Opinion
No. CV07-5004267S
October 15, 2008
MEMORANDUM OF DECISION
FACTS
The Plaintiff Laura Foster, a minor, brings this action through her mother, legal guardian and next friend Carla Foster, against the City of Milford.
The incident which is the subject of her claim occurred on September 16, 2002, at approximately 1 p.m. At that time, the minor plaintiff was standing on the sidewalk in front of her house, 28 Pamela Drive, Milford.
Her brother, Michael Foster, was riding his bicycle on the sidewalk, when he lost control of the bicycle, and fell to the ground. As a result of the fall, the bicycle came into contact with the minor plaintiff, causing her to fall, and sustain personal injuries.
It is claimed that Michael Foster lost control of his bicycle when he drove over a raised portion of the sidewalk. The plaintiff alleges that the sidewalk was cracked and uneven, due to tree roots which were growing underneath the sidewalk.
As a result of the incident, Laura Foster sustained a fracture of her right leg. It is claimed that the effects of the injury will be permanent.
This action is instituted, pursuant to § 13-149a of the General Statutes. The statute reads:
Any person injured in person or property by means of a defective road or bridge, may recover damages from the party bound to keep it in repair.
An ordinance adopted by the City of Milford, Section 20-25 of the Milford Municipal Code, deals with sidewalks, curbs, gutters and driveway approaches.
The ordinance reads:
(a) Every owner of property in the city upon or adjacent to which is a sidewalk, curb, gutter, driveway approach or grass snow shelf area shall at all times maintain the same in a safe and suitably repaired condition, including the removal of obstructions or other impediments to safe use by the public such as gravel, leaves, debris and the like . . .
(c) Failure of such property owner to adequately maintain such sidewalk, curb, gutter, driveway approach or grass snow shelf area shall result in liability by the property owner in the event of personal injuries arising as a result of the failure to maintain.
The defendant City of Milford has moved for summary judgment.
It claims, based upon the municipal ordinance, that it is not the party bound to keep the sidewalk in repair, and therefore, cannot be liable pursuant to the municipal "highway defect statute," § 13-149a of the General Statutes.
In the alternative, the defendant claims, as a matter of law, that the allegedly defective sidewalk was not the sole proximate cause of the minor plaintiff's injuries.
STANDARD OF REVIEW
The party seeking summary judgment has the burden of showing the absence of any genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). A material fact has been defined as one which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
A motion for summary judgment may be granted only when affidavits and other documentary evidence demonstrate that no genuine issue of fact exists or remains between the parties, and that the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990).
The burden is on the moving party to show quite clearly what the law is, and that it excludes any real doubt as to the existence of any genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict, were the trial to a jury. United Oil Co. v. Urban Redevelopment Commission, supra, 380.
Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate where the complaint fails to set forth a cause of action, and the defect cannot be cured by re-pleading. Larobina v. McDonald, 274 Conn. 394, 401 (2005).
THE CITY OF MILFORD IS NOT AUTHORIZED TO SHIFT THE DUTY TO KEEP A SIDEWALK IN REPAIR FROM ITSELF TO AN ABUTTING LAND OWNER
Municipalities, because they are creatures of the state, have no inherent powers. Simons v. Canty, 195 Conn. 524, 529 (1985); Pepin v. Danbury, 171 Conn. 74, 83 (1976); Connelly v. Bridgeport, 104 Conn. 238, 252 (1926). They may only exercise those powers expressly granted by the legislature. City Council v. Hall, 180 Conn. 243, 248 (1980); or such powers as are necessary to enable them to discharge the duties and carry into effect, the objects and purposes of their creation. Perretta v. New Britain, 185 Conn. 88, 102 (1981); New Haven Water Co. v. New Haven, 152 Conn. 563, 566 (1965); Bredice v. Norwalk, 152 Conn. 287, 292 (1964).
The question is not whether any provision of state law prohibits a municipality from acting, but rather whether any statute contains authorization for the municipal activity. Avonside v. Zoning Planning Commission, 153 Conn. 232, 236 (1965).
The principle that a municipality may only exercise those powers given to it by the General Assembly, either through statutes or via a Special Act, is rooted in the Connecticut Constitution. Article TENTH, Sec. 1 of the Connecticut Constitution, provides that the General Assembly:
. . . shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities, and boroughs relative to the powers . . . of such political subdivision.
The delegation of authority to a municipality has been narrowly construed. Simons v. Canty, supra, 530. An enumeration of powers in a statute is uniformly held to forbid those things which are not enumerated. State ex rel Barnard v. Ambrogio, 162 Conn. 491, 498 (1972).
Section 13a-19 of the General Statutes states: "Towns shall within their respective limits, build and repair all necessary highways . . ." The duty to keep a highway in repair, pursuant to this statute, extends to sidewalks. Ryszkiewicz v. New Britain, 193 Conn. 589, 594 (1984); Moleske v. MacDonald, 109 Conn. 336, 341 (1929).
