DiMiceli v. Cheshire ( 2016 )

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GRAYSON DIMICELI ET AL. v. TOWN
OF CHESHIRE
(AC 36747)
Alvord, Prescott and Bear, Js.
Argued October 15, 2015—officially released January 5, 2016
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Benjamin H. Pomerantz, for the appellant (named
plaintiff).
Thomas R. Gerarde, with whom, on the brief, was
Katherine E. Rule, for the appellee (defendant).
Opinion
PRESCOTT, J. In this personal injury action, the
plaintiff Grayson DiMiceli, through his parents and next
friends, the plaintiffs Eric DiMiceli and Sabrina DiMi-
celi, appeals from the summary judgment rendered by
the trial court in favor of the defendant, the town of
Cheshire.1 Grayson allegedly was injured while playing
on a seesaw at a playground operated and maintained by
the defendant. The plaintiffs’ complaint initially alleged
only negligence by the defendant and a derivative claim
for medical expenses, but later was amended to include
a public nuisance count. The plaintiffs claim that the
court improperly determined that the defendant was
entitled to judgment as a matter of law because (1)
their negligence count was barred by the doctrine of
governmental immunity, and (2) the amended count
alleging a public nuisance was barred by the applicable
statute of limitations and did not relate back to the
negligence count. We disagree and, accordingly, affirm
the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. On June 13, 2009, Grayson, who
was seven years old at that time, was playing with
another child at the Quinnipiac Recreation Area, a pub-
lic park that is owned and operated by the defendant.
Grayson and the other child were using a seesaw, when,
without warning, the other child jumped off the equip-
ment, causing Grayson’s seat to crash to the ground.
Grayson suffered injuries as a result of the incident,
including spinal compression fractures.
The plaintiffs commenced this action against the
defendant on April 26, 2011.2 The initial complaint con-
tained two counts, the first alleging negligence on behalf
of Grayson, and the second asserting a derivative claim
for medical expenses on behalf of the parents individu-
ally.3 According to the plaintiffs, the defendant had been
negligent because it had failed to embed partial car
tires or other shock absorbing material in the ground
directly beneath the seesaw seats or to use such mate-
rial on the underside of the seats themselves, had failed
to ensure that there were sufficient wood chips or other
loose filled material covering the ground around the
seesaws or had failed to replace the old fashioned see-
saw with a newer, spring-loaded version. The case was
assigned for a jury trial to begin on September 24, 2013.
On May 7, 2013, the defendant filed a motion for permis-
sion to file a summary judgment motion in accordance
with Practice Book § 17-44. The court granted the
motion on May 20, 2013, absent objection, and the sum-
mary judgment motion and supporting memorandum of
law attached to the motion for permission were deemed
filed as of that date.
The plaintiffs were granted two extensions of time
in which to respond to the motion for summary judg-
ment. On October 16, 2013, the plaintiffs filed a request
for leave to amend the complaint, seeking to add new
factual allegations to the existing negligence count and
to add a new count sounding in public nuisance. The
proposed second amended complaint was attached to
the motion. The defendant objected to the request for
leave to amend, arguing that the proposed amendment
was unseasonable and would prejudice the defendant
because it had already filed its motion for summary
judgment. The court scheduled argument on the motion
for leave to amend for November 25, 2013. In the
interim, the plaintiffs filed a response to the defendant’s
objection to the motion for leave to amend as well as
a supplemental response to the defendant’s motion for
summary judgment.
Following the November 25, 2013 hearing, the court
granted the plaintiffs’ motion for leave to amend its
complaint and accepted the attached amended com-
plaint as having been filed on that date. The defendant
filed an answer with special defenses to the new opera-
tive complaint on December 5, 2013, in which it asserted
a statute of limitations special defense directed at the
nuisance count. The defendant later filed a supplemen-
tal memorandum of law in support of its motion for
summary judgment, which included new arguments
addressing the propriety of the nuisance count. The
plaintiffs also filed a supplemental brief in opposition
to summary judgment.
