Rodriguez v. Hartford ( 2024 )

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CHRISTOPHER RODRIGUEZ v.
CITY OF HARTFORD ET AL.
(AC 45807)
Moll, Cradle and Bear, Js.
Syllabus
The plaintiff, as parent and next friend of her minor son, C, sought to
recover damages from the defendants, the city of Hartford and D, the
city forester, for injuries sustained by C when a tree fell on him while
he was playing at a basketball court located in a city park. Eleven days
before C was injured, D had visually inspected the tree at issue, which
was located approximately twenty feet from the basketball court at the
park. She determined that the tree did not constitute an immediate
public hazard but designated the tree for removal by posting a sign on
the tree allowing ten days for public comment, pursuant to a city ordi-
nance (§ 26-11) and the statute (§ 23-59) governing the duties of tree
wardens. The plaintiff’s three count complaint included allegations of
negligence against the city and D. The plaintiff alleged, inter alia, that
the defendants were negligent in failing to adequately inspect the tree at
issue and remove it. In their answer and special defenses, the defendants
alleged that the plaintiff’s negligence claims were barred by the doctrine
of governmental immunity. Several months later, the defendants filed
a motion for summary judgment, arguing that they were entitled to
governmental immunity on the negligence claims because all of the
allegations involved public duties that were discretionary as a matter
of law. More than two years later, the plaintiff filed an objection to the
motion for summary judgment wherein she argued that the defendants
violated their ministerial duties as to the inspection and removal of the
tree at issue. On that same day, the plaintiff also filed a request to
amend her complaint, seeking to add one count asserting common-law
recklessness, alleging the failure to conduct an inspection of the tree
that fell on C. The plaintiff represented that her proposed new count
of recklessness related back to her original complaint in that the factual
basis for the claim of recklessness had not changed and the new claim
merely amplified and expanded upon the allegations in the original
complaint by setting forth an alternative theory of liability. The defen-
dants filed an objection to the request to amend, arguing that, because
their motion for summary judgment had been fully briefed and there
was a trial date already assigned, granting the plaintiff’s request to amend
to include an additional count that raised a new basis of liability would
prejudice them. The trial court denied the plaintiff’s request to amend,
finding that the amendment would considerably delay the proceedings,
that it asserted claims not raised in the complaint that was the subject
of the pending summary judgment motion, and that the plaintiff had
offered no explanation or rationale for the delay in asserting a new
claim. Approximately one month later, the court held a hearing on the
defendants’ motion for summary judgment and the plaintiff’s objection
thereto, at which the plaintiff’s counsel argued that a genuine issue of
material fact existed as to whether D’s duty to inspect was ministerial
or discretionary. The plaintiff subsequently filed a motion for permission
to file a supplemental brief to her objection to the motion for summary
judgment to argue that the defendants’ motion for summary judgment
should be denied because the allegations of the original complaint were
broad enough to state a nuisance claim and the alleged facts supported
a nuisance claim not barred by governmental immunity. The defendants
filed an objection arguing that the plaintiff had not, and could not, allege
a public nuisance claim against them. Several weeks later, the trial date
was continued to a date almost one year after the then scheduled trial
date. The plaintiff filed a renewed request to amend her complaint,
seeking to add one count for common-law recklessness and one count
for public nuisance. In her request, the plaintiff reiterated that the new
allegations related back to the allegations in the original complaint and
asserted that the new trial date afforded ample time for the defendants
to conduct any additional discovery that they deemed necessary. The
defendants filed an objection, arguing that the trial date was continued
only to provide the court with time to decide the pending motion for
summary judgment and that there was no reason to revisit the trial
court’s prior ruling denying the plaintiff’s first request to amend. The
court granted the plaintiff’s motion for permission to file a supplemental
brief but rejected the argument therein, finding that the factual allega-
tions of the operative complaint did not support a claim for public
nuisance as an alternative to the negligence claims that had been clearly
pleaded. On that same day, the court denied the plaintiff’s renewed
request to amend her complaint, ruling that the proposed new counts
were filed beyond the applicable statutes of limitations (§§ 52-577 and
52-584) and that the new counts did not relate back to the allegations
in the original complaint. The trial court subsequently issued a memoran-
dum of decision granting the defendants’ motion for summary judgment
and concluding that the allegations of negligence in the plaintiff’s com-
plaint clearly related to discretionary functions and, therefore, the defen-
dants were immune from liability both at common law and under the
statute (§ 52-557n) providing governmental immunity. On the plaintiff’s
appeal to this court, held:
1. The plaintiff could not prevail on her claim that the trial court improperly
denied her first request to amend her complaint; when the plaintiff filed
that request, the defendants’ motion for summary judgment had been
pending for more than two years, it had been briefed by both parties,
and there was an upcoming trial date, and the trial court’s ruling that
permitting the amendment would considerably delay the proceedings
in light of the upcoming trial date did not reflect an abuse of its discretion.
