25 Grant Street, LLC v. Bridgeport ( 2020 )

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25 GRANT STREET, LLC v. CITY
OF BRIDGEPORT ET AL.
(AC 42155)
Prescott, Bright and Bear, Js.*
Syllabus
The plaintiff sought to recover damages from the defendant city of Bridge-
port, for, inter alia, negligence, in connection with a fire that destroyed
its warehouse and caused substantial environmental damage to the
surrounding area. The plaintiff alleged that the defendant was negligent
in failing to inspect the warehouse as required by statute (§ 29-305) and
that, as a result, its fire department used water rather than foam to
extinguish the fire, which caused the fire to spread, when an inspection
would have revealed the presence of chemicals. After a series of
amended and revised complaints, the plaintiff filed a proposed complaint
in June, 2018, on the same day the defendant’s motion for summary
judgment was scheduled to be argued. In its proposed complaint, the
plaintiff newly alleged that the defendant’s failure to inspect resulted
in undiscovered code violations, and that these code violations were
the cause of the damages. The defendant argued that the court should not
consider the proposed complaint when deciding its motion for summary
judgment because it was untimely and the new theory of liability was
outside the statute of limitations and did not relate back to the previous
complaints. The court did not decide these issues but, instead, addressed
the merits of the defendant’s motion and granted the defendant’s motion
for summary judgment on the ground that it was entitled to statutory
(§ 52-557n) governmental immunity and rendered judgment thereon,
from which the plaintiff appealed to this court. Held:
1. This court affirmed the judgment of the trial court on the alternative
ground that the plaintiff’s proposed June, 2018 complaint was not prop-
erly before the trial court; the June, 2018 complaint was not the operative
complaint for purposes of the defendant’s motion for summary judgment
because the complaint was to be in response to a request to revise but,
instead, the plaintiff made substantive changes that set forth a new
theory of liability and were outside the scope of the requested revisions,
the plaintiff did not seek leave to amend its complaint to add this new
theory of liability, and the trial court neither explicitly granted the
plaintiff such leave nor indicated that it weighed the relevant considera-
tions for determining whether to grant a plaintiff leave to amend a
complaint; moreover, the plaintiff does not challenge the court’s judg-
ment to the extent it was based on its previous theory of liability but
only on the basis of the new theory set forth in the June, 2018 complaint
which was not properly before the court.
2. This court affirmed the judgment of the trial court on the alternative ground
that, even if the June, 2018 complaint were the operative complaint, the
new allegations contained therein did not relate back and, therefore,
were barred by the statute of limitations; all prior iterations of the
plaintiff’s complaint alleged that the acts and omissions of the defendant
resulted in it improperly using water rather than foam to extinguish the
fire, thereby causing damage, whereas the allegations in the June, 2018
complaint alleged that the defendant’s failure to inspect the warehouse
led to undiscovered code violations and that those code violations
caused the damages and constituted reckless disregard for health and
safety, an entirely new set of facts never previously alleged that did not
relate back to the prior, timely filed complaints.
Argued March 11—officially released August 18, 2020
Procedural History
Action to recover damages for, inter alia, negligence,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the plaintiff filed
amended and revised complaints; thereafter, the action
was withdrawn as to the defendant Brian Rooney et
al.; subsequently, the court, Radcliffe, J., granted the
named defendant’s motion for summary judgment and
rendered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Devin W. Janosov, with whom was Donald A. Papcsy,
for the appellant (plaintiff).
James J. Healy, with whom were Barbara Curatolo
and, on the brief, Bruce L. Levin and Lawrence A.
Ouellette, Jr., associate city attorneys, for the appellee
(named defendant).
Opinion
PRESCOTT, J. This appeal arises from an action
brought by the plaintiff, 25 Grant Street, LLC, against
the defendant city of Bridgeport (city),1 following the
destruction of the plaintiff’s warehouse by a fire that
caused substantial environmental damage to the sur-
rounding area. The plaintiff ultimately alleged that the
city was liable for the damage because it had failed to
inspect the warehouse prior to the fire, which consti-
tuted a reckless disregard for health and safety. The
plaintiff appeals from the trial court’s summary judg-
ment rendered in favor of the city on the ground that
it is entitled to governmental immunity pursuant to
General Statutes § 52-557n (b) (8).2 We affirm the judg-
ment of the trial court on the alternative grounds that
are discussed herein.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party,
reveals the following facts and procedural history. The
plaintiff owned property located at 25 Grant Street in
Bridgeport, which ‘‘consisted of 5.92 acres improved
with a 44,802 square foot one story industrial/commer-
cial warehouse that sat toward the back of the property
near Seaview Avenue.’’ The plaintiff leased this ware-
house to the Rowayton Trading Company (Rowayton)
and JWC Roofing and Siding Company. Inside the ware-
house were fragrance and essential oil products con-
tained in several hundred fifty-five gallon barrels.
On the evening of September 11, 2014, ‘‘someone
contacted 911 to report that a small fire had broken
out . . . at the [plaintiff’s] warehouse.’’ To extinguish
the fire, the fire department used only water and did
not use foam. The fire eventually ‘‘consum[ed] the entire
warehouse; and caused the release of [at least] 1500
. . . fifty-five gallon barrels of various chemicals into
the soil, air, and water surrounding the property.’’ In
total, the fire resulted in the plaintiff ‘‘sustain[ing] a
total loss of [its] warehouse; loss of use of the [25 Grant
Street] property; loss of rents; stigma to [the plaintiff’s]
business; the cost of an [Environmental Protection
Agency (EPA)] cleanup; the costs of [the plaintiff’s]
own attempted cleanup; legal fees [and] costs; and the
loss of future profits on the appreciation of its value
and/or continued rental of the property.’’
The plaintiff commenced this action against the city
on June 13, 2016. The plaintiff filed its original complaint
on June 28, 2016 (original complaint), and then filed or
attempted to file five amended or revised complaints
thereafter. In the first count3 of the original complaint,
which was titled ‘‘negligence,’’ the plaintiff made the
following relevant allegations:
‘‘37. Instead of applying foam to the small fire existing
at the site when they first arrived, first responding mem-
bers of the Bridgeport Fire Department and those man-
ning its command structure, applied massive amounts
of solid water streams [despite the city being warned
against using water] . . . caus[ing] the fire to expand
rapidly [and] consum[e] the entire warehouse; and [also
resulted in] the release of 1500 or more fifty-five gallon
barrels of various chemicals into the soil, air and water
surrounding the property. . . .
‘‘43. Defendant [William] Cosgrove, as Bridgeport fire
marshal, failed to conduct an inspection of the [plain-
tiff’s warehouse], which was required pursuant to Con-
necticut General Statutes § 29-305 (a) and (d) (knowl-
edge hazardous to life and safety from fire) and such
failure satisfies the exception for liability set forth at
. . . § 52-557n (b) (8) in that the knowledge that certain
chemicals present could be hazardous to life and safety
from fire constitutes reckless disregard for health and
safety under all relevant circumstances.
‘‘44. Defendant [Brian] Rooney, as Bridgeport fire
chief, failed to conduct an inspection of the [plaintiff’s
warehouse], for the purposes of ‘preplanning the con-
trol of a fire [involving] any combustible material . . .
that is or may become dangerous as a fire menace,’
pursuant to General Statutes § 7-313e (e); and such
failure satisfies the exception for liability set forth at
. . . § 52-557n (b) (8) in that the knowledge that certain
chemicals present could be hazardous to life and safety
from [a] fire constitutes reckless disregard for health
and safety under all relevant circumstances. . . .
‘‘47. [The] defendant [was] also negligent in one or
more of the following ways: (1) failure to have [the
information about the warehouse’s contents] immedi-
ately available so first response by fire personnel would
be appropriate to [the] chemicals present; (2) inexcus-
able delay in ascertaining [the] proper address [of the
warehouse] to obtain [the information about the ware-
house’s contents]; (3) inexcusable delay in obtaining
[the] information [about the warehouse’s contents]; (4)
failure to access chemicals likely present and [the infor-
mation about the warehouse’s contents] from website
of [Rowayton]; (5) failure to implement and utilize Com-
puter Aided Management of Emergency Operations
(CAMEO) developed by the US Department of Com-
merce, National Oceanic and Atmospheric Association
and U.S. Environmental Protection Agency and
designed to help first responders and emergency plan-
ners respond to and plan for chemical accidents, includ-
ing fires involving chemicals; (6) failure to implement
and utilize CAMEO Response Information Data Sheets
(RIDS), a database of over 4000 chemicals and product
trade names linked to chemical-specific information on
fire, explosive and health hazards, firefighting tech-
niques, cleanup procedures and protective clothing,
developed by the National Oceanic and Atmospheric
Association and U.S. Environmental Protection Agency
and designed to help first responders and emergency
planners respond to and plan for chemical accidents,
including fires involving chemicals; (7) failure to imple-
ment an Integrated Command Structure (ICS) early
enough; resultant disorganization caused issues with
information management that could have potentially
put lives at risk; (8) failure to extinguish fire from chemi-
cals in accordance with [prescribed] methods [con-
tained in the information about the warehouse’s con-
tents]; (9) failure to use [prescribed] foam created
seepage into Yellow Mill River and Long Island Sound
(foam would have prevented or mitigated amount of
chemical seepage); (10) failure to abide by [the] pro-
scription for those media unsuitable to extinguish a fire
for certain chemicals [stated in the information about
the warehouse’s contents]; (11) failure properly to
ensure that members of the fire department, including
first responders, have sufficient training in hazardous
material response; (12) failure to [develop a plan] [for
extinguishing a potential fire] with the [plaintiff’s] ten-
ant [who] stored and used chemicals [in the warehouse
and, thus] would have identified specific concerns for
the [warehouse] and opportunities to prepare effec-
tively for those concerns, or to reduce existing risks.