On March 13, 2014, the court issued a decision render-
ing summary judgment in favor of the defendant on all
counts of the operative complaint. The court concluded
that the defendant was entitled to judgment as a matter
of law on the negligence count because governmental
immunity, as codified in General Statutes § 52-557n (a)
(2) (B), shields municipalities from liability for negli-
gent discretionary acts, and the court determined as a
matter of law that the maintenance of the seesaw on
which Grayson was injured involved a discretionary
function. The court further concluded with respect to
the public nuisance count that it had not been filed
within the applicable statute of limitations and did not
relate back to the original negligence count because
the allegations in support of the public nuisance count
were critically different from those underlying the negli-
gence count. Because neither the negligence count nor
the nuisance count was viable, the court also rendered
judgment with respect to the parents’ derivative claim
for medical expenses.4 The plaintiffs filed a motion for
reconsideration and reargument, which the court
denied. This appeal followed.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
Our review of the decision to grant a motion for sum-
mary judgment is plenary. . . . We therefore must
decide whether the court’s conclusions were legally
and logically correct and find support in the record.’’
(Internal quotation marks omitted.) Barbee v. Sysco
Connecticut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d
944 (2015).
I
We turn first to the plaintiffs’ claim that the court
improperly rendered summary judgment on the negli-
gence count on the basis of its determination that recov-
ery for negligence was barred by the doctrine of
governmental immunity. In support of this claim, the
plaintiffs first argue that a genuine issue of material
fact exists as to whether the defendant’s duty to inspect
and maintain the playground and seesaw was ministe-
rial or discretionary in nature, and that the existence
of such a disputed issue of fact should have precluded
the court from granting summary judgment. The plain-
tiffs further argue that it is contrary to public policy to
grant governmental immunity if a municipality claims
to have no policies, standards, or guidelines in place
to ensure that its playgrounds are safe for children. We
are not persuaded by the plaintiffs’ first argument and
decline to consider the second because it was not raised
to or decided by the trial court.
A
The plaintiffs first argue that a genuine issue of mate-
rial fact exists with respect to whether the defendant’s
duty to inspect and maintain the playground and seesaw
was ministerial or discretionary in nature. We are not
persuaded.
We begin by setting forth the well settled law of this
state regarding the liability of municipalities and their
agents. According to our Supreme Court, ‘‘[a] municipal-
ity itself was generally immune from liability for its
tortious acts at common law . . . . [The court has]
also recognized, however, that governmental immunity
may be abrogated by statute. . . . General Statutes
§ 52-557n (a) (1) provides in relevant part: Except as
otherwise provided by law, a political subdivision of the
state shall be liable for damages to person or property
caused by: (A) The negligent acts or omissions of such
political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or
official duties . . . . [Our Supreme Court] previously
[has] concluded that [t]his language clearly and
expressly abrogates the traditional common-law doc-
trine in this state that municipalities are immune from
suit for torts committed by their employees and
agents. . . .5
‘‘Subdivision (2) of § 52-557n (a) lists two exceptions
to the statutory abrogation of governmental immunity.
The exception relevant to this appeal provides: Except
as otherwise provided by law, a political subdivision
of the state shall not be liable for damages to person
or property caused by . . . (B) negligent acts or omis-
sions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or
impliedly granted by law.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) Martel v. Met-
ropolitan District Commission, 275 Conn. 38, 47–48,
881 A.2d 194 (2005). The statute, thus, distinguishes
between discretionary acts and those that are ministe-
rial in nature, with liability generally attaching to a
municipality only for negligently performed ministerial
acts, not for negligently performed discretionary acts.
See Coley v. Hartford, 140 Conn. App. 315, 322, 59 A.3d
811 (2013), aff’d, 312 Conn. 150, 95 A.3d 480 (2014).
‘‘The hallmark of a discretionary act is that it requires
the exercise of judgment. . . . In contrast, [m]inisterial
refers to a duty which is to be performed in a prescribed
manner without the exercise of judgment or discretion.
. . . In order to create a ministerial duty, there must
be a city charter provision, ordinance, regulation, rule,
policy, or any other directive [compelling a municipal
employee] to [act] in any prescribed manner.’’ (Citation
omitted; internal quotation marks omitted.) Id., 323.
‘‘In general, the exercise of duties involving inspec-
tion, maintenance and repair of hazards are considered
discretionary acts entitled to governmental immunity.