2. The trial court erred in denying the plaintiff’s renewed request to amend
her complaint on the basis that the proposed claims of recklessness
and public nuisance were barred by §§ 52-577 and 52-584: neither § 52-
577 nor § 52-584 establishes a remedy that does not otherwise exist,
and, because such statutes of limitations are procedural, not jurisdic-
tional, and the periods of limitation set forth therein could be waived,
a trial court may not raise the limitation on its own motion; moreover,
because the trial court sua sponte raised the issue of the statutes of
limitations and the defendants had not objected to the plaintiff’s renewed
request to amend her complaint on the ground that the new allegations
did not relate back to the allegations of her complaint and were, conse-
quently, beyond the applicable statutes of limitations, the court erred
in denying the request.
3. The plaintiff’s claim that the trial court erred in rendering summary
judgment for the defendants was unavailing:
a. Contrary to the plaintiff’s argument, the trial court did not err in
concluding that her complaint failed to set forth a claim for public
nuisance; although the plaintiff identified certain allegations in her com-
plaint that she claimed set forth a claim of nuisance, specifically, that
the defendants allowed C to use the basketball court in the park when
they knew or should have known that the tree was rotted or dangerous
and continued to maintain the tree with the same defects, those allega-
tions, when read in the context of the entirety of the complaint, did not
allege that the defendants created the condition that caused the tree to
fall but, rather, that they should have recognized the hazard presented
by the tree and remediated it, essentially alleging a failure to act on the
part of the defendants, and a failure to act or remediate does not consti-
tute a nuisance.
b. The plaintiff could not prevail on her claim that the trial court erred
in concluding that her claims against the defendants were barred by
governmental immunity because a genuine issue of material fact existed
as to whether the defendants’ alleged negligence constituted a violation
of a ministerial or discretionary duty: because D determined that the
tree at issue in the present case did not pose an immediate public hazard,
the plaintiff’s claim that § 23-59 imposes a ministerial duty when a tree
poses an immediate public hazard was unavailing; moreover, although
the plaintiff contended that D violated her ministerial duty to properly
inspect the tree at issue, she failed to cite any authority to support her
contention that D’s duty to inspect the tree at issue was ministerial, and
this court has previously held that § 23-59 provides that many, but not
all, of the duties of a tree warden involve the exercise of discretion;
furthermore, the defendants had not received a complaint or been other-
wise notified that the tree at issue was potentially hazardous but, rather,
the record reflected that D’s inspection of the tree at issue was a matter
of routine, there were no policies or regulations that set forth the manner
in which the inspection of a tree must be conducted, and, in the absence
of such guidelines, it was clear that the routine inspection involved D’s
judgment and discretion, and, therefore, the court did not err in conclud-
ing that the allegations of the complaint challenged D’s discretionary con-
duct.
Argued November 7, 2023—officially released March 19, 2024
Procedural History
Action, inter alia, to recover damages for personal
injuries sustained by the plaintiff as a result of the
defendants’ alleged negligence, brought to the Superior
Court in the judicial district of Hartford, where the
court, Sheridan, J., denied the plaintiff’s motions to
amend the complaint; thereafter, the court, Sheridan,
J., granted the defendants’ motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Reversed in part; fur-
ther proceedings.
Jack G. Steigelfest, with whom, on the brief, was
Thomas P. Cella, for the appellant (plaintiff).
Thomas R. Gerarde, for the appellees (defendants).
Opinion
CRADLE, J. The plaintiff, Carmen Rodriguez, as par-
ent and next friend of her minor son, Christopher Rodri-
guez (Christopher),1 appeals from the summary judg-
ment rendered in favor of the defendants, the city of
Hartford (city) and Heather Dionne, the city forester,
in this action to recover damages for injuries sustained
by Christopher when a tree fell on him while he was
playing at a basketball court located in a city park. On
appeal, the plaintiff claims that the court erred by (1)
denying her requests to amend her complaint and (2)
concluding that her complaint did not set forth a claim
of public nuisance and that no genuine issue of material
fact existed as to whether her claims against the defen-
dants were barred by governmental immunity. We con-
clude that the court properly rendered summary judg-
ment as to the plaintiff’s negligence claims but that the
court erred in denying one of the plaintiff’s requests to
amend her complaint. We therefore affirm in part and
reverse in part the judgment of the trial court.
