Pollard v. Bridgeport

P
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                LAJEUNE POLLARD v. CITY OF
                    BRIDGEPORT ET AL.
                        (AC 43260)
                        Lavine, Prescott and Elgo, Js.*

                                     Syllabus

The plaintiff sought to recover damages from the defendants for injuries
   she sustained when she fell on a public sidewalk that was located in
   the defendant city of Bridgeport, adjacent to the property owned by the
   defendant S Co., a housing cooperative association. She alleged that
   her injuries were the result of the defective condition of the sidewalk,
   which was raised, uneven, and deteriorated. As part of the discovery
   process, S Co. hired an engineering firm to lift the sidewalk in the
   location of the incident and it was determined that its deteriorated
   condition was the result of a large tree root growing directly beneath
   the sidewalk. The root emanated from a tree growing on S Co.’s property.
   S Co. filed a motion for summary judgment, claiming that it could not
   be held liable for the plaintiff’s alleged injuries, either by statute or
   under the common law. The trial court granted the motion and rendered
   judgment thereon, from which the plaintiff appealed to this court, claim-
   ing that the trial court improperly granted the motion because genuine
   issues of material fact existed as to whether S Co. was liable for her
   injuries due to its negligence or for maintaining a nuisance that caused
   the defect in the sidewalk. Held that the trial court properly rendered
   summary judgment in favor of S Co. because no genuine issue of material
   fact existed as to its liability for the plaintiff’s injuries: the plaintiff could
   not prevail on her claim that her injuries were the result of S Co.’s
   negligence because S Co. did not owe a duty of care to the plaintiff, as
   the primary responsibility for maintaining public sidewalks in a reason-
   ably safe condition falls to municipalities, not abutting landowners;
   moreover, neither of the exceptions to that general rule applied in this
   case because there was no statute or ordinance that shifted liability
   from the city to the landowner and the injury was not the result of an
   affirmative act of the landowner, as the growth of tree roots is not
   typically considered an affirmative act of the owner of the land on
   which a tree grows and there was no evidence that S Co., or any of its
   predecessors, planted the tree; furthermore, S Co. was not liable for
   maintaining a nuisance that caused the defect in the sidewalk because
   the sidewalk was not under its ownership or control, the plaintiff pro-
   duced no evidence of any affirmative act by S Co. that caused the
   sidewalk to become uneven, and the presence of the tree on its property
   did not constitute an unreasonable or unlawful use of its land.
       Argued November 30, 2020—officially released April 27, 2021

                               Procedural History

  Action to recover damages for, inter alia, the alleged
negligence of the defendants, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Radcliffe, J., granted the
motion for summary judgment filed by the defendant
Seaside Village Homes, Inc., and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
   John T. Bochanis, for the appellant (plaintiff).
  John P. Bonanno, for the appellee (defendant Seaside
Village Homes, Inc.).
                           Opinion

   LAVINE, J. ‘‘An abutting landowner is ordinarily
under no duty to keep the sidewalk in front of his [or
her] property in a reasonably safe condition for public
travel. Tenney v. Pleasant Realty Corp., 

136 Conn. 325

,
329, 

70 A.2d 138

(1949). An abutting landowner can be
held liable, however, in negligence or public nuisance
for injuries resulting from the unsafe condition of a
public sidewalk caused by the landowner’s positive
acts. See Gambardella v. Kaoud, 

