Cyr v. VKB, LLC ( 2019 )

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CYNTHIA CYR v. VKB, LLC, ET AL.
(AC 41818)
DiPentima, C. J., and Prescott and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendant property owners
for injuries she sustained when she tripped on a public sidewalk that
abutted the defendants’ property. The plaintiff alleged that an approxi-
mately one and one-half inch lip between two segments of the sidewalk
constituted a defective condition in the sidewalk. Under the common
law, a landowner whose property abuts a public sidewalk is under no
duty to keep the sidewalk in front of the property in a reasonably safe
condition, except when a municipality confers liability on the abutting
landowner through a statute or ordinance, or where the defect was
created by a positive act of the landowner. The defendants filed a motion
for summary judgment, claiming, inter alia, that under the facts alleged
by the plaintiff, they owed no duty to the plaintiff to maintain the
sidewalk. The defendants claimed that the applicable city ordinance
(§ 21-37) shifted only the duty of repairing an abutting sidewalk from
the municipality to an abutting landowner but did not shift liability
for injuries resulting from an unsafe condition on the sidewalk. The
defendants further asserted that the positive act exception to the general
rule absolving landowners of liability for defective sidewalks did not
apply because they did not create the unsafe condition on the public
sidewalk. The trial court granted the defendants’ 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 for the defendants
as to counts one and two of the plaintiff’s complaint, which alleged that
the defendants violated § 21-37, the plaintiff’s appellate counsel having
conceded to this court that § 21-37 did not shift liability to the defendants
and did not play any role in her appeal.
2. The trial court properly rendered summary judgment in favor of the
defendants as to counts four and five of the complaint, which alleged
that the defect in the sidewalk developed as a result of the settling of
one adjacent segment of the sidewalk: there was no allegation in those
counts that any positive act on the part of the defendants caused the
settling of the sidewalk segment, as the allegation suggested that the
alleged settling resulted from nature and the passage of time, which
was insufficient as a matter of law to impose a duty on an abutting
landowner, and, thus, the allegations of counts four and five were insuffi-
cient as a matter of law to hold the defendants liable for the plaintiff’s
injuries; moreover, the plaintiff’s claim that the defendants owed a duty
of care on the theory that a business owner that invites the public to
enter and exit its property at a particular location owes a duty to ensure
that the location is reasonably safe was unavailing, as the case law
relied on by the plaintiff in support of that claim was inapposite in that
it did not involve a public sidewalk and, therefore, did not create an
additional exception to the general common-law rule.
3. The trial court improperly granted the defendants’ motion for summary
judgment as to counts three, six and seven of the plaintiff’s complaint,
which alleged that the defendants had constructed a sidewalk on their
property with a resulting approximately one and one-half inch lip
between the sidewalk segments and the sidewalk on the adjoining prop-
erty, as those counts alleged a legally cognizable basis for liability in
that they alleged that the defendants constructed the sidewalk with the
alleged defect: to prevail on their motion for summary judgment, the
defendants bore the initial burden to negate the factual claims as framed
by the complaint, and, thus, with respect to counts three, six and seven,
it was incumbent on those defendants to whom such counts were
directed to proffer evidence that either they did not construct the side-
walk or that they constructed the sidewalk without the alleged defect,
and because the defendants did not submit any supporting affidavits
or documentary evidence, they failed to satisfy their initial burden as
movants for summary judgment with respect to those counts; moreover,
the fact that the defendants submitted evidentiary materials with their
reply brief did not cure their failure to proffer evidence with their initial
motion because the reply materials did not establish the nonexistence
of a genuine issue of material fact.
Argued April 11—officially released December 17, 2019
Proceedings
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in judicial district of Hartford,
where the court, Shapiro, J., granted the plaintiff’s
motion to cite in Vernon W. Belanger et al. as defen-
dants; thereafter, the court granted the defendants’
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Reversed in part; further proceedings.
Frank C. Bartlett, Jr., for the appellant (plaintiff).
Christopher P. Kriesen, with whom was Ronald J.
Houde, Jr., for the appellees (defendants).