The following undisputed facts, as set forth by the
trial court, and procedural history are relevant to our
resolution of this appeal. ‘‘[Dionne] is the city forester
for the city of Hartford, a position she has held since
2012. The city forester is charged with the responsibility
of carrying out the laws of the state and the ordinances
of the city of Hartford with respect to all trees, shrubs
or vines in highways, public parks and public grounds
within the city. On July 27, 2018, Dionne visually inspected
the subject tree at issue in this case. The tree was located
approximately twenty feet from a public basketball court
at Goodwin Park. Dionne looked at the trunk of the tree,
the attachment of the branches to the tree, and the ground
around the tree. Dionne observed ‘tip dieback’ (dying of
the tips of branches), thinning of the crown of the tree,
small leaf size, and poor root integrity.
‘‘Dionne determined that the tree did not ‘constitute
an immediate public hazard’ and designated the tree
for removal by posting a sign on the tree allowing ten
days for public comment, pursuant to chapter 26, article
I, § 26-11 of the Hartford Code of Ordinances2 and Gen-
eral Statutes § 23-59.3
‘‘Eleven days later, on August 7, 2018, at approxi-
mately 6:45 p.m., [Christopher], a ten year old boy, was
playing basketball on the basketball court when the
tree fell onto the basketball court, crushing his legs and
causing other serious injuries.’’ (Footnotes in original.)
The plaintiff thereafter commenced this action on
February 11, 2019, and her complaint consisted of three
counts. Count one alleged negligence against the city,
count two alleged negligence against Dionne, and count
three alleged that the city was obligated to indemnify
Dionne for any damages caused by her negligence. The
plaintiff alleged, inter alia, that the defendants were
negligent in failing to adequately inspect the tree at
issue and remove it. The defendants filed an answer
and special defenses to the plaintiff’s complaint. In their
answer, the defendants denied the plaintiff’s allegations
or left her to her proof. By way of special defense, the
defendants alleged that Christopher was contributorily
negligent in that he ‘‘failed to act as a reasonably pru-
dent person under the circumstances . . . [by]
remain[ing] outdoors in a public park during a storm
involving rain and high winds.’’ The defendants also
alleged that the plaintiff’s claims were barred by the
doctrine of governmental immunity.
On December 26, 2019, the defendants filed a motion
for summary judgment arguing that they were entitled
to governmental immunity on the negligence claims
because all of the allegations involved public duties
that are discretionary as a matter of law. The defendants
further argued that, as to count three, because there
was no legally viable negligence claim as to Dionne,
the plaintiff’s indemnification claim against the city
failed as a matter of law. The plaintiff filed several
motions for extension of time to file an opposition to
the defendants’ motion for summary judgment to allow
her to complete discovery. The defendants consented
to the plaintiff’s motions.
On March 11, 2022, the plaintiff filed an objection to
the motion for summary judgment wherein she argued
that the defendants violated their ministerial duties as
to the inspection and removal of the tree at issue.
On that same day, the plaintiff also filed a request to
amend her complaint, seeking to add a count asserting
common-law recklessness, alleging the failure to con-
duct an inspection of the tree that fell on Christopher.
The plaintiff represented that her proposed new count
of recklessness related back to her original complaint
in that ‘‘[t]he factual basis for the claim of recklessness
has not changed and the new claims merely amplify
and expand upon the previous allegations in the original
complaint by setting forth an alternate theory of liabil-
ity.’’ The defendants filed an objection to the request to
amend, arguing that, because their motion for summary
judgment had been fully briefed and there was a trial
date assigned for August 3, 2022, granting the plaintiff’s
request to amend to include an additional count that
raised a new basis of liability would prejudice them.
The defendants also argued that the plaintiff offered
no explanation in her request to amend as to why she
waited more than two years after their filing of the
motion for summary judgment to seek to amend her
complaint. The plaintiff filed a reply to the defendants’
objection wherein she argued that her proposed amend-
ment was based upon recently conducted discovery by
the parties.
On April 11, 2022, the trial court, Sheridan, J., denied
the plaintiff’s request to amend ‘‘because this case is
scheduled for jury selection and the amendment will
considerably delay the proceedings, the proposed
amendment asserts claims not raised in the complaint
which is the subject of a pending summary judgment
motion, and because no explanation or rationale for
the [delay] in asserting this claim has been provided.’’
The plaintiff thereafter filed a motion for reargument
or reconsideration of the court’s denial of her request
to amend, which the court summarily denied.
On April 18, 2022, the court held a hearing on the
defendants’ motion for summary judgment and the
plaintiff’s objection thereto, at which counsel for all
parties appeared and presented argument in support of
their respective positions. At the hearing, the plaintiff’s
counsel argued, consistent with the plaintiff’s written
objection to the defendants’ motion, that a genuine
issue of material fact existed as to whether Dionne’s
duty to inspect was ministerial or discretionary. At the
conclusion of the hearing, the court took the matter
under advisement.
