Rodriguez v. HartfordRodriguez v. Hartford
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Syllabus
The plaintiff, as parent and next friend of her minor son, C, sought to recover damages from the defendants, the city of Hartford and D, the city forester, for injuries sustained by C when a tree fell on him while he was playing at a basketball court located in a city park. Eleven days before C was injured, D had visually inspected the tree at issue, which was located approximately twenty feet from the basketball court at the park. She determined that the tree did not constitute an immediate public hazard but designated the tree for removal by posting a sign on the tree allowing ten days for public comment, pursuant to a city ordinance (
- The plaintiff could not prevail on her claim that the trial court improperly denied her first request to amend her complaint; when the plaintiff filed that request, the defendants’ motion for summary judgment had been pending for more than two years, it had been briefed by both parties, and there was an upcoming trial date, and the trial court‘s ruling that permitting the amendment would considerably delay the proceedings in light of the upcoming trial date did not reflect an abuse of its discretion.
- The trial court erred in denying the plaintiff‘s renewed request to amend her complaint on the basis that the proposed claims of recklessness and public nuisance were barred by
§§ 52-577 and52-584 : neither§ 52-577 nor§ 52-584 establishes a remedy that does not otherwise exist, and, because such statutes of limitations are procedural, not jurisdictional, and the periods of limitation set forth therein could be waived, a trial court may not raise the limitation on its own motion; moreover, because the trial court sua sponte raised the issue of the statutes of limitations and the defendants had not objected to the plaintiff‘s renewed request to amend her complaint on the ground that the new allegations did not relate back to the allegations of her complaint and were, consequently, beyond the applicable statutes of limitations, the court erred in denying the request. - The plaintiff‘s claim that the trial court erred in rendering summary judgment for the defendants was unavailing:
- Contrary to the plaintiff‘s argument, the trial court did not err in concluding that her complaint failed to set forth a claim for public nuisance; although the plaintiff identified certain allegations in her complaint that she claimed set forth a claim of nuisance, specifically, that the defendants allowed C to use the basketball court in the park when they knew or should have known that the tree was rotted or dangerous and continued to maintain the tree with the same defects, those allegations, when read in the context of the entirety of the complaint, did not allege that the defendants created the condition that caused the tree to fall but, rather, that they should have recognized the hazard presented by the tree and remediated it, essentially alleging a failure to act on the part of the defendants, and a failure to act or remediate does not constitute a nuisance.
- The plaintiff could not prevail on her claim that the trial court erred in concluding that her claims against the defendants were barred by governmental immunity because a genuine issue of material fact existed as to whether the defendants’ alleged negligence constituted a violation of a ministerial or discretionary duty: because D determined that the tree at issue in the present case did not pose an immediate public hazard, the plaintiff‘s claim that
§ 23-59 imposes a ministerial duty when a tree poses an immediate public hazard was unavailing; moreover, although the plaintiff contended that D violated her ministerial duty to properly inspect the tree at issue, she failed to cite any authority to support her contention that D‘s duty to inspect the tree at issue was ministerial, and this court has previously held that§ 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion; furthermore, the defendants had not received a complaint or been otherwise notified that the tree at issue was potentially hazardous but, rather, the record reflected that D‘s inspection of the tree at issue was a matter of routine, there were no policies or regulations that set forth the manner in which the inspection of a tree must be conducted, and, in the absence of such guidelines, it was clear that the routine inspection involved D‘s judgment and discretion, and, therefore, the court did not err in concluding that the allegations of the complaint challenged D‘s discretionary conduct.
Argued November 7, 2023-officially released March 19, 2024
Action, inter alia, to recover damages for personal injuries sustained by the plaintiff as a result of the defendants’ alleged negligence, brought to the Superior Court in the judicial district of Hartford, where the court, Sheridan, J., denied the plaintiff‘s motions to amend the complaint; thereafter, the court, Sheridan, J., granted the defendants’ motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed in part; further proceedings.