. . .
‘‘50. As a direct and proximate cause of the negligence
as set forth herein,
[the] plaintiff [has] incurred [various] injuries . . . .’’
(Internal quotation marks omitted.)
On July 29, 2016, the city, in response to the original
complaint, filed a request to revise in which it requested,
inter alia, that the plaintiff provide certain information
in its complaint so that the city could plead a govern-
mental immunity defense.4 The plaintiff did not object
to the request to revise and, on September 6, 2016, filed
a revised complaint (September, 2016 complaint). It
did so, however, only after the city had moved for a
judgment of nonsuit because the plaintiff had failed
either to object to or to comply with the request to
revise in a timely manner. See Practice Book § 10-37
(a).5 In the September, 2016 complaint, the plaintiff
attempted to make most of the revisions that the city
had requested. The substance of the plaintiff’s allega-
tions in this complaint were the same as those made
in the original complaint.6
On September 6, 2016, the city again moved for a
judgment of nonsuit against the plaintiff. In support of
this motion, the city argued that the plaintiff had failed
to revise adequately paragraphs 41 and 47 of its original
complaint, as requested in its uncontested request to
revise.7 The plaintiff objected to this motion. On
November 7, 2016, the court denied without prejudice
the city’s motion for nonsuit but ordered the plaintiff
to comply fully with the city’s uncontested request to
revise within four weeks.
On December 21, 2016, more than four weeks after
the court entered its November 7, 2016 order, the plain-
tiff filed a new revised complaint (December, 2016 com-
plaint). The only substantive change in this complaint,
as compared with the allegations made in the original
and September, 2016 complaints, was made to para-
graph 47. In this paragraph of the December, 2016 com-
plaint, the plaintiff reduced the number of ways in
which the city was allegedly negligent from twelve to
six. The plaintiff still alleged in this paragraph, however,
that the city was negligent for (1) failing to inspect the
warehouse, (2) failing to plan how it would extinguish
a potential fire, and (3) using water to extinguish the
fire, despite the fact that information was available to
the city about the chemicals stored in the warehouse
and that, in the event of a fire, foam should be used to
extinguish it instead of water.8
On December 27, 2016, the city again requested that
the plaintiff revise its complaint.9 In response to the
city’s request to revise, the plaintiff filed a revised com-
plaint on January 27, 2017 (January, 2017 complaint).
In this version of the complaint, the plaintiff added to
paragraph 47 of the January, 2017 complaint’s allega-
tions that certain acts or omissions of the city—includ-
ing the city’s failure to inspect the warehouse as
required by . . . § 29-305 (a) and (d); its failure to use
foam to extinguish the fire, even though there were
chemicals inside of the warehouse; and its failure to
develop a plan for extinguishing a fire—satisfied the
exception to governmental immunity found in § 52-557n
(b) (8) because ‘‘the knowledge that certain chemicals
present could be hazardous to life and safety from [a]
fire constitutes reckless disregard for health and safety
under all relevant circumstances.’’
After the plaintiff filed its January, 2017 complaint,
the city filed its answer and special defenses. The city
then moved for summary judgment on August 29, 2017
(first motion for summary judgment). In that motion,
the city asserted, inter alia, that it was entitled to sum-
mary judgment because ‘‘the plaintiff’s claim of negli-
gence in the first count of its [January, 2017 complaint]
. . . [was] barred by the defense of governmental
immunity, to which none of the exceptions apply.’’
(Footnote omitted.)
In response, the plaintiff, on September 5, 2017,
sought leave to amend its January, 2017 complaint. It
accompanied its request for leave with its proposed
amended complaint (September, 2017 complaint).10 On
September 14, 2017, the city objected to the plaintiff’s
request for leave to amend its complaint. At a hearing
on November 13, 2017, the court overruled the city’s
objection, thereby granting the plaintiff leave to amend
its complaint.11
In the September, 2017 complaint, the plaintiff alleged
in relevant part: ‘‘17. Because there had been no recent
inspection of the property, no accurate record keeping
and no coordination of known information about the
contents of the warehouse . . . the Bridgeport Fire
Department was delayed for more than an hour in
responding to the fire because they could not figure
out how to access the property. . . .
‘‘19. Then and there, given the lack of information,
instead of applying foam to the small fire existing at the
site when they arrived, they applied massive amounts
of solid water streams . . . that caused the fire to
expand rapidly, consuming the entire warehouse; and
caused the release of 1500 or more 55 gallon barrels of
various chemicals into the soil, air and water sur-
rounding the property.
‘‘20. As a proximate result of the firefighter’s applica-
tion of water rather than foam, the plaintiff was caused
to sustain [various] loss[es] . . . .
‘‘23. In the present case, the [city] had notice of the
violation of law and/or the hazard existing at 25 Grant
Street prior to the fire . . . .
‘‘24. Furthermore, and in the alternative, the [city] is
liable because [its] failure . . . to inspect the ware-
house prior to the fire constituted, not mere negligence,
but rather a reckless disregard for health or safety under
the circumstances . . . .
‘‘25. As such, the [city] bears financial responsibility
for the plaintiff’s losses proximately caused by the fire
suppression effort as set forth above.’’12 (Internal quota-
tion marks omitted.)
At the same November 13, 2017 hearing, the plaintiff
also clarified that it was no longer alleging negligence,
as it had done in prior iterations of its complaint, and
that it was alleging only recklessness against the city.13
Accordingly, the plaintiff’s lead counsel agreed that he
would ‘‘immediately’’ file a new one count complaint
sounding in recklessness, but he failed to do so until
the plaintiff attempted to file the proposed June 16,
2018 complaint (proposed June, 2018 complaint).
On November 15, 2017, the city requested that the
plaintiff revise its September, 2017 complaint. The plain-
tiff neither objected to nor complied with this request,
prompting the city, on February 2, 2018, again to move
for a judgment of nonsuit pursuant to Practice Book
§ 10-18. Prior to the court’s adjudication of the motion
for judgment of nonsuit, the city, on March 28, 2018,
moved for summary judgment a second time (second
motion for summary judgment). In sum, the city argued
that the court should enter summary judgment in its
favor on the basis of governmental immunity because
there was no genuine issue of material fact as to
whether the city exhibited recklessness in connection
with the fire that occurred at the plaintiff’s warehouse.
On April 16, 2018, the court denied the city’s motion
for judgment of nonsuit and ordered that the plaintiff
file a revised complaint within three weeks. In doing
so, the court never granted the plaintiff leave to file an
amended complaint but simply ordered it to file a
revised complaint that complied with the city’s Novem-
ber 15, 2017 request to revise. The plaintiff failed to
comply with the court’s order. This prompted the city
on May 8, 2018, to move again for a judgment of nonsuit
pursuant to Practice Book § 17-19.
On June 18, 2018, the plaintiff filed its proposed June,
2018 complaint, in which the plaintiff alleged for the
first time that fire code violations in the warehouse,
which the city should have discovered during an inspec-
tion required by § 29-305, were the proximate cause of
the substantial damage to its warehouse.14 Specifically,
in its one count proposed June, 2018 complaint, the
plaintiff alleged in relevant part:
‘‘6. At all times mentioned herein an inspection of
the property by the [city’s] fire marshal, or by the [city’s]
fire chief, or his designee, would have revealed that
[the chemicals contained in the warehouse], if ignited,
could not be suppressed with water, and that in fact
water would cause any fire, however small, to become
a conflagration engulfing the entire warehouse. . . .
‘‘8. In addition, upon inspection, they would have
found several code violations requiring immediate
remediation. . . .
‘‘14. Because there had been no inspection of the
property for over fifteen years, and therefore no reme-
diation of code violations that would have been found
upon inspection, a minor fire turned into a conflagra-
tion that destroyed the entire property.
‘‘15. Then and there, because of the repeated lack of
inspection, the fire . . . expand[ed] rapidly, consum-
ing the entire warehouse; and caused the release of
several hundred fifty-five gallon barrels of various
chemicals into the soil, air and water surrounding
the property.
‘‘16. As a proximate result of the fire department’s
reckless failure to comply with state law and inspect
the property for code violations for more than fifteen
years, the plaintiff was caused to sustain [various]
loss[es] . . . .
‘‘18. The [city] . . . is liable to the plaintiff due to
its reckless and repeated disregard of its statutory duty
to inspect the subject warehouse which inspection
would have shown serious code violations requiring
immediate remediation thereby causing the compete
loss of the building and the other damages specified
above.
‘‘19. The reckless actions of the [city’s] agents
included: (a) the fire marshal failing more [than] fifteen
times over fifteen years to honor his statutory duty; (b)
the fire chief ignoring for more than fifteen years his
duties per city ordinance to inspect and provide reports
and accurately keep records; (c) failing to identify and
remediate serious code violations that would have been
found upon inspection including amounts of chemical
that were stored on the property, improper storage of
said chemicals, and the lack of any sprinkler system
[or] [fire] suppression system.’’ (Emphasis added.)