On May 6, 2022, the plaintiff filed a motion for permis-
sion to file a supplemental brief to her objection to
the motion for summary judgment to argue that the
defendants’ motion for summary judgment should be
denied because the allegations of the original complaint
were broad enough to state a nuisance claim and the
alleged facts supported a nuisance claim not barred by
governmental immunity. The defendants filed an objec-
tion arguing that the plaintiff has not, and cannot, allege
a public nuisance claim against them.
On June 6, 2022, the court issued an order scheduling
a videoconference for June 22, 2022, for the present
case, in addition to all cases ‘‘set down for jury and
court trial in July/August 2022,’’ at which time counsel
was ‘‘expected to either (1) report the case ready for
jury selection and give an estimate of the days of evi-
dence expected; or (2) request a continuance to a new
trial date and agree upon the new trial date.’’ As a result
of the conference in the present case, the trial date was
continued from August 3, 2022, to June 22, 2023.
On June 23, 2022, the plaintiff filed a ‘‘renewed’’
request to amend the complaint seeking to add a count
for common-law recklessness and a count for public
nuisance. In her request, the plaintiff reiterated that the
new allegations related back to the allegations in the
original complaint and asserted that the new trial date
afforded ample time for the defendants to conduct any
additional discovery that they deemed necessary. The
defendants filed an objection arguing that the trial date
was continued only to provide the court with time to
decide the pending motion for summary judgment and
that there was no reason to revisit the trial court’s
April 11, 2022 ruling denying the plaintiff’s March, 2022
request to amend.
On August 22, 2022, the court granted the plaintiff’s
motion for permission to file a supplemental brief; how-
ever, the court ruled that ‘‘the argument advanced in the
supplemental brief is rejected. The factual allegations
of the operative complaint do not support a claim for
public nuisance as an alternative to the negligence
claims which have been clearly [pleaded]. Any argu-
ment based on concepts of public nuisance is therefore
immaterial.’’
On that same day, the court denied the plaintiff’s
renewed request to amend her complaint, ruling that the
proposed new counts were filed beyond the applicable
statutes of limitations and that the new counts do not
relate back to the allegations of the original complaint.
On August 30, 2022, the trial court issued a memoran-
dum of decision rendering summary judgment in favor
of the defendants. The trial court concluded that the
allegations of negligence in counts one and two clearly
related to discretionary functions and, therefore, the
defendants were immune from liability both at common
law and under General Statutes § 52-557n. The court
further determined that, in the absence of liability for
Dionne, there was no basis for a statutory indemnifica-
tion claim against the city. This appeal followed.
I
The plaintiff first claims that the court erred by deny-
ing both of her requests to amend her complaint. We
address each of the court’s rulings in turn.
A
As noted herein, the plaintiff filed her first request to
amend her complaint to add allegations of recklessness
against the defendants on March 11, 2022, which was the
same day that she filed her objection to the defendants’
motion for summary judgment, which was filed on
December 26, 2019, more than two years earlier. The
court denied the plaintiff’s request on the grounds that
allowing the amendment would delay the proceedings,
the defendants’ motion for summary judgment was
pending, and the plaintiff had offered no explanation
for the delay in seeking to amend her complaint. When
the plaintiff thereafter sought reconsideration of her
request to amend, she referred to her reply to the defen-
dants’ objection to her request, wherein she explained
that the delay was due to the fact that she had only
recently been able to complete the deposition of Dionne
and consult with experts. The court summarily denied
her motion for reconsideration.
‘‘Our standard of review of the [plaintiff’s] claim is
well defined. A trial court’s ruling on a motion of a
party to amend its complaint will be disturbed only on
the showing of a clear abuse of discretion. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. [An appellate] court
will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is the [plaintiff’s] burden in this case
to demonstrate that the trial court clearly abused its
discretion. . . .
‘‘A trial court may allow, in its discretion, an amend-
ment to pleadings before, during, or after trial to con-
form to the proof. . . . Factors to be considered in
passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.) Booth
v. Park Terrace II Mutual Housing Ltd. Partnership,
217 Conn. App. 398, 432, 289 A.3d 252 (2023).
Here, the plaintiff has failed to demonstrate that the
court abused its discretion in denying her first request
to amend her complaint. When the plaintiff filed that
request, the defendants’ motion for summary judgment
had been pending for more than two years and had been
briefed by both parties, and there was an upcoming
trial date. The trial court found that permitting the
amendment would considerably delay the proceedings
in light of the upcoming trial date. On those bases, we
conclude that the court’s ruling did not reflect an abuse
of its discretion.
B
The plaintiff next claims that the court erred in deny-
ing her ‘‘renewed’’ request to amend her complaint.
Specifically, the plaintiff argues that the court erred in
addressing sua sponte whether the proposed claims of
recklessness and public nuisance were barred by the
applicable statutes of limitations. We agree.
