McFarline v. Mickens , 177 Conn. App. 83 ( 2017 )

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ELLEN MCFARLINE v. PATRICK W. MICKENS, JR.,
ADMINISTRATOR (ESTATE OF JANET MICKENS)
(AC 39339)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff sought to recover damages from the defendant administrator
of the estate of M for injuries she sustained when she tripped and fell
on a public sidewalk that was adjacent to property owned by M. She
alleged that a dangerous, defective and unsafe condition existed, namely,
a broken and cracked concrete sidewalk with grass growing wildly
through the crack, and that the crack was concealed by the wildly
growing grass, which hindered her ability to safely use the sidewalk.
Under the common law, an abutting landowner is under no duty to keep
a public sidewalk in front of his property in a reasonably safe condition,
except where a municipality confers liability on the abutting landowner
through a statute or ordinance, or where the defect or unsafe condition
was created by a positive act of the abutting landowner. The defendant
filed a motion for summary judgment, claiming that, under the facts as
alleged by the plaintiff, M owed no duty to the plaintiff to maintain the
sidewalk. Specifically, he claimed that the city of Meriden was bound
to keep the sidewalk in repair pursuant to the municipal highway defect
statute (§ 13a-149), and that the positive act exception to the general
rule absolving landowners of liability for defective sidewalks did not
apply because M did not create the unsafe condition on the public
sidewalk. The trial court granted the defendant’s motion for summary
judgment and rendered judgment thereon, from which the plaintiff
appealed to this court. Held:
1. The trial court properly rendered summary judgment in favor of the
defendant: the plaintiff’s claim that issues of material fact remained
that precluded the granting of the motion for summary judgment was
unavailing, as a resolution of the issue of whether the plaintiff was
injured because the wildly growing grass obstructed her view of the
crack in the sidewalk was not material to the disposition of the motion
for summary judgment because the defendant did not dispute that the
plaintiff’s injury was caused by the broken concrete sidewalk with grass
growing through it; moreover, because municipalities have the primary
duty to maintain public sidewalks in a reasonably safe condition and
such liability cannot be shifted to the abutting landowner absent an
express charter provision, statute, or ordinance, and the plaintiff had
abandoned any claim before the trial court that a city ordinance concern-
ing grass cutting had shifted liability to the abutting landowner, M owed
no duty to the plaintiff to maintain the sidewalk absent evidence of a
positive act that caused or contributed to the plaintiff’s accident, and
the pleadings and other documents filed in the summary judgment pro-
ceeding did not suggest that an affirmative act by M caused the grass
to grow on the sidewalk.
2. The plaintiff could not prevail on her claim that the trial court, by citing
in its memorandum of decision on the motion for summary judgment
to its prior decision in an unrelated case, erroneously considered facts
outside the record of this case and thereby violated her right to due
process of law; although the court cited its prior decision in the unrelated
case for the proposition that growing grass was not a positive act by
the property owner because grass grows by itself, there was no indication
that it considered the facts in that prior case in lieu of the facts presented
by the parties, it was not improper for the court to look to the facts of
that similar case for legal guidance in resolving the case before it, and
the plaintiff’s claim that her right to due process was violated because
the court did not give her notice that it intended to rely on that prior
case was frivolous and unavailing.
3. The trial court did not abuse its discretion by denying the plaintiff’s
motion to reargue the motion for summary judgment: although that
court, in ruling on the motion for summary judgment, noted that the
plaintiff had alleged an incorrect date of her fall in her complaint, the
court expressly stated that the incorrect date was not the subject of the
defendant’s motion for summary judgment, and did not render summary
judgment on the basis of that erroneous date, and, therefore, reargument
on the basis of the correct date of the plaintiff’s fall would not have
affected the court’s judgment; moreover, to the extent that the plaintiff
challenged the trial court’s denial of her motion to amend her complaint
to correct the date of the fall and other errors, the trial court never
ruled on that motion and, by denying the motion to reargue, let the
judgment in favor of the defendant stand, which eliminated any possible
basis for granting the motion to amend.
Argued April 19—officially released October 10, 2017
Procedural History
Action to recover damages for the alleged negligence
of the defendant’s decedent, and for other relief,
brought to the Superior Court in the judicial district
of New Haven, where the court, Blue, J., granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon; thereafter, the court denied
the plaintiff’s motion for reconsideration, and the plain-
tiff appealed to this court. Affirmed.
Richard M. Franchi, for the appellant (plaintiff).
Maciej A. Piatkowski, for the appellee (defendant).