. . . A municipality necessarily makes discretionary
policy decisions with respect to the timing, frequency,
method and extent of inspections, maintenance and
repairs.’’ (Citations omitted.) Grignano v. Milford, 106
Conn. App. 648, 656, 943 A.2d 507 (2008). ‘‘Although
the determination of whether official acts or omissions
are ministerial or discretionary is normally a question
of fact for the fact finder . . . there are cases where
it is apparent from the complaint.’’ (Citation omitted.)
Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623,
628, 749 A.2d 630 (2000). ‘‘[W]hether an act or omission
is discretionary in nature and, thus, whether govern-
mental immunity may be successfully invoked pursuant
to § 52-557n (a) (2) (B), turns on the character of the
act or omission complained of in the complaint. . . .
Accordingly, where it is apparent from the complaint
that the defendants’ allegedly negligent acts or omis-
sions necessarily involved the exercise of judgment,
and thus, necessarily were discretionary in nature, sum-
mary judgment is proper.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Grignano v. Milford,
supra, 655.
In their complaint, the plaintiffs allege that the defen-
dant failed to maintain the park and the seesaw in
a safe condition and that ‘‘[t]he duties owed by the
defendant were ministerial in nature.’’ The plaintiffs
allege three possible sources for the defendant’s alleged
ministerial duties: the United States Consumer Product
Safety Commission’s Handbook for Public Playground
Safety (CPSC standards); chapter 11, article I, § 11-1
of the Cheshire Code of Ordinances (ordinance); and
internal standards established by the defendant’s Parks
and Recreation Department. We agree with the well
reasoned analysis set forth by the trial court in its mem-
orandum of decision, in which it aptly concludes that
none of the sources cited by the plaintiffs imposed a
ministerial duty with respect to how the defendant was
supposed to inspect and maintain its playgrounds and
playground equipment.
The trial court reasoned as follows: ‘‘With respect to
the CPSC standards, the plaintiff[s] [point] to General
Statutes § 21a-12a. Section 21a-12a provides in relevant
part: ‘The Commissioner of Consumer Protection shall
adopt regulations . . . to develop standards for play-
ground equipment . . . . Such regulations shall be
equivalent to the standards established by the Hand-
book for Public Playground Safety produced by the
United States Product Safety Commission.’ The plain-
tiff[s] [argue] that this statute imposes a ministerial duty
on the defendant to maintain the seesaw in accord
with the industry standards set forth by CPSC, that the
defendant failed to do so, and that the defendant is
therefore liable in negligence.
‘‘Section 21a-12a instructs the Commissioner of Con-
sumer Protection to adopt regulations. [Section 21a-
12a-2 of the Regulations of Connecticut State Agencies]
provides: ‘The guidelines for playground equipment
adopted by the United States Consumer Product Safety
Commission in its Handbook for Public Playground
Safety are adopted, and herein incorporated by refer-
ence, as voluntary guidelines for playground equip-
ment in this state.’ . . . Contrary to the plaintiff[s’]
argument, the CPSC standards do not impose binding
ministerial duties on the defendant but instead are avail-
able to municipalities for guidance. Accordingly, the
CPSC standards do not and did not create ministerial
duties on the defendant.
‘‘With respect to the ordinance, the plaintiff[s] [argue]
that a sentence in [the ordinance] creates a ministerial
duty. [The ordinance] states: ‘[t]he town’s parks and
recreational facilities shall be maintained for the resi-
dents of Cheshire and guests in their company.’ The
plaintiff[s] essentially [argue] that the use of the impera-
tive ‘shall’ indicates that the ordinance requires the
defendant to maintain the park and the seesaw. The
court disagrees with [that] interpretation. . . . [I]n
order for a duty to be considered ministerial, it must
be ‘performed in a prescribed manner without the exer-
cise of judgment or discretion.’ . . . The ordinance
does not prescribe any particular manner of perfor-
mance; it simply states that recreational facilities shall
be maintained. . . . Absent such prescription, the ordi-
nance does not and did not impose a ministerial duty
on the defendant. . . .
‘‘With respect . . . to the internal standards of the
Parks and Recreation Department, the plaintiff[s]
[point] to the deposition testimony of Robert Ceccolini,
Director of the Cheshire Parks and Recreation Depart-
ment. The plaintiff[s] [argue] that Ceccolini’s testimony
undercuts the defendant’s contention that maintenance
of the seesaw was a discretionary function. Specifically,
the plaintiff[s] [argue] that Ceccolini described a num-
ber of maintenance and inspection standards that
employees of the Parks and Recreation Department
were instructed to follow. These instructions, the plain-
tiff[s] [argue], are in the nature of directives imposing a
ministerial duty, vitiating the defendant’s governmental
immunity and defeating the defendant’s motion for sum-
mary judgment.