Jack G. Steigelfest, with whom, on the brief, was Thomas P. Cella, for the appellant (plaintiff).
Thomas R. Gerarde, for the appellees (defendants).
Opinion
CRADLE, J. The plaintiff, Carmen Rodriguez, as parent and next friend of her minor son, Christopher Rodriguez (Christopher),1 appeals from the summary judgment rendered in favor of the defendants, the city of Hartford (city) and Heather Dionne, the city forester, in this action to recover damages for injuries sustained by Christopher when a tree fell on him while he was playing at a basketball court located in a city park. On appeal, the plaintiff claims that the court erred by (1) denying her requests to amend her complaint and (2) concluding that her complaint did not set forth a claim of public nuisance and that no genuine issue of material fact existed as to whether her claims against the defendants were barred by governmental immunity. We conclude that the court properly rendered summary judgment as to the plaintiff‘s negligence claims but that the court erred in denying one of the plaintiff‘s requests to amend her complaint. We therefore affirm in part and reverse in part the judgment of the trial court.
The following undisputed facts, as set forth by the trial court, and procedural history are relevant to our resolution of this appeal. “[Dionne] is the city forester for the city of Hartford, a position she has held since 2012. The city forester is charged with the responsibility of carrying out the laws of the state and the ordinances of the city of Hartford with respect to all trees, shrubs or vines in highways, public parks and public grounds within the city. On July 27, 2018, Dionne visually inspected the subject tree at issue in this case. The tree was located approximately twenty feet from a public basketball court at Goodwin Park. Dionne looked at the trunk of the tree, the attachment of the branches to the tree, and the ground around the tree. Dionne observed ‘tip dieback’ (dying of the tips of branches), thinning of the crown of the tree, small leaf size, and poor root integrity.
“Dionne determined that the tree did not ‘constitute an immediate public hazard’ and designated the tree for removal by posting a sign on the tree allowing ten days for public comment, pursuant to chapter 26, article I,
“Eleven days later, on August 7, 2018, at approximately 6:45 p.m., [Christopher], a ten year old boy, was playing basketball on the basketball court when the tree fell onto the basketball court, crushing his legs and causing other serious injuries.” (Footnotes in original.)
The plaintiff thereafter commenced this action on February 11, 2019, and her complaint consisted of three counts. Count one alleged negligence against the city, count
On December 26, 2019, the defendants filed a motion for summary judgment arguing that they were entitled to governmental immunity on the negligence claims because all of the allegations involved public duties that are discretionary as a matter of law. The defendants further argued that, as to count three, because there was no legally viable negligence claim as to Dionne, the plaintiff‘s indemnification claim against the city failed as a matter of law. The plaintiff filed several motions for extension of time to file an opposition to the defendants’ motion for summary judgment to allow her to complete discovery. The defendants consented to the plaintiff‘s motions.
On March 11, 2022, the plaintiff filed an objection to the motion for summary judgment wherein she argued that the defendants violated their ministerial duties as to the inspection and removal of the tree at issue.
On that same day, the plaintiff also filed a request to amend her complaint, seeking to add one count asserting common-law recklessness, alleging the failure to conduct an inspection of the tree that fell on Christopher. The plaintiff represented that her proposed new count of recklessness related back to her original complaint in that “[t]he factual basis for the claim of recklessness has not changed and the new claims merely amplify and expand upon the previous allegations in the original complaint by setting forth an alternate theory of liability.” The defendants filed an objection to the request to amend, arguing that, because their motion for summary judgment had been fully briefed and there was a trial date assigned for August 3, 2022, granting the plaintiff‘s request to amend to include an additional count that raised a new basis of liability would prejudice them. The defendants also argued that the plaintiff offered no explanation in her request to amend as to why she waited more than two years after their filing of the motion for summary judgment to seek to amend her complaint. The plaintiff filed a reply to the defendants’ objection wherein she argued that her proposed amendment was based upon recently conducted discovery by the parties.