Opinion
KELLER, J. In this negligence action, the plaintiff,
Ellen McFarline, appeals from the summary judgment
rendered by the trial court in favor of the defendant,
Patrick W. Mickens, Jr., administrator of the estate of
Janet Mickens (Mickens). The plaintiff claims that the
court, in granting the defendant’s motion for summary
judgment, erred by (1) failing to consider the pleadings,
affidavits and other proof submitted in deciding that
there is no genuine issue as to any material fact; (2)
considering facts outside the confines of this case; (3)
violating her right to due process of law by failing to
allow her to review evidence from other cases that
the court utilized in deciding the motion for summary
judgment; (4) failing to apply the ‘‘test’’ set forth in
Sanzone v. Board of Police Commissioners, 219 Conn.
179, 592 A.2d 912 (1991), when determining if there
was a chain of causation that included the defendant’s
negligence in sequence with a highway defect; and (5)
denying her postjudgment motions to amend her
revised complaint and to reargue the motion for sum-
mary judgment.1 We affirm the judgment of the court.
The facts underlying this action, which the plaintiff
commenced on January 2, 2015, are neither complicated
nor, for purposes of summary judgment, in dispute. The
action arises out of injuries that the plaintiff sustained
while she was walking on a public sidewalk in Meriden
on May 14, 2013. The sidewalk was adjacent to premises
owned by Mickens.2 In her revised complaint of April
29, 2015, the plaintiff alleged that, ‘‘a dangerous, defec-
tive and unsafe condition existed on the aforemen-
tioned sidewalk . . . namely, a broken and cracked
concrete sidewalk and adjacent curb with grass growing
wildly through the crack and broken sections. . . .
[The plaintiff] was walking on the aforementioned side-
walk when she came in contact with the defective,
dangerous and unsafe condition, that being the broken
and cracked concrete and a section of the broken con-
crete under her foot did break away from the curb
causing her to slip and fall and causing her injuries and
damages . . . .’’ The plaintiff alleged that the sidewalk
‘‘is used by the public to transgress over.’’ The plaintiff
alleged that she sustained physical injuries, principally
to her right leg, that necessitated medical treatment
and that interfered with her employment and normal
life pursuits.
The plaintiff alleged that Mickens was negligent in
that she ‘‘allowed and permitted the . . . [defect] to
exist and remain . . . failed to repair and or remedy
the . . . [defect] in a timely manner . . . allowed and
permitted individuals to use the sidewalk although she
knew or reasonably should have known of the presence
of the . . . [defect] . . . failed to properly maintain
the . . . premises including the sidewalk and curb
. . . failed to inspect the premises including the side-
walks and curbs . . . failed to warn those upon said
premises, including the plaintiff, of the presence of the
aforementioned [defect] . . . failed to place devices,
signs and or tape, so that as to make the [defect] visible
and readily apparent to individuals . . . she failed to
place devices, signs and or tape, so as to physically
prevent individuals from using said sidewalk . . .
failed to cut the grass on the sidewalk and/or remove
any grass that was hiding defects on the sidewalk . . .
[and] failed to have the curb properly constructed . . .
pursuant to building ordinances in . . . Meriden.’’
Following discovery, the defendant moved for sum-
mary judgment. In his memorandum of law in support
of his motion, the defendant argued that he was entitled
to judgment as a matter of law because, under the facts
as alleged by the plaintiff, Mickens owed no duty to
the plaintiff to maintain the sidewalk. The defendant
asserted that ‘‘Connecticut law is clear that an abutting
landowner is not liable for the unsafe condition of an
adjacent public sidewalk unless the unsafe condition
is actually caused by the abutting landowner. See Rob-
inson v. Cianfarani . . . 314 Conn. [521, 529, 107 A.3d
375 (2014)] . . . .’’ The defendant observed that
because the plaintiff did not assert in her complaint that
Mickens caused the sidewalk defect by any ‘‘positive
actions,’’ Mickens did not owe a duty to the plaintiff to
repair or warn of the defect. The defendant further
reasoned that to the extent that Meriden ordinances
imposed responsibilities on abutting landowners to
maintain sidewalks, in the absence of state statutory
authority, such ordinances cannot be interpreted as
having shifted liability from Meriden and onto the defen-
dant.3 Even if the city of Meriden could shift liability
by ordinance, the defendant argued, those ordinances
did not sufficiently express the intent to shift liability.
