Fisk v. Town of Redding

• Decision Date: 19 April 2016
• Docket Number: No. 37537.,37537.
• Citation: 138 A.3d 410,164 Conn.App. 647
• Court: Connecticut Court of Appeals
• Parties: Gregg FISK v. TOWN OF REDDING, et al.

164 Conn.App. 647

138 A.3d 410

Gregg FISK

v.TOWN OF REDDING, et al.

No. 37537.

Appellate Court of Connecticut.

Argued Dec. 8, 2015.

Decided April 19, 2016.

A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff).

Jared Cohane, with whom was Luke R. Conrad, Hartford, for the appellee (defendant BL Companies, Inc.).

ALVORD, KELLER, and SCHALLER, Js.

SCHALLER

, J.

The plaintiff, Gregg Fisk,¹ appeals from the summary judgment rendered in favor of the defendant BL Companies, Inc.,² in his absolute public nuisance 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 judgment. 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 constructed 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 constructed on public land and constituted a public nuisance. 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 construction by the Department of Transportation (department) dated January, 2010; a letter dated July 5, 2011, from the defendant on behalf of the town to the department; 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 responsibilities 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 completed in 2012, and that the project was not even substantially completed until October, 2011, after the plaintiff's fall. In support of these contentions, the plaintiff 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 department'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 manual; 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 negligence 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 summary 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 summary 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 concluded 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, therefore, 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. at 183, 527 A.2d 688 : “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, at 348, 568 A.2d 786.

In Tippetts, our Supreme Court applied the requirement 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. at 183–84, 527 A.2d 688

. “Our case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property 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 functional test to determine whether a defendant ‘uses' property 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...