As noted herein, after the trial date in this case was
continued, the plaintiff filed a ‘‘renewed’’ request to
amend her complaint, to which the defendants objected,
arguing only that there was no reason for the court to
revisit its earlier denial of the plaintiff’s request to
amend and that the plaintiff was simply attempting to
‘‘elude . . . summary judgment.’’ The defendants did
not argue in their objection to the plaintiff’s request to
amend that the new allegations were beyond the stat-
utes of limitations or that they did not relate back to
the allegations of the plaintiff’s initial complaint.
The court nevertheless denied the plaintiff’s renewed
request to amend her complaint on the ground that the
new allegations did not relate back to those in the initial
complaint. The court held: ‘‘The proposed new counts
are filed well beyond the two year limitation period in
[General Statutes] § 52-584 for a claim of common-law
recklessness and outside the three year limitation
period provided by [General Statutes] § 52-577 for
actions alleging a public nuisance.
‘‘[I]t is well settled that an amended complaint relates
back to and is treated as filed at the time of the original
complaint unless it alleges a new cause of action . . . .
Thus, an amendment cannot allege a new cause of
action that would be barred by the statute of limitations
if filed independently. . . . Comparing the allegations
in the original complaint to those in the proposed
amended complaint, no allegations were set forth con-
cerning public nuisance or common-law recklessness.
To prove the challenged allegations of the amended
complaint would require the presentation of new and
different evidence as to different issues. . . . The
plaintiff’s new theories of liability are not supported by
the original factual allegations of the earlier, timely
complaint, and would require the presentation of new
and different evidence, the amendment does not relate
back. . . . As the new counts require proof of different
elements and different evidence, the new counts do not
relate back to the original allegations of negligence in
the complaint.’’ (Citations omitted; internal quotation
marks omitted.)
The plaintiff argues that the court erred in raising
sua sponte the statutes of limitations governing her
proposed new claims. Our Supreme Court has stated
that ‘‘[t]he de novo standard of review is always the
applicable standard of review for’’ making such a deter-
mination. (Internal quotation marks omitted.) Briere v.
Greater Hartford Orthopedic Group, P.C., 325 Conn.
198, 206, 157 A.3d 70 (2017). Indeed, ‘‘[i]f the statute of
limitations has expired and an amended pleading does
not relate back to the earlier pleading, then the trial
court has no discretion to allow an amendment.’’ Id.,206 n.8.
It is well settled, however, that statutes of limitations
may be waived and are, typically, not properly raised
by the court sua sponte. ‘‘Where the trial court wishes
to raise a statute of limitations issue which has not been
raised by the parties, the question becomes whether
the limitation is considered procedural or jurisdictional.
. . . The general rule is that where the right of action
exists independently of the statute in which the limita-
tion is found, such a statutory bar is considered per-
sonal and procedural, and it is deemed waived unless
it is specially pleaded. . . . This is so because it is
considered that the limitation acts as a bar to a remedy
otherwise available. . . . In these instances, a trial
court may not raise the limitation on its own motion.
Where, however, a specific limitation is contained in
the statute which establishes the remedy, the remedy
exists only during the prescribed period and not there-
after. In this situation, the court may properly raise the
statute of limitations issue on its own motion because
it is considered substantive or jurisdictional, and not
subject to waiver.’’ (Citations omitted.) Orticelli v. Pow-
ers, 197 Conn. 9, 15, 495 A.2d 1023 (1985).
Here, the court applied the statutes of limitations set
forth in §§ 52-577 and 52-584,4 neither of which estab-
lishes a remedy that does not otherwise exist. There-
fore, those statutes are procedural, not jurisdictional,
and the limitation periods set forth therein may be
waived. See id.; Cue Associates, LLC v. Cast Iron Asso-
ciates, LLC, 111 Conn. App. 107, 116–17, 958 A.2d 772(2008). Because the defendants did not object to the
plaintiff’s renewed request to amend her complaint on
the ground that the new allegations did not relate back
to the allegations of her complaint and were, conse-
quently, beyond the applicable statutes of limitations,
the court erred in denying the request on that basis.5
II
The plaintiff also claims that the court erred in render-
ing summary judgment in favor of the defendants on
the claims set forth in her complaint. Specifically, the
plaintiff argues that the court erred in concluding that
her complaint failed to set forth a claim of public nui-
sance and that her negligence claims against the defen-
dants were barred by governmental immunity. We are
not persuaded.
‘‘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. . . . [T]he moving party . . .
has the burden of showing the absence of any genuine
issue as to all the material facts . . . . When docu-
ments submitted in support of a motion for summary
judgment fail to establish that there is no genuine issue
of material fact, the nonmoving party has no obligation
to submit documents establishing the existence of such
an issue. . . . Once the moving party has met its bur-
den, however, the [nonmoving] party must present evi-
dence that demonstrates the existence of some disputed
factual issue. . . . Our review of the trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Schofield v. Rafley, Inc., 222 Conn. App. 448, 460, 305
A.3d 652 (2023). With these principles in mind, we
address in turn the plaintiff’s challenges to the court’s
summary judgment.