In her memorandum in support of her objection to
the motion for summary judgment, the plaintiff argued
that the defendant’s motion for summary judgment
addressed only one of the causes of the plaintiff’s injur-
ies, specifically, the crack in the sidewalk. She argued
that grass growing on the sidewalk, as alleged, was not
a defect under our municipal defective highway statute,
General Statutes § 13a-1494 and, therefore, it was ‘‘the
responsibility of the landowner to remove . . . [it] and
to make the property safe for pedestrians . . . .’’ The
plaintiff argued § 180-42 of the Meriden City Code,
which requires the abutting landowner to keep grass
or weeds properly cut or removed in the area of the
sidewalk, was controlling and that it shifted the burden
of sidewalk maintenance to Mickens.5 The plaintiff also
asserted that there was a genuine issue of material fact
as to whether the defendant’s failure to remove the
‘‘wildly growing grass’’ on the sidewalk was a proximate
cause of her injury.
The court agreed with the defendant and granted the
motion for summary judgment. The court reasoned that
Mickens owed no duty to the plaintiff because ‘‘the
positive act exception to the general rule absolving
property owners of liability for defective sidewalks can-
not be established in the case of growing grass, since
grass grows by itself.’’ The court also observed that the
‘‘Meriden grass-cutting ordinance [on which the plaintiff
relied] . . . does not shift liability to the individual
with the specificity required by Willoughby v. New
Haven, 123 Conn. 446, 451, 197 A. 85 (1937), and [that,
in any event, the plaintiff] . . . expressly abandoned
her reliance on the ordinance at argument.’’
The plaintiff thereafter filed motions to amend her
revised complaint and to reargue the motion for sum-
mary judgment, the contents of which we discuss in
part III of this opinion. The court denied the motion
to reargue. The record does not reflect that the court
rendered a disposition on the motion to amend the
revised complaint. This appeal followed. Additional
facts will be provided as necessary.
I
We first address the plaintiff’s related claims that
the court erred in granting the defendant’s motion for
summary judgment (1) by failing to consider the plead-
ings, affidavits and other proof submitted in deciding
that there was no genuine issue as to any material fact,
and (2) by failing to apply the definition of a highway
defect as set forth in Sanzone v. Board of Police Com-
missioners, supra, 219 Conn. 179, when determining
whether there was a chain of causation that included
the defendant’s negligence in sequence with a highway
defect. We disagree.
We observe the following principles relating to
motions for summary judgment. Summary judgment
shall be granted ‘‘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. A fact is material when it will make a
difference in the outcome of a case. DiPietro v. Farm-
ington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d
951 (2012). The party moving for summary judgment
bears the burden of demonstrating the absence of any
genuine issue of material fact. Lopes v. Farmer, 286
Conn. 384, 388, 944 A.2d 921 (2008). The trial court
must view the evidence in the light most favorable to
the nonmoving party. Id.
Appellate review of the trial court’s decision to grant
summary judgment is plenary. Bozelko v. Papastavros,
323 Conn. 275, 282, 147 A.3d 1023 (2016). ‘‘[W]e must
[therefore] decide whether [the trial court’s] conclu-
sions are legally and logically correct and find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Mirjavadi v. Vakilzadeh, 310 Conn.
176, 191, 74 A.3d 1278 (2013).
We dispose of each of these related claims as follows.
A
The plaintiff repeatedly asserts in a conclusory man-
ner that, despite the court’s judgment, two genuine
issues of material fact remain. First, the plaintiff claims
that there is a genuine issue of material fact with respect
to whether the wildly growing grass that concealed the
crack in the sidewalk hindered her ability to safely
use the sidewalk and that, if it did not hinder her, the
condition of the sidewalk did not meet the definition
of a highway defect so as to confer liability exclusively
on the city of Meriden. Whether the plaintiff was injured
because the grass obstructed her view of the crack, or
whether, for instance, the grass came into contact with
her foot, causing her to slip and fall, however, is simply
not material to a disposition of the motion for summary
judgment in this case. See DiPietro v. Farmington
Sports Arena, LLC, supra, 306 Conn. 116 (fact is mate-
rial if it makes difference in outcome of case). In part
I B of this opinion, we discuss why the issue is not
material and is therefore not a barrier to granting sum-
mary judgment in the defendant’s favor.
Second, the plaintiff asserts that a genuine issue of
material fact exists with respect to whether the grass
was a proximate cause of her alleged injuries. She
argues that there is a genuine dispute as to whether
‘‘the wildly growing grass prevented the plaintiff from
seeing the broken part of the sidewalk and this caused
her to step on the broken sidewalk because she could
not see it and it gave way causing her to fall.’’ The
defendant, however, for purposes of summary judg-
ment, did not dispute that the plaintiff was injured after
falling on the public sidewalk adjacent to Mickens’ prop-
erty, or that her fall was caused by ‘‘a broken and
cracked concrete sidewalk and adjacent curb with grass
growing wildly through the crack and broken sections.’’
