Birchard v. City of New Britain, 27831.

• Decision Date: 07 August 2007
• Docket Number: No. 27831.,27831.
• Citation: 927 A.2d 985,103 Conn.App. 79
• Court: Connecticut Court of Appeals
• Parties: Kathleen BIRCHARD v. CITY OF NEW BRITAIN.

927 A.2d 985

103 Conn.App. 79

Kathleen BIRCHARD v. CITY OF NEW BRITAIN.

No. 27831.

Appellate Court of Connecticut.

Argued April 23, 2007.

Decided August 7, 2007.

Michael B. Pollack, with whom, on the brief, was Marisa A. Mascolo, for the appellant (plaintiff).

Irena J. Urbaniak, city attorney, for the appellee (defendant).

DiPENTIMA, GRUENDEL and HARPER, Js.

GRUENDEL, J.

The plaintiff, Kathleen Birchard, appeals from the judgment of the trial court rendered after it granted the motion of the defendant, the city of New Britain, for judgment notwithstanding the verdict. She claims that the court improperly set aside the verdict in light of (1) the implied admissions contained in the defendant's answer and (2) the evidence presented to the jury.¹ We agree with the plaintiff's second claim and, accordingly, reverse the judgment of the trial court.

The relevant facts in this slip and fall case are as follows. On March 23, 2002, the plaintiff tripped on a cracked portion of the sidewalk in front of her residence at 55½ Trinity Street in New Britain, sustaining injuries to her right foot and arm, her right side and both knees. By letter dated April 18, 2002, the plaintiff notified the defendant of her injuries and the alleged cause thereof pursuant to General Statutes § 13a-149.² The plaintiff's complaint, filed on February 18, 2003, consisted of one count alleging that the defendant breached its statutory duty under § 13a-149.³ An arbitrator decided the matter on July 1, 2005, awarding the plaintiff $11,660 in damages. The defendant thereafter requested a trial de novo.

A jury trial followed. The plaintiff's case-in-chief consisted solely of her testimony, augmented by a series of medical records and photographs of the sidewalk taken by the plaintiff. At the conclusion of her testimony, the plaintiff informed the court that she had no additional witnesses. Before proceeding further, counsel for the defendant inquired as to whether "the plaintiff had rested"; counsel for the plaintiff responded, "yes, the plaintiff will rest." The defendant then moved for a directed verdict, stating that "the plaintiff has rested, and there has been no evidence whatsoever that the area where the plaintiff allegedly fell was under the [defendant's] jurisdiction, and that [it] had a responsibility and a duty to maintain or repair that area." In ruling on that motion, the court stated: "I certainly understand [the defendant's position] in terms of the elements that are necessary to proceed, and there may be, in fact, some issue in that regard; nonetheless, there were some comments that were made by the witness on the [witness] stand, the plaintiff, which, if very liberally viewed, it might address the issue of duty on the part of the city ...." The court therefore reserved judgment on that motion pursuant to Practice Book § 16-37.

The defendant rested without presenting any evidence, and the matter was submitted to the jury, which returned a verdict in favor of the plaintiff.⁴ The defendant subsequently filed a motion for judgment notwithstanding the verdict, reiterating its claim that the plaintiff failed to present evidence either that the defendant was in possession and control of the sidewalk or that it had a duty to maintain that area. By memorandum of decision dated June 21, 2006, the court concluded that "[i]n reviewing the totality of the evidence in the light most favorable to sustaining the verdict, including reasonable inferences therefrom, this court cannot find as a matter of law that there was sufficient evidence to enable the jury to identify the party which had the duty to maintain the property where the plaintiff fell. Any conclusion reached by the jury that the defendant had a statutory duty to maintain the property in question could only have been based on conjecture and speculation." The court therefore granted the defendant's motion and rendered judgment accordingly. This appeal followed.

I

We first address the plaintiff's contention that the court improperly granted the defendant's motion for judgment notwithstanding the verdict in light of the implied admissions allegedly contained in the defendant's answer to the plaintiff's complaint. She claims that the defendant's answer failed to comply with the pleading requirements of this state. "[T]he 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 plenary." (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 104, 828 A.2d 31 (2003).