Opinion
MOLL, J. The plaintiff, Cynthia Cyr, appeals from the
summary judgment rendered by the trial court in favor
of the defendants, VKB, LLC (VKB), Shady Oaks
Assisted Living, LLC (Shady Oaks Assisted Living),
Shady Oaks Rest Home, Inc. (Shady Oaks Rest Home),
Vernon W. Belanger, and Kay F. Belanger. On appeal,
the plaintiff claims that the court improperly rendered
summary judgment in favor of the defendants on all
counts of her amended complaint when it (1) failed to
require the defendants, as the movants for summary
judgment, first to establish that there was no genuine
issue as to any material fact, (2) determined that the
defendants’ alleged affirmative acts did not create the
defect in the sidewalk, and (3) purportedly determined,
as a matter of law, that a business owner that invites
individuals to enter and exit its property at a particular
location owes no duty to ensure that such location is
reasonably safe. We affirm in part and reverse in part
the judgment of the trial court.
The following procedural history is relevant to our
analysis of the plaintiff’s claims. On November 29, 2016,
the plaintiff commenced this action, sounding in negli-
gence and negligence per se, against the original defen-
dants, VKB, Shady Oaks Assisted Living, and Shady
Oaks Rest Home. On February 2, 2017, the original
defendants filed an answer and special defenses in
response to the plaintiff’s original complaint. On Febru-
ary 6, 2017, the original defendants filed a request for
leave to amend their answer and special defenses and
appended the proposed amendment, which was
deemed to have been filed by consent, absent objection.
On February 10, 2017, the plaintiff filed a reply.1 On
December 29, 2017, the plaintiff filed a motion to cite
in additional defendants, Vernon W. Belanger and Kay
F. Belanger, and to amend the complaint, which was
granted by the court on January 17, 2018.
On January 31, 2018, the plaintiff filed her amended
complaint and alleged, inter alia, the following. At all
relevant times, the defendants owned, and/or were in
the possession and control of, real property located at
344 Stevens Street in Bristol (property). On May 28,
2015, at approximately 10:15 a.m., the plaintiff was
walking on the sidewalk abutting the property, when
she tripped on an approximately one and one-half inch
lip between two sidewalk segments (defect) and fell,
sustaining physical injuries, principally to her left hand,
which necessitated medical treatment and interfered
with her employment and enjoyment of life’s activities.
The parties do not dispute that the sidewalk at issue
is a public sidewalk.
On the basis of the foregoing factual allegations, the
plaintiff asserted the following claims: (1) negligence
as to VKB (count one); (2) negligence per se as to VKB
(count two); (3) nuisance as to VKB (count three); (4)
negligence as to Shady Oaks Assisted Living (count
four); (5) negligence as to Shady Oaks Rest Home
(count five); (6) nuisance as to Vernon W. Belanger
(count six); and (7) nuisance as to Kay F. Belanger
(count seven). The plaintiff alleged alternative theories
as to how the alleged defect in the sidewalk was created.
On the one hand, in counts one and two (directed to
VKB), count four (directed to Shady Oaks Assisted Liv-
ing), and count five (directed to Shady Oaks Rest
Home), the plaintiff alleged that the defect ‘‘developed
as a result of the settling of one adjacent segment.’’ On
the other hand, in count three (directed to VKB), count
six (directed to Vernon W. Belanger), and count seven
(directed to Kay F. Belanger), the plaintiff alleged,
respectively, that VKB, or its predecessor(s) in interest,
Vernon W. Belanger, and/or Kay F. Belanger, through
one or more of their agents, servants, and/or employees,
constructed the sidewalk with the resulting defect. In
each of the respective counts, the plaintiff alleged that
the defendants were responsible for keeping the abut-
ting sidewalk in a safe condition for the use of the
public.
The defendants did not move to strike any of the
plaintiff’s claims. On March 12, 2018, however, the
defendants filed an amended motion for summary judg-
ment (motion), and a supporting memorandum of law,
as to all counts of the plaintiff’s amended complaint.
The motion was not accompanied by any supporting
affidavits or documentary evidence. The defendants
argued that they were entitled to judgment as a matter
of law because (1) Bristol Code of Ordinances § 21-372
(city ordinance) shifts only the duty of repairing an
abutting sidewalk from the municipality to an abutting
landowner and does not shift liability for injuries
resulting from an unsafe condition of the sidewalk, (2)
there is no common-law duty owed by abutting land-
owners to the public for sidewalk defects, and (3) there
is no evidence, and the plaintiff cannot prove, that the
defendants created the alleged defect so as to fall within
an exception to the general rule that liability remains
with the municipality in cases involving public side-
walk defects.