Accordingly, the claim that the trial court failed to
consider the pleadings and other proof submitted in
determing that there were no genuine issues of fact is
without merit.
B
The plaintiff next argues that the court erred as a
matter of law by failing to apply the definition of a
highway defect as set forth in Sanzone v. Board of
Police Commissioners, supra, 219 Conn. 179. We
disagree.
As previously mentioned, the defendant argued, and
the trial court agreed, that, absent proof of a positive
act by Mickens that caused or contributed to the plain-
tiff’s fall, Mickens owed no duty to the plaintiff to main-
tain the sidewalk, specifically, by keeping it free of
wildly growing grass. We agree.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ RK Constructors, Inc. v.
Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
Our analysis in this case begins and ends with the first
element, duty. ‘‘The existence of a duty is a question
of law and only if such a duty is found to exist does
the trier of fact then determine whether the defendant
violated that duty in the particular situation at hand.
. . . Because the court’s determination of whether the
defendant owed a duty of care to the plaintiff is a ques-
tion of law, our standard of review is plenary. . . . Our
Supreme Court has stated that the test for the existence
of a legal duty of care entails (1) a determination of
whether an ordinary person in the defendant’s position,
knowing what the defendant knew or should have
known, would anticipate that harm of the general nature
of that suffered was likely to result, and (2) a determina-
tion, on the basis of a public policy analysis, of whether
the defendant’s responsibility for its negligent conduct
should extend to the particular consequences or partic-
ular plaintiff in the case. . . . The first part of the test
invokes the question of foreseeability, and the second
part invokes the question of policy.’’ (Citations omitted;
internal quotation marks omitted.) Abramczyk v.
Abbey, 64 Conn. App. 442, 445, 780 A.2d 957, cert.
denied, 258 Conn. 933, 785 A.2d 229 (2001).
It has long been established that municipalities have
the primary duty to maintain public sidewalks in a rea-
sonably safe condition. Robinson v. Cianfarini, supra,
314 Conn. 525. General Statutes § 13a-99 further pro-
vides in relevant part that ‘‘[t]owns shall, within their
respective limits, build and repair all necessary high-
ways and bridges except when such duty belongs to
some particular person. . . . ’’ When a sidewalk ‘‘along
a public street in a city [has] been constructed and
thrown open for public use, and used in connection
with the rest of the street, [it] must, as a part of the
street,’’ be maintained by the city, and kept in such
repair ‘‘as to be reasonably safe and convenient for
. . . travelers . . . .’’ Manchester v. Hartford, 30 Conn.
118, 121 (1861). ‘‘[This] duty is by law imposed primarily
upon the city, and to the city the public and individuals
have a right to look for security against accidents, as
well as for indemnity for injury occasioned by its
neglect.’’ Id.
This primary duty cannot ordinarily be delegated to
or imposed upon a third party by contract or ordinance.
‘‘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.’’ Wilson v. New Haven, 213 Conn.
277, 280, 567 A.2d 829 (1989). Abutting landowners,
therefore, are generally not liable for injuries caused
by defects on public sidewalks adjacent to their prop-
erty. See Robinson v. Cianfarani, supra, 314 Conn. 529.
The common-law rule is that the abutting landowner
is under no duty to keep a public sidewalk in front of
his property in a reasonably safe condition for travel.
Id. Moreover, shifting liability cannot be accomplished
by inference or by alleging alternative theories of com-
mon-law negligence. Id., 528. There are two exceptions.
First, municipalities, in limited circumstances, can con-
fer liability onto the abutting landowner through a char-
ter provision, statute, or ordinance.6 Id. Second,
landowners may be liable for injuries caused by defects
they created by their own actions. Id. Specifically, our
courts have long recognized ‘‘an exception to the gen-
eral rule, in that the abutting landowners can be liable
in negligence or public nuisance for injuries resulting
from an unsafe condition of a public sidewalk caused
by positive acts of the defendant.’’ Gambardella v.
Kaoud, 38 Conn. App. 355, 358–59, 660 A.2d 877 (1995).
Examples of this exception include a landowner who
maintained a gasoline pump inches away from a side-
walk which would spill gasoline onto the sidewalk, ren-
dering it unsafe for travel; Hanlon v. Waterbury, 108
Conn. 197, 198–99, 142 A. 681 (1928); and a defendant
who allowed grease from his restaurant to seep from
the front of his building onto the public walk. Perkins
v. Weibel, 132 Conn. 50, 51, 42 A.2d 360 (1945).