Notably, the plaintiff did not seek leave to amend its
September, 2017 complaint pursuant to Practice Book
§ 10-60. Instead, the plaintiff attempted to file its pro-
posed June, 2018 complaint the same day as the court’s
June 18, 2018 hearing on the city’s second motion for
summary judgment.15 The plaintiff also filed an objec-
tion to the city’s motion for summary judgment the same
day as the court’s June 18, 2018 hearing on this motion.
The city, on June 18, 2018, objected to the proposed
June, 2018 complaint on the basis of the plaintiff’s fail-
ure to comply with Practice Book § 10-60 and filed
two supplemental memoranda in support of its second
motion for summary judgment. In both its objection
and supplemental memoranda, the city argued in rele-
vant part that, ‘‘[a]s a matter of law . . . the [June,
2018] complaint sets forth a cause of action never pre-
viously pleaded, [and it] does not relate back to the filing
of the operative complaint, and, therefore, is violative
of the applicable statute of limitations16 for this Septem-
ber 11, 2014 fire claim such that it is time barred.’’
(Footnote added.) The city also objected to the pro-
posed June, 2018 complaint becoming the operative
complaint on the grounds that it was filed after dead-
lines imposed by the court and that it would have to
expend additional resources conducting discovery on
and defending against the new theory of liability set
forth therein after already having expended significant
resources conducting discovery on and defending
against the theory of liability that the plaintiff had set
forth for approximately two years in prior versions of
the complaint.17
Moreover, the city, in a June 22, 2018 memorandum,
argued that the court should not consider the plaintiff’s
proposed June, 2018 complaint in adjudicating its sec-
ond motion for summary judgment. In this memoran-
dum, the city argued that, ‘‘when acting upon the defen-
dant’s [second] motion for summary judgment . . . the
court should only consider the [September, 2017] opera-
tive amended complaint, and exclude from its consider-
ation the plaintiff’s untimely . . . [proposed June,
2018] complaint . . . .’’ The city also noted that ‘‘if [the
plaintiff] desired to introduce the new factual and legal
claims that it is now attempting to assert in its [proposed
June, 2018] complaint, [then it could have timely] file[d],
in [accordance with] Practice Book § 10-60 . . . a
request for leave to amend, along with an appended
amended complaint, [which] would have allowed [the
court to determine] whether [the proposed June, 2018]
complaint would [become the] operative amended com-
plaint . . . well before the scheduling order’s . . .
deadlines for the [city’s] motion for summary judg-
ment.’’ Moreover, the city asserted that ‘‘the plaintiff’s
[September, 2017 amended complaint [would] continue
to be the operative complaint until the [city’s] . . .
objection to the plaintiff’s [proposed June, 2018] com-
plaint has been decided . . . .’’ The court scheduled
hearings on the city’s second motion for summary judg-
ment for June 18 and 25, 2018. The plaintiff’s lead coun-
sel failed to attend both hearings and, instead, a differ-
ent attorney appeared in his place at both hearings.18
On June 25, 2018, the court granted the city’s second
motion for summary judgment on the basis of govern-
mental immunity. In addressing the merits of the case,
the court noted that ‘‘this is a case in which the [plaintiff]
allege[s] . . . that there was a reckless failure to
inspect, and that reckless failure to inspect did not
uncover certain [fire code] violations and that the fail-
ure to uncover those violations led to a conflagration
and led to the fire department responding using water
instead of foam, [despite] the contents of the . . .
warehouse . . . .’’ Moreover, the court characterized
the plaintiff’s claim as alleging ‘‘that there was a reckless
failure to inspect based upon a policy that no inspection
what[so]ever would be done. . . . And that had there
been an inspection, certain violations would have been
discovered. And but for that, it . . . would not have
led to the property damage to the extent that it did.’’
In rendering summary judgment in favor of the city,
the court noted that the plaintiff’s case was not brought
within the narrow exception to governmental immunity
for a municipality’s reckless failure to conduct an
inspection for fire code violations that was established
in Williams v. Housing Authority, 327 Conn. 338, 364,
368, 174 A.3d 137 (2017).19 In Williams, our Supreme
Court determined that, despite general principles con-
cerning governmental immunity, a municipality may be
liable for damages to person or property if the munici-
pality has a ‘‘general policy of not conducting inspec-
tions of a certain type’’; id., 368; and that ‘‘it is clear
that the failure to inspect may result in a catastrophic
harm, albeit not a likely one.’’ Id., 364. Such conduct,
according to the court, would ‘‘in the context of § 52-
557n (b) (8), [constitute] a . . . reckless disregard for
health or safety.’’ Id., 364.
In light of this narrow exception to governmental
immunity, the trial court rendered summary judgment
in favor of the city because the plaintiff had failed to
establish that there was a genuine issue of material fact
that ‘‘there [had] been [any fire] code violations that
[were] . . . a substantial factor in causing either the
fire or the method of response by the Bridgeport Fire
Company . . . .’’ Furthermore, the court concluded
that ‘‘there’s no genuine issue of fact [as to whether
the city’s failure to inspect the warehouse constituted
recklessness] because no violation of the code is
shown . . . .’’
Although the plaintiff’s lead counsel failed to attend
both hearings on the city’s second motion for summary
judgment, the court, nevertheless, stated that it would
‘‘entertain a motion to reargue if it is filed within the
appropriate time . . . and gives a basis for denying
the motion for summary judgment.’’ In response, the
plaintiff, on July 16, 2018, moved to reargue the city’s
motion. The city opposed the plaintiff’s motion to rear-
gue. After hearing arguments from both parties, the
court granted reargument but denied relief, reiterating
that ‘‘as a matter of law . . . there [is no] genuine issue
of material fact . . . because a mere failure to inspect
without more, [is] not . . . sufficient to show [reck-
less] conduct.’’ Furthermore, the court noted that
‘‘there’s been no showing [by the plaintiff] that [the
city’s] failure to inspect [its warehouse] was wilful,
intentional, deliberate or was pursuant to a policy
whereby there were no inspection[s] of a particular
class of facilities . . . .’’ This appeal followed.
On appeal, the plaintiff claims that the trial court
improperly rendered summary judgment for the city on
the basis of governmental immunity. Specifically, the
plaintiff claims that there was a genuine issue of mate-
rial fact as to whether the city’s failure to inspect the
plaintiff’s warehouse, and therefore its failure to
uncover fire code violations therein, constituted a
‘‘reckless disregard for health or safety under all the
relevant circumstances . . . .’’ See General Statutes
§ 52-557n (b) (8). The plaintiff, on appeal, however,
does not contest the court’s rendering of summary judg-
ment in favor of the city based on the theory of liability
that it alleged in prior versions of its complaint, i.e.,
that the city improperly decided to use water rather than
foam to extinguish the fire in its warehouse, resulting
in significant damage to the warehouse and sur-
rounding property.
In its appellate brief, the city argues, in sum, that the
court properly rendered summary judgment in its favor
on the basis of governmental immunity because there
was no genuine issue of material fact as to whether its
conduct in connection with the warehouse fire was
reckless. The city also argues that the plaintiff cannot
prevail on its claim on appeal for two alternative
reasons.
First, the city asserts that the proposed June, 2018
complaint was not the operative complaint and thus
was not properly before the court. In its preliminary
statement of issues on appeal, the city states that the
court improperly considered the proposed June, 2018
complaint, even though ‘‘that complaint was barred by
the statute of limitations, filed the morning of argument
on [the city’s] motion for summary judgment and filed
in violation of the scheduling order.’’20 Moreover, in its
appellate brief, the city asserts that the September, 2017
complaint was the operative complaint.21
Second, the city argues that the trial court properly
rendered summary judgment in its favor because the
new theory of liability set forth in the proposed June,
2018 complaint alleging that the city recklessly failed
to inspect the plaintiff’s warehouse and uncover fire
code violations was barred by the statute of limitations.
Having considered the arguments of both parties, we
conclude that the trial court properly rendered sum-
mary judgment in favor of the city. We do so, however,
on the alternative grounds that (1) the plaintiff’s pro-
posed June, 2018 complaint, and the new allegations
contained therein, was not the operative complaint and
thus was not properly before the trial court and, (2) even
if the proposed June, 2018 complaint was the operative
complaint, the new allegations contained therein were
barred by the statute of limitations.
I
Before we consider whether the new theory of liabil-
ity set forth in the plaintiff’s proposed June, 2018 com-
plaint relates back to the original complaint for pur-
poses of compliance with the statute of limitations, we
first must address whether this version of the complaint
became the operative complaint. For the following rea-
sons, we conclude that the proposed June, 2018 com-
plaint was not the operative complaint and, therefore,
that complaint, including the new theory of liability set
forth therein, was not properly before the trial court in
adjudicating the motion for summary judgment.
We begin by setting forth legal principles relevant
to amending a complaint. This court has stated that
‘‘[General Statutes §] 52-128 and Practice Book § 10-59
allow the curing of any defect [or] mistake in a com-
plaint as of right within thirty days of the return date.