Pleadings are intended to "limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise." (Internal quotation marks omitted.) Harris v. Shea, 79 Conn.App. 840, 842-43, 832 A.2d 97 (2003); see also 71 C.J.S. 38, Pleading § 3 (2000) ("purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial"). Practice Book § 10-46 provides in relevant part that "[t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally...."

"According to the law of pleading, what is not denied is conceded." Casey v. Galli, 94 U.S. 673, 679, 24 L.Ed. 168 (1877); 71 C.J.S. 242, supra, § at 193 ("material allegations of the complaint and material matters properly pleaded which are not denied ... in the answer stand admitted"). Consistent with that principle, Practice Book § 10-19 requires that "[e]very material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief." See also Commissioner of Social Services v. Smith, 265 Conn. 723, 736, 830 A.2d 228 (2003) ("the failure of a party to deny the material allegations contained in an adversary's pleading operates as an implied admission of that allegation"). Paragraph three of the complaint in the present case averred that "pursuant to ... § 13a-149, the defendant ... was under the duty to keep the public sidewalks ... in repair and free of defects," and paragraph four alleged that the "public sidewalk hereinafter described ... was within the territorial limits of and under the control of the defendant ...." In its answer, the defendant stated, as to both paragraphs, that the paragraph "is neither admitted nor denied, and the defendant leaves the plaintiff to her proof." That nonresponsive answer is unacceptable under our rules of practice.

In response to each allegation of a complaint, a defendant has three options. It may admit, deny, or plead that it "has not any knowledge or information thereon sufficient to form a belief." Practice Book § 10-19; see also 1 E. Stephenson, Connecticut Civil Procedure (3d Ed.1997) § 82(c), p. 237 ("[e]very material allegation in the complaint which is not denied or answered by a plea of `no knowledge' will be deemed admitted"); W. Horton & K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (4th Ed.1998) § 10-19, authors' comments, p. 343 (same). The defendant's answer in the present case did not admit or deny paragraphs three and four, nor did it state that the defendant lacked sufficient information to form a belief. It was, in essence, a refusal to respond. As such, it failed to comply with Practice Book § 10-19.

Our thorough review of the record reveals that the plaintiff at no time prior to this appeal raised any issue as to the sufficiency or effect of the defendant's answer. The question before us, then, is whether a trial court is bound by an implied admission pursuant to Practice Book § 10-19 that is not brought to its attention at any stage of the proceedings. We conclude that it is not.

A judicial admission dispenses "with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." (Internal quotation marks omitted.) Pedersen v. Vahidy, 209 Conn. 510, 519-20, 552 A.2d 419 (1989). For that reason, "[t]he statement relied on as a binding admission must be clear, deliberate and unequivocal." National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004). By their very nature, implied admissions under Practice Book § 10-19 confound that requirement. We think it is both unfair and unworkable to require the trial court, in each and every civil action before it, to scour the pleadings in search of implied admissions. In New England Merchandise Co. v. Miner, 76 Conn. 674, 58 A. 4 (1904), our Supreme Court refused to decide a similar claim largely because the "claim was not made upon the trial...." Id., at 676, 58 A. 4; see also Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 328, 438 A.2d 99 (1980) (failure to file answer held not to be implied admission because party did not raise issue at trial). We therefore conclude that the burden rests with the parties to bring to the court's attention an allegedly implied admission pursuant to Practice Book § 10-19. See, e.g., Mamudovski v. BIC Corp., 78 Conn.App. 715, 720, 829 A.2d 47 (2003) (defendant filed motion for order confirming judicial admission during pretrial hearings), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). Because the plaintiff failed to do so in the present case, she cannot now complain.

II

The plaintiff next claims that the court improperly granted the defendant's motion for judgment notwithstanding the verdict in light of the evidence presented to the jury at trial. We review the action of the trial court in rendering judgment notwithstanding the verdict "in the light most favorable to the...