Fisk v. Town of Redding

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GREGG FISK v. TOWN OF REDDING ET AL.
(AC 37537)
Alvord, Keller, and Schaller, Js.
Argued December 8, 2015—officially released April 19, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
A. Reynolds Gordon, with whom was Frank A. DeNi-
cola, Jr., for the appellant (plaintiff).
Jared Cohane, with whom was Luke R. Conrad, for
the appellee (defendant BL Companies, Inc.).
Opinion
SCHALLER, J. The plaintiff, Gregg Fisk,1 appeals from
the summary judgment rendered in favor of the defen-
dant BL Companies, Inc.,2 in his absolute public nui-
sance action. The plaintiff alleged that he was injured
when he fell off a retaining wall that was constructed
as part of a municipal construction project for which
the defendant was the design contractor. The court
rendered summary judgment on the ground that the
defendant, as a design contractor, was not a user of
the wall and, therefore, as a matter of law could not
be liable in public nuisance. On appeal, the plaintiff
claims that the court erred in granting summary judg-
ment. We affirm the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. By substitute complaint, filed
on October 7, 2014, the plaintiff alleged that he was
injured when he fell off a retaining wall that was con-
structed with no protective fencing by M. Rondano,
Inc. (Rondano), as contractor for the town of Redding
(town). The defendant had been hired by the town to
design, engineer, inspect and supervise the ‘‘Streetscape
Project’’ (project) of which the wall was a part. The
complaint alleged in separate counts against the town,
Rondano, and the defendant that the wall was con-
structed on public land and constituted a public nui-
sance. In its answer, the defendant denied, inter alia,
that it was required to supervise the project, that it was
responsible for site safety, and that it had control over
the retaining wall.
On September 17, 2014, the defendant filed a motion
for summary judgment on the ground that it could not,
as a matter of law, be deemed to have been in control
of the project and therefore could not be liable under a
nuisance theory. In support of the motion, the defendant
filed a memorandum of law outlining its legal claims,
and attached an affidavit of Derek A. Kohl, a principal
of the defendant; portions of an agreement between
the defendant and the town;3 a construction report;
specifications for roads, bridges and incidental con-
struction by the Department of Transportation (depart-
ment) dated January, 2010; a letter dated July 5, 2011,
from the defendant on behalf of the town to the depart-
ment; a document entitled scope of services; and several
Superior Court cases. Kohl’s affidavit averred that the
defendant was the architect for the project and was
primarily responsible for architectural and engineering
services and did not install, perform or put into motion
any physical act upon the wall. He further averred that
the defendant did not have the ability to control the
contractor or the construction site, or to advise as to
site safety; those responsibilities were allocated to the
contractor during the construction until the responsibil-
ities reverted to the town.4 The agreement specifies
that the contractor will maintain the construction area
throughout the duration of the project.
The plaintiff filed a memorandum in opposition to
the motion for summary judgment on September 26,
2014. He argued in the alternative that each defendant
had control of the project, that design engineers can
be liable in public nuisance for defective or dangerous
construction that they create by their design, that the
defendant had control over the project until it was com-
pleted in 2012, and that the project was not even sub-
stantially completed until October, 2011, after the
plaintiff’s fall. In support of these contentions, the plain-
tiff filed a certificate of compliance from the department
dated October 25, 2011; a certificate of acceptance of
work dated January 18, 2012; sections of the depart-
ment’s bridge design manual; the defendant’s meeting
minutes from June 16, 2011; further portions of the
agreement between the town and the defendant; a
department consultant administration and project
development manual; an April 6, 2010 letter from the
defendant regarding the status of the project; an excerpt
from the deposition of Natalie Ketcham;5 a department
project manual for the project with the defendant’s
copyright notification; a department construction man-
ual; the defendant’s meeting minutes dated October 4,
2011; the affidavit of Brandon Smith; the affidavit of
Skylar Smith with attached photographs of the wall;
and a document entitled ‘‘Fielding deposition.’’
The court granted summary judgment in favor of the
defendant in a memorandum of decision on December
5, 2014.6 Citing State v. Tippetts-Abbett-McCarthy-
Stratton, 204 Conn. 177, 527 A.2d 688 (1987) (Tippetts),
it concluded that the plaintiff could not establish that
the defendant was a user of the property in question
when the plaintiff sustained injury. It noted that the
plaintiff had failed to assert claims of professional negli-
gence against the defendant. The plaintiff filed a motion
to reargue on December 23, 2014, which the court
denied on January 5, 2015.7 The plaintiff argued that
the court was incorrect in concluding that the defendant
did not design the wall. The plaintiff subsequently
appealed to this court.