If an amendment is as of right, the amendment takes
effect ab initio. . . . Practice Book § 10-60 allows a
plaintiff to amend his or her complaint more than thirty
days after the return day [only] by [order of the] judicial
authority, written consent of the adverse party, or filing
a request for leave to amend with the amendment
attached.’’ (Citations omitted; internal quotation marks
omitted.) Gonzales v. Langdon, 161 Conn. App. 497,
517–18, 128 A.3d 562 (2015).
The plaintiff argues that the proposed June, 2018
complaint was the operative complaint because it was
filed in response to the court’s April 16, 2018 order
compelling it to file a ‘‘revised complaint.’’ In essence,
the plaintiff contends that, by ordering it to file a
‘‘revised complaint,’’ the court permitted it to make
any and all substantive changes to its September, 2017
complaint that it wanted to make, including making
new allegations or alleging new theories of recovery
that had not previously been set forth. Thus, the plaintiff
implicitly argues that all of the substantive changes
that it made to the September, 2017 complaint were
made in response to the court’s April 16, 2018 order
and that, therefore, its proposed June, 2018 complaint
automatically became the operative complaint. We dis-
agree with the plaintiff’s argument.
In arriving at this conclusion, we consider the rele-
vant procedural history that preceded the court’s April
16, 2018 order. The city filed a request to revise directed
at the plaintiff’s September, 2017 complaint, and the
plaintiff did not object to this request. Practice Book
§ 10-37 (a) provides in relevant part that a request to
revise ‘‘shall be deemed to have been automatically
granted by the judicial authority on the date of filing
and shall be complied with by the party to whom it is
directed within thirty days of the date of filing the same,
unless within thirty days of such filing the party to
whom it is directed shall file objection thereto.’’ Thus,
by neither objecting to nor complying with the city’s
request to revise within thirty days of it having been
filed, the plaintiff failed to comply with a request to
revise that automatically had been granted by the court.
See Practice Book § 10-37 (a).
Because the plaintiff failed to comply with this
request to revise, the city moved for nonsuit. On April
16, 2018, the court denied the city’s motion for nonsuit,
but it ordered the plaintiff to file a ‘‘revised complaint’’
within three weeks. (Emphasis added.)
In light of this procedural history, we reject the plain-
tiff’s assertion that the court’s April 16, 2018 order was
an invitation to make any and all substantive changes
to its September, 2017 complaint that it desired. Rather,
we construe the court’s order as compelling the plaintiff
to file a ‘‘revised complaint’’ that complied with the
city’s duly granted request to revise.
The plaintiff, however, attempted to make substan-
tive changes to its September, 2017 complaint that were
outside the scope of the revisions that the court had
ordered. Indeed, the plaintiff, in its proposed June, 2018
complaint, set forth an entirely new theory of liability.
Accordingly, we reject the plaintiff’s argument that the
proposed June, 2018 complaint automatically became
the operative complaint upon being filed because the
proposed complaint contained substantive changes that
the city did not request in its request to revise.
In the alternative, the plaintiff argues that its pro-
posed June, 2018 complaint was the operative com-
plaint at the time that the court adjudicated the city’s
second motion for summary judgment because the
court had determined it as such. In support of this
argument, the plaintiff points to a colloquy between the
court and the city’s counsel at the June 25, 2018 hearing.
During this exchange, the city’s counsel stated that the
city objected to the proposed June, 2018 complaint
because the plaintiff had attempted to file it after the
‘‘pleading closure deadline fixed in the court’s schedul-
ing order’’ and the deadline for the plaintiff to file a
revised complaint that the court had imposed in its
April 16, 2018 order. In response, the court stated that
it would ‘‘allow [the complaint] based on the deadlines
. . . because . . . the court ha[d] a flavor of [what
was] being requested . . . [and] . . . want[ed] to get
to the merits of [the case].’’ By making this statement
at the hearing, the plaintiff asserts that the court had,
in effect, permitted it to amend its September, 2017
complaint pursuant to Practice Book § 10-60 and had
concluded that the proposed June, 2018 complaint was
the operative complaint. We disagree with this argu-
ment for three reasons.
First, there is no indication in the record that the
plaintiff sought leave to amend its September, 2017
complaint and that any request for leave to amend,
along with the proposed June, 2018 complaint, was
properly served on the city, as required by Practice
Book § 10-60 (a) (3). Section 10-60 (a) (3) requires that
a request for leave to amend be made and that it contain
a proof of service indicating that the request and the
proposed amended complaint were properly served on
the opposing party.22 Gonzales v. Langdon, supra, 161
Conn. App. 517–18.
By way of comparison, in attempting to amend its
January, 2017 complaint, the plaintiff sought leave to
amend. The September 5, 2017 request for leave to
amend contained a certificate of service, in which the
plaintiff’s lead counsel certified that the city’s counsel
was served both its request for leave to amend and its
proposed September, 2017 complaint.23 Moreover, at
the November 13, 2017 hearing, the court overruled
the city’s objection to the proposed September, 2017
complaint and thereby determined that this complaint
was the operative complaint.
When the plaintiff attempted to amend its September,
2017 complaint, however, it failed to seek leave to
amend it. Moreover, there is no indication in the record
that the city properly was served with the plaintiff’s
request for leave to amend and its proposed June,
2018 complaint.24
Second, the court never explicitly ruled on whether
the plaintiff would be granted leave to amend its com-
plaint. This court has stated that in the absence of a
trial court explicitly granting a request for leave to
amend a complaint, an appellate tribunal should infer
that the trial court denied such a request for leave to
amend. See Gonzales v. Langdon, supra, 161 Conn.
App. 509.
Moreover, our unwillingness to infer that the court
granted the plaintiff leave to amend its complaint is
buttressed by the fact that there is no indication in the
record as to whether the court weighed the relevant
considerations for determining whether a plaintiff
should be granted leave to amend his or her complaint.
Although determining whether to permit leave to amend
a complaint is within the discretion of a trial court,
a court, in exercising its discretion, normally weighs
certain considerations to determine whether allowing
an amendment is appropriate. See id., 509–10, 518. As
this court has stated, ‘‘[t]he allowance of an amendment
to a complaint more than thirty days after the return
day . . . rests in the discretion of the court. . . .
Much depends upon the particular circumstances of
each case. The factors to be considered include unrea-
sonable delay, fairness to the opposing parties, and
negligence of the party offering the amendment.’’ (Inter-
nal quotation marks omitted.) Id., 509–10. Moreover,
‘‘[c]ourts traditionally deny leave to amend only if the
amendment would prejudice the defendant by causing
undue delay or the amendment does not relate back to
the matters pleaded in the original complaint.’’
(Emphasis added.) Id., 518. ‘‘In exercising its discretion
with reference to a [request] for leave to amend, a court
should ordinarily be guided by its determination of the
question whether the greater injustice will be done to
the mover by denying him his day in court on the subject
matter of the proposed amendment or to his adversary
by granting the motion, with the resultant delay.’’ (Inter-
nal quotation marks omitted.) Miller v. Fishman, 102
Conn. App. 286, 294, 925 A.2d 441 (2007), cert. denied,
285 Conn. 905, 942 A.2d 414 (2008).
Turning to the present case, the city filed an objection
to the June, 2018 complaint and set forth three primary
reasons in support of its objection. First, the city
asserted that the proposed June, 2018 complaint was
untimely based on certain deadlines for filing a revised
complaint that the court had imposed.
Second, the city asserted that the proposed June,
2018 complaint was prejudicial to the city and would
delay significantly the trial of this case because it set
forth a new theory of liability. Specifically, the city
stated that, after two years of setting forth a consistent
theory of liability, the plaintiff completely changed its
theory in its proposed June, 2018 complaint, which it
filed the same day as the June 18, 2018 hearing on the
city’s second motion for summary judgment. This new
theory of liability would require the city to conduct
additional discovery and investigation to defend
against it.
Third, the city objected to the proposed June, 2018
complaint on the ground that the new theory of liability
set forth therein was barred by the statute of limitations.
We address this issue in part II of this opinion.
The court, at the June 25, 2018 hearing and in the
absence of the plaintiff’s lead counsel, appears to have
declined to address most of the grounds asserted in the
city’s objection to the proposed June, 2018 complaint.
Instead, the court simply stated that, despite the dead-
lines for filing a revised complaint that the court had
imposed, it ‘‘[preferred] to get to the merits of [the
case].’’ The court, however, did not address the other
grounds raised in the city’s objection, even though all
of the grounds set forth in its objection are considera-
tions that a trial court usually assesses when determin-
ing whether to grant a plaintiff leave to amend its com-
plaint. See Gonzales v. Langdon, supra, 161 Conn. App.
509–10, 518; Miller v. Fishman, supra, 102 Conn.
App. 293–94.
Because the plaintiff did not properly seek leave to
amend its complaint pursuant to Practice Book § 10-60
(a) (3), and the court neither explicitly granted the
plaintiff leave to amend nor indicated that it had
weighed the relevant considerations for determining
whether to grant a plaintiff leave to amend, we conclude
that the court did not permit the plaintiff to amend its
September, 2017 complaint.25 Therefore, we also con-
clude that the proposed June, 2018 complaint did not
become the operative complaint. See Gonzales v. Lang-
don, supra, 161 Conn. App. 509.
Because we have determined that the proposed June,
2018 complaint was not the operative complaint, we
further conclude that this complaint, including the new
theory of liability set forth therein, was not properly
before the trial court. Moreover, as previously stated
in this opinion, on appeal, the plaintiff claims only that
the court improperly rendered summary judgment in
favor of the city based on the new theory of liability
that it set forth in its proposed June, 2018 complaint.
