintain or to keep the public highway in front of her house in a reasonably safe condition for travel.
Each defendant is indicating that the other defendant is responsible for maintaining the area where the plaintiff fell. In opposing summary judgment, the plaintiff argues that control of the area where the plaintiff fell is a genuine issue of material fact, and thus, summary judgment should be denied. The plaintiff contends that the area where the plaintiff fell was not a traditional sidewalk. Rather, it was at the uneven end of the public walkway, where bituminous asphalt meets the paved portion of the walkway, and that there was a lack of contrasting color between the walkway and the travel portion of the roadway. The plaintiff further claims that the surface was dangerous and irregular and was in a general state of disrepair. The plaintiff, in addition to negligence, alleges that the defendant Stanley created and maintained this condition, which constitutes a nuisance. The defendant denies all such claims.
In opposing summary judgment the plaintiff has submitted black and white photocopies of photographs of the area for the court's review. She has also submitted photocopies of excerpts from a February 27, 2003, deposition of Jeffrey Pescosolido, Deputy Director of Operations for the City of New Haven's Department of Public Works. The defendant Stanley in support of summary judgment has submitted a photocopy of the deposition of the plaintiff, dated September 4, 2003, a sworn affidavit of the defendant Stanley and a copy of excerpts from the February 27, 2003, deposition of Jeffrey Pescosolido.
In her affidavit, Stanley denies that she designed, caused or created the condition that the plaintiff alleges was dangerous and was a nuisance. Stanley denies, as well, that she directed anyone to design, construct or install the walkway. Stanley claims the City of New Haven had the duty to maintain and repair the area on which the plaintiff alleges to have fallen. To bolster this argument, Stanley points to the deposition testimony of Pescosolido, New Haven's Deputy Director of Operations for the Department of Public Works. Pescosolido testified that the black asphalt area at the base of the walkway where the plaintiff fell was within the City's right of way with regard to property abutting roadways. He further testified that the asphalt at the end of the walkway was consistent with the type of asphalt used by the City in making temporary repairs. However, Pescosolido also testified that he didn't know who installed the bituminous asphalt at the subject location, being Stanley's property at 20 Providence Street. Additionally, the plaintiff has submitted a portion of the deposition transcript of Pescosolido, wherein he states that the maintenance of the subject area where the bituminous asphalt is located is the homeowner's responsibility because of the "sidewalk ordinance."
The law regarding summary judgment is well-settled. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion" Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he 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 Co., 44 Conn.App. 657, 660 (1997).
I DEPOSITION TESTIMONY AND SUMMARY JUDGMENT
Prior to addressing the law regarding the duty to maintain and repair the subject location, the court addresses the issue of the propriety of using deposition testimony in deciding motions for summary judgment. Both parties to this matter have submitted deposition testimony, and both have addressed this issue in their respective briefs. "Because both parties have submitted and rely on copies of excerpts from the same deposition, this court will review their respective submissions, bearing in mind that the primary purpose of a deposition taken pursuant to [Connecticut's Practice Book] provisions is discovery; Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985); and that a response to a question propounded in a deposition is not a judicial admission. General Statutes § 52-200." (Internal quotation marks omitted) Jackson v. Poland, Superior Court, judicial district of Meriden at New Haven, Docket No. CV 03 0472786-S (Feb. 4, 2004, Tanzer, J.)
Sec. 52-200. Disclosure not conclusive.
When either party in any action has obtained from the other party a disclosure on oath, respecting the matters alleged in any pleading, the disclosure shall not be deemed conclusive, but may be contradicted like any other testimony.
Our Supreme Court and Appellate Court have not conclusively ruled on this issue, See, Stevens v. Katz, Superior Court, judicial district of Danbury, Docket No. 336318 (Dec. 10, 2001, Holden, J.). The Appellate Court has stated, "[W]e assume that summary judgment can, in some instances, be supported solely by deposition testimony. Tryon v. Town of North Branford, 58 Conn.App. 702, 716, 755 A.2d 3179 (2000) citing, Dubay v. Irish, 207 Conn. 518, 534 n. 9, 542 A.2d 711 (1988); Collum v. Chapin, supra, 40 Conn.App. 450 n. 2, 671 A.2d 1329 (1996).
In Schratwieser v. Hartford Casualty Insurance Co., 44 Conn.App. 754, 759 n. 1, 692 A.2d 1283, (1997), cert. denied 241 Conn. 915, 696 A.2d 340 (1997), the Appellate Court previously stated:
"In interpreting our decision in Esposito v. Wethered, 4 Conn.App. 641, 496 A.2d 222 (1985), the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment pursuant to Practice Book § 384. Since our decision in Esposito, we have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment. See Maffucci v. Royal Park Ltd Partnership, 42 Conn.App. 563, 568, 680 A.2d 333, cert. denied, 239 Conn. 948, 686 A.2d 125 (1996); Union Trust Co. v. Jackson, 42 Conn.App. 413, 420, 679 A.2d 421 (1996); Battistoni v. Weatherking Products, Inc., 41 Conn.App. 555, 560-61, 676 A.2d 890 (1996). Here, both parties submitted depositions as part of their documents in support or in opposition to the motion for summary judgment without objection. Moreover, the evidence presented by the plaintiff in affidavits provides a sufficient evidentiary basis for our disposition of this appeal. We, therefore, accept the record as it has been submitted to us without ruling on the propriety of deposition testimony when submitted with a motion for summary judgment." Id.