On April 11, 2022, the trial court, Sheridan, J., denied the plaintiff‘s request to amend “because this case is scheduled for jury selection and the amendment will considerably delay the proceedings, the proposed amendment asserts claims not raised in the complaint which is the subject of a pending summary judgment motion, and because no explanation or rationale for the [delay] in asserting this claim has been provided.” The plaintiff thereafter filed a motion for reargument or reconsideration of the court‘s denial of her request to amend, which the court summarily denied.
On April 18, 2022, the court held a hearing on the defendants’ motion for summary
On May 6, 2022, the plaintiff filed a motion for permission to file a supplemental brief to her objection to the motion for summary judgment to argue that the defendants’ motion for summary judgment should be denied because the allegations of the original complaint were broad enough to state a nuisance claim and the alleged facts supported a nuisance claim not barred by governmental immunity. The defendants filed an objection arguing that the plaintiff has not, and cannot, allege a public nuisance claim against them.
On June 6, 2022, the court issued an order scheduling a videoconference for June 22, 2022, for the present case, in addition to all cases “set down for jury and court trial in July/August 2022,” at which time counsel was “expected to either (1) report the case ready for jury selection and give an estimate of the days of evidence expected; or (2) request a continuance to a new trial date and agree upon the new trial date.” As a result of the conference in the present case, the trial date was continued from August 3, 2022, to June 22, 2023.
On June 23, 2022, the plaintiff filed a “renewed” request to amend the complaint seeking to add a count for common-law recklessness and a count for public nuisance. In her request, the plaintiff reiterated that the new allegations related back to the allegations in the original complaint and asserted that the new trial date afforded ample time for the defendants to conduct any additional discovery that they deemed necessary. The defendants filed an objection arguing that the trial date was continued only to provide the court with time to decide the pending motion for summary judgment and that there was no reason to revisit the trial court‘s April 11, 2022 ruling denying the plaintiff‘s March, 2022 request to amend.
On August 22, 2022, the court granted the plaintiff‘s motion for permission to file a supplemental brief; however, the court ruled that “the argument advanced in the supplemental brief is rejected. The factual allegations of the operative complaint do not support a claim for public nuisance as an alternative to the negligence claims which have been clearly [pleaded]. Any argument based on concepts of public nuisance is therefore immaterial.”
On that same day, the court denied the plaintiff‘s renewed request to amend her complaint, ruling that the proposed new counts were filed beyond the applicable statutes of limitations (
On August 30, 2022, the trial court issued a memorandum of decision rendering summary judgment in favor of the defendants. The trial court concluded that the allegations of negligence in counts one and two clearly related to discretionary functions and, therefore, the defendants were immune from liability both at common law and under
I
The plaintiff first claims that the court erred by denying both of her requests to
A
As noted herein, the plaintiff filed her first request to amend her complaint to add allegations of recklessness against the defendants on March 11, 2022, which was the same day that she filed her objection to the defendants’ motion for summary judgment, which was filed on December 26, 2019, more than two years earlier. The court denied the plaintiff‘s request on the grounds that allowing the amendment would delay the proceedings, the defendants’ motion for summary judgment was pending, and the plaintiff had offered no explanation for the delay in seeking to amend her complaint. When the plaintiff thereafter sought reconsideration of her request to amend, she referred to her reply to the defendants’ objection to her request, wherein she explained that the delay was due to the fact that she had only recently been able to complete the deposition of Dionne and consult with experts. The court summarily denied her motion for reconsideration.
“Our standard of review of the [plaintiff‘s] claim is well defined. A trial court‘s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court‘s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . It is the [plaintiff‘s] burden in this case to demonstrate that the trial court clearly abused its discretion. . . .
“A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Internal quotation marks omitted.) Booth v. Park Terrace II Mutual Housing Ltd. Partnership, 217 Conn. App. 398, 432, 289 A.3d 252 (2023).