It does not claim that the court’s rendering of summary
judgment in favor of the city based on the theory of
liability set forth prior to the proposed June, 2018 com-
plaint was improper, to the extent that the court ren-
dered summary judgment in favor of the city based on
this theory. Therefore, because the proposed June, 2018
complaint was not the operative complaint and both it
and the new theory of liability set forth therein were
not properly before the trial court, we conclude that
the trial court properly rendered summary judgment in
favor of the city.
Even if we were to conclude that the proposed June,
2018 complaint was the operative complaint, the city
argues that the new allegations in that complaint,
including the new theory of liability set forth therein,
are barred by the statute of limitations. In support of
this argument, the city asserts that these new allegations
were raised outside of the two year limitation period
for actions alleging negligent or reckless conduct; see
footnote 16 of this opinion; and do not relate back to
the original complaint. We turn then to this alternative
basis for affirming the trial court’s rendering summary
judgment in favor of the city.
II
Assuming for the sake of argument that the proposed
June, 2018 complaint was, indeed, the operative com-
plaint, the plaintiff contends that the new allegations
set forth in this complaint were not barred by the statute
of limitations. In support of this argument, the plaintiff
asserts that, even though these allegations were brought
outside of the two year limitation period for actions
alleging negligent or reckless conduct; see footnote 16
of this opinion; they related back to the original com-
plaint. We disagree with the plaintiff.
We begin by setting forth our standard of review and
relevant legal principles pertaining to whether amend-
ments made to a complaint relate back to the original
complaint for purposes of compliance with the statute
of limitations. 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.
Determining whether an amendment relates back ‘‘is
grounded in interpretation of the pleadings and is not
the type of determination that a trial court is in a better
position to make than an appellate court. Therefore,
whether a pleading relates back is subject to plenary
review.’’ Id.
‘‘The relation back doctrine [is] well established
. . . . [An amendment relates back for purposes of the
statute of limitations when it] amplif[ies] or expand[s]
what has already been alleged in support of a cause
of action, provided the identity of the cause of action
remains substantially the same, but [when] an entirely
new and different factual situation is presented, a new
and different cause of action [that does not relate back
has been] stated. . . .
‘‘Our relation back doctrine provides that an amend-
ment relates back when the original complaint has given
the party fair notice that a claim is being asserted stem-
ming from a particular transaction or occurrence,
thereby serving the objectives of our statute of limita-
tions, namely, to protect parties from having to defend
against stale claims . . . .’’ (Citations omitted; internal
quotation marks omitted.) Id., 207; see Sempey v. Stam-
ford Hospital, 180 Conn. App. 605, 612, 184 A.3d 761
(2018). ‘‘[I]n order to provide fair notice to the opposing
party, the proposed new or changed allegation . . .
must fall within the scope of the original cause of action,
which is the transaction or occurrence underpinning
the plaintiff’s legal claim against the defendant. Deter-
mination of what the original cause of action is requires
a case-by-case inquiry by the trial court. In making such
a determination, the trial court must not view the allega-
tions so narrowly that any amendment changing or
enhancing the original allegations would be deemed to
constitute a different cause of action. But the trial court
also must not generalize so far from the specific allega-
tions that the cause of action ceases to pertain to a
specific transaction or occurrence between the parties
that was identified in the original complaint.’’ (Empha-
sis omitted; footnote omitted.) Briere v. Greater Hart-
ford Orthopedic Group, P.C., supra, 325 Conn. 210.
Importantly, ‘‘[i]f the alternat[ive] theory of liability
[in the amended complaint] may be supported by the
original factual allegations, then the mere fact that the
amendment adds a new theory of liability is not a bar
to the application of the relation back doctrine. . . .
If, however, the new theory of liability is 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.’’ (Citation omitted.) Sherman v. Ronco, 294 Conn.
548, 563, 985 A.2d 1042 (2010).
Moreover, in determining whether an amendment
relates back, we also ‘‘must . . . determine whether
the new allegations support and amplify the original
cause of action or state a new cause of action entirely.
Relevant factors for this inquiry include, but are not
limited to, whether the original and the new allegations
involve the same actor or actors, allege events that
occurred during the same period of time, occurred at
the same location, resulted in the same injury, allege
substantially similar types of behavior, and require the
same types of evidence and experts.’’ Briere v. Greater
Hartford Orthopedic Group, P.C., supra, 325 Conn. 211.
If the amendment does not support or amplify the origi-
nal cause of action and instead states a new cause of
action entirely, then the amendment does not relate
back. See id., 207–208. ‘‘[I]n the cases in which [our
courts] have determined that an amendment does not
relate back to an earlier pleading, the amendment pre-
sented different issues or depended on different factual
circumstances rather than merely amplifying or
expanding upon previous allegations.’’ (Internal quota-
tion marks omitted.) Id.; see Sempey v. Stamford Hospi-
tal, supra, 180 Conn. App. 612.
We are also mindful of our well settled rules for
construing pleadings to determine whether an amend-
ment relates back to the original complaint for purposes
of compliance with the statute of limitations. ‘‘When
comparing [the original and proposed amended] plead-
ings [to determine whether allegations in an amended
complaint relate back for purposes of the statute of
limitations], we are mindful that, [i]n Connecticut, we
have long 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 upon which it pro-
ceeded, 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.’’ (Internal quotation
marks omitted.) Briere v. Greater Hartford Orthopedic
Group, P.C., supra, 325 Conn. 209.
Moreover, in determining whether an amendment
relates back, ‘‘[w]e note that the original [complaint]
itself must provide the opposing party with notice of a
cause of action that encompasses the proposed
amended allegations. . . . A plaintiff may not rely
solely on disclosures made during discovery to over-
come his failure to plead a cause of action prior to the
expiration of the statute of limitations that he later
decides is a better claim.’’ Id., 210 n.9.
Turning to the present case, the plaintiff acknowl-
edges ‘‘that the pleadings in the [present] case are far
from perfect.’’ (Emphasis in original.) The plaintiff nev-
ertheless sets forth two arguments in support of its
claim that the new allegations in the proposed June,
2018 complaint relate back for purposes of the statute
of limitations. First, the plaintiff contends that these
new allegations relate back because the plaintiff ‘‘con-
sistently alleged, although under a heading which was
not entitled ‘recklessness,’ statutory recklessness by
the [city] . . . .’’ (Emphasis omitted.) Moreover, the
plaintiff argues that, in all versions of the complaint,
the city’s ‘‘recklessness’’ derived from its failure to
inspect the plaintiff’s warehouse, in violation of § 29-
305. In the alternative, the plaintiff asserts that, even if
versions of the complaint filed prior to the proposed
June, 2018 complaint did not put the city on notice
of its theory of liability concerning undiscovered code
violations, its response to one of the city’s interrogato-
ries provided this notice. We are not persuaded by these
arguments for the reasons that follow.
A
The plaintiff first argues that its allegations regarding
code violations relate back because, in every iteration
of the complaint, the plaintiff generally alleged that the
city had failed to inspect its warehouse and that such
conduct was reckless. In support of this argument, the
plaintiff points to paragraphs 43 and 44 of its original
complaint, in which it alleged that the fire marshal had
failed to inspect its warehouse and that ‘‘such failure
satisfies the exception for liability set forth at . . .
§ 52-557n (b) (8) in that the knowledge that certain
chemicals present could be hazardous to life and safety
from fire constitutes a reckless disregard for health
and safety under all relevant circumstances,’’ and that
the fire chief had ‘‘failed to conduct an inspection of
the [plaintiff’s warehouse], for the purposes of ‘preplan-
ning the control of fire . . . where any combustible
material . . . that is or may become dangerous as a
fire menace’ pursuant to General Statutes § 7-313e (e);
and such failure satisfies the exception for liability
set forth at . . . § 52-557n (b) (8) in that the knowl-
edge that certain chemicals present could be hazardous
to life and safety from fire constitutes a reckless disre-
gard for health and safety under all relevant circum-
stances.’’ (Emphasis added.)
In light of these allegations in the original complaint,
the plaintiff asserts that it ‘‘consistently alleged [in vari-
ous iterations of the complaint] statutory recklessness
by the defendant under . . . § 52-557n (b) (8),’’ and,
therefore, the city had sufficient notice for the theory
of liability in the proposed June, 2018 complaint con-
cerning undiscovered code violations to relate back.
(Emphasis omitted.) Moreover, the plaintiff contends
that ‘‘the . . . complaint[s] [subsequent to the original
complaint merely] amplify this particular portion of the
allegations contained within the original [complaint],
so as to fit more squarely with the facts obtained during
discovery in the matter.’’ We are not persuaded by the
plaintiff’s argument.
In asserting that these new allegations in the pro-
posed June, 2018 complaint relate back, the plaintiff
misconstrues our state’s well established relation back
doctrine. Indeed, merely alleging that a defendant vio-
lated a statute or that a defendant was negligent or
reckless in all iterations of a complaint by themselves is
insufficient for allegations to relate back to the original
complaint for purposes of compliance with the statute
of limitations. See Sharp v. Mitchell, 209 Conn. 59, 73,
546 A.2d 846 (1988) (concluding that ‘‘[t]he fact that
the same defendant is accused of negligence in each
complaint and the same injury resulted . . . does not
make any and all bases of liability relate back to an
original claim of negligence’’).