A
The plaintiff first argues that the court erred in
rejecting her contention that her complaint set forth a
claim for public nuisance. As recounted previously, the
plaintiff initially did not object to the defendants’
motion for summary judgment on this basis but sought
permission, following oral argument on the defendants’
motion and her initial objection, to file a supplemental
brief to raise this argument as an additional basis upon
which to defeat the defendants’ claim of governmental
immunity. The court allowed the plaintiff to file a sup-
plemental brief but held that the allegations of the com-
plaint did not set forth a claim of public nuisance. The
plaintiff argues that the court erred in so concluding.
‘‘The interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary. . . . Furthermore, we long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . .
[T]he complaint must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory [on] which it proceeded, and do
substantial justice between the parties. . . . Our 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.’’ (Emphasis omitted; internal quotation
marks omitted.) Carpenter v. Daar, 346 Conn. 80, 128,
287 A.3d 1027 (2023).
We next set forth the principles applicable to a nui-
sance claim brought against a municipality. Our
Supreme Court ‘‘has stated often that a plaintiff must
prove four elements to succeed in a nuisance cause of
action: (1) the condition complained of had a natural
tendency to create danger and inflict injury [on] person
or property; (2) the danger created was a continuing
one; (3) the use of the land was unreasonable or unlaw-
ful; [and] (4) the existence of the nuisance was the
proximate cause of the plaintiffs’ injuries and damages.
. . . In addition, when the alleged tortfeasor is a munic-
ipality, our common law requires that the plaintiff also
prove that the defendants, by some positive act, created
the condition constituting the nuisance. . . . This com-
mon-law rule is codified at § 52-557n (a) (1) (C), which
provides in relevant part that a political subdivision of
the state shall be liable for damages to person or prop-
erty caused by . . . acts of the political subdivision
which constitute the creation or participation in the
creation of a nuisance . . . .
‘‘Our Supreme Court has described the positive act
requirement as follows: [A]t a bare minimum, § 52-557n
(a) (1) (C) requires a causal link between the acts and
the alleged nuisance. A failure to act to abate a nuisance
does not fall within the meaning of the term acts, as
used in § 52-557n (a) (1) (C), because inaction does not
create or cause a nuisance; it merely fails to remediate
one that had been created by some other force. Accord-
ingly, the plain meaning of § 52-557n (a) (1) (C) leads
us to conclude that provision imposes liability in nui-
sance on a municipality only when the municipality
positively acts (does something) to create (cause) the
alleged nuisance. . . .
‘‘A positive act is conduct that intentionally created
the conditions alleged to constitute a nuisance. . . .
[F]ailure to remedy a dangerous condition not of the
municipality’s own making is not the equivalent of the
required positive act. . . . Similarly, permissive con-
tinuation of the alleged nuisance is not a positive act.’’
(Citations omitted; internal quotation marks omitted.)
Bennetta v. Derby, 212 Conn. App. 617, 622–23, 276 A.3d
455, cert. denied, 344 Conn. 903, 277 A.3d 135 (2022).
In her original complaint, the plaintiff set forth
numerous ways in which she alleged that the defendants
were negligent. In support of her contention that her
original complaint set forth a claim of nuisance, the
plaintiff identifies those allegations that she claims set
forth a claim of nuisance: that the defendants ‘‘allowed
[Christopher] and other visitors to use the basketball
court in Goodwin Park when they knew or should have
known that the tree next to the basketball court was
rotted and dangerous’’ and ‘‘[t]hey created and main-
tained a dangerous and hazardous condition in Good-
win Park, or should have known that said tree was
defective and hazardous, yet they continued to maintain
it in the same manner with the same defects.’’ In so
claiming, the plaintiff essentially is alleging a failure to
act on the part of the defendants, which, as we have
stated, does not constitute a nuisance. When read in
the context of the entirety of the complaint, the plaintiff
has not alleged that the defendants created the condi-
tion that caused the tree to fall but that they should
have recognized the hazard presented by the tree and
remediated it. Because, as stated previously, a failure
to act or remediate does not constitute a nuisance,
the court did not err in concluding that the plaintiff’s
complaint failed to set forth such a claim.
B
The plaintiff also claims that the court erred in con-
cluding that her claims against the defendants were
barred by governmental immunity because a genuine
issue of material fact exists as to whether the defen-
dants’ alleged negligence constituted a violation of a
ministerial or discretionary duty.
The following legal principles guide our analysis of
the plaintiff’s claim. ‘‘According to our Supreme Court,
[a] municipality itself was generally immune from liabil-
ity for its tortious acts at common law . . . . [The
court has] also recognized, however, that governmental
immunity may be abrogated by statute. . . . [Section]
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. . . .