Therefore, without a statute that confers liability7 or
the creation by the abutting landowner of the cause of
the injury to the plaintiff, the landowner owes no duty
to members of the public traversing the public sidewalk.
See Wilson v. New Haven, supra, 213 Conn. 280–81.
In her objection to the defendant’s motion for sum-
mary judgment, the plaintiff did not attempt to argue
that the defendant was liable to her on the basis of
the cracked condition of the public sidewalk and curb.
Instead, she maintained that, unlike the crack, the
wildly growing grass that she alleges contributed to her
injuries by concealing the crack is not a defect covered
by the municipal highway defect statute, § 13a-149,
because the grass, in and of itself, did not hinder her
from walking on the sidewalk. She argued that abutting
landowners, regardless of the lack of any ordinance or
statute that shifted liability or proof of a positive act
on the part of the landowner, are liable for ‘‘nonside-
walk defects.’’8
Similarly, on appeal, the plaintiff does not address
the preceding authority regarding exceptions to the
common-law rule that would shift liability for an unsafe
public sidewalk from the municipality to an abutting
property owner either by statute or ordinance or the
positive act of the property owner. Rather, the plaintiff
argues that because the grass did not constitute a ‘‘high-
way defect’’ under § 13a-149, as defined in Sanzone v.
Board of Police Commissioners, supra, 219 Conn. 179,
the defendant is liable for the plaintiff’s injury due to
Mickens’ failure to remove the grass that concealed the
crack in the sidewalk.
The plaintiff’s argument is flawed. In Sanzone, the
estate of a person injured in a motor vehicle accident
sued a municipality, alleging that the accident was
caused by the existence of simultaneous green traffic
lights in perpendicular directions. Id., 181. The issue
was whether the traffic light was a ‘‘highway defect’’
for the purpose of § 13a-149. Under § 13a-149,9 munici-
palities can be held liable for injuries caused by highway
defects on public roads. Our Supreme Court in Sanzone
reiterated longstanding case law that a highway defect
is defined as ‘‘[a]ny object in, upon, or near the traveled
path, which would necessarily obstruct or hinder one
in the use of the road for the purpose of traveling
thereon, or which, from its nature and position, would
be likely to produce that result . . . .’’ (Internal quota-
tion marks omitted.) Sanzone v. Board of Police Com-
missioners, supra, 219 Conn. 202.
Even if we were to assume, arguendo, that the grow-
ing grass failed to meet the definition of a highway
defect,10 the outcome of this case would not be different.
The main issue affecting summary judgment in this case
is whether Mickens owed a duty to the plaintiff. San-
zone and §13a-149 address municipality liability; neither
are pertinent to whether Mickens owed a duty to the
plaintiff and they are therefore inapplicable to this case.
The plaintiff has not identified any authority in support
of the contention that when dangerous ‘‘nonsidewalk’’
defects or naturally occurring conditions not created
by an abutting landowner are present on a public side-
walk, the abutting landowner has an affirmative duty
to rectify such defects and is subject to liability to third
parties for any injuries if he or she fails to do so.
Again, the controlling longstanding rule is that abut-
ting landowners are not liable for injuries due to the
lack of public sidewalk maintenance, unless there is a
statute conferring liability or the landowner contributed
to the creation of the accident-causing condition by
positive act. See Hartford v. Talcott, 48 Conn. 525, 534
(1881) (landowner owes no duty to public for defects
resulting wholly from operations of nature). The revised
complaint does not allege, nor does the plaintiff claim,
either that Mickens had possession of, or control over
the sidewalk abutting her property. There also is no
allegation in the plaintiff’s revised complaint or in the
documents she submitted in opposition to summary
judgment that Mickens created the wildly growing grass
on the sidewalk through any positive act.11 Rather, it
alleges that Mickens failed to take affirmative steps to
remediate an existing condition on what was indisput-
ably a public sidewalk. See Robinson v. Cianfarani,
supra, 314 Conn. 528. As was noted previously in this
opinion, the court observed that the plaintiff abandoned
any claim that a Meriden ordinance had shifted liability
to the defendant. Whether the plaintiff sustained the
injury because the clump of grass obstructed her view
of the crack or the grass caused her to trip or slip;
see part I A of this opinion; the fact remains that the
pleadings and other documents do not remotely suggest
that Mickens through any positive act caused the grass
to grow on the sidewalk.12 Grass is naturally occurring.
As the court aptly noted, ‘‘grass grows by itself.’’