Practice Book § 384-384 is now Practice Book § 17-49.
Since these decisions, the Superior Court has continued to be split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment. Stevens v. Katz, supra, Superior Court, Docket No. 336318; see also Defosses v. Blauvelt, Superior Court, judicial district of New Britain at New Britain, Docket No. 500393 (November 2, 2001, Quinn, J.) (court considered deposition testimony in ruling on motion for summary judgment); Campagnale v. Burton, Superior Court, judicial district of Litchfield, Docket No. 80334 (May 30, 2001, DiPentima, J.) (not improper for trial court to consider deposition testimony in ruling on a motion for summary judgment); Hyman v. Garced, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153421 (November 9, 1998, D'Andrea, J.) (court did not examine uncertified deposition testimony in ruling on a motion for summary judgment). But see Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 377376 (October 29, 1999, Licari, J.) (see footnote three: court considered uncertified deposition testimony where opposing party failed to object to it). "[T]he trend in the Superior Courts is to consider certified but not uncertified, deposition testimony when ruling on a motion for summary judgment." (Internal quotation marks omitted.) Stevens v. Katz, supra, Superior Court, Docket No. 336318. Courts following this trend reason that "the court cannot consider . . . uncertified deposition testimony for the purposes of [a] motion for summary judgment because the transcript is not independently admissible as evidence and it fails to comply with the requirements of the Practice Book." (Internal quotation marks omitted.) Ricketts v. Sheresky, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 175446 (July 26, 2001, D'Andrea, J.); see also Michaud Estate v. Beckman, Superior Court, judicial district of New Haven at Meriden, No. CV 99-0268302S (May 15, 2002, Wiese, J.) (Court does not consider uncertified deposition testimony); Roy v. Ferraro, Superior Court, judicial district of New Britain, Docket No. 502798 (January 10, 2002, Wiese, J.). Candido v. Dattco, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 386861 (March 13, 1998, Hartmere, J.)
While this court finds the use of certified deposition testimony preferable, the court finds the use of excerpts of deposition testimony by parties troublesome, as it leads to use of selective portions of testimony that is more favorable to one side or the other and has the potential of providing the court with less than the "entire story." In the present case the defendant in supporting summary judgment has offered portions of certified deposition testimony from the direct examination of Pescosolido that buttresses the defendant's claim that the subject area where the plaintiff fell was within the City's right of way and thus is the City's responsibility to repair and maintain. However, the plaintiff offers her non-certified excerpts from the same deposition of the direct examination of Pescosolido, wherein Pescosolido gives an opinion that the subject area is the responsibility of the homeowner because of the sidewalk ordinance. If the court were to adhere to a bright line rule that considering only certified deposition testimony for the purposes of summary judgment, it would be required to ignore the non-certified excerpt offered by the plaintiff, despite the inconsistent statements of Pescolido, which could be a determining factor in deciding whether there is a genuine issue of material fact regarding the control, maintenance and repair of the disputed area where the plaintiff is alleged to have fallen. In fairness, the court will not do that.
This court finds it proper to consider deposition testimony for the purposes of determining questions of summary judgment. So long as both parties continue to submit only selected excerpts from deposition testimony, the court will not favor certified deposition testimony over uncertified deposition testimony. The use of selected excerpts from deposition testimony by parties, without having a copy of the entire deposition transcript for the court's review, has the potential for less than candid disclosure and mischief.
II PUBLIC RIGHT-OF-WAY AND ABUTTING LANDOWNERS
"At common law there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon streets or sidewalks such as the accumulation of snow or ice. Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons." (Citations omitted.) Willoughby v. New Haven, 123 Conn. 446, 451 (1937) 197 A. 85 (1937) In the absence of statute or ordinance an abutting landowner ordinarily is under no duty to keep the public sidewalk in a reasonably safe condition for travel. Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829 (1989) (affirming lower court's decision granting defendant property owner's motion for summary judgment.); Dreher v. Joseph, 60 Conn.App. 257, 759 A.2d 114 (2000) (affirming the granting of the defendant property owner's motion for summary judgment). By law, municipalities have a duty to keep in good repair the sidewalks within their respective limits. See Ryszkiewicz, v. New Britain, 193 Conn. 589, 594, 479 A.2d 793 (1984); see also, General Statutes §§ 7-148 and 13a-99. Section 7-148 charges municipalities with the duty to keep sidewalks in a safe condition and does not authorize them to transfer liability or to impose a duty of general sidewalk maintenance on abutting property owners. While the City of New Haven did have an ordinance that required abutting landowners to maintain abutting public sidewalks, "a municipality cannot shift liability to a landowner for an injury resulting from a sidewalk defect." Stevens v. Neligon, 116 Conn. 307, 309-10, 164 A. 661 (1933). General Statutes § 7-163a does provide that a municipality may transfer liability to abutting landowners, but only for injuries caused by snow and ice on public sidewalks. "Pursuant to General Statutes § 7-148(c)(6)(C)(v), municipalities may require property owners of land abutting sidewalks to remove debris and other obstructions therefrom. Nothing in the plain language of the statute, however, authorizes a municipality to shift liability to abutting landowners for injuries sustained from a defect in a sidewalk." Frederick v. City of Bristol, Superior Court, judicial district of New Britain, Docket No. CV 00-050 28 04 (Feb. 15, 2001, Swords, J.) This case does not involve ice and snow or debris and obstructions.