38 Conn. App. 355

,
359, 

660 A.2d 877

(1995).’’ Abramczyk v. Abbey, 64 Conn.
App. 442, 446, 

780 A.2d 957

, cert. denied, 

258 Conn. 933

,

785 A.2d 229

(2001). In the present case, we conclude,
as a matter of law, that the abutting landowner is not
liable for the injuries sustained by a traveler on a public
sidewalk who trips and falls over a defect in the side-
walk caused by the roots of a tree growing on the
landowner’s property, as the growth of tree roots is not
a positive or affirmative act of the landowner.
   In this trip and fall personal injury action, the plaintiff,
LaJeune Pollard, appeals from the summary judgment
rendered in favor of the defendant Seaside Village
Homes, Inc. (Seaside). On appeal, the plaintiff claims
that the trial court improperly granted summary judg-
ment because genuine issues of material fact exist as
to whether Seaside is liable for her injuries (1) due to
its negligence or (2) for maintaining a nuisance that
caused the defect in the sidewalk. On the basis of our
review of the record, we conclude that there is no genu-
ine issue of material fact that Seaside undertook no
positive or affirmative act that caused the defect in the
sidewalk where the plaintiff alleged that she fell. We,
therefore, affirm the judgment of the trial court.
  The following facts as discerned from the record are
relevant to our resolution of the plaintiff’s appeal. On
or about February 20, 2018, the plaintiff served a com-
plaint on Seaside and the codefendant, the city of
Bridgeport (city).1 The complaint sounded in three
counts: count one alleged negligence against the city;
count two alleged negligence against Seaside; and count
three alleged nuisance against Seaside. In all counts of
the complaint, the plaintiff alleged that, at approxi-
mately 5 p.m. on September 29, 2017, she was walking
on the sidewalk in front of 82 Cole Street in the city
when she fell due to the uneven, raised and deteriorated
condition of the sidewalk. As a result of her fall, the
plaintiff alleged that she sustained serious injuries to
her knees that required medical attention, including
surgical repair of her right knee. As a further result of
her fall, the plaintiff alleged that she lost time from her
employment, incurred medical bills and damages, lost
the enjoyment of life’s activities, and experienced pain
and suffering.
  In count one, the plaintiff alleged that the city
breached its duty to inspect, repair, maintain and keep
its sidewalks in a reasonably safe condition, including
the area where she fell, which is owned, controlled,
and maintained by the city.2 In count two, the plaintiff
alleged that the premises or property ‘‘in front of 82
Cole Street . . . was owned, controlled and/or main-
tained by [Seaside] . . . .’’3 The plaintiff further alleged
that Seaside ‘‘was charged with the duty to keep and
maintain its property in a reasonably safe condition
including the area’’ where she fell. She also alleged in
paragraph 5 that her fall and resulting injuries were the
direct result of the negligence of Seaside or its agents
in one or more of the following ways, in that they (a)
failed to inspect, correct or remedy the defective condi-
tion, (b) failed to use reasonable care to maintain the
area where she fell in a reasonably safe condition, (c)
failed to warn pedestrians of the defective condition,
(d) allowed the area where she fell to deteriorate to a
defective condition, (e) failed to have sufficient person-
nel to maintain, correct or remedy the defective condi-
tions, and (f) actively caused or created the defective
condition of the sidewalk. In count three, the plaintiff
alleged that her injuries ‘‘were the result of a nuisance
created by [Seaside, its agents or employees]’’ in that the
‘‘defective condition [of the sidewalk] was a continuing
danger created by [Seaside]’’ or that ‘‘[t]he use of the
. . . described premises permitted by [Seaside] was
unreasonable and/or unlawful.’’4
   On March 12, 2018, Seaside filed an answer in which
it denied the material allegations of the complaint and
asserted three special defenses.5 On November 18, 2018,
the city took the plaintiff’s deposition, during which
she testified that she ‘‘was walking and . . . was forced
forward from the raised sidewalk . . . .’’ The plaintiff
identified the raised sidewalk that allegedly caused her
to fall in a photograph.
   On April 15, 2019, Seaside filed a motion for summary
judgment claiming that it was entitled to summary judg-
ment as a matter of law because it cannot be held
liable, either by statute or under common law, for the
plaintiff’s injuries allegedly arising from a defect in a
public sidewalk.6 The parties appeared before the trial
court on June 24, 2019,7 and July 15, 2019, to argue the
motion for summary judgment. On July 15, 2019, the
court issued an order stating that it had considered the
motion for summary judgment and granted it ‘‘[a]s to
both counts [two] and [three]’’ because there was ‘‘[n]o
breach of duty by the abutting landowner, and an inabil-
ity to meet the test for nuisance (Count [Three]).
Allowing a tree to grow does not breach a duty of care.
Duty to keep the sidewalk in repair, by statute, rests
with the city of Bridgeport.’’8
   The plaintiff appealed, claiming that the court
improperly had determined that (1) no genuine issues
of material fact existed as to whether Seaside was negli-
gent with respect to the defective condition of the side-
walk in front of 82 Cole Street and (2) no genuine
issues of material fact existed as to whether Seaside
maintained a nuisance that caused injuries to her. In
response, Seaside contends that there is no genuine
issue of material fact as to whether it is liable for the
plaintiff’s injuries because, as a matter of law, the duty
to maintain and repair sidewalks belongs to the city
and there are no genuine issues of material fact that
Seaside did not undertake an affirmative or positive act
that created the alleged defect in the sidewalk. We agree
with Seaside.
   ‘‘Our standard of review of a trial court’s decision to
grant a motion for summary judgment is well estab-
lished. Practice Book § [17-49] provides that summary
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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party.’’ (Internal quotation
marks omitted.) Dreher v. Joseph, 

60 Conn. App. 257

,
259–60, 

759 A.2d 114

(2000). ‘‘The test is whether a
party would be entitled to a directed verdict on the
same facts.’’ Batick v. Seymour, 

186 Conn. 632

, 647,

443 A.2d 471

(1982).
   ‘‘The party seeking summary judgment has the bur-
den of showing the absence of any genuine issue [of]
material facts which, under applicable principles of sub-
stantive 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.’’ (Citation
omitted; internal quotation marks omitted.) Doty v.
Mucci, 