Therefore, the plaintiff’s alternative theory of com-
mon-law liability based on the Mickens’ negligence for
‘‘nonsidewalk’’ defects is governed by the settled com-
mon-law rule that, in the absence of statute or ordi-
nance, an abutting landowner ordinarily is under no
duty to keep the public sidewalk in front of her property
in a reasonably safe condition for travel. Accordingly
there is no basis to impose liability on the defendant.
II
We next consider the plaintiff’s related claims that
in granting summary judgment, the court erroneously
considered facts outside the confines of this case and
in so doing, violated the plaintiff’s right to due process
of law by failing to allow her to review evidence from
other cases that the court utilized in deciding the motion
for summary judgment. The plaintiff claims that the
court, by citing to its prior decision in Marino v. Bran-
ford, Superior Court, judicial district of New Haven,
Docket No. 431477 (Oct. 12, 2000) (28 Conn. L. Rptr.
297), in its memorandum of decision on the motion for
summary judgment, relied on facts outside the record
and violated the plaintiff’s rights. These claims are
entirely without merit.
In Marino, the injured party fell when she stepped
on a sidewalk defect that was concealed by weeds and
grass. Id., 297. The court determined that the abutting
landowner was not liable, however, because grass
grows naturally and, thus, the condition at issue was not
created by a positive act. Id., 298. In its memorandum
of decision, the court in the present case reasoned: ‘‘For
the reasons set forth in [Marino] . . . the objection to
the motion for summary judgment must be overruled.
As explained in Marino, ‘the positive act exception to
the general rule absolving abutting property owners of
liability for defective sidewalks cannot be established’
in the case of growing grass, since grass grows by itself.
. . . The operative facts of Marino cannot be distin-
guished from the operative facts of this case, and,
despite frequent entreaties by the court at argument,
[the plaintiff] was unable to articulate any such dis-
tinction.’’
There is no indication that the court considered the
facts in Marino in lieu of the facts presented by the
parties at summary judgment. A court may look to an
opinion from a factually similar case, or any reported
case, in fact, even if such case is nonbinding, for legal
guidance in resolving the case before it. Cf. Turner v.
Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000). The
court here merely applied the ‘‘[r]easons set forth in
Marino’’ because of the plaintiff’s inability to distin-
guish ‘‘[t]he operative facts Marino’’ from the ‘‘opera-
tive facts of this case.’’ In any event, for the reasons
provided in parts I A and I B of this opinion, we conclude
under a plenary standard of review that the defendant
was entitled to judgment as a matter of law.
The plaintiff’s due process claim merits little discus-
sion. Whether a party was deprived of his due process
rights is a question of law to which appellate courts
grant plenary review. Gagne v. Vaccaro, 154 Conn. App.
656, 671, 109 A.3d 500 (2015). The core interests pro-
tected by procedural due process concern the opportu-
nity to be heard at a meaningful time and in a meaningful
manner. Jones v. Connecticut Medical Examining
Board, 309 Conn. 727, 736, 72 A.3d 1034 (2013). The
plaintiff does not assert rights of this nature. Instead,
the plaintiff argues that the court did not provide notice
that it would cite to the Marino decision. The argument
is wholly frivolous, and we further note that the defen-
dant cited to Marino in his motion for summary
judgment.
For all of the foregoing reasons, we conclude that
the court did not err in granting the defendant’s motion
for summary judgment.
III
The plaintiff’s final claim is that the court erred by
denying the plaintiff’s postjudgment motions to amend
her revised complaint and to reargue the motion for
summary judgment. We disagree.
We note the following additional facts relevant to
this claim. The plaintiff’s revised complaint alleges that
she fell on May 14, 2014, and it refers to the defendant’s
decedent as Janice Mickens, rather than Janet Mickens.
Through discovery, however, it was determined that
the incident had in fact occurred on May 14, 2013. It
is undisputed that Mickens died on January 4, 2014.
The plaintiff did not correct these errors in her revised
complaint prior to the granting of summary judgment.
In its memorandum of decision granting summary judg-
ment, the court observed that the plaintiff incorrectly
referred to Janice Mickens and that Mickens had been
dead for over four months at the time of the incident
in question, thus leaving ‘‘the identity of the person
actually responsible for the condition complained of
. . . in considerable doubt.’’ The court, however,
acknowledged the incorrect date was ‘‘not the subject
of the defendant’s motion for summary judgment.’’
After the court granted summary judgment, the plain-
tiff filed the two motions previously identified. The
plaintiff sought to amend her revised complaint to fix
the error as to the date of the incident and sought to
reargue the motion for summary judgment because she
argues the court rendered its decision ‘‘based upon [the]
. . . erroneous facts’’ her amendment sought to cure.