‘‘Ceccolini testified that the employees of the Parks
and Recreation Department are to ‘maintain the parks,
that’s part of their job, as they go through their day.’
. . . In response to a question asking if there are
‘checklists or guidelines that your employees . . . are
given . . . to give them an idea of the sort of things
they should be looking for,’ Ceccolini answered ‘[t]here
are no checklists, no.’ . . . Ceccolini admitted that
‘[w]ood chips are replaced on a fairly regular basis.’
. . . . However, he augmented that answer by stating
that the Department of Parks and Recreation adds wood
chips ‘[e]very year or so, every year or two we add new
wood chips on an as-needed basis.’ . . . Based on this
testimony, whatever internal standards the Parks and
Recreation Department had were discretionary in
nature.’’ (Citations omitted; emphasis in original; foot-
notes omitted.)
The plaintiffs suggest on appeal that the court’s analy-
sis as it pertains to the internal standards of the Parks
and Recreation Department conflicts with or overlooks
our decision in Wisniewski v. Darien, 135 Conn. App.
364, 374, 42 A.3d 436 (2012). In particular, the plaintiffs
cite to language in Wisniewski indicating that the testi-
mony of a municipal official concerning the defendant
town’s duty to inspect or maintain its property may be
sufficient to establish that such a duty is ministerial in
nature. Id., 374. Nothing in the trial court’s decision
granting summary judgment in this case conflicts with
that proposition. The present case is distinguishable
from Wisniewski because, unlike in that case, the plain-
tiffs here have failed to produce testimonial evidence
from which a ministerial duty could be inferred and,
therefore, have failed to raise a genuine issue of mate-
rial fact.
The plaintiffs in Wisniewski had been injured when
part of a tree that was located on town land and that
had been the subject of several reports to the town as
a potential hazard fell on the car in which the plaintiffs
were travelling. Id., 366–67. A town official testified at
trial that once the town was notified of a problem with
a tree, the response was always the same: to have a
tree warden inspect the tree to determine if there was
a safety concern. Id., 375. The tree warden also testified
‘‘that upon receipt of a complaint regarding a potentially
hazardous tree, he has a nondiscretionary duty to per-
form an inspection.’’ Id. We concluded that this testi-
mony was sufficient evidence to support the jury’s
finding that the warden had a ministerial duty to inspect
the subject tree. Id. In contrast, in the present case,
there is no indication that the defendant ignored any
requests for inspection of the playground or seesaw,
and the plaintiffs have failed to cite to any portion of
Ceccolini’s deposition, submitted at summary judg-
ment, that indicates that the defendant had any specific
policy in place or had prescribed a nondiscretionary
manner for inspecting and maintaining its playgrounds.6
On the basis of our plenary review of the pleadings
and submissions of the parties, we conclude that the
plaintiffs have failed to show the existence of a genuine
issue of material fact that would preclude the granting
of summary judgment. Because it was legally and logi-
cally correct for the trial court to have concluded that
the acts and omissions alleged in the complaint neces-
sarily were discretionary in nature and, thus, not minis-
terial; see Grignano v. Milford, supra, 106 Conn. App.
656; see also Evon v. Andrews, 211 Conn. 501, 506–507,
559 A.2d 1131 (1989) (what constitutes reasonable,
proper, or adequate inspection involves exercise of
judgment and, thus, is discretionary in nature); the court
properly determined that the defendant was entitled to
judgment as a matter of law on the defendant’s govern-
mental immunity defense.
B
The plaintiffs also argue on appeal that it contravenes
public policy to grant governmental immunity to a
municipality that ignores, or pretends not to adopt,
basic playground safety requirements intended to pro-
tect children. The defendant counters that the plaintiffs’
public policy argument was never raised in the summary
judgment pleadings or during oral argument on the
motion, and, therefore, we should not consider the argu-
ment on appeal. We agree with the defendant that the
public policy aspect of the plaintiffs’ claim was not
properly preserved for appellate review, and, accord-
ingly, we decline to address it.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. We
repeatedly have held that [a] party cannot present a
case to the trial court on one theory and then seek
appellate relief on a different one . . . . [A]n appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level. . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.