On April 19, 2018, the plaintiff filed an objection and
a memorandum of law in opposition to the motion, as
well as the affidavit of Frank C. Bartlett, Jr., Esq., and
several exhibits. On May 7, 2018, the defendants filed
a reply memorandum of law, as well as the affidavit of
Ronald J. Houde, Jr., Esq., and several exhibits. That
same day, the court held a hearing on the motion. On
June 15, 2018, the court granted the defendants’ motion,
rendering summary judgment in favor of the defendants
on all counts.
The trial court’s memorandum of decision reflects
the following analysis. Having reviewed the general
principles regarding the liability of abutting landowners
for injuries sustained on a defective public sidewalk, the
court first concluded that, although the city ordinance
imposes a duty on the defendants to maintain the side-
walk, it does not shift liability from the municipality to
the defendants for the plaintiff’s fall. The court then
addressed the plaintiff’s argument that there existed a
genuine issue of material fact as to whether the defen-
dants caused the sidewalk defect by performing a posi-
tive act. Specifically, the court stated that ‘‘[t]he plaintiff
does not allege, and has not presented evidence to
show, that the sidewalk was constructed or repaired
deficiently . . . .’’ The court went on to reject the plain-
tiff’s additional arguments, namely, that the defendants
owed her a duty of care by (1) voluntarily undertaking
to inspect the sidewalks and (2) incurring a higher duty
of care to the plaintiff as a business invitee. Thereupon,
the court entered judgment in favor of the defendants
as to all counts. This appeal followed. Additional facts
and procedural history will be provided as necessary.
Before we turn to the plaintiff’s claims on appeal, we
briefly discuss the standard of review and applicable
legal principles. The standard governing our review of
a trial court’s decision to grant a motion for summary
judgment is well established. ‘‘Practice Book § 17-49
provides that summary judgment shall be rendered
forthwith 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. A party moving for sum-
mary judgment is held to a strict standard. . . . To
satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Capasso v. Christmann, 163
Conn. App. 248, 257, 135 A.3d 733 (2016).
We next review the substantive law governing liability
for injuries resulting from a defective condition on a
public sidewalk. ‘‘It has long been established that
municipalities have the primary duty to maintain public
sidewalks in a reasonably safe condition. Robinson v.
Cianfarani, [314 Conn. 521, 525, 107 A.3d 375 (2014)].
General Statutes § 13a-99 further provides in relevant
part that ‘[t]owns shall, within their respective limits,
build and repair all necessary highways 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 pub-
lic 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 . . . .’ Man-
chester 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. Id. Second, land-
owners may be liable for injuries caused by defects
they created by their own actions. Id. . . .
‘‘Therefore, without a statute that confers liability 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.’’
(Citations omitted; footnotes omitted.) McFarline v.
Mickens, 177 Conn. App. 83, 93–95, 173 A.3d 417 (2017),
cert. denied, 327 Conn. 997, 176 A.3d 557 (2018).
I
We first consider the foregoing principles with
respect to counts one and two of the amended com-
plaint (i.e., the plaintiff’s claims of negligence and negli-
gence per se as to VKB). In the allegations made in
support of such claims, the plaintiff exclusively relied
on the city ordinance as creating a duty on the part of
VKB to inspect, maintain, and/or repair the abutting
sidewalk, and to warn individuals, including the plain-
tiff, of the allegedly defective condition of the sidewalk.
During oral argument before this court, and having
stated in the plaintiff’s principal appellate brief that
‘‘the plaintiff is not claiming that [the city ordinance],
in and of itself, shifts liability to an abutting landowner,’’
the plaintiff’s counsel expressly acknowledged that the
city ordinance does not play any role in the plaintiff’s
appeal and conceded that summary judgment properly
entered in favor of VKB on count two. Count one neces-
sarily suffers the same fate, however, as the plaintiff’s
theory of negligence alleged therein also is based exclu-
sively on VKB’s alleged violation of the city ordinance.3
See Robinson v. Cianfarani, supra, 314 Conn. 528
(holding that town ordinance that imposed duty on
abutting landowner to remediate hazardous conditions
created by accumulation of snow and ice on public
sidewalk but did not shift civil liability to that landowner
for failure to do so could not be used to support alterna-
tive negligence theories). Accordingly, the plaintiff’s
challenge to the trial court’s rendering of summary judg-
ment in favor of VKB as to counts one and two is
deemed abandoned, and the judgment as to counts one
and two is affirmed on that basis.