The court summarily denied the motion to reargue. The
record does not indicate that the court ruled on the
motion to amend.
As she did before the trial court, the plaintiff argues
that the court looked to incorrect details when deciding
whether to grant summary judgment for the defendant.
Therefore, the plaintiff argues that the record should
be modified to allow for a ‘‘proper decision upon the
facts.’’
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address alleged inconsistencies in the trial court’s
memorandum of decision as well as claims of law that
the [movant] claimed were not addressed by the court.’’
(Citation omitted; internal quotation marks omitted.)
Opuku v. Grant, 63 Conn. App. 686, 692, 778 A.2d 981
(2001). It is not meant for a second bite at the apple.
Id. Denial of the motion to reargue is within the discre-
tion of the trial court, and an appellate court applies
abuse of discretion review. Weiss v. Smulders, 313
Conn. 227, 261, 96 A.3d 1175 (2014). The trial court’s
decision is affirmed if there is a reasonable basis for
its conclusions. Biro v. Hill, 231 Conn. 462, 465, 650
A.2d 541 (1994).
In ruling on the motion for summary judgment, the
court merely acknowledged the confusion created by
the incorrect date alleged in the complaint. The court
expressly stated that the incorrect date was ‘‘not the
subject of the defendant’s motion for summary judg-
ment.’’ The principal issue on summary judgment was
whether the owner of the property adjacent to the side-
walk in question owed the plaintiff a duty to maintain
the sidewalk. The court concluded that the abutting
landowner at the time of the plaintiff’s accident,
whether it was Mickens or her estate, could not be held
liable. We are not persuaded that reargument based on
the correct date of the plaintiff’s fall, as argued, would
have affected the court’s judgment. Whether Mickens
or her estate was the abutting landowner at the time
of the incident in question was irrelevant to the court’s
analysis. For the foregoing reasons, the court did not
abuse its discretion in denying the plaintiff’s motion
to reargue.
To the extent that the plaintiff challenges the court’s
denial of her motion to amend, we observe that ‘‘[w]e
cannot pass on the correctness of a trial court ruling
that was never made.’’ Fischel v. TKPK, Ltd., 34 Conn.
App. 22, 26, 640 A.2d 125 (1994). Additionally, we
observe that, having denied the motion to reargue, the
court let the judgment in favor of the defendant stand
and, thus, eliminated any possible basis for granting
the motion to amend.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As several of the plaintiff’s claims are interrelated, we address the plain-
tiff’s first and fourth claims in part I of this opinion, the second and third
claims in part II, and the fifth claim in part III.
2
Mickens died on January 4, 2014. On March 15, 2014, the defendant
became the administrator of her estate.
3
Section 180-42 of the Meriden City Code provides: ‘‘Whenever a sidewalk
has been laid in the city, the occupant or, if there is no occupant, the owner
of any premises abutting upon such sidewalk shall keep the grass or weeds
properly cut or removed in the area between the property line of such
premises and the curbline.’’
Section 180-41 of the Meriden City Code provides in relevant part:
‘‘A. After having been notified by the department of public works so to
do, it shall be unlawful for any person not to properly repair any portion of
a sidewalk adjoining his property within the time specified in such a notice.
‘‘B. Upon the default or neglect of any person to comply with such notice
. . . the department may construct or repair such sidewalk, and the expense
thereof shall be chargeable to the person whose duty it was to repair said
sidewalk and shall be collectible by the city in the same manner that other
debts due the city are collected, and said expense shall be a lien upon the
premises adjoining such sidewalk. . . .’’
4
General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. . . . No action for
any such injury shall be maintained against any town, city, corporation or
borough, unless written notice of such injury and a general description of
the same, and of the cause thereof and of the time and place of its occurrence,
shall, within ninety days thereafter be given to a selectman or the clerk of
such town, or to the clerk of such city or borough, or to the secretary or
treasurer of such corporation.’’
5
In its memorandum of decision, however, the court noted that the defen-
dant at oral argument, ‘‘expressly abandoned’’ her claim that Meriden Ordi-
nance § 180-42, requiring abutting landowners to cut or remove grass or
weeds from public sidewalks, effectively shifted liability to the landowner.
6
Our legislature has enacted enabling legislation to permit municipalities
to promulgate rules and regulations concerning sidewalks encompassed
within municipal highway rights of way. Municipalities may require property
owners to remove debris and other obstructions from abutting sidewalks.