. . . The requirement that [a] claim be raised distinctly
means that it must be so stated as to bring to the atten-
tion of the court the precise matter on which its decision
is being asked. . . . The purpose of our preservation
requirements is to ensure fair notice of a party’s claims
to both the trial court and opposing parties. . . . These
requirements are not simply formalities. They serve to
alert the trial court to potential error while there is still
time for the court to act.’’ (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) White v. Mazda Motor of America, Inc., 313
Conn. 610, 619–20, 99 A.3d 1079 (2014); see also Nova-
metrix Medical Systems, Inc. v. BOC Group, Inc., 224
Conn. 210, 214 n.8, 618 A.2d 25 (1992) (declining to
address public policy argument raised for first time
on appeal).
Having thoroughly reviewed the pleadings and other
submissions before the court, as well as the transcript
of oral argument on the motion for summary judgment,
we conclude that the plaintiffs failed to preserve their
public policy argument by distinctly raising the issue
to the trial court as a basis for denying summary judg-
ment. In their reply brief on appeal, the plaintiffs direct
our attention to portions of their memorandum in oppo-
sition to summary judgment and to their motion for
reargument. Although the referenced passages arguably
touch upon the policy arguments that the plaintiffs now
seek to assert on appeal, the passages do not support
a conclusion that the violation of public policy claim
was distinctly raised to the trial court as a basis for
denying summary judgment.
Further, even if we were persuaded that the issue
had been distinctly raised to the trial court, that court
never decided the issue. See Willow Springs Condo-
minium Assn., Inc. v. Seventh BRT Development Corp.,
245 Conn. 1, 52, 717 A.2d 77 (1998) (appellate courts
‘‘will not address issues not decided by the trial court’’).
The trial court never mentions public policy in its mem-
orandum of decision granting the defendant’s motion
for summary judgment, and to the extent that it was
raised in the plaintiffs’ motion for reargument, the court
denied that motion without comment. Even if the plain-
tiffs believed that the court overlooked an argument
that they raised in opposition to summary judgment,
they failed to indicate this in their motion for reargu-
ment. Because the public policy argument advanced by
the plaintiffs on appeal was never distinctly raised to
or decided by the trial court, we decline to consider it
on appeal.
II
Finally, we turn to the plaintiffs’ claim that the court
improperly rendered summary judgment in favor of the
defendant on their public nuisance count. According to
the plaintiffs, the court incorrectly determined that their
nuisance count did not relate back to the original negli-
gence count and, thus, was barred pursuant to the appli-
cable statute of limitations.7 The plaintiffs do not
dispute the court’s determination that their public nui-
sance count first appeared in their October 16, 2013
second amended complaint, and that this was well over
four years after Grayson sustained his injuries and,
accordingly, well outside of the applicable limitation
period. Rather, the plaintiffs argue only that the court
improperly rejected their claim that the nuisance count,
as an amendment to the initial complaint, related back
to the original negligence count for purposes of calculat-
ing the limitations period, and that, because the negli-
gence count had been filed within the statute of
limitations, the nuisance count also should have been
deemed timely.8 We disagree.
We begin by setting forth the applicable law as well
as our standard of review. ‘‘Our relation back doctrine
provides that an amendment relates back when the
original complaint has given the party fair notice that
a claim is being asserted stemming from a particular
transaction or occurrence, thereby serving the objec-
tives of our statute of limitations, namely, to protect
parties from having to defend against stale claims. . . .
To relate back to an earlier complaint, the amendment
must arise from a single group of facts. . . . In
determining whether an amendment relates back to an
earlier pleading, we 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 proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, 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. . . . Finally, in the cases in which [our
Supreme Court has] determined that an amendment
does not relate back to an earlier pleading, the amend-
ment presented different issues or depended on differ-
ent factual circumstances rather than merely amplifying
or expanding upon previous allegations.’’ (Internal quo-
tation marks omitted.) J. Wm. Foley, Inc. v. United
Illuminating Co., 158 Conn. App. 27, 63–64, 118 A.3d
573 (2015).