238 Conn. 800

, 805–806, 

679 A.2d 945

(1996). A
fact is material when it will make a difference in the
outcome of a case. DiPietro v. Farmington Sports
Arena, LLC, 

306 Conn. 107

, 116, 

49 A.3d 951

(2012).
‘‘The issue must be one which the party opposing the
motion is entitled to litigate under [its] pleadings and
the mere existence of a factual dispute apart from the
pleadings is not enough to preclude summary judg-
ment.’’ (Internal quotation marks omitted.) Trotta v.
Branford, 

26 Conn. App. 407

, 412–13, 

601 A.2d 1036

(1992). ‘‘The facts at issue are those alleged in the plead-
ings. . . . The purpose of [a] complaint is to limit the
issues to be decided at the trial of a case and [it] is
calculated to prevent surprise.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Vaillancourt v. Latifi, 

81 Conn. App. 541

, 545, 

840 A.2d
1209

(2004).
  ‘‘On appeal . . . [b]ecause the trial court rendered
judgment . . . as a matter of law, our review is plenary
and we must decide whether [the trial court’s] conclu-
sions are legally and logically correct and find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Dreher v. 

Joseph, supra

, 60 Conn.
App. 260.
                              I
   The plaintiff’s first claim is that the trial court improp-
erly granted the motion for summary judgment because
material questions of fact exist as to whether Seaside
is liable in negligence for the defective sidewalk. We
do not agree.
   During the course of the July 15, 2019 hearing, the
court granted the motion for summary judgment with
respect to count two stating: ‘‘While there is a duty of
an abutting landowner to conduct his affairs so as not
to injure a traveler in the lawful use of the highway,
the allegations of duty in paragraph 5 of the complaint
clearly do not apply. There is no duty on the part of an
abutting landowner to inspect a highway, which is the
duty of the municipality, to repair or to maintain it or
to warn . . . [of] the dangerous [or] defective condi-
tion. The only thing that the abutting landowner has an
obligation to do is to conduct its affairs so as not to
injure travelers, and that duty is not breached by a tree
growing on the property creating a defect, which it is
the duty of the municipality to repair, which is under
the jurisdiction of the tree warden by statute, and which
does not impose liability for essentially nonfeasance,
not misfeasance on the . . . homeowner or the abut-
ting property owner. The claim here in this complaint
is that the defect is a raised, uneven, deteriorated condi-
tion of the sidewalk, that’s the obligation of the city,
not the abutting landowner.’’
   ‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ R.K. Constructors, Inc.
v. Fusco Corp., 

231 Conn. 381

, 384, 

650 A.2d 153

(1994).
We need only address the first element of negligence
because it is dispositive of the plaintiff’s claim. ‘‘The
existence of a duty is a question of law and only if such
a duty is found to exist does the trier of fact then
determine whether the defendant violated that duty in
the particular situation at hand. . . . Because the
court’s determination of whether the defendant owed
a duty of care to the plaintiff is a question of law, our
standard of review is plenary. . . . Our Supreme Court
has stated that the test for the existence of a legal
duty of care entails (1) a determination of whether an
ordinary person in the defendant’s position, knowing
what the defendant knew or should have known, would
anticipate that harm of the general nature of that suf-
fered was likely to result, and (2) a determination, on
the basis of a public policy analysis, of whether the
defendant’s responsibility for its negligent conduct
should extend to the particular consequences or partic-
ular plaintiff in the case. . . . The first part of the test
invokes the question of foreseeability, and the second
part invokes the question of policy.’’ (Internal quotation
marks omitted.) McFarline v. Mickens, 

177 Conn. App.
83

, 92, 

173 A.3d 417

(2017), cert. denied, 

327 Conn. 997

,

176 A.3d 557

(2018).
   ‘‘It has long been established that municipalities have
the primary duty to maintain public sidewalks in a rea-
sonably safe condition. . . . General Statutes § 13a-99
further provides in relevant part that [t]owns9 shall,
within their respective limits, build and repair all neces-
sary highways and bridges . . . except when such duty
belongs to some particular person. . . . When a side-
walk along a public street in a city [has] been con-
structed and thrown open for public use, and used in
connection with the rest of the street, [it] must, as a
part of the street, be maintained by the city, and kept
in such repair as to be reasonably safe and convenient
for . . . travelers . . . .’’ (Citation omitted; footnote
added; internal quotation marks omitted.)

Id., 93.