Here, the plaintiff has failed to demonstrate that the court abused its discretion in denying her first request to amend her complaint. When the plaintiff filed that request, the defendants’ motion for summary judgment had been pending for more than two years and had been briefed by both parties, and there was an upcoming trial date. The trial court found that permitting the amendment would considerably delay the proceedings in light of the upcoming trial date. On those bases, we conclude that the court‘s ruling did not reflect an abuse of its discretion.
B
The plaintiff next claims that the court erred in denying her “renewed” request to amend her complaint. Specifically, the plaintiff argues that the court erred in addressing sua sponte whether the proposed claims of recklessness and public nuisance were barred by the applicable statutes of limitations. We agree.
As noted herein, after the trial date in this case was continued, the plaintiff filed a “renewed” request to amend her complaint, to which the defendants objected, arguing only that there was no reason for the court to revisit its earlier denial of the plaintiff‘s request to amend and that the plaintiff was simply attempting to “elude . . . summary judgment.” The defendants
The court nevertheless denied the plaintiff‘s renewed request to amend her complaint on the ground that the new allegations did not relate back to those in the initial complaint. The court held: “The proposed new counts are filed well beyond the two year limitation period in [General Statutes]
“[I]t is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action . . . . Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently. . . . Comparing the allegations in the original complaint to those in the proposed amended complaint, no allegations were set forth concerning public nuisance or common-law recklessness. To prove the challenged allegations of the amended complaint would require the presentation of new and different evidence as to different issues. . . . The plaintiff‘s new theories of liability are not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back. . . . As the new counts require proof of different elements and different evidence, the new counts do not relate back to the original allegations of negligence in the complaint.” (Citations omitted; internal quotation marks omitted.)
The plaintiff argues that the court erred in raising sua sponte the statutes of limitations governing her proposed new claims. Our Supreme Court has stated that “[t]he de novo standard of review is always the applicable standard of review for” making such a determination. (Internal quotation marks omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 206, 157 A.3d 70 (2017). Indeed, “[i]f the statute of limitations has expired and an amended pleading does not relate back to the earlier pleading, then the trial court has no discretion to allow an amendment.” Id., 206 n.8.
It is well settled, however, that statutes of limitations may be waived and are, typically, not properly raised by the court sua sponte. “Where the trial court wishes to raise a statute of limitations issue which has not been raised by the parties, the question becomes whether the limitation is considered procedural or jurisdictional. . . . The general rule is that where the right of action exists independently of the statute in which the limitation is found, such a statutory bar is considered personal and procedural, and it is deemed waived unless it is specially pleaded. . . . This is so because it is considered that the limitation acts as a bar to a remedy otherwise available. . . . In these instances, a trial court may not raise the limitation on its own motion. Where, however, a specific limitation is contained in the statute which establishes the remedy, the remedy exists only during the prescribed period and not thereafter. In this situation, the court may properly raise the statute of limitations issue on its own motion because it is considered substantive or jurisdictional, and not subject to waiver.” (Citations omitted.) Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985).
Here, the court applied the statutes of limitations set forth in
II
The plaintiff also claims that the court erred in rendering summary judgment in favor of the defendants on the claims set forth in her complaint. Specifically, the plaintiff argues that the court erred in concluding that her complaint failed to set forth a claim of public nuisance and that her negligence claims against the defendants were barred by governmental immunity. We are not persuaded.
“Practice Book
A
The plaintiff first argues that the court erred in rejecting her contention that
“The interpretation of pleadings is always a question of law for the court . . . . Our review of the trial court‘s interpretation of the pleadings therefore is plenary. . . . Furthermore, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory [on] which it proceeded, and do substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.” (Emphasis omitted; internal quotation marks omitted.) Carpenter v. Daar, 346 Conn. 80, 128, 287 A.3d 1027 (2023).