Sec. 7-148. Scope of municipal powers reads in relevant part:
(C) Highways and sidewalks. (i) Lay out, construct, reconstruct, alter, maintain, repair, control, operate, and assign numbers to streets, alleys, highways, boulevards, bridges, underpasses, sidewalks, curbs, gutters, public walks and parkways;
(ii) Keep open and safe for public use and travel and free from encroachment or obstruction the streets, sidewalks and public places in the municipality;
(iii) Control the excavation of highways and streets;
(iv) Regulate and prohibit the excavation, altering or opening of sidewalks, public places and grounds for public and private purposes and the location of any work or things thereon, whether temporary or permanent, upon or under the surface thereof;
(v) Require owners or occupants of land adjacent to any sidewalk or public work to remove snow, ice, sleet, debris or any other obstruction therefrom, provide penalties upon their failure to do so, and cause such snow, ice, sleet, debris or other obstruction to be removed and make the cost of such removal a lien on such property . . .
Sec. 13a-99 reads as follows:
Towns shall, within their respective limits, build and repair all necessary highways and bridges, and all highways to ferries as far as the low water mark of the waters over which the ferries pass, except when such duty belongs to some particular person.
Any town, at its annual meeting, may provide for the repair of its highways for periods not exceeding five years and, if any town fails to so provide at such meeting, the selectmen may provide for such repairs for a period not exceeding one year.
Sec. 7-163a. Municipal liability for ice and snow on public sidewalks reads as follows:
(a) Any town, city, borough, consolidated town and city or consolidated town and borough may, by ordinance, adopt the provisions of this section.
(b) Notwithstanding the provisions of section 13a-149 or any other general statute or special act, such town, city, borough, consolidated town and city or consolidated town and borough shall not be liable to any person injured in person or property caused by the presence of ice or snow on a public sidewalk unless such municipality is the owner or person in possession and control of land abutting such sidewalk, other than land used as a highway or street, provided such municipality shall be liable for its affirmative acts with respect to such sidewalk.
(c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury. (2) No action to recover damages for injury to the person or to property caused by the presence of ice or snow on a public sidewalk against a person who owns or is in possession and control of land abutting a public sidewalk shall be brought but within two years from the date when the injury is first sustained.
In the present matter, the plaintiff has alleged that she fell while walking on a public walkway. The plaintiff's current pleading is a judicial admission. Drier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985); Drew v. K-Mart Corp., 37 Conn.App. 239, 250, 655 A.2d 806 (1995). The plaintiff has also testified that she fell on a public walkway. The City's responsibility for this walkway cannot be transferred to the abutting property owner.
III NUISANCE AND ABUTTING LANDOWNERS
Although an abutting landowner is ordinarily under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel, an abutting landowner may be liable for injuries if the property owner creates and maintains a nuisance. "An abutting landowner can be held liable . . . 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); see also Perkins v. Weible, 132 Conn. 50, 52, 42 A.2d 360 (1945); Hanlon v. Waterbury, 108 Conn. 197, 142 A. 681 (1928); Gambardella v. Kaoud, 38 Conn.App. 355, 359, 660 A.2d 877 (1995).
The defendant has presented Anna Stanley's sworn affidavit that she did not construct, design, install, build the walkway or select materials from which the walkway was constructed or repaired. She denies creating the condition about which the plaintiff complains, including the slope or color of the walkway for the repair of the walkway. The plaintiff, in opposing the motion for summary judgment, must provide evidence to demonstrate the existence of a genuine issue of material fact, once the defendant has met her burden of demonstrating the absence of a genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. The plaintiff has not provided any such evidence. The plaintiff has not submitted any affidavits or evidence to counter the defendant's affidavit. Additionally, there is no claim in the Revised Complaint that the defendant engaged in any affirmative act by which she concealed the alleged defective condition.
IV CONCLUSION
For the reasons set forth herein, the court hereby grants the defendant Stanley's motion for summary judgment as to the Second, Third and Fourth Counts of the plaintiff's Revised Complaint.
THE COURT
By Arnold, J.