217 Conn.App. 398
Conn. App. Ct.2023Background
- On April 24, 2018, Booth alleged he tripped on a raised concrete edge of a walkway between 286 and 290 Park Terrace, Hartford, and sued the property owners (owner defendants) and design contractors (design defendants) for negligence and premises liability.
- Owner defendants served a request for admission with a photograph marking the alleged defect in a red circle; Booth failed to respond and the request was deemed admitted that the photo fairly depicted the fall location and the circled defect.
- Owner defendants disclosed an expert land surveyor (Cyr) who averred the red‑circled area lies within the public right‑of‑way and is owned/maintained by the City of Hartford; defendants moved for summary judgment asserting no duty to maintain a public sidewalk.
- Booth opposed with plans, sidewalk citation/correction records, and his own affidavit, later seeking to amend the complaint to add allegations that defendants constructed/maintained the sidewalk; the trial court found Booth’s exhibits unreadable/unexplained and his affidavit conclusory.
- The trial court denied Booth’s motion to amend and his motion to preclude Cyr’s affidavit, granted defendants’ summary judgment motions, and the Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument (Booth) | Defendant's Argument | Held |
|---|---|---|---|
| Whether genuine dispute exists about the extent/location of the defect | The hazardous condition was the entire steep walkway (or at least the slab) and extended onto defendants’ property | The request for admission conclusively established the defect is limited to the red‑circled area in the photo | Admission conclusively fixed location/extent (no genuine issue) |
| Whether the area was private (defendants’ duty) or municipal (no duty) | Sidewalk citations, demolition/renovation plans and other documents show defendants constructed/maintained the abutting sidewalk | Surveyor affidavit shows the red area is public right‑of‑way owned/maintained by City; plaintiff’s documents are unreadable/unexplained and do not rebut the survey | Cyr’s survey + admitted photo established area as municipal; plaintiff failed to raise a factual dispute |
| Whether the positive‑act exception applies (i.e., defendants caused the defect) | Defendants constructed, repaired, and took positive acts on the walkway/sidewalk (plans support this) | Complaint pleaded failures to remedy (omissions), not affirmative acts; plaintiff didn’t plead or prove a positive act | Complaint did not allege positive acts; exception inapplicable |
| Whether denial of request to amend complaint was an abuse of discretion | Amendments would merely conform pleadings to discovered evidence and not add new counts | Allowing amendment at summary judgment stage would prejudice defendants and require further discovery/delay | Denial was not an abuse of discretion; prejudice and delay justified refusal |
Key Cases Cited
- Robinson v. Cianfarani, 314 Conn. 521 (Conn. 2014) (summary judgment standard and view of evidence for nonmovant)
- McFarline v. Mickens, 177 Conn. App. 83 (Conn. App. 2017) (existence of duty is a question of law)
- Pollard v. Bridgeport, 204 Conn. App. 187 (Conn. App. 2021) (general rule and exceptions re abutting landowner liability for public sidewalks)
- Wilson v. New Haven, 213 Conn. 277 (Conn. 1989) (abutting landowner generally not liable for public sidewalk defects)
- Cyr v. VKB, LLC, 194 Conn. App. 871 (Conn. App. 2019) (distinguishing when allegations of construction/positive act can survive summary judgment)
- Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93 (Conn. 2019) (burden shifts to nonmovant to show disputed factual issue once movant meets initial burden)
- Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., 137 Conn. App. 655 (Conn. App. 2012) (need for nonmovant to produce expert evidence to rebut defendants’ expert where technical issues are at play)
- Walker v. Housing Authority, 148 Conn. App. 591 (Conn. App. 2014) (conclusory affidavits by the nonmoving party are insufficient to defeat summary judgment)