Opinion
No. CV 01-0458109 S
March 31, 2005
MEMORANDUM OF DECISION
In this case the plaintiff alleges that she slipped and fell on ice and snow "at the northeast corner of the intersection of the sidewalks adjacent to State and Olive Street." The plaintiff sued the city pursuant to § 13a-149 of the general statutes and in the first count claims that at all relevant times the city "was responsible for the removal of snow and ice on Olive Street and the sidewalk adjacent to Olive Street" and also the city "was responsible for the removal of snow and ice on State Street and the sidewalks adjacent to State Street."
In the second count the plaintiff has sued the New Haven Parking Authority (NHPA) claiming it "was responsible for the removal of snow and ice on the sidewalk adjacent to Olive Street" and also the NHPA "was responsible for the removal for snow and ice on the sidewalk adjacent to State Street." This claim also is brought pursuant to § 13a-149. Each claim against these two parties make the same allegations of fault against the separate governmental entities.
Before the court are two motions for summary judgment, one filed by the city, the other by the NHPA. The city's motion is based on the position that § 7-163a of the general statutes applies to this case because pursuant to that statute and the ordinance passed under it the city was not responsible for the removal of snow and ice at the location where the plaintiff fell.
The NHPA has also filed a motion claiming the plaintiff's exclusive remedy against it must be based on § 13a-149 of the general statues. The NHPA argues that the city cannot transfer liability to it pursuant to § 7-163aa. The NHPA also notes that deposition testimony of city employees indicates that the