We apply a well settled standard of review to the
plaintiff’s claim that the court improperly rendered sum-
mary judgment. ‘‘Practice Book § [17-49] requires that
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
A material fact is a fact that will make a difference in
the result of the case. . . . The facts at issue are those
alleged in the pleadings. . . . The party seeking sum-
mary judgment has the burden of showing the absence
of any genuine issue as to all material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. . . . The party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. See Practice Book §§ [17-44 and
17-45]. In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . A motion for
summary judgment is properly granted if it raises at
least one legally sufficient defense that would bar the
plaintiff’s claim and involves no triable issue of fact.
. . . Our review of the trial court’s decision to grant a
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Chirieleison v. Lucas, 144
Conn. App. 430, 437–38, 72 A.3d 1218 (2013).
The plaintiff claims that the court improperly con-
cluded the defendant did not design the wall, had no
control over the wall, and no longer controlled the wall
when the fall occurred. The defendant responds that
neither the issue of whether the defendant actually
designed the wall nor whether the defendant’s role in
the design of the wall had ceased is material to the
question of whether the defendant had control of the
wall for purposes of nuisance liability. It asserts that
there is no genuine issue of material fact regarding
whether the defendant controlled the wall, and, there-
fore, the court properly granted the defendant’s motion
for summary judgment. We agree with the defendant.
‘‘A nuisance . . . describes an inherently dangerous
condition that has a natural tendency to inflict injury
upon persons or property. . . . The term nuisance
refers to the condition that exists and not to the act
or failure to act that creates it.’’ (Citation omitted.)
Quinnett v. Newman, 213 Conn. 343, 348, 568 A.2d 786(1990), overruled on other grounds by Craig v. Driscoll,
262 Conn. 312, 329, 813 A.2d 1003 (2003). Our Supreme
Court set out the standard for public nuisance liability
in Connecticut in Tippetts, supra, 204 Conn. 183: ‘‘Our
prior decisions have established that in order to prevail
on a claim of nuisance, a plaintiff must prove that: (1)
the condition complained of had a natural tendency to
create danger and inflict injury upon person or property;
(2) the danger created was a continuing one; (3) the
use of the land was unreasonable or unlawful; [and]
(4) the existence of the nuisance was [the] proximate
cause of the plaintiffs’ injuries and damages. . . . In
this case, where absolute public nuisance is alleged,
the plaintiff’s burden includes two other elements of
proof: (1) that the condition or conduct complained of
interfered with a right common to the general public
. . . and (2) that the alleged nuisance was absolute,
that is, that the defendants’ intentional conduct, rather
than their negligence, caused the condition deemed to
be a nuisance.’’ (Citations omitted; internal quotation
marks omitted.) ‘‘If the creator of the condition intends
the act that brings about the condition found to be a
nuisance, the nuisance thereby created is said to be
absolute and its creator is strictly liable.’’ Quinnett v.
Newman, supra, 348.
In Tippetts, our Supreme Court applied the require-
ment implicit in the phrase ‘‘the use of the land’’ in the
third factor that the defendant be a user of the property.
See Tippetts, supra, 204 Conn. 183–84. ‘‘Our case law
has established no bright-line test to determine when
a defendant’s connection to a particular parcel of prop-
erty suffices to make it an unreasonable or unlawful
‘user’ of that property. . . . In lieu of a rule of general
application, our cases frequently have applied a func-
tional test to determine whether a defendant ‘uses’ prop-
erty in a manner sufficient to subject him to liability
for nuisance. A critical factor in this test is whether the
defendant exercises control over the property that is the
source of nuisance.’’ (Citations omitted.) Id. ‘‘[W]hen
circumstances show that a defendant exercises de facto
control over nuisance-causing property, the fact that
title or possession of the property has been transferred
to others does not absolve the defendant of liability for
the nuisance.’’ Id., 184. ‘‘Like the other elements of the
tort of nuisance, the question of whether a defendant
maintains control over property sufficient to subject
him to nuisance liability normally is a jury question.’’
Id., 185.
In Tippetts, the state brought an action against the
firm that designed and supervised the construction of
a bridge that collapsed twenty-four years after its con-
struction. Id., 178. The trial court withdrew the nuisance
claim from the jury; our Supreme Court concluded that
this was tantamount to a directed verdict on this issue.
Id., 182; see Provencher v. Enfield, 284 Conn. 772, 791,
936 A.2d 625 (2007) (holding that test for granting sum-
mary judgment is whether ‘‘the party moving for sum-
mary judgment would be entitled to a directed verdict
on the same facts [internal quotation marks omitted]’’).