See General Statutes § 7-148 (c) (6) (C) (v). Pursuant to § 7-148, municipali-
ties also may levy penalties against abutting landowners for their failure to
remove such debris and obstructions. Id. Accordingly, the city of Meriden
requires property owners to keep grass or weeds properly cut or removed
in the area between the property line of the landowner’s premises and
the curbline. Meriden City Code § 180-42. But there is no language in this
ordinance or in any statute that imposes upon the abutting property owner
any liability to a third party for his injuries. Under General Statutes § 7-
163a, municipalities may transfer to abutting property owners liability solely
for injuries caused by ice and snow on public sidewalks. Section 7-148 is
the only other source under which a municipality may delegate duties to
abutting landowners with respect to sidewalks. Although § 7-148 authorizes
municipalities to require abutting property owners to remove debris and
other obstructions from public sidewalks, unlike § 7-163a, it does not autho-
rize a municipality to shift liability for injuries to adjacent landowners. See
Dreher v. Joseph, 60 Conn. App. 257, 261, 759 A.2d 114 (2000) (general rule
of construction that even where ordinance imposes on property owners
duty normally performed by municipality, there is no private cause of action
unless plainly expressed in ordinance).
7
As noted previously, during the hearing on the motion for summary
judgment, the plaintiff abandoned any claim that § 180-42 of the Meriden
City Code conferred liability on Mickens or her estate.
8
It appears that, by using this terminology, the plaintiff may be referring
to nonstructural sidewalk defects, which would exclude a lot of other condi-
tions on or adjacent to public sidewalks that may constitute highway defects
under § 13a-149, including ice and snow; Bellman v. West Hartford, 96 Conn.
App. 387, 900 A.2d 82 (2006); loose gravel; Hickey v. Newtown, 150 Conn.
514, 517, 192 A.2d 199 (1963); defects such as holes in the traveled right of
way that are not part of the actual concrete sidewalk; Angelillo v. Meriden,
136 Conn. 553, 555–56, 72 A.2d 654 (1950); and intrusive tree limbs; Comba
v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979).
9
General Statutes § 13a-149 provides: ‘‘Any person injured in person or
property by means of a defective road or bridge may recover damages from
the party bound to keep it in repair. . . . No action for any such injury
shall be maintained against any town, city, corporation or borough, unless
written notice of such injury and a general description of the same, and of
the cause thereof and of the time and place of its occurrence, shall, within
ninety days thereafter be given to a selectman or the clerk of such town,
or to the clerk of such city or borough, or to the secretary or treasurer of
such corporation.’’
10
We do not necessarily agree with the plaintiff that grass growing over
the crack in the public sidewalk was not a part of her description in her
revised complaint of the defective, dangerous and unsafe condition on the
sidewalk alleged to have caused her slip and fall. ‘‘Whether a highway is
defective may involve issues of fact, but whether the facts alleged would,
if true, amount to a highway defect according to the statute is a question
of law . . . .’’ Sanzone v. Board of Police Commissioners, supra, 219 Conn.
201. ‘‘If in the use of the traveled portion of the highway . . . a condition
exists which makes travel not reasonably safe for the public, the highway
is defective.’’ (Internal quotation marks omitted.) Ferreira v. Pringle, 255
Conn. 330, 344, 766 A.2d 400 (2001). As the plaintiff alleged in her affidavit
accompanying her objection to the motion for summary judgment, the
‘‘wildly growing grass’’ contributed to the defective nature of the sidewalk
because she averred that she ‘‘could not see the crack when I stepped on
it because it was hidden by the grass.’’ Since the grass was obstructing her
ability to see the crack, the grass, by its nature and position, was as much
a hindrance to her safe travel on the sidewalk as the crack beneath it.
Photographs submitted by the plaintiff as exhibits accompanying her objec-
tion might have indicated to a trier of fact that if the grass had not been
concealing the crack, the plaintiff might have seen it and been able to avoid
the accident. See Parker v. Hartford, 122 Conn. 500, 503–504, 190 A. 866
(1937) (town liable under defective highway statute for foot-deep gulley
partially concealed by grass in public street.)
11
In fact, the allegation that the grass was ‘‘wildly growing’’ would be
contrary to any claim that Mickens placed seeds or grass over the cracked
area of the sidewalk.
12
Compare the present matter with Gambardella v. Kaoud, supra, 38
Conn. App. 359, in which the plaintiffs won reversal of summary judgment
in favor of abutting landowners in a defective sidewalk case not because
sand, sticks and debris had naturally accumulated on the sidewalk, but
because the plaintiffs had alleged that the defendants caused the condition
by a positive act.