A
town or city has a duty to keep highways in good repair,
including the sidewalks. See Ryszkiewicz v. New Brit-
ain, 

193 Conn. 589

, 594 and n.5, 

479 A.2d 793

(1984).
‘‘An abutting landowner, in the absence of statute or
ordinance, ordinarily is under no duty to keep the public
sidewalk in front of his property in a reasonably safe
condition for travel.’’ Wilson v. New Haven, 

213 Conn.
277

, 280, 

567 A.2d 829

(1989). As a general rule, owners
of land are not liable for injuries caused by defects on
public sidewalks abutting their property. Robinson v.
Cianfarani, 

314 Conn. 521

, 529, 

107 A.3d 375

(2014).
   The plaintiff argues, however, that an exception to the
general rule applies in the present case, as an abutting
property owner can be held liable in negligence or pub-
lic nuisance for injuries resulting from the unsafe condi-
tion of a public sidewalk caused by the positive acts
of the abutting property owner. Hanlon v. Waterbury,

108 Conn. 197

, 200–201, 

142 A. 681

(1928) (negligence
to allow gasoline from pump to spill onto sidewalk);
Gambardella v. 

Kaoud, supra

, 

38 Conn. App. 359

, citing
Perkins v. Weibel, 

132 Conn. 50

, 52, 

42 A.2d 360

(1945)
(public nuisance created by grease emanating from
premises onto sidewalk). Indeed, the law of Connecti-
cut holds that ‘‘an owner of property abutting on a
highway rests under an obligation to use reasonable
care to keep his premises in such condition as not to
endanger travelers in their lawful use of the highway;
and that if he fails to do so, and thereby renders the
highway unsafe for travel, he makes himself liable.’’
(Internal quotation marks omitted.) Kane v. New Idea
Realty Co., 

104 Conn. 508

, 515, 

133 A. 686

(1926), quoting
Ruocco v. United Advertising Corp., 

98 Conn. 241

, 247,

119 A. 48

(1922). In Kane, the defendant was found
liable for the injuries sustained by a pedestrian who
slipped and fell on a patch of ice created by water that
flowed from the defendant’s business onto a sidewalk.
Kane v. New Idea Realty 

Co., supra

, 509. In that case,
our Supreme Court held that by permitting water to
flow from one’s premises onto the land of another, the
defendant engaged in an affirmative act that gave rise
to potential liability.

Id., 515–16.

We conclude that the
growth of tree roots is not an affirmative act of the
owner of the land on which the tree grows.
   The plaintiff alleges that Seaside was negligent in
that it actively caused the defective condition of the
sidewalk where the plaintiff fell, but she failed to specify
what Seaside did to create the defect. On appeal, how-
ever, the plaintiff argues that a tree growing on Seaside’s
property caused the sidewalk to become uneven. The
plaintiff, therefore, argues that there is a genuine issue
of material fact as to whether Seaside was negligent by
causing the defective condition of the sidewalk. The
plaintiff’s argument is unavailing. In opposing the
motion for summary judgment, she failed to present
evidence of an affirmative act by Seaside that raises a
genuine issue of material fact that would bring this case
within the exception to the rule that adjacent landown-
ers are not liable for injuries sustained by travelers on
a sidewalk.
   In the absence of evidence supporting an affirmative
act by the defendant, the plaintiff urges us to adopt the
rule stated in § 363 of the Restatement (Second) of
Torts, which provides: ‘‘A possessor of land in an urban
area is subject to liability to persons using a public
highway for physical harm resulting from his failure to
exercise reasonable care to prevent an unreasonable
risk of harm arising from the condition of trees on the
land near the highway.’’ 2 Restatement (Second), Torts
§ 363 (2), p. 258 (1965). The plaintiff contends that the
Restatement rule is applicable to the present case
because the tree whose roots caused the sidewalk to
be uneven was on Seaside’s property. We decline the
plaintiff’s request to apply the Restatement rule in the
present case.
   As a general rule, Connecticut law holds that an abut-
ting landowner is not liable for injuries sustained by a
traveler on the highway that were caused by the defec-
tive condition of a public sidewalk. Wilson v. New

Haven, supra

, 

213 Conn. 280

. There are two exceptions
to the general rule: (1) where a statute or ordinance
shifts liability to the landowner to keep the sidewalk
in a safe condition; see Dreher v. 

Joseph, supra

, 60 Conn.
App. 261; and (2) where the affirmative or positive act
of the landowner causes the defect in the sidewalk.
Abramczyk v. 

Abbey, supra

, 

64 Conn. App. 446

; Gambar-
della v. 

Kaoud, supra

, 

38 Conn. App. 359

.
  The plaintiff has cited no Connecticut case that holds
that a landowner is liable for damages caused by the
natural growth of a tree on its property or that the
natural growth of tree roots is a positive act of the
owner of the land where the tree is growing. Our trial
courts have held that the growth of tree roots is not a
positive act of the owner of the land on which the tree
grows. See, e.g., Maida v. Hiatt, Superior Court, judicial
district of Fairfield, Docket No. CV-XX-XXXXXXX-S (April
8, 2009) (

47 Conn. L. Rptr. 552

); Herrera v. Bridgeport,
Superior Court, judicial district of Fairfield, Docket No.
CV-387059 (July 30, 2004) (