In analyzing the trial court’s decision, our Supreme
Court noted that the bridge was at all times state prop-
erty, that nothing in the contract was purported to trans-
fer the state’s control over the property to the defendant
in that all decisions by the defendant were subject to
state approval, and finally that any delegation of author-
ity was temporally limited and had ceased long before
the bridge collapsed. Tippetts, supra, 204 Conn. 185–87.
It then affirmed the trial court’s decision not to charge
the jury on public nuisance. Id., 187.8
This court has applied the Tippetts standard to nui-
sance claims in Lomangino v. LaChance Farms, Inc.,
17 Conn. App. 436, 438–39, 553 A.2d 197 (1989), and in
Heritage Village Master Assn., Inc. v. Heritage Village
Water Co., 30 Conn. App. 693, 708–709, 622 A.2d 578(1993) (Heritage Village). In Lomangino, this court
reversed a trial court’s granting of summary judgment.
Lomangino v. LaChance Farms, Inc., supra, 441. The
trial court had held that the defendant mortgagee did
not control the property on which the alleged nuisance
was located. Id., 439. This court applied Tippetts, but
concluded that contrary to its assertion that it was a
‘‘mere conduit’’ of moneys, the defendant mortgagee
covenanted not to allow waste on the property, was a
party to a sales agreement in which it covenanted that
the property owner would not do anything to abate the
claimed nuisance, and possessed fee simple ownership
over the property for seven to eight weeks. Id., 440–41.
This court determined that these factors demonstrated
that there was a genuine issue of material fact regarding
control of the property and reversed the trial court.
Id., 441. In Heritage Village, supra, 708–709, this court
upheld the trial court’s removal of a nuisance count
from the jury where the plaintiff had claimed that the
defendant caused it damage by providing water with
an abnormally low pH count. It did so on two grounds,
first that the provision of the water, which met govern-
ing standards regarding its use for purposes of human
consumption, was not inherently dangerous, and sec-
ond, citing Tippetts, that the alleged fault of the defen-
dant lay not in its use of the property, but in its conduct
in supplying water to the plaintiff. Id., 709.
The plaintiff argues that the defendant had control
of the property because it had significant input into the
design and construction of the project, and failed to
include a fence in its design.9 A nuisance, however, is
the condition on the property, rather than the act that
creates it. See Quinnett v. Newman, supra, 213 Conn.
348. Tippetts, Lomangino, and Heritage Village all
focus on control or use of the physical property itself.
Our Supreme Court in Tippetts held that ‘‘the defen-
dants did not exercise sufficient control over the bridge,
or the property to which it was affixed . . . .’’ (Empha-
sis added.) Tippetts, supra, 204 Conn. 187. Lomangino
is distinguishable from Tippetts and the present case in
that by entering into a covenant as to how the property
would be used, the defendant in Lomangino exercised
control over the physical property and could order that
the alleged nuisance continue. See Lomangino v.
LaChance Farms, Inc., supra, 17 Conn. App. 440–41.
In Heritage Village, this court held that the provision
of services to users of the property did not equal use
of the property. Heritage Village, supra, 30 Conn. App.
709. This conclusion is in line with Tippetts and with
our conclusion in the present case.
An inquiry as to whether the defendant controlled the
property is a means to determine whether the defendant
had a sufficient connection to the property to be a user
of that property. Even if there is an issue of material
fact as to whether the defendant designed the wall, and
even if the defendant’s role in the project had not ceased
at the time of the plaintiff’s injury, nothing presented
by the plaintiff rebuts the statement by the defendant’s
affiant, supported by the evidence submitted by the
defendant, that the defendant had no control over the
physical property. Most notably, the agreement states
that Rondano is responsible for site safety, mainte-
nance, and operation during construction. Any input
the defendant had into the design of the wall was medi-
ated by either the town or Rondano. In Tippetts, our
Supreme Court concluded that ‘‘[t]he plaintiff’s delega-
tion of its authority over the bridge project was tempo-
rally as well as functionally limited.’’ Tippetts, supra,
204 Conn. 187. In the present case, we conclude that
there was no evidence of delegation to the defendant
of authority over the wall, therefore the defendant was
not a user of the property.
The plaintiff also asserts that the defendant’s inspec-
tion duties amounted to control over the property. The
agreement states that the defendant, referred to as the
Consulting Engineer, is required ‘‘[t]o furnish an inspec-
tion force at the level of and in the numbers established
by negotiations for the construction engineering and
inspection of this contract. The Resident Engineer/
Chief Inspector shall work under the general supervi-
sion of the Municipality’s Municipal Administrator. All
orders to the Municipality’s contractor on site will be
transmitted by the Consulting Engineer’s Resident Engi-
neer/Chief Inspector.’’ In the context of the agreement,
this language does not indicate any independent control
over the property; the defendant was under the supervi-
sion of the town and would relay orders from the town
to Rondano. Although the defendant may have
inspected the property, made recommendations, and
relayed orders, there is no genuine issue of material fact
that the defendant lacked control over the property.