‘‘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. . . . The statute, thus,
distinguishes between discretionary acts and those that
are ministerial in nature, with liability generally
attaching to a municipality only for negligently per-
formed ministerial acts, not for negligently performed
discretionary acts. . . .
‘‘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. . . .
‘‘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. . . . Although the determination of whether
official acts or omissions are ministerial or discretion-
ary is normally a question of fact for the fact finder
. . . there are cases where it is apparent from the com-
plaint. . . . [W]hether an act or omission is discretion-
ary in nature and, thus, whether governmental 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 defen-
dants’ allegedly negligent acts or omissions necessarily
involved the exercise of judgment, and thus, necessarily
were discretionary in nature, summary judgment is
proper.’’ (Citations omitted; emphasis in original; foot-
note omitted; internal quotation marks omitted.) DiMi-
celi v. Cheshire, 162 Conn. App. 216, 223–25, 131 A.3d
771 (2016).
Here, in addition to the undisputed facts set forth
previously in this decision, the court also found, and it
is undisputed, that ‘‘[a]s of July 27, 2018, there was no
state of Connecticut or city of Hartford statute, ordi-
nance, regulation, directive or policy which mandated
the frequency or manner in which trees were to be
examined, inspected, or designated to be culled,
trimmed, or cut down within the city of Hartford.
‘‘Prior to July 27, 2018, neither Dionne nor the city
of Hartford had received a complaint about the tree
that fell on August 7, 2018, at Goodwin Park or were
otherwise notified that the tree presented a hazardous
condition.’’
In concluding that the duty at issue was discretionary
and not ministerial, the court reasoned that ‘‘[t]here is
no statute or ordinance that prescribes the specific
manner in which a tree warden must inspect a tree
and what conditions would render a tree an immediate
public hazard. Of necessity, much is left to the tree
warden in the exercise of his or her own personal discre-
tion to make those judgments. In a similar manner, no
statute or ordinance—including . . . § 23-59—man-
dates that tree removal take place immediately upon
the expiration of the ten day public comment period.
The plaintiff has failed to identify a statute, city charter
provision, ordinance, regulation, rule, policy, or other
directive that, by its clear language, compels a tree
warden or city forester to act in a prescribed manner,
without the exercise of judgment or discretion. Thus,
the [plaintiff has] failed to establish the existence of a
ministerial duty that has been violated.’’
On appeal, the plaintiff’s challenge to the summary
judgment is twofold. First, she argues that ‘‘§ 23-59
imposes a ministerial duty when a tree poses an immedi-
ate public hazard.’’ Because Dionne determined that
the tree here did not pose an immediate public hazard,
this argument merits no further discussion.
The plaintiff also contends that Dionne violated her
ministerial duty to properly inspect the tree at issue.
In support of this contention, the plaintiff argues that
Dionne’s visual inspection of the tree ‘‘ ‘amounted to no
inspection at all.’ ’’ The plaintiff, however, has not cited
any authority to support her contention that Dionne’s
duty to inspect the tree at issue was ministerial. Indeed,
this court has held that § 23-59 ‘‘provides that many,
but not all, of the duties of a tree warden involve the
exercise of discretion.’’ Wisniewski v. Darien, 135 Conn.
App. 364, 373, 42 A.3d 436 (2012). Wisniewski involved
a tree warden’s ministerial duty to inspect upon receipt
of a complaint concerning a potentially hazardous tree,
which was supported by the testimony of the tree war-
den himself. Id., 374–75. The court in Wisniewski did
not, however, address the manner or methods in which
the tree should be inspected or what such an inspection
should entail.
Here, there was no complaint asserting that the tree
at issue was potentially hazardous. Rather, the record
reflects that Dionne’s inspection of the tree at issue was
a matter of routine. There were no policies or regula-
tions that set forth the manner in which the inspection
of a tree must be conducted. In the absence of such
guidelines, it is clear that the routine inspection involved
Dionne’s judgment and discretion. We therefore con-
clude that the court did not err in concluding that the
allegations of the complaint challenged Dionne’s discre-
tionary conduct. Accordingly, the court properly granted
the defendants’ motion for summary judgment.
The judgment is reversed with respect to the denial
of the plaintiff’s renewed request to amend her com-
plaint and the case is remanded for further proceedings
on the renewed request to amend the complaint; the
judgment is affirmed with respect to the granting of
summary judgment on the three counts of the original
complaint and the denial of the plaintiff’s first request
to amend her complaint.
In this opinion the other judges concurred.
1
Although Christopher, a minor, was named as the plaintiff in this case,
the action was brought by Carmen Rodriguez on behalf of Christopher as
Christopher’s parent, as the general rule in Connecticut is that ‘‘minor chil-
dren may . . . sue [only] by way of a parent or next friend.’’ Mendillo v.