37 Conn. L. Rptr. 568

); Coyle
v. Waterbury, Superior Court, judicial district of Water-
bury, Docket No. CV-096884 (December 6, 1991) (

5
Conn. L. Rptr. 342

). As this court stated in McFarline
with respect to grass that was alleged to have caused
the plaintiff in that case to fall, ‘‘grass grows by itself.’’
(Internal quotation marks omitted.) McFarline v. Mick-

ens, supra

, 

177 Conn. App. 98

. So, too, do a tree and
its roots grow by themselves. We agree with the trial
courts that the growth of tree roots is not caused by a
positive or affirmative act of the owner of the land
where the tree is growing.
  The plaintiff urges this court to follow the reasoning
of the trial court in Toomey v. State, Docket No. CV-
91-57183-S, 

1994 WL 75815

, *6, 13 (Conn. Super. Febru-
ary 17, 1994), which applied § 363 (2) of the Restatement
(Second) of Torts to find the state of Connecticut liable
for the deaths and injuries that resulted when an
extremely large branch of a red maple tree fell on a
passing motor vehicle during an October snowstorm.
The facts of Toomey are distinguishable from the facts
of the case before us, which does not involve a limb
or tree falling onto the highway or sidewalk.
   In Toomey, the trial court recognized that Connecti-
cut has established that ‘‘an owner of property abutting
on a highway rests under an obligation to use reason-
able care to keep his premises in such condition as not
to endanger travelers in their lawful use of the highway;
and that if he fails to do so, and thereby renders the
highway unsafe for travel, he makes himself liable.’’
(Internal quotation marks omitted.) Toomey v. 

State,
supra

, 

1994 WL 75815

, *5, quoting Kane v. New Idea
Realty 

Co., supra

, 

104 Conn. 515

. It also stated that
‘‘Connecticut courts are in harmony with the many juris-
dictions which generally state that an owner of land
abutting a highway may be held liable on negligence
principles under certain circumstances for injuries or
damages resulting from a tree or limb falling onto the
highway from such property.’’ Toomey v. 

State, supra

,
*6; see Hewison v. New Haven, 

37 Conn. 475

, 483 (1871)
(recognizing that owners of trees standing on highway
are liable at common law for injuries occurring due to
their neglect to trim and keep trees safe). ‘‘The duty is
identified by the nature of the locality, the seriousness
of the danger, and the ease with which it may be pre-
vented. [W. Prosser, Torts (4th Ed. 1971) § 57, p. 356.]’’
(Internal quotation marks omitted.) Toomey v. 

State,
supra

, *5.
  The court determined that the state had stepped ‘‘into
the shoes of a private landowner in a similar situation’’;


id., *4;

and had a duty to inspect the trees along the
highway on the basis of foreseeability.

Id., citing Coburn
v.

Lenox Homes, Inc., 

186 Conn. 370

, 375, 

441 A.2d 620

(1982) (duty to use care arises under circumstances in
which reasonable person should have known harm of
risk imposed by failure to act). The evidence in Toomey
demonstrated that the state arborist, who was charged
with the duty to inspect trees on state property, admit-
ted that he had not inspected the trees along Route 7.
Toomey v. 

State, supra

, 

1994 WL 75815

, *10. The signs
of decay on the red maple that fell were obvious by
visual inspection and experts described the tree as a
hazard tree.

Id., *11.

The risk the tree posed to travelers
on Route 7 was foreseeable if only the state’s arborist
had inspected it.

Id., *12.

The risks posed by a decaying
tree limb overhanging a state highway are distinguish-
able from the present case where the limbs of the trees
were not in danger of falling on the sidewalk. Moreover,
the roots of the tree were subterranean and not obvious
from a visual inspection.
   The Connecticut rule that the owner of property abut-
ting on a highway has an obligation to use reasonable
care to keep his premises in such a condition as not
to endanger travelers was followed in McDermott v.
Calvary Baptist Church, 

263 Conn. 378

, 

819 A.2d 795

(2003), where a tree fell from a church yard onto a
visitor in an adjacent parking lot.

Id., 383, 388.

Our
Supreme Court stated that the trial court did not err
by instructing the jury that the plaintiff ‘‘bore the burden
of establishing that there were visible signs of decay
or weakness of structure . . . that the church failed
to observe . . . [and that] reasonable care would have
resulted in those signs being seen.’’ (Emphasis omitted;
internal quotation marks omitted.)

Id., 388.

   In Toomey and McDermott, the courts applied the
rule that ‘‘a legal duty of care entails . . . a determina-
tion of whether an ordinary person in the defendant’s
position, knowing what the defendant knew or should
have known, would anticipate that harm of the general
nature of that suffered was likely to result . . . .’’
(Internal quotation marks omitted.) McFarline v. Mick-

ens, supra

, 

177 Conn. App. 92

; see also McDermott v.
Calvary Baptist 

Church, supra

, 

263 Conn. 388

; Toomey
v. 