On the basis of the foregoing, the trial court properly
concluded there was no genuine issue of material fact
regarding whether the defendant had control over the
property. Accordingly, the court properly granted the
defendant’s motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Brandon Smith had brought a similar action, which the trial court consoli-
dated with this action and in which the trial court granted summary judgment
as to the defendant BL Companies, Inc., as well. Smith also appealed, but
during the pendency of this appeal, withdrew his appeal.
2
The town of Redding and M. Rondano, Inc., were also defendants in
the underlying action, but summary judgment was granted only as to BL
Companies, Inc., and, therefore, they are not participating in this appeal.
Hereinafter, references in this opinion to the defendant are to BL Compa-
nies, Inc.
3
The parties have both submitted portions of the agreement and do not
contest its authenticity.
4
Rondano is not identified as the contractor in the affidavit or in the
attached portion of the agreement, but is identified as the contractor in
the complaint.
5
Ketcham was Redding’s first selectman at the time of the accident.
6
The court also denied Rondano’s motion for summary judgment as to
the plaintiff’s claims, denied Rondano’s motion for summary judgment as
to a cross complaint filed by the town, and granted the plaintiff’s motion
to strike the special defenses of comparative negligence filed by all the
defendants as inapplicable to an action sounding in absolute public nuisance.
7
The plaintiff contends that the trial court was in error to deny his motion
to reargue, but fails to provide analysis of this claim. We, therefore, decline
to review this claim.
8
The plaintiff cited to the definition of control in Panaroni v. Johnson,
158 Conn. 92, 98, 256 A.2d 246 (1969): ‘‘The word ‘control’ has no legal or
technical meaning distinct from that given in its popular acceptation . . .
and refers to the power or authority to manage, superintend, direct or
oversee.’’ (Citation omitted.) In Panaroni, a tenant brought an action against
a landlord alleging negligent maintenance of the leased premises. Id., 94.
Landlord-tenant premises liability cases are distinguishable in that they
are based on negligence, and the landlord, as owner of the property, has
presumptive control over the property because the court’s inquiry in these
cases concerns whether the landlord has relinquished control over the spe-
cific area in which the injury occurred. See Fiorelli v. Gorsky, 120 Conn.
App. 298, 308, 991 A.2d 1105 (‘‘The general rule regarding premises liability
in the landlord-tenant context is that landlords owe a duty of reasonable
care as to those parts of the property over which they have retained control
. . . . [L]andlords [however] generally [do] not have a duty to keep in repair
any portion of the premises leased to and in the exclusive possession and
control of the tenant.’’ [Internal quotation marks omitted.]), cert. denied,
298 Conn. 933, 10 A.3d 517 (2010). Although the court in Tippetts referenced
landlord-tenant cases in its decision, on the whole, landlord-tenant cases
are distinguishable from public nuisance cases involving a defendant who
has never been an owner of the property.
9
The defendant asserts that the plaintiff’s claim is really one for negli-
gence, therefore it cannot be a nuisance claim. Some legal scholars have
addressed the sometimes overlapping nature of nuisance and negligence
liability: ‘‘The source of the harmful invasion of plaintiff’s interest will often
involve conduct or a condition for which defendant will be liable under
ordinary principles of tort law independent of nuisance. The commonest
example is probably negligence. Defendant may create a nuisance by negli-
gence as where one’s manufacturing operations are so conducted as to
cause an unnecessary and unreasonable amount of smoke or fumes. . . .
[F]amiliar principles of tort law will account for liability without any special
regard to the peculiarities of nuisance. . . .
‘‘The above discussion should dispose of the question sometimes put
of drawing a distinction between nuisance and negligence. There may be
nuisances that do not involve negligence, and there may be negligence that
does not produce a nuisance (though it causes other injury). But negligence
is one way in which a nuisance may be caused, and where that is the case
there is no distinction—the two coalesce.’’ (Footnotes omitted.) 1 F. Harper
et al., Torts (3d Ed., 2006), § 1.23, pp. 100–102.
Our analysis is therefore focused on the nature of control as a requirement
for use of property in Connecticut public nuisance case law, rather than
attempting to draw a line between nuisance and negligence, which may or
may not exist, depending on the case at issue.