II
We turn next, in the context of the remaining counts,
which do not rely on the city ordinance, to the applica-
bility of the second exception to the general rule. ‘‘[O]ur
courts have long recognized ‘[the second] exception to
the general rule, in that abutting property owners can be
held 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, 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).’’ (Emphasis
added.) McFarline v. Mickens, supra, 177 Conn. App.
94–95.
Other examples include a landowner and its lessee
that allowed ice to form on a public sidewalk as a
result of the melting of snow that had accumulated on
projections from the defendants’ building; Calway v.
William Schaal & Son, Inc., 113 Conn. 586, 588–90, 155
A. 813 (1931); and landowners and their lessee that
allegedly caused sand, sticks, and debris to accumulate
on a public sidewalk; Gambardella v. Kaoud, supra, 38
Conn. App. 359; accord Wilson v. New Haven, supra,
213 Conn. 280–81 (abutting landowner not liable for
injuries sustained as result of fall caused by raised,
broken, and uneven section of public sidewalk where
plaintiff did not claim that statute or ordinance created
duty owed to plaintiff by abutting landowner and where
abutting landowner did not create hazardous condi-
tion); Abramczyk v. Abbey, 64 Conn. App. 442, 446–47,
780 A.2d 957 (analogizing case, which involved public
right-of-way located on defendant’s property, to public
sidewalk cases and concluding that, in absence of any
evidence that defendant’s positive acts caused city’s
water pipe to be tripping hazard, defendant was not
liable for injuries caused by exposed pipe), cert. denied,
258 Conn. 933, 785 A.2d 229 (2001).
Moreover, an abutting landowner owes no duty to
the public to take affirmative steps to remediate a defect
on a public sidewalk resulting entirely from the opera-
tion of nature. See Hartford v. Talcott, 48 Conn. 525,
534 (1881) (there is not imposed ‘‘upon the individual
any liability at common law for injuries resulting from
obstructions in [a public sidewalk] wholly the effects
of natural causes’’); McFarline v. Mickens, supra, 177
Conn. App. 97–98 (landowner owed no duty to public
in connection with naturally growing grass on public
sidewalk).
Mindful of the foregoing principles, we address sepa-
rately (1) those counts in which the plaintiff alleged
that the defect in the sidewalk ‘‘developed as a result
of the settling of one adjacent segment’’ and (2) those
counts in which the plaintiff alleged that the relevant
defendant ‘‘constructed a sidewalk on the property with
a resulting approximately 1 1/2’’ lip between the side-
walk segments it installed and the sidewalk on the
adjoining property.’’
A
We begin with counts four and five, directed to Shady
Oaks Assisted Living and Shady Oaks Rest Home,
respectively, in which the plaintiff alleged that the
defect in the sidewalk ‘‘developed as a result of the
settling of one adjacent segment.’’ As stated previously
in this opinion, in construing the plaintiff’s claims, the
court concluded in part that ‘‘[t]he plaintiff [did] not
allege . . . that the sidewalk was constructed or
repaired deficiently . . . .’’ Insofar as counts four and
five are concerned, we agree. There is no allegation in
counts four and five that any positive act on the part
of these defendants caused the settling of the sidewalk
segment. Rather, the allegation that the defect in the
sidewalk ‘‘developed as a result of the settling of one
adjacent segment’’ suggests only that the alleged set-
tling resulted from nature and the passage of time,
which is insufficient as a matter of law to impose a
duty on an abutting landowner. See Hartford v. Talcott,
supra, 48 Conn. 534; McFarline v. Mickens, supra, 177
Conn. App. 97–98.
In short, it is clear on the face of these counts that
they are legally insufficient.4 They fail to state a legally
cognizable basis on which to hold Shady Oaks Assisted
Living and/or Shady Oaks Rest Home liable for injuries
on the abutting public sidewalk. Thus, in the absence
of (1) a charter provision, statute, or ordinance that
confers liability, or (2) any allegations in counts four
and five, that Shady Oaks Assisted Living and Shady
Oaks Rest Home, respectively, created a defective con-
dition on the public sidewalk, the settled common-law
rule governs. See Robinson v. Cianfarani, supra, 314
Conn. 528–29, 528 n.7.