State, supra

, 

1994 WL 75815

, *4. Those cases teach
that the owner of land abutting a public highway has
a duty to inspect his or her trees for signs of damage
or decay that might cause the tree or a branch to fall.
   In the present case, the plaintiff presented no evi-
dence that reasonable care would have revealed the
cause of the raised sidewalk. No one knew the reason
why the sidewalk was uneven until an engineering firm
retained by Seaside during the discovery phase of the
litigation lifted the sidewalk revealing the root of the
tree. See footnote 4 of this opinion.
  The plaintiff also suggests that we follow the New
Jersey case of Deberjeois v. Schneider, 

254 N.J. Super.
694

, 

604 A.2d 210

(1991), aff’d, 

260 N.J. Super. 518

, 

617
A.2d 265

(App. Div. 1992), to resolve the appeal in her
favor. We decline to follow the New Jersey case, as it
is not binding on this court, is inconsistent with Con-
necticut law and is factually distinguishable from the
present case.
   In Deberjeois, the plaintiff sustained injuries ‘‘when
she fell on a raised sidewalk slab caused by tree roots
emanating from a tree located on the defendants’,
[Schneiders’], property.’’

Id., 696.

The tree was growing
in the Schneiders’ front lawn, four and one-half feet
from the sidewalk.

Id., 703

n.3. The Schneiders filed a
motion for summary judgment claiming that they were
exempt from liability.

Id., 697.

In ruling on the motion
for summary judgment, the New Jersey trial court stated
that the Schneiders’ liability turned ‘‘on whether the
defect in the sidewalk was caused by a natural condition
of the land or by an artificial one.’’

Id., 698.

An artificial
condition is one that comes about as a result of the
landowner’s affirmative act.

Id., 699.

   Comment (b) to § 363 of the Restatement (Second)
of Torts provides: ‘‘ ‘Natural condition of the land’ is
used to indicate that the condition of land has not been
changed by any act of a human being, whether the
possessor or any of his predecessors in possession, or
a third person dealing with the land either with or with-
out the consent of the then possessor. It is also used
to include the natural growth of trees, weeds, and other
vegetation upon land not artificially made receptive to
them. On the other hand, a structure erected upon land
is a non-natural or artificial condition, as are trees or
plants planted or preserved, and changes in the surface
by excavation or filling, irrespective of whether they
are harmful in themselves or become so only because
of the subsequent operation of natural forces.’’ 2
Restatement 

(Second), supra

, § 363, comment (b), p.
258; see also Deberjeois v. 

Schneider, supra

, 254 N.J.
Super. 700, quoting 2 Restatement 

(Second), supra

,
comment (b), p 258.
    The New Jersey court stated that ‘‘a property owner
would be liable where he plants a tree at a location
which he could readily foresee might result in the roots
of the tree extending underneath the sidewalk causing
it to be elevated. The rational for the [Schneiders’] liabil-
ity . . . is not because of the natural process of the
growth of the tree roots. Instead it is the positive act—
the affirmative act—of the property owner in the actual
planting of the tree which instigated the process. The
fact that the affirmative act is helped along by a natural
process does not thereby make the condition a natural
one within the meaning of the traditional rule.’’ (Foot-
note omitted.) Deberjeois v. 

Schneider, supra

, 254 N.J.
Super. 703–704. The court, therefore, denied the motion
for summary judgment.

Id., 704.

   In the present case, there is no evidence as to how
the tree, the roots of which caused the sidewalk in front
of 82 Cole Street to become uneven, came to grow on
Seaside’s property. Consequently, this case is similar
to Cagnassola v. Mansfield, Docket No. A-1145-18T3,

2019 WL 4696142

(N.J. Super. App. Div. September 26,
2019), a personal injury case in which the plaintiffs’
minor child sustained injuries when she rode her bicycle
over an elevated and cracked sidewalk in front of the
defendants’ home.

Id., *1.

The plaintiffs alleged that the
defendants were liable due to the dangerous condition
created by a tree adjacent to the sidewalk.

Id. On appeal,
the

New Jersey Appellate Division affirmed the trial
court’s granting of summary judgment in favor of the
defendants and distinguished Deberjeois.

Id., *4.

The
Cagnassola plaintiffs surmised that the original devel-
oper of the neighborhood had planted the tree; the
defendants asserted that it had grown naturally.

Id.
Despite the plaintiffs’

discovery efforts, they were
unable to offer ‘‘proof of any affirmative act by the
[defendants], nor by any other identified party in privity
with the [defendants], creating the hazard abutting the
sidewalk.’’

Id. Unlike Deberjeois, there

was no proof
that the defendants, the prior owners, or the developer
had planted the tree to create an artificial condition.


