Opinion
No. 5100037
April 13, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #113 AND OBJECTION TO MOTION #124
FACTS
The plaintiff, Peter Crowley, has brought this action by way of a three-count complaint, dated February 7, 2005, for personal injuries allegedly sustained when he was caused to slip and fall on a sidewalk due to the accumulation of ice and snow. Thereafter, the plaintiff filed an amended complaint, dated March 21, 2005. Therein, the plaintiff alleges that on March 6, 2003, he was walking along the public sidewalk abutting property located at 17 Chestnut Street, Norwich, Connecticut, when he was caused to slip and fall on ice on the sidewalk.
The first and second counts of the amended complaint are directed to the co-defendants, The Southern New England Telephone Company ("SNET") and SBC f/n/a The Southern New England Telephone Company ("SBC"), respectively. The counts allege that SNET/SBC owned, possessed, maintained, and controlled the premises located at 17 Chestnut Street and was negligent in, inter alia, failing to maintain the sidewalk abutting said premises. The counts also allege that SNET/SBC failed to maintain the sidewalk in violation of General Statutes § 7-163a(c)(1).
The third count of the amended complaint is directed to the defendant City of Norwich ("City") and is brought pursuant to General Statutes § 13a-149, commonly known as the highway defect statute. The plaintiff alleges the City did not own, possess, maintain, or control the premises located at 17 Chestnut Street, but that they owned, possessed, maintained, and controlled the sidewalk abutting at 17 Chestnut Street and was negligent in, inter alia, failing to maintain the sidewalk abutting said premises. The plaintiff further alleges that the City failed to exercise its duty of care with respect to the presence of ice and snow on the sidewalk in violation of General Statutes § 7-163a(b) and that it failed to care for its property in violation of General Statutes § 13a-149.
The City filed a motion for summary judgment with supporting memorandum on January 17, 2006 (#113). On February 3, 2006, SNET/SBC filed a objection to the City's motion for summary judgment accompanied by a supporting memorandum of law. On February 3, 2006, SNET/SBC also filed a separate motion for summary judgment with supporting memorandum. On February 10, 2006, the City filed a reply to SNET/SBC's objection to its motion for summary judgment and also filed an objection to SNET/SEC's motion for summary judgment. On March 1, 2006, the plaintiff filed an objection to SNET/SBC's motion for summary judgment (#124). The plaintiff has not filed an objection to the City's motion for summary judgment. Oral argument was heard at short calendar on March 20, 2006.
DISCUSSION
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." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004); Lee v. Duncan, 88 Conn.App. 319, 323-24, 870 A.2d 1 (2005). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). 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." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).
Abutting landowners are only liable for injuries from defective sidewalks where under charter provisions they are not only charged with the duty of keeping sidewalks in repair, but also expressly made liable for injuries occasioned by defective condition thereof. See Willoughby v. New Haven, 123 Conn. 446, 454, 197 A.2d 85 (1937); Dreher v. Joseph, 60 Conn.App. 257, CT Page 6976 759 A.2d 114 (2000).
Our Supreme Court has determined "[a]t common law there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon sidewalks such as the accumulation of snow and ice. Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel Therefore if the liability is . . . shifted from the municipality to the individual it must be accomplished by statutory or charter provision or by ordinance adequately authorized by such provision . . ." (Citations omitted.) Willoughby v. New Haven, supra, 123 Conn. 451. The court further articulated that "[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent." (Internal quotation marks omitted.) Id., 454.
In Willoughby, the abutting property owner was not made responsible to the plaintiff because at the time the plaintiff fell and was injured only the duty to remove snow and ice had been transferred, there had been no attempt to transfer liability from the municipality by ordinance, and the only consequence for lack of action by the abutter was a fine. Willoughby and its progeny are distinguishable from the present case because a clear intent is evidenced here to transfer liability from the City to the adjoining property owners with the adoption of General Statutes § 7-163a in the City's ordinance § 19-4.1. "Where the intent is to transfer liability from the municipality to another there is no difficulty in expressing it in unmistakable terms, as was done, for example, in the statutes [§ 7-163a] of the General Statutes and in the [§ 19-4.1], above referenced to." Willoughby v. New Haven, supra, 123 Conn. 453.
In 1981, the legislature enacted General Statutes § 7-163a, which not only permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks, but also empowers the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance. The City enacted ordinance § 19-4.1, entitled "Act of the general assembly concerning municipal liability for ice and snow on sidewalks adopted by reference," which states: "The provisions of [General Statutes] § 7-163a removing liability of the city to any person injured by the presence of ice and/or snow on a public sidewalk are hereby adopted pursuant to the terms of said public act."
General Statutes § 7-163a states:
(a) Any town, city, borough, consolidated town and city or consolidated town and borough may, by ordinance, adopt the provisions of this Section.
(b) Notwithstanding the provisions of Section 13a-149 or any other general statute or special act, such town, city, borough, consolidated town and city or consolidated town and borough shall not be liable to any person injured in person or property caused by the presence of ice or snow on a public sidewalk unless such municipality is the owner or person in possession and control of land abutting such sidewalk, other than land used as a highway or street, provided such municipality shall be liable for its affirmative acts with respect to such sidewalk.
(c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this Section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury. (2) No action to recover damages for injury to the person or to property caused by the presence of ice or snow on a public sidewalk against a person who owns or is in possession and control of land abutting a public sidewalk shall be brought but within two years from the date when the injury is first sustained.
In Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. 02 0390082 (October 21, 2003, Doherty, J.) ( 35 Conn. L. Rptr. 676, 677), the City of Bridgeport expressly adopted the provisions of General Statutes § 7-163a in an ordinance. "The Connecticut Superior Court has found that this type of ordinance, which expressly states that liability for injuries is transferred from a city to abutting property owners, is sufficiently clear and unambiguous to transfer liability away from the city and onto the abutting property owner." Id. (granting summary judgment because the city ordinance shifted liability for injuries caused by the accumulation of ice on its sidewalks away from the city and onto abutting property owner). See also, Welter v. Ponger, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 01 0182878 (October 1, 2001, Lewis, J.) ( 30 Conn. L. Rptr. 460); Shubert Performing Arts Center, Inc. v. Boppers of New Haven, Inc., Superior Court, judicial district of New Haven, Docket No. 93 0342816 (May 21, 1998, Moran, J.) ( 22 Conn. L. Rptr. 238); Brown v. Hamden, Superior Court, judicial district of New Haven, Docket No. 95 0370079 (January 9, 1997, Freedman, J.); Lopez v. Rivera, Superior Court, judicial district of Hartford, Docket No. 94 0537675 (April 11, 1996, Sheldon, J.).
In this case, SNET/SBC argue that the language in Ordinance § 19-4.1, adopted verbatim from General Statutes § 7-163a, permits but does not require a town to shift liability for injuries caused by ice or snow to adjacent landowners. This interpretation, however, considers only § 7-163a(a) and fails to recognize the specific language in § 7-163a(b), which states the town "shall not be liable." Upholding SNET/SBC's argument would be counter to rational and sensible statutory construction.
ORDER
The defendant City of Norwich's Motion for Summary Judgment (#113) is hereby granted. The plaintiff's objection to the SNET/SBC's Motion for Summary Judgment (#124) is hereby granted.