Notwithstanding the well settled principles explained
previously in this opinion, the plaintiff claims that the
defendants owed her a duty of care on the theory that
a business owner that invites the public to enter and
exit its property at a particular location owes a duty to
ensure that the location is reasonably safe. In support of
this claim, the plaintiff largely relies on Ford v. Hotel &
Restaurant Employees & Bartenders Union, 155 Conn.
24, 32–36, 229 A.2d 346 (1967), in which our Supreme
Court affirmed the judgment of the trial court holding
the defendant lessor liable in negligence for injuries
sustained by a business invitee as he exited the lessor’s
premises. The trial court in the present case concluded,
and we agree, that Ford is inapposite because, at a
minimum, it did not involve a public sidewalk and,
therefore, did not create an additional exception to
the general common-law rule discussed previously in
this opinion.
On the basis of the foregoing, we affirm the trial
court’s rendering of summary judgment in favor of
Shady Oaks Assisted Living and Shady Oaks Rest Home
as to counts four and five, respectively.
B
We continue our analysis with counts three, six, and
seven, in which the plaintiff alleged that VKB, Vernon
W. Belanger, and Kay F. Belanger, respectively, ‘‘con-
structed a sidewalk on the property with a resulting
approximately 1 1/2’’ lip between the sidewalk segments
it installed and the sidewalk on the adjoining property.’’
With respect to these allegations, we disagree with the
trial court’s statement that ‘‘[t]he plaintiff [did] not
allege . . . that the sidewalk was constructed or
repaired deficiently . . . .’’ These allegations were suf-
ficient to bring the plaintiff’s claims in counts three,
six, and seven within the second exception to the com-
mon-law rule, namely, that an abutting landowner can
be liable in negligence or public nuisance for injuries
resulting from an unsafe condition of a public sidewalk
caused by a positive act of the defendant. That is, the
allegations of these counts may be reasonably viewed
as alleging that VKB, Vernon W. Belanger, and Kay F.
Belanger, respectively, constructed the sidewalk with
the alleged defect (i.e., that the alleged defect resulted
from the construction of the sidewalk).
In light of our conclusion that counts three, six, and
seven sufficiently allege a legally cognizable basis for
liability, we proceed to address the plaintiff’s claim that
the trial court erred in failing to require the defendants
to satisfy their initial burden, as the movants for sum-
mary judgment, to establish the nonexistence of any
genuine issue of material fact. As stated previously in
this opinion, in support of their amended motion for
summary judgment, the defendants did not submit any
supporting affidavits or documentary evidence. The
plaintiff argues that, in light of this failure, the trial
court improperly shifted the burden of proof to her
when it concluded that ‘‘[t]he plaintiff . . . has not pre-
sented evidence to show . . . that the sidewalk was
constructed or repaired deficiently . . . .’’ We agree.
Practice Book § 17-45 (a) provides: ‘‘A motion for
summary judgment shall be supported by appropriate
documents, including but not limited to affidavits, certi-
fied transcripts of testimony under oath, disclosures,
written admissions and other supporting documents.’’
(Emphasis added.) ‘‘On a motion by [the] defendant for
summary judgment the burden is on [the] defendant to
negate each claim as framed by the complaint . . . .
It necessarily follows that it is only [o]nce [the] defen-
dant’s burden in establishing his entitlement to sum-
mary judgment is met [that] the burden shifts to [the]
plaintiff to show that a genuine issue of fact exists
justifying a trial. . . . Accordingly, [w]hen documents
submitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.’’
(Internal quotation marks omitted.) Mott v. Wal-Mart
Stores East, LP, 139 Conn. App. 618, 626–27, 57 A.3d
391 (2012); see also Romprey v. Safeco Ins. Co. of
America, 310 Conn. 304, 320–21, 77 A.3d 726 (2013);
Bayview Loan Servicing, LLC v. Frimel, 192 Conn.
App. 786, 795, A.3d (2019); Magee Avenue, LLC
v. Lima Ceramic Tile, LLC, 183 Conn. App. 575, 583–85,
193 A.3d 700 (2018).
To prevail on their motion for summary judgment,
the defendants bore the initial burden to negate the
factual claims as framed by the complaint. Thus, in
response to the allegations in counts three, six, and
seven, that VKB, Vernon W. Belanger, and Kay F.
Belanger, respectively, ‘‘constructed a sidewalk on the
property with a resulting approximately 1 1/2’’ lip
between the sidewalk segments it installed and the side-
walk on the adjoining property,’’ it was incumbent on
those defendants to whom such counts were directed
to proffer evidence that either they did not construct
the sidewalk or that they constructed the sidewalk with-
out the alleged defect. In the absence of any evidentiary
submission, such defendants failed to satisfy their initial
burden as movants for summary judgment with respect
to counts three, six, and seven, and the trial court erred
in granting their motion for summary judgment as to
those counts.
The fact that the defendants submitted evidentiary
materials with their reply brief (reply materials) in sup-
port of their summary judgment motion does nothing
to cure the failure to proffer evidence with their initial
motion because the reply materials do not establish the
nonexistence of a genuine issue of material fact.5 That
is, the reply materials do not contain any affidavits or
other supporting documents that demonstrate that the
defendants either did not construct the sidewalk or
constructed the sidewalk without the alleged defect.
Moreover, the reply brief states in part: ‘‘[I]t is not clear
that the defendant[s] actually constructed the sidewalk
in question,’’ which effectively concedes that there
exists a genuine issue of material fact as to whether
any of the defendants constructed the sidewalk.
The judgment is reversed in part only as to the grant-
ing of the defendants’ motion for summary judgment as
to counts three, six, and seven of the plaintiff’s amended
complaint and the case is remanded with direction to
deny the defendants’ motion for summary judgment as
to those counts and for further proceedings according
to law; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
On December 19, 2017, the original defendants filed a motion for sum-
mary judgment as to all counts of the plaintiff’s original complaint. The
defendants later filed an amended motion for summary judgment, the grant-
ing of which is the subject of this appeal.
2
Section 21-37 of the Bristol Code of Ordinances, entitled ‘‘Maintenance—
Abutting owner’s duty generally,’’ provides: ‘‘(a) All public sidewalks, when-
ever installed, shall be maintained, repaired, replaced and kept clear by the
abutting property owner and not at the expense of the general city taxpayers
whether such public walks are described as school walks or otherwise.
‘‘(b) Every person owning land within the city, upon or adjacent to which
is a sidewalk, whether constructed by him or not, shall at all times keep
such sidewalk in safe condition for the use of the public, and shall have
repaired all defects which may occur in such sidewalk and at all times
remove therefrom all obstructions or any substance which would in any
way impede or imperil public travel upon such sidewalk.’’
3
Specifically, in count one, the plaintiff alleged in relevant part: ‘‘4. At all
times relevant, [VKB] was responsible for keeping the abutting sidewalk in
safe condition for the use of [the] public, pursuant to the ordinances of the
[city of] Bristol. . . . 15. [VKB] has direct liability to the plaintiff for the
injuries she sustained via operation of Bristol [Code of] Ordinance[s]
§ 21-37.’’
4
‘‘The existence of a duty is a question of law . . . .’’ (Internal quotation
marks omitted.) Doe v. Cochran, 332 Conn. 325, 338, 210 A.3d 469 (2019).
‘‘[T]he use of a motion for summary judgment to challenge the legal suffi-
ciency of a complaint is appropriate when the complaint fails to set forth
a cause of action and the defendant can establish that the defect could not
be cured by repleading.’’ Larobina v. McDonald, 274 Conn. 394, 401, 876
A.2d 522 (2005).
5
The reply materials, which were filed on the same day as the summary
judgment hearing, include certificates of use and occupancy, two photo-
graphs of the sidewalk, excerpts from the plaintiff’s deposition transcript,
and the affidavit of Ronald J. Houde, Jr., Esq. attesting that the submitted
documents are true and accurate copies. Because the plaintiff’s counsel
stated to the trial court during the summary judgment hearing that he had
no objection to the court considering the defendants’ reply, the plaintiff is
deemed to have waived any objection to the reply on timeliness grounds.
Cf. Magee Avenue, LLC v. Lima Ceramic Tile, LLC, supra, 183 Conn. App.
583–85 (holding that, in adjudicating defendants’ motion for summary judg-
ment, trial court should not have considered defendants’ initial affidavit,
filed one day before summary judgment hearing, to which plaintiff objected
on, inter alia, timeliness grounds).