As this court recently indicated in Briere v. Greater
Hartford Orthopedic Group, P.C., 158 Conn. App. 66,
74, 118 A.3d 596, cert. denied, 319 Conn. 910, 123 A.3d
882, cert. granted, 319 Conn. 950, A.3d (2015),
in determining whether an amendment to a complaint
relates back for purposes of applying the statute of
limitations, we will employ a de novo standard of
review. See also Sherman v. Ronco, 294 Conn. 548, 554
n.10, 985 A.2d 1042 (2010) (‘‘the de novo standard of
review is always the applicable standard of review for
resolving whether subsequent amendments to a com-
plaint relate back for purposes of the statute of limita-
tions’’ [emphasis in original]).9
Having reviewed the pleadings, and construing them
broadly and realistically, as we must, we agree with the
trial court’s analysis and conclusion that the nuisance
count fails to relate back to the negligence count. As
the court stated in its memorandum of decision, ‘‘[t]he
plaintiff[s’] allegations of public nuisance are critically
different from the allegations of negligence. In [their]
April 29, 2011 complaint, the plaintiff[s] [allege] the
defendant was negligent in one of more of the following
ways: ‘[i]t failed to place partial car tires or some other
shock absorbing material embedded in the ground
underneath the seats of the seesaw . . . [i]t failed to
use partial car tires or some other shock absorbing
material secured on the underside of the seats of the
seesaw . . . [i]t failed to replace the old-fashioned see-
saw with a spring-loaded type of seesaw . . . [i]t failed
to provide the minimum required protective surfacing
of 9 inches of loose filled material under the seesaws
. . . .’ The common thread of these allegations is that
the plaintiff[s’] injuries are the result of the failure of the
defendant to do something. In contrast, in the second
amended complaint, the plaintiff[s] [allege] that the
defendant ‘committed various positive acts with respect
to the seesaw,’ which positive acts constituted public
nuisance. The positive acts cited by the plaintiff[s]
include: ‘[i]nstalling a type of seesaw at the Quinnipiac
Recreation area that contained overtly hazardous com-
ponents . . . [i]nstalling seesaws at the Quinnipiac
Recreation area in a location that had insufficient
ground cover or some other form of cushioning in the
seesaw’s fall zone . . . [c]onstructing a fall zone under-
neath the seesaw in question that was inherently unsafe
for anyone attempting to use the seesaw element.’ . . .
The common thread of these allegations is that the
plaintiff[s’] injuries are due to a positive act of the
defendant.
‘‘The alleged actionable occurrences in the two
claims are inherently conflicting. The actionable occur-
rence in the negligence claim is the failure to act,
whereas the actionable occurrence in the public nui-
sance claim is the defendant’s positive act of installing
the seesaw. Indeed, the prima facie public nuisance
claim against municipalities requires a positive act on
the part of the municipality. In the public nuisance
context, [our] Supreme Court has stated that ‘[c]ommon
usage does not equate a failure to act with an act.’ . . .
In the present case, however, the plaintiff[s] [ask] the
court to decide that prior allegations of negligent con-
duct would have given the defendant ‘fair notice’ . . .
that it would have to defend a public nuisance claim.
The plaintiff[s’] public nuisance claim does not relate
back to the original claim of negligence because the
allegations of the original complaint failed to notify the
defendant that claims based on its allegedly intentional
conduct were imminent.’’ (Citations omitted; emphasis
in original; footnote omitted.)
It is undisputed that the nuisance count was filed
outside of the applicable statute of limitations. Having
determined that the court correctly concluded as a mat-
ter of law that the nuisance count did not relate back
to the negligence count, we conclude that the court
properly rendered summary judgment in favor of the
defendant on its statute of limitations defense.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that only Grayson DiMiceli appeals from the trial court’s judg-
ment and he does not pursue in this appeal any derivative claims made by
Eric DiMiceli and Sabrina DiMiceli. Nonetheless, for purposes of clarity and
convenience, we refer in this opinion to the claims advanced on appeal as
made by the plaintiffs collectively, and refer to Grayson DiMiceli as Grayson
where necessary.
2
We note that the defendant later filed a third party complaint impleading
the other child involved in the incident, but it later withdrew that action
prior to the filing of the present appeal.