We next set forth the principles applicable to a nuisance claim brought against a municipality. Our Supreme Court “has stated often that 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. . . . 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. . . . This common-law rule is codified at
“Our Supreme Court has described the positive act requirement as follows: [A]t a bare minimum,
“A positive act is conduct that intentionally created the conditions alleged to constitute a nuisance. . . . [F]ailure to remedy a dangerous condition not of the municipality‘s own making is not the equivalent of the required positive act. . . .
In her original complaint, the plaintiff set forth numerous ways in which she alleged that the defendants were negligent. In support of her contention that her original complaint set forth a claim of nuisance, the plaintiff identifies those allegations that she claims set forth a claim of nuisance: that the defendants “allowed [Christopher] and other visitors to use the basketball court in Goodwin Park when they knew or should have known that the tree next to the basketball court was rotted and dangerous” and “[t]hey created and maintained a dangerous and hazardous condition in Goodwin Park, or should have known that said tree was defective and hazardous, yet they continued to maintain it in the same manner with the same defects.” In so claiming, the plaintiff essentially is alleging a failure to act on the part of the defendants, which, as we have stated, does not constitute a nuisance. When read in the context of the entirety of the complaint, the plaintiff has not alleged that the defendants created the condition that caused the tree to fall but that they should have recognized the hazard presented by the tree and remediated it. Because, as stated previously, a failure to act or remediate does not constitute a nuisance, the court did not err in concluding that the plaintiff‘s complaint failed to set forth such a claim.
B
The plaintiff also claims that the court erred in concluding that her claims against the defendants were barred by governmental immunity because a genuine issue of material fact exists as to whether the defendants’ alleged negligence constituted a violation of a ministerial or discretionary duty.
The following legal principles guide our analysis of the plaintiff‘s claim. “According to our Supreme Court, [a] municipality itself was generally immune from liability for its tortious acts at common law . . . . [The court has] also recognized, however, that governmental immunity may be abrogated by statute. . . . [Section]
“Subdivision (2) of
“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. . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint. . . . [W]hether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to
Here, in addition to the undisputed facts set forth previously in this decision, the court also found, and it is undisputed, that “[a]s of July 27, 2018, there was no state of Connecticut or city of Hartford statute, ordinance, regulation, directive or policy which mandated the frequency or manner in which trees were to be examined, inspected, or designated to be culled, trimmed, or cut down within the city of Hartford.
“Prior to July 27, 2018, neither Dionne nor the city of Hartford had received a complaint about the tree that fell on August 7, 2018, at Goodwin Park or were otherwise notified that the tree presented a hazardous condition.”
In concluding that the duty at issue was discretionary and not ministerial, the court reasoned that “[t]here is no statute or ordinance that prescribes the specific manner in which a tree warden must inspect a tree and what conditions would render a tree an immediate public hazard. Of necessity, much is left to the tree warden in the exercise of his or her own personal discretion to make those judgments. In a similar manner, no statute or ordinance—including . . .
On appeal, the plaintiff‘s challenge to the summary judgment is twofold. First, she argues that ”
Here, there was no complaint asserting that the tree at issue was potentially hazardous. Rather, the record reflects that Dionne‘s inspection of the tree at issue was a matter of routine. There were no policies or regulations that set forth the manner in which the inspection of a tree must be conducted. In the absence of such guidelines, it is clear that the routine inspection involved Dionne‘s judgment and discretion. We therefore conclude that the court did not err in concluding that the allegations of the complaint challenged Dionne‘s discretionary conduct. Accordingly, the court properly granted the defendants’ motion for summary judgment.
The judgment is reversed with respect to the denial of the plaintiff‘s renewed request to amend her complaint and the case is remanded for further proceedings on the renewed request to amend the complaint; the judgment is affirmed with respect to the granting of summary judgment on the three counts of the original complaint and the denial of the plaintiff‘s first request to amend her complaint.
In this opinion the other judges concurred.