Board of Education, 246 Conn. 456, 460 n.3, 717 A.2d 1177 (1988), overruled
in part on other grounds by Campos v. Coleman, 319 Conn. 36, 123 A.3d
854 (2015). In the interest of simplicity, we refer to Carmen Rodriguez as
the plaintiff throughout this opinion.
2
‘‘Chapter 26, article I, § 26-11, of the Hartford Code of Ordinances pro-
vides in relevant part: ‘(c) Whenever, in the opinion of the Director of Parks
and Recreation or the City Forester appointed under the provisions of section
26-13, the public safety demands the removal or pruning of any tree or shrub
under the control of the Department of Parks and Recreation, he may cause
such tree or shrub to be removed or pruned. Unless such tree or shrub
constitutes an immediate public hazard, he shall, at least five (5) days before
such removal, post thereon a suitable notice stating his intention to remove
such tree or shrub. If any person objects to such removal, he may appeal
to the Director of Parks and Recreation in writing, who shall hold a public
hearing at some suitable time and place after giving reasonable notice of
such hearing to all persons known to be interested therein and posting a
notice thereof on such tree or shrub. Within three (3) days after such hearing,
the Director of Parks and Recreation shall render his decision granting or
denying the application.’ ’’
3
‘‘General Statutes § 23-59 provides: ‘Powers and duties of tree wardens.
The town or borough tree warden shall have the care and control of all
trees and shrubs in whole or in part within the limits of any public road or
grounds and within the limits of his town or borough, except those along
state highways under the control of the Commissioner of Transportation
and except those in public parks or grounds which are under the jurisdiction
of park commissioners, and of these the tree warden shall take the care
and control if so requested in writing by the park commissioners. Such care
and control shall extend to such limbs, roots or parts of trees and shrubs
as extend or overhang the limits of any such public road or grounds. The
tree warden shall expend all funds appropriated for the setting out, care
and maintenance of such trees and shrubs. The tree warden shall enforce
all provisions of law for the preservation of such trees and shrubs and of
roadside beauty. The tree warden shall remove or cause to be removed all
illegally erected signs or advertisements, placed upon poles, trees or other
objects within any public road or place under the tree warden’s jurisdiction.
The tree warden may prescribe such regulations for the care and preserva-
tion of such trees and shrubs as the tree warden deems expedient and may
provide therein for a reasonable fine for the violation of such regulations;
and such regulations, when approved by the selectmen or borough warden
and posted on a public signpost in the town or borough, if any, or at some
other exterior place near the office of the town or borough clerk, shall have
the force and effect of town or borough ordinances. Whenever, in the opinion
of the tree warden, the public safety demands the removal or pruning of
any tree or shrub under the tree warden’s control, the tree warden may
cause such tree, shrub or group of shrubs to be removed or pruned at the
expense of the town or borough and the selectmen or borough warden shall
order paid to the person performing such work such reasonable compensa-
tion therefor as may be determined and approved in writing by the tree
warden. Unless the condition of such tree, shrub or group of shrubs consti-
tutes an immediate public hazard, the tree warden shall, at least ten days
before such removal or pruning, post on each tree or shrub and may post
on each group of shrubs a suitable notice stating the tree warden’s intention
to remove or prune such tree, shrub or group of shrubs. If any person, firm
or corporation objects to such removal or pruning, such person, firm or
corporation may appeal to the tree warden in writing, who shall hold a
public hearing at some suitable time and place after giving reasonable notice
of such hearing to all persons known to be interested therein and posting
a notice thereof on such tree, shrub or group of shrubs. Within three days
after such hearing, the tree warden shall render a decision granting or
denying the application, and the party aggrieved by such decision may,
within ten days, appeal therefrom to the superior court for the judicial
district within which such town or borough is located. The tree warden
may, with the approval of the selectmen or borough warden, remove any
trees or other plants within the limits of public highways or grounds under
the tree warden’s jurisdiction that are particularly obnoxious as hosts of
insect or fungus pests.’ ’’
4
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
General Statutes § 52-584 provides: ‘‘No action to recover damages for
injury to the person, or to real or personal property, caused by negligence,
or by reckless or wanton misconduct, or by malpractice of a physician,
surgeon, dentist, podiatrist, chiropractor, advanced practice registered
nurse, hospital or sanatorium, 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 discovered, 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.’’
5
On remand, the court will have to consider whether to grant the renewed
request to amend in light of the arguments made by the parties at the time
the amendment was sought, as well as the current circumstances, and any
additional arguments that the parties might make, including any argument
made by the defendants that the proposed causes of action do not relate
back to the original complaint and are barred by the applicable statutes of
limitations.