No provision of the General Statutes authorizes a municipality by ordinance, to shift its statutory obligation to keep a sidewalk in repair, to one in possession or control of the land abutting the sidewalk.
Section 7-148(c)(1)(6)(C)(v) of the General Statutes, permits a municipality to impose certain obligations upon the possessor of land adjacent to a sidewalk. The statute permits a municipality to:
(v) Require owners or occupants of land adjacent to any sidewalk or public work to remove snow, ice, sleet, debris, or other obstruction therefrom, provide penalties upon their failure to do so, and cause such snow, ice, sleet, debris or other obstruction to be removed and make the cost of removal a lien on such property.
While permitting reimbursement to the municipality for the cost of removing "snow, ice, sleet, debris or other obstruction . . ." the statute does not permit a municipality to shift to the occupier of the land the obligation to repair a defect in the sidewalk itself, or the obligation to keep the sidewalk in repair. The obligations imposed upon the person in possession of the land are simply a means of discharging the statutory duty of the municipality to "keep open and safe for public use and travel and free from encroachment or obstruction the streets, sidewalks and public places of the municipality." § 7-148(c)(1)(6)(C)(ii), C.G.S.
Section 7-163a of the General Statutes, permits a municipality, at its option, to shift the burden of clearing ice or snow from a sidewalk, thus placing a duty of care on a parson in possession or control of land abutting a sidewalk. The statute, originally Public Act 81-340, applies only to the presence of ice and snow, and does not involve any obligation by an abutting landowner to repair a sidewalk, or keep it free of defective conditions.
Section 7-163a (c)(1) —
The owner or person in possession or control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice and 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 the breach of such duty is the proximate cause of said injury.
If the defendant's position in this action had merit, and § 7-148(c)(1)(6)(C)(v) permitted a municipality to shift to one in control of land abutting a sidewalk the responsibility of keeping that sidewalk in repair, then § 7-163a, C.G.S. would have been unnecessary, redundant, and superfluous.
The defendant City of Milford further argues that it is not shifting liability for injuries sustained by travelers on the sidewalk to the owner or person in possession or control of the land, only the duty to "keep in repair," the sidewalk. This claim is disingenuous, given the clear language of § 13a-149, C.G.S., which allows recovery of damages from "the party bound to keep it (the sidewalk) in repair."
If the obligation to keep the sidewalk in repair can be shifted to the landowner or person in possession or control, then liability for injuries and damages would follow, by operation of the statute.
The duty concerning the removal of ice and snow from a sidewalk is the duty which ". . . the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section . . ." § 7-163a(c)(1), C.G.S. Implicit in this provision, is the statutory obligation of the municipality to keep the sidewalk in repair.
To the extent that Section 20-25 of the Milford Municipal Code seeks to impose upon owners or occupiers of real property abutting a public sidewalk, the obligation to keep the sidewalk in repair, the ordinance is ineffective, and is not authorized by law.
No provision of the General Statutes authorizes the City of Milford to imitate Pontius Pilate, and to shift the responsibility either for keeping a sidewalk in repair, or for injuries due to a defective sidewalk to individual citizens, taxpayers, businesses or homeowners who own or control land abutting the sidewalk.
Any such authority must be specifically conferred by act of the Connecticut General Assembly. It cannot be assumed in the absence of an express and unambiguous grant of authority.
The defendant's reliance upon Novicki v. New Haven, 47 Conn.App. 734 (1998) is not well taken. That case involved a granting by the legislature to the New Haven Board of Education of the care and maintenance of land utilized for school purposes. (See § 10-220(a), C.G.S.)
THE QUESTION OF SOLE PROXIMATE CAUSE REPRESENTS A QUESTION OF FACT
The plaintiff must prove that the allegedly defective condition of the sidewalk was the sole proximate cause of the incident of September 16, 2002, and of any injuries and damages claimed to have been sustained. Lukas v. New Haven, 184 Conn. 205, 207 (1981); Burke v. West Hartford, 147 Conn. 149, 151-52 (1960). With respect to sole proximate cause, the focus is in whether any factors other than the municipality's breach of a statutory duty caused the plaintiff's injuries. Bovat v. Waterbury, 258 Conn. 574, 587 (2001).
The plaintiff, in order to recover, must be free of comparative negligence; Prato v. New Haven, 246 Conn. 638, 642 (1998); and no other purported tortfeasor may have contributed to the injury. Proximate causation requires a reasonable connection between an act or omission, and harm suffered by the plaintiff. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 606 (1995).
It cannot be said, as a matter of law, that the trier of fact must find that any act of the plaintiff, or her brother, was a substantial factor in causing the September 16, 2002 accident.
The question of proximate causation, almost invariably, involves a fact-driven analysis. Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 320-21 (1994).
CONCLUSION
The motion for summary judgment filed by the defendant City of Milford, is DENIED.