In determining whether an amendment to a complaint
relates back, we must analyze whether the amendment
sets forth a new theory of liability that relies on ‘‘differ-
ent . . . circumstances and . . . different facts’’ that
would require a ‘‘defendant . . . to gather different
facts, evidence and witnesses to defend the amended
claim’’ or whether the amendment merely ‘‘amplifie[s]
and expand[s] upon the previous allegations by setting
forth alternat[ive] theories of liability.’’ Gurliacci v.
Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991). Indeed,
‘‘[i]f . . . the new theory of liability is 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.’’ Sherman v. Ronco, supra, 294 Conn. 563.
Before making these determinations regarding new
allegations in the proposed June, 2018 complaint, we
must first assess the differences between the new the-
ory of liability set forth in that complaint and the theory
set forth in prior versions of the complaint. All of the
versions of the complaint preceding the proposed June,
2018 complaint set forth a consistent theory of liability.
In these versions, the plaintiff alleged that the city failed
to access information in its possession about the chemi-
cals in the warehouse or, in the alternative, failed to
inspect the warehouse and document the presence of
chemicals in the warehouse. The plaintiff also alleged
that the city failed to develop a plan for extinguishing
a potential fire in its warehouse that accounted for the
presence of chemicals inside the warehouse. Based on
these allegations, the plaintiff’s theory of liability in
these complaints was that, as a result of the city’s failure
to utilize information about the chemicals in the ware-
house that it possessed or should have possessed, the
city improperly decided to use water rather than foam
to extinguish the fire that occurred. Thus, in sum, the
theory of liability alleged by the plaintiff in these com-
plaints was that the manner in which the city extin-
guished the fire was the proximate cause of the damages
to its warehouse and property.
The new theory of liability that the plaintiff set forth in
its proposed June, 2018 complaint, however, is distinct
from the theory that it set forth in the prior iterations
of its complaint. Indeed, the attorney, Thomas G. Cotter,
who appeared at the June, 2018 hearing in the place of
the plaintiff’s lead counsel, appears to have acknowl-
edged this in the following exchange with the court:
‘‘The Court: Well, what’s the cause of action—the
new cause of action in the [June, 2018] complaint? It
seems to me that [the plaintiff is] alleging here that
there was a reckless failure to inspect at all pursuant
to a policy and that—that an inspection would have—
unlike the initial complaint, [the plaintiff is] alleging
that an [inspection] would have disclosed violations of
the code, and that those violations of the code were
a substantial factor in causing the destruction of the
property because, but for the failure to inspect, they
wouldn’t have existed.
***
‘‘The Court: I’ve tried—I tried to look at the original—
the amended complaint of September [3], 2017, and I
didn’t see any allegation in there—and, correct me if
I’m wrong, Mr. Cotter, I didn’t see any allegation in that
complaint that there was a violation of the fire code or
the building code for that matter. Now—although the
fire company’s not responsible for the building code. I
didn’t see any. Am I missing something?
‘‘[The Plaintiff’s Attorney]: No, you’re not, Your
Honor.’’
In its proposed June, 2018 complaint, the plaintiff
alleges that the city recklessly failed to inspect the
plaintiff’s warehouse in violation of § 29-305. For the
first time during the course of this litigation, the plaintiff
also alleged that, as a result of this failure to inspect
the warehouse, the city failed to uncover certain fire
code violations and that these undiscovered code viola-
tions proximately caused the fire in the plaintiff’s ware-
house to be more intense, resulting in greater damage
to the plaintiff’s warehouse and surrounding property.
Thus, unlike the theory of liability alleged prior to the
proposed June, 2018 complaint, this new theory of liabil-
ity does not assert that the manner in which the city
extinguished the fire proximately caused significant
damage to the plaintiff’s warehouse and surrounding
property. Rather, it asserts that code violations existed
at the warehouse that the city should have discovered
during an inspection. The plaintiff alleges that these
code violations caused the fire to intensify, resulting
in significant damage to the warehouse and sur-
rounding property.
Having concluded that the new theory of liability in
the proposed June, 2018 complaint is distinct from the
theory contained in all prior versions of the complaint,
we must now determine whether it relates back for
purposes of compliance with the statute of limitations.
To make this determination, we must determine
whether this theory is dependent on different factual
allegations than those made in prior iterations of the
complaint. See Sherman v. Ronco, supra, 294 Conn.
563. We also must determine whether this new theory
would require the city to gather facts and evidence to
defend against it that are different than what would
have been necessary to defend against the prior theory.
See Gurliacci v. Mayer, supra, 218 Conn. 549.
First, we conclude that the new theory alleged in the
proposed June, 2018 complaint is dependent on factual
allegations that were not set forth in prior iterations of
the complaint. Indeed, the new theory is dependent
on the warehouse containing code violations that an
inspection would have uncovered and that these viola-
tions caused either the ignition or intensification of the
fire. In iterations of its complaint prior to the proposed
June, 2018 complaint, however, the plaintiff never
alleged that such code violations existed at its ware-
house, let alone alleged that these undiscovered viola-
tions either caused the fire to start or intensified it.
Thus, the new theory depends on factual allegations
that were not made prior to the proposed June, 2018
complaint.
Second, the facts and evidence necessary for the city
to defend against the prior theory of liability differ from
what would be necessary to defend against the new
theory. The plaintiff’s prior theory of liability, which
alleged that that the damage to its warehouse was proxi-
mately caused by the city’s erroneous decision to use
water rather than foam to extinguish the fire, would
require that both parties produce evidence concerning
firefighting strategies. To defend against this theory,
the city likely would have presented evidence showing,
inter alia, that its actions after the fire started—its deci-
sion to use water rather than foam on the fire—were
not the proximate cause of the harm that the plaintiff
suffered.
To defend against the new theory of liability, how-
ever, the city would be required to produce evidence
that was significantly different from that needed to
defend against the prior theory. Indeed, to defend
against the new theory, the city’s evidence would need
to focus on the cause of the fire. The city would need
to present evidence disputing the existence of fire code
violations and that these code violations proximately
caused the fire to start or to burn more intensely.
Accordingly, we conclude that the new theory set
forth in the proposed June, 2018 complaint relies on
facts never alleged in prior iterations of the complaint
and would require different facts and evidence for the
city to defend against it than the prior theory. For the
reasons stated, we conclude that the plaintiff’s first
argument is unpersuasive and that its new theory of
liability does not relate back for purposes of the statute
of limitations.
B
The plaintiff’s second argument—that the city was on
notice of its theory of liability concerning undiscovered
code violations based on an answer that the plaintiff
provided to one of its interrogatories—fails for two
primary reasons. In support of this argument, the plain-
tiff points to an interrogatory of the city and its response
to the interrogatory:
‘‘Q. What is the legal basis for the plaintiff’s claim
that the [city] . . . had a ministerial duty to inspect
the [plaintiff’s warehouse?]
‘‘A. There is a statutory duty to annually inspect build-
ings such as [the plaintiff’s warehouse] imposed by the
fire code on the fire marshal. Had the fire marshal
conducted an inspection the [city] would have known
the nature of the chemicals stored and [the] quantity.
Moreover, [it] would have known how to access the
building. Further, [the city] would have advised [the
plaintiff] as to any modifications necessary to ensure
that foam as opposed to water could be used in the
event of a fire. By failing in [its] duties, the plaintiff
employees] clearly should have known that this was an
occupied warehouse, and that their failure to [develop]
a . . . plan [for extinguishing a potential fire] exposed
an identifiable victim to harm—that victim being [the
plaintiff], the residences adjacent to the warehouse,
[the plaintiff’s] lessees and the environment. In addition,
discovery is ongoing as to the procedures and customs
of the [city], which [the plaintiff] expect[s] [will
uncover] additional buttressing ministerial duties, as
public safety and [developing plans for addressing] fires
and other emergencies was the foundation for the duties
assigned to [the city].’’ In its brief, the plaintiff asserts
that its response to the city’s interrogatory ‘‘[put] the
[city] on notice of the precise type of claim which the
plaintiff intended to bring regarding violating the
inspection policies and . . . § 52-557n (b) (8).’’
First, in making this argument, the plaintiff com-
pletely disregards the proper analysis for determining
whether amendments made to a complaint relate back
to the original complaint for purposes of compliance
with the statute of limitations. Indeed, our Supreme
Court has stated ‘‘that the original [complaint] itself
must provide the opposing party with notice of a cause
of action that encompasses the proposed amended alle-
gations [and that a] plaintiff may not rely solely on
disclosures made during discovery to overcome his
failure to plead a cause of action prior to the expiration
of the statute of limitations that he later decides is
a better claim.’’ (Emphasis added.) Briere v. Greater
Hartford Orthopedic Group, P.C., supra, 325 Conn.
210 n.9.
In the present case, the plaintiff failed to provide the
city with notice of its theory of liability concerning fire
code violations in the warehouse in all iterations of the
complaint preceding the proposed June, 2018 com-
plaint. Thus, even if the plaintiff described this theory
in its response to an interrogatory, this response alone
is insufficient for it to relate back for purposes of com-
pliance with the statute of limitations.