3
On May 19, 2011, the plaintiffs amended their complaint as of right by
filing a corrected civil summons. The initial summons had listed the parents
as having brought suit only on behalf of their minor child, not as individ-
ual plaintiffs.
4
The plaintiffs raise no challenge to that aspect of the court’s decision
in the present appeal.
5
Our Supreme Court has cautioned that ‘‘[s]tatutes that abrogate or modify
governmental immunity are to be strictly construed’’ because if ‘‘a statute
is in derogation of common law or creates a liability where formerly none
existed, it should receive a strict construction and is not to be extended,
modified, repealed or enlarged in its scope by the mechanics of construc-
tion.’’ (Internal quotation marks omitted.) Rawling v. New Haven, 206 Conn.
100, 105, 537 A.2d 439 (1988).
6
We note that only certain portions of Ceccolini’s deposition transcript
were submitted as evidence before the trial court. In their arguments on
appeal, the plaintiffs seek to rely on portions of Ceccolini’s deposition that
were never submitted to the trial court as part of the summary judgment
proceedings and, thus, that are not properly before us in reviewing the
court’s decision to render summary judgment.
7
Neither party identifies in their appellate briefs which statute of limita-
tions was applicable to the public nuisance count asserted by the plaintiffs,
nor did they do so in the pleadings before the trial court. In its memorandum
of decision granting summary judgment, the trial court cites to and relies
upon General Statutes § 52-577, which provides that ‘‘[n]o action founded
upon a tort shall be brought but within three years from the date of the
act or omission complained of.’’ Public nuisance is a tort, defined as ‘‘an
unreasonable interference with a right common to the general public.’’ 4
Restatement (Second), Torts, § 821B (1) (1979). We previously have indi-
cated, however, that if a nuisance claim, whether public or private, is predi-
cated on a defendant’s alleged negligence, the nuisance count must be filed
within the two year limitations period set forth in General Statutes § 52-
584. See Sinotte v. Waterbury, 121 Conn. App. 420, 428–31, 995 A.2d 131,
cert. denied, 297 Conn. 92, 996 A.2d 1192 (2010). Section 52-584 provides
in relevant part: ‘‘No action to recover damages for injury to the person, or
to real or personal property, caused by negligence . . . shall be brought
but within two years from the date when the injury is first sustained or
discovered . . . .’’ (Emphasis added.) Neither party, however, challenges
on appeal the trial court’s reliance on § 52-577. Moreover, the public nuisance
count at issue here was filed more than four years after the cause of action
accrued and, thus, was well outside the limitation periods set forth in both
§§ 52-577 and 52-584. Accordingly, for purposes of our analysis, we need
not decide which specific limitation period applies in this particular case.
8
To the extent that the plaintiffs, in their appellate brief, rely on General
Statutes § 52-595 and allege fraudulent concealment as a basis for tolling
the statute of limitations on the nuisance count, we decline to review this
claim. The plaintiffs neither raised this defense in their pleadings nor argued
this point to the trial court. See White v. Mazda Motor of America, Inc.,
supra, 313 Conn. 619–20.
9
We note that, since Sherman was decided, our Supreme Court has,
on at least two occasions, indicated that ‘‘[t]his court previously has not
determined whether, on appeal, the trial court’s application of the relation
back doctrine is subject to an abuse of discretion standard or a de novo
review.’’ Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 660
n.15, 81 A.3d 200 (2013); see also Grenier v. Commissioner of Transporta-
tion, 306 Conn. 523, 559, 51 A.3d 367 (2012) (same). Both Austin-Casares
and Grenier cite to Dimmock v. Lawrence & Memorial Hospital, Inc., 286
Conn. 789, 798–800, 945 A.2d 955 (2008), which predated Sherman and in
which the court stated that it was unnecessary to decide the appropriate
standard of review at that time because the party that was seeking the
benefit of the relation back doctrine could not prevail under either standard.
In Sherman, the court explicitly noted that Dimmock had left the precise
standard undecided but that it was now unequivocally deciding that review
was de novo because the interpretation of pleadings is always a question
of law for the court. Sherman v. Ronco, supra, 294 Conn. 554 n.10. Because
neither Austin-Casares nor Grenier mentions Sherman or purports to over-
rule it with respect to the applicable standard of review, we follow the
express standard announced in Sherman absent some further clarification
by our Supreme Court.