Id. Such is the

situation in the present case. Even if we
were to adopt the position taken by the Deberjeois
court, which we have not, the plaintiff presented no
evidence to oppose Seaside’s motion for summary judg-
ment to demonstrate that Seaside had undertaken an
affirmative act to plant the tree. The record does not
disclose whether the tree in question was planted or
grew of its own accord from an acorn or other seed.
   In opposing a motion for summary judgment, an
adverse party ‘‘shall file and serve a response to the
motion for summary judgment . . . including oppos-
ing affidavits and other available documentary evi-
dence.’’ Practice Book § 17-45 (b). ‘‘Once the moving
party has presented evidence in support of the motion
for summary judgment, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue.’’ (Citations omitted; internal quo-
tation marks omitted.) Inwood Condominium Assn. v.
Winer, 

49 Conn. App. 694

, 697, 

716 A.2d 139

(1998).
   Viewing the pleadings and facts of the present case
in the light most favorable to the plaintiff, we conclude
that the court properly determined that Seaside owed
the plaintiff no duty of care under the circumstances
and, thus, properly granted Seaside’s motion for sum-
mary judgment with respect to count two, alleging negli-
gence.
                            II
   The plaintiff’s second claim is that questions of mate-
rial fact exist as to whether Seaside maintained a nui-
sance. We disagree.
   In count three of her complaint, the plaintiff alleged
in relevant part that the defective sidewalk was a contin-
uing danger created by Seaside and that its use of the
premises was unreasonable. On July 15, 2019, during
the hearing on the motion for summary judgment, the
court ruled from the bench with regard to count three
stating: ‘‘The motion [for summary judgment] as to
count three is also granted. A . . . creation of a nui-
sance involves four elements: it involves the creation
of a dangerous and/or defective condition; it requires
that it had been there for a sufficient period of time; it
requires proof by a fair preponderance of the evidence
that the use of the property was unreasonable; and [it
requires] that the dangerous or defective condition was
a proximate cause of the injury. If, in fact, the . . . use
of the property, in this case the third element, is the
abutting landowner’s property and the defect is on
another piece of property, which it is the duty of the
city to keep and repair, it appears to the court that the
elements of nuisance cannot be met as a matter of law
and, therefore, the defendant is entitled to judgment.
So the motion for summary judgment as to counts two
and three of the [complaint] dated April 15 is granted.’’
We agree with the trial court.
   As previously stated, although ‘‘an abutting owner
ordinarily is under no duty to keep the sidewalk in front
of his property in a reasonably safe condition for public
travel, he is liable in damages for a nuisance maintained
by him upon it.’’ Perkins v. 

Weibel, supra

, 

132 Conn.
52

. An abutting ‘‘owner [is] liable for an injury to a
traveler upon a sidewalk injured through his premises
being in such condition as to endanger travelers in their
lawful use of the walk.’’ Hanlon v. 

Waterbury, supra

,

108 Conn. 200

.
   ‘‘It is well settled that to prevail on a cause of action
for private nuisance, a plaintiff must prove four ele-
ments: (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 unlaw-
ful; [and] (4) the existence of the nuisance was the
proximate cause of the plaintiffs’ injuries and damages.’’
(Emphasis omitted; internal quotation marks omitted.)
Walsh v. Stonington Water Pollution Control Author-
ity, 

250 Conn. 443

, 449 n.4, 

736 A.2d 811

(1999). ‘‘To
constitute a nuisance in the use of land, it must appear
not only that a certain condition by its very nature is
likely to cause injury but also that the use is unreason-
able or unlawful.’’ Beckwith v. Stratford, 

129 Conn. 506

,
508, 

29 A.2d 775

(1942); see also Fisk v. Redding,
Conn. , ,           A.3d     (2020) (third element requires
showing that defendant’s use of land was unreasonable
or unlawful).
   As the trial court pointed out, the defective condition
the plaintiff complained of is the raised portion of the
sidewalk. The sidewalk was not under Seaside’s owner-
ship or control. As previously stated, the plaintiff pro-
duced no evidence of any affirmative act on the part
of Seaside that caused the sidewalk to become uneven.
The plaintiff has argued that Seaside knew of the raised
sidewalk for at least a year before the plaintiff fell and
was injured.10 That fact is of no moment as Seaside had
no duty to maintain or repair the sidewalk; the city is
responsible for the maintenance and repair of side-
walks. Moreover, the tree on Seaside’s property did not
constitute an unreasonable or unlawful use of its land.
We therefore conclude that the trial court properly
granted Seaside’s motion for summary judgment as to
count three.
  For the foregoing reasons, we conclude that the trial
court properly granted Seaside’s motion for summary
judgment.11
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     The city did not file a brief or otherwise participate in the present appeal.
At the time the court granted Seaside’s motion for summary judgment, the
plaintiff’s case against the city was still pending. Nonetheless, this court
has jurisdiction to hear the plaintiff’s appeal as the rendering of summary
judgment disposed of all of the plaintiff’s causes of action against Seaside.
See Practice Book § 61-3 (appeal of judgment on part of complaint).
   2
     In its original answer to the complaint, the city denied that it owned
and controlled the sidewalk. On March 14, 2019, the city amended its answer
and admitted that the sidewalk in front of 82 Cole Street is within the city’s
right-of-way and that the city has a duty to repair sidewalks. On April 30,
2019, John Urquidi, the city engineer, testified at a deposition that the
sidewalk where the plaintiff allegedly fell is within the city’s right-of-way.
   3
     Seaside is a housing cooperative association consisting of approximately
250 units.
   4
     Nowhere in her complaint did the plaintiff allege how the sidewalk came
to be uneven and in a defective condition or what Seaside actively did to
cause the sidewalk to be uneven. The words ‘‘tree’’ and ‘‘root’’ do not appear
in the complaint.
   The record discloses that, on March 14, 2019, Geoffrey B. Wardman, a
professional engineer, signed an affidavit in which he attested that on Janu-
ary 31, 2019, at Seaside’s request, he was present at the sidewalk abutting
82 Cole Street when the sidewalk flag over which the plaintiff alleged that
she fell was mechanically raised for the purpose of inspecting the flag and
the ground beneath it. Wardman attested in part: ‘‘Upon lifting of the subject
sidewalk flag, I observed the existence of a large tree root growing directly
beneath the subject sidewalk flag. The roots emanated from a tree planted
upon the nearby property. . . . It is my professional opinion, within a rea-
sonable degree of engineering certainty, that the subject sidewalk flag was
caused to be misleveled by the large tree root directly beneath said side-
walk flag.’’
   A sidewalk flag is a section of the stone or concrete surface of the walk.
   5
     Seaside’s special defenses alleged that (1) if the plaintiff suffered any
injuries and losses they were the result of her own carelessness and negli-
gence, (2) the plaintiff assumed the risk of walking on the sidewalk, and (3)
any injuries the plaintiff allegedly sustained were caused by the negligence
of third parties over which Seaside had no control.
   6
     The city filed an objection to the motion for summary judgment on the
procedural ground that the motion had not been filed in accordance with
the scheduling order. See Practice Book § 17-44 (‘‘[i]n any action . . . any
party may move for a summary judgment as to any claim or defense as a
matter of right at any time if no scheduling order exists and the case has
not been assigned for trial’’). There is no indication in the record that the
court ruled on the city’s objection to the motion for summary judgment.
   7
     On June 24, 2019, the court was thoroughly prepared to address Seaside’s
motion for summary judgment. The court asked the plaintiff’s counsel many
questions regarding the complaint’s allegations of negligence as to Seaside,
noting that Seaside had no duty to maintain, repair or warn about a defective
sidewalk. The court particularly noted that the plaintiff had failed to allege
how Seaside had used its property in a manner so as to injure travelers in
lawful use of the highway, describing the allegation in subparagraph (f) as
‘‘a conclusion in search of an allegation . . . .’’
   Counsel for the plaintiff had not yet filed an objection to the motion for
summary judgment and was unprepared to argue the substance of Seaside’s
motion, believing that the court was to consider the city’s objection to the
motion for summary judgment that day. After addressing the infirmities of
the plaintiff’s complaint, the court ordered the plaintiff to file an objection,
if any, within one week.
   The plaintiff filed an objection to the motion for summary judgement on
July 1, 2019, to which she attached an affidavit that she had signed that
day. The plaintiff attested that within seven days of having fallen, she took
photographs of the uneven sidewalk and that the raised sidewalk was four
inches high, that the property adjacent to the sidewalk is owned by Seaside
and that there is a large tree on the adjacent property. The photographs
taken by the plaintiff were attached as exhibits to her objection to Seaside’s
motion for summary judgment.
   8
     The plaintiff did not seek an articulation of the court’s ruling. We never-
theless are able to discern the court’s reasoning from its rulings from the
bench.
   9
     The word ‘‘towns,’’ as used in the statute, includes cities. See General
Statutes § 13a-1 (b).
   10
      Although the plaintiff argues that the condition of the sidewalk was
brought to Seaside’s attention one year before the plaintiff fell, it is undis-
puted that Seaside did not know what caused the sidewalk to be uneven
until it retained an engineering firm to lift the uneven portion of sidewalk
several months prior to filing its motion for summary judgment.
   11
      If we were to accept the plaintiff’s position that the owner of land
abutting a public sidewalk is liable for the injuries sustained by a traveler
due to defects in the sidewalk caused by the hidden roots of a tree growing on
the owner’s property, it would impose an unreasonable burden on property
owners. Such owners would be obligated to expose tree roots to see where
they extend and to elevate sidewalks to determine if the roots were, in fact,
the source of unevenness.

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