Second, nothing contained in the interrogatory
response to which the plaintiff points would put the
city on notice that the plaintiff’s theory of liability had
shifted to undiscovered code violations resulting in a
minor fire turning into a conflagration. Instead, in
response to the city’s interrogatory, which asked the
plaintiff to set forth its legal basis for its claim against
the city, the plaintiff merely described the theory of
liability that it set forth prior to the proposed June,
2018 complaint. Indeed, in its response, the plaintiff
mentions the city’s failure to inspect its warehouse,
which, it asserts, resulted in the city’s failing to use
‘‘foam as opposed to water’’ in extinguishing the fire,
and the city’s failure to ‘‘[develop plans to address] fires
and other emergencies.’’
In sum, having construed the iterations of the plain-
tiff’s complaint broadly and realistically and having
compared the new theory of liability in the proposed
June, 2018 complaint to the theory alleged in prior ver-
sions of the complaint, we conclude that the proposed
June, 2018 complaint did not relate back for purposes
of the statute of limitations.26 Because this theory was
barred by the statute of limitations, we conclude that
the trial court properly rendered summary judgment in
favor of the city.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff also named the following individuals as defendants: Brian
Rooney, individually and in his capacity as the former fire chief; William
Cosgrove, individually and in his capacity as the former fire marshal; Scott
T. Appleby, individually and in his capacity as the Director of Emergency
Management and Homeland Security; and Terron Jones, individually and in
his capacity as Deputy Director of Emergency Management and Homeland
Security. On November 21, 2017, however, the plaintiff withdrew the underly-
ing action as against these defendants.
In addition, the city filed an apportionment complaint, alleging that the
plaintiff’s lessees, Rowayton Trading Company and JWC Roofing and Siding
Company, also known as Jim Waters Corp., would be liable for a proportion-
ate share of the plaintiff’s damages if the city were found liable to the
plaintiff. The apportionment defendants have not participated in this appeal.
2
General Statutes § 52-557n (b) (8) provides in relevant part: ‘‘Notwith-
standing the provisions of subsection (a) of this section, a political subdivi-
sion of the state or any employee, officer or agent acting within the scope
of his employment or official duties shall not be liable for damages to person
or property resulting from . . . failure to make an inspection or making an
inadequate or negligent inspection of any property, other than property
owned or leased by or leased to such political subdivision, to determine
whether the property complies with or violates any law or contains a hazard
to health or safety, unless the political subdivision had notice of such a
violation of law or such a hazard or unless such failure to inspect or such
inadequate or negligent inspection constitutes a reckless disregard for
health or safety under all the relevant circumstances . . . .’’ (Emphasis
added.)
3
The original complaint contained four other counts. Count two of the
complaint sounded in nuisance and counts three, four, and five stated that
the city was obligated to indemnify the individual defendants; see footnote
1 of this opinion; for their liability pursuant to General Statutes §§ 7-101a,
7-308, and 7-465.
4
In its request to revise the original complaint, the city requested the
following: ‘‘[T]hat, [with respect to paragraph 11 of the complaint], the
plaintiff . . . stat[e] specifically the authority which the plaintiff is quoting.
This revision is necessary in order to determine whether the plaintiff has
cited a city charter provision, ordinance, regulation, rule, policy, or any
other directive. . . .
‘‘[With respect to paragraph 18 of the complaint], that the plaintiff stat[e]
the citation of the authority which mandates a protocol for firefighting, as
required by Practice Book § 10-3. . . .
‘‘[With respect to paragraph 41 of the complaint] that the plaintiff delete
this paragraph in accordance with Practice Book § 10-1 fact pleading), [Prac-
tice Book §] 10-20 (contents of complaint), as this paragraph pleads only
evidence. . . .
‘‘[With respect to paragraph 47 of the complaint] that the plaintiff revise
each specification of negligence by stating whether it violated a city charter
provision, ordinance, regulation, rule, policy, or any other directive. . . .
This revision is necessary in order to determine whether the duty allegedly
breached was ministerial or discretionary and to determine whether the
[city] should plead the defense of governmental immunity. . . . [This revi-
sion] is also necessary for the [city] to move to strike the complaint on the
basis of governmental immunity. . . .’’ (Citations omitted; internal quotation
marks omitted.)
5
Practice Book § 10-37 (a) provides: ‘‘Any such request [to revise], after
service upon each party as provided by Sections 10-12 through 10-17 and
with proof of service endorsed thereon, shall be filed with the clerk of the
court in which the action is pending, and such request shall be deemed to
have been automatically granted by the judicial authority on the date of
filing and shall be complied with by the party to whom it is directed within
thirty days of the date of filing the same, unless within thirty days of
such filing the party to whom it is directed shall file objection thereto.’’
(Emphasis added.)
The city moved for nonsuit pursuant to Practice Book §§ 10-18, 17-19,
and 17-31. Practice Book § 10-18 provides that ‘‘[p]arties failing to plead
according to the rules and orders of the judicial authority may be nonsuited
or defaulted, as the case may be. (See General Statutes § 52-119 and anno-
tations.)’’
Practice Book § 17-19 provides that ‘‘[i]f a party fails to comply with an
order of a judicial authority or a citation to appear or fails without proper
excuse to appear in person or by counsel for trial, the party may be nonsuited
or defaulted by the judicial authority.’’
Practice Book § 17-31 provides in relevant part that ‘‘[w]here either party
is in default by reason of failure to comply with Sections 10-8, 10-35, 13-6
through 13-8, 13-9 through 13-11, the adverse party may file a written motion
for a nonsuit or default or, where applicable, an order pursuant to Section
13-14. . . .’’
6
In paragraph 47 of the September, 2016 complaint, unlike paragraph 47
of the original complaint, the plaintiff alleged that the city’s negligence
represented a reckless disregard for safety. Specifically, in the September,
2016 complaint, the plaintiff alleged that, ‘‘[p]ursuant to [§] 52-557n, the
[city was] negligent for failure to inspect and prepare [for] a fire at the
subject property even though the hazard information was provided to them.
This negligence represents a reckless disregard for safety . . . .’’
7
Paragraph 41 of the plaintiff’s original complaint states: ‘‘Defendant City
of Bridgeport’s then head of economic development, David Kooris, estimated
that the fire [in the plaintiff’s warehouse] left about fifty people out of
work: ‘It’s probably the first commercial fire in a long time that displaced
companies and workers,’ referring to other blazes in vacant buildings.’’
8
The September, 2016 complaint alleged that the city was negligent in
one or more of the same twelve ways that it had alleged in paragraph 47
of the original complaint. For comparison, in paragraph 47 of the December,
2016 complaint, the plaintiff alleged that the ‘‘[d]efendant . . . [was] negli-
gent in one or more of the following ways: (1) failure to have [the information
about the warehouse’s contents] immediately available in violation of depart-
ment written policy, directive and standard custom; (2) failure to implement
and utilize Computer Aided Management of Emergency Operations
(CAMEO) developed by the U.S. Department of Commerce in violation of
department written policy, directive and standard custom; (3) failure to
extinguish fire from chemicals in accordance with [the prescribed] methods
[stated in the information about the warehouse’s contents, which was] in
violation of department written policy, directives, and standard custom; (4)
failure to use [prescribed] foam in violation of department written policy,
directives and standard custom; (5) failure to abide by [the] proscription
for those media unsuitable to extinguish a fire for certain chemicals [stated
in the information about the warehouse’s contents, which was] in violation
of written department policies, directives and standard custom; and/or (6)
failure to inspect the facility and [develop a plan] [for extinguishing a poten-
tial fire] with [Rowayton, who] stored and used chemicals [and] would have
identified specific concerns for the facility . . . to prepare effectively for
those concerns, or to reduce existing risks, in violation of state statute,
written department policies, directives and standard custom.’’
9
In its request to revise the December, 2016 complaint, the city requested
the following: ‘‘[T]hat the plaintiff state the statute allegedly violated in
paragraph 47 (6) [because] Practice Book § 10-3 (a) requires that ‘[w]henever
any claim made in a complaint . . . is grounded on a statute, the statute
shall be specifically identified by its number’ [and] so that the [city] may
test the legal sufficiency of [the] allegation [made in paragraph 47 (6) of
the complaint] pursuant to a motion to strike based on governmental immu-
nity. . . .
‘‘[With respect] to each subparagraph of paragraph 47, [that the plaintiff
set] forth the department written policy [and] directive allegedly violated
and . . . describ[e] the standard custom allegedly violated . . . so that the
[city] may test the legal sufficiency of [these] allegation[s] pursuant to a
motion to strike based on governmental immunity.’’ (Internal quotation
marks omitted.)
10
In addition to responding to the city’s first motion for summary judgment
by filing its September, 2017 complaint, the plaintiff also objected to the
city’s motion for summary judgment on November 9, 2017.
11
Neither party disputes that, at this hearing, the court determined that the
proposed September, 2017 complaint had become the operative complaint.
12
In light of the plaintiff having filed the September, 2017 amended com-
plaint, the court determined that no action was necessary on the city’s first
motion for summary judgment.
13
The proposed September, 2017 complaint contained two other counts.
Count two alleged that individual defendants Scott T. Appleby and Terron
Jones were liable for their reckless failure to communicate information
about the chemicals inside the warehouse to the firefighters working to
extinguish the September 11, 2014 fire. The plaintiff, however, at the Novem-
ber 13, 2017 hearing, stated that it was withdrawing its action against these
two defendants and filed a withdrawal of action on November 21, 2017
stating as much. See footnote 1 of this opinion. Moreover, this count did
not appear again in the proposed June, 2018 complaint.
Count three of this complaint alleged that the city was obligated to indem-
nify Appleby and Jones for their liability pursuant to General Statutes §§ 7-
465 and 7-301 et seq. This count, too, did not appear in the proposed June,
2018 complaint.
14
In response to this new theory of liability, the court observed that ‘‘the
plaintiff feels that [it] doesn’t have any claim other than [the new allegations
set forth in the proposed June, 2018 complaint] because otherwise that
additional language wouldn’t have been inserted . . . into the revised com-
plaint.’’
15
Practice Book § 10-60 provides: ‘‘(a) Except as provided in Section 10-
66, a party may amend his or her pleadings or other parts of the record or
proceedings at any time subsequent to that stated in the preceding section
in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file an amendment together with: (A)
the amended pleading or other parts of the record or proceedings, and (B)
an additional document showing the portion or portions of the original
pleading or other parts of the record or proceedings with the added language
underlined and the deleted language stricken through or bracketed. The
party shall file the request and accompanying documents after service upon
each party as provided by Sections 10-12 through 10-17, and with proof of
service endorsed thereon. If no party files an objection to the request within
fifteen days from the date it is filed, the amendment shall be deemed to
have been filed by consent of the adverse party. If an opposing party shall
have objection to any part of such request or the amendment appended
thereto, such objection in writing specifying the particular paragraph or
paragraphs to which there is objection and the reasons therefor, shall, after
service upon each party as provided by Sections 10-12 through 10-17 and
with proof of service endorsed thereon, be filed with the clerk within the
time specified above and placed upon the next short calendar list.
‘‘(b) The judicial authority may restrain such amendments so far as may
be necessary to compel the parties to join issue in a reasonable time for
trial. If the amendment occasions delay in the trial or inconvenience to the
other party, the judicial authority may award costs in its discretion in favor
of the other party. For the purposes of this rule, a substituted pleading shall
be considered an amendment. (See General Statutes § 52-130 and anno-
tations.)’’
16
General Statutes § 52-584 provides in relevant part that ‘‘[n]o action to
recover damages for injury to the person, or to real or personal property,
caused by negligence, or by reckless or wanton misconduct . . . shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
17
Specifically, in addition to asserting that the new theory of liability was
barred by the statute of limitations, the city also objected to the proposed
June, 2018 complaint for the following reasons: ‘‘1. The plaintiff . . . vio-
lated the final court-ordered deadline of [May 7, 2018] within which to file
a revised pleading . . . .
‘‘2. The revision [to the operative complaint] is being filed well beyond
the [April 1, 2018] pleading closure deadline fixed in the court’s scheduling
order . . . and seeks to keep the pleadings open in violation of that order.
‘‘3. Allowing a revised complaint that sets out an entirely new cause of
action at this stage for this 2016 lawsuit stemming out of a [September 11,
2014] fire is highly prejudicial to the [city] and will . . . significantly delay
the trial of this case because’’ the city would have to conduct new discovery,
an additional investigation, and file a third motion for summary judgment
in order ‘‘to address the newly pleaded allegations and claims in the [June,
2018] complaint.’’
18
Because the plaintiff’s lead counsel was unable to attend the June 18,
2018 hearing, an attorney, who previously had filed an appearance in the
case, attended in his place. This attorney, however, was unprepared for the
hearing, noting that he had learned of the proposed June, 2018 complaint
the morning of the hearing and that he ‘‘had just a few minutes to review
. . . the [city’s] motion for summary judgment.’’ ] In light of his unpre-
paredness, the attorney ‘‘ask[ed] . . . the court [to] allow a short continu-
ance [so that the plaintiff’s lead counsel could] address [the] issues’’ per-
taining to the proposed June, 2018 complaint and the city’s motion for
summary judgment. The court agreed to continue the June 18, 2018 hearing
until June 25, 2018.
The plaintiff then moved to continue the June 25, 2018 hearing three days
prior to the hearing. The city objected to this motion, and the court never
granted a continuance. The plaintiff’s lead counsel failed to attend the June
25, 2018 hearing, and the same attorney appeared in his place. This attorney
stated that the plaintiff’s lead counsel was unable to attend the hearing
because ‘‘he [was] on a preplanned family vacation . . . .’’
19
The Williams case arose ‘‘out of a tragic fire in which four residents
of a Bridgeport public housing complex . . . lost their lives. The plaintiff
. . . as administratrix of the estate of each decedent [sued] the Bridgeport
Fire Department and five Bridgeport city officials . . . .’’ Williams v. Hous-
ing Authority, supra, 327 Conn. 341. ‘‘In her revised complaint, the plaintiff
alleged, among other things, that the municipal defendants failed to ensure
that [the] unit [in which the fire started] complied with state building and
fire safety codes, failed to remedy numerous defects in [this] unit . . . and
failed to conduct an annual fire safety inspection of [this] unit . . . as
required by § 29-305. The plaintiff specifically alleged that the municipal
defendants knew or should have known about and remedied a number of
asserted defects in [this] unit . . . including the absence of fire escapes or
other adequate means of egress, photoelectric smoke detectors, fire alarm
systems, fire suppression systems, fire sprinklers, fire extinguishers, and
fire safety or prevention plans. [Moreover, the plaintiff] alleged that such
conduct on the part of the municipal defendants was both negligent and
reckless.’’ Id., 345.
20
The city’s preliminary statement of issues on appeal contained in rele-
vant part: ‘‘1. Did the trial court abuse its discretion in overruling the [city’s]
objection to the plaintiff’s request for leave to amend to file the amended
complaint of September 5, 2017, where that complaint was filed beyond the
statute of limitations and was otherwise untimely?
‘‘2. Did the trial court abuse its discretion in considering the plaintiff’s
revised complaint filed June 18, 2018 . . . where that complaint was barred
by the statute of limitations, filed the morning of argument on [the city’s]
motion for summary judgment and filed in violation of the scheduling order?’’
21
In its appellate brief, the plaintiff acknowledges that ‘‘[t]he operative
complaint at present is a matter [that] the [city] has called into question,’’
but it also asserts that the trial court determined that the proposed June,
2018 complaint was the operative complaint when the court adjudicated
the city’s second motion for summary judgment. Moreover, in its reply brief,
the plaintiff stated that ‘‘[i]t is folly for the [city] to claim . . . that [the
June, 2018] complaint was not operative’’ and noted that ‘‘the [city] [under-
took] some impressive maneuvers to make the [June, 2018] complaint inoper-
able in the instant appeal.’’
22
Practice Book § 10-60 (a) provides in relevant part: ‘‘Except as provided
in Section 10-66, a party may amend his or her pleadings or other parts of
the record or proceedings at any time subsequent to that stated in the
preceding section in the following manner: . . . (3) By filing a request for
leave to file an amendment together with: (A) the amended pleading or
other parts of the record or proceedings, and (B) an additional document
showing the portion or portions of the original pleading or other parts of
the record or proceedings with the added language underlined and the
deleted language stricken through or bracketed. The party shall file the
request and accompanying documents after service upon each party as
provided by Sections 10-12 through 10-17, and with proof of service endorsed
thereon. . . .’’
Practice Book § 10-12 (a) provides in relevant part: ‘‘It is the responsibility
of counsel or a self-represented party filing the same to serve on each other
party who has appeared one copy of every pleading subsequent to the
original complaint . . . and every paper relating to . . . request . . . .
When a party is represented by an attorney, the service shall be made upon
the attorney unless service upon the party is ordered by the judicial
authority.’’
Practice Book § 10-14 provides in relevant part: ‘‘Proof of service pursuant
to Section 10-12 (a) and (b) may be made by written acknowledgment of
service by the party served, by a certificate of counsel for the party filing
the pleading or paper or by the self-represented party, or by affidavit of the
person making the service, but these methods of proof shall not be exclusive.
Proof of service shall include the address at which such service was
made. . . .’’
23
The plaintiff’s September 5, 2017 request to amend contained the follow-
ing certificate of service: ‘‘Undersigned certifies that a copy of this request
and the amended complaint were sent to City Attorney Bruce Levin who is
counsel of record for the defendants on . . . September [3], 2017.’’
24
At the June 18, 2018 hearing, the city’s counsel stated that it received
the proposed June, 2018 complaint but that counsel received it no more
than two days before the hearing.
25
We do not mean to suggest that a trial court is obligated to state explicitly
that it has weighed the considerations that this court described in Gonzales
v. Langdon, supra, 161 Conn. App. 509–10, 518, in order to determine whether
to grant a plaintiff leave to amend his or her complaint. In the present case,
however, because the plaintiff failed to properly seek leave to amend its
complaint and the court was silent with respect to these considerations and
did not explicitly state that it would grant the plaintiff leave to amend,
we decline to infer that the court granted the plaintiff leave to amend
its complaint.
26
As previously stated, the plaintiff, on appeal, claims only that the trial
court improperly granted summary judgment for the city based on the new
theory of liability set forth in the proposed June, 2018 complaint. The plaintiff
does not claim on appeal that the trial court improperly rendered summary
judgment based on the theory set forth in iterations of the complaint prior
to the proposed June, 2018 complaint, to the extent that the court rendered
summary judgment in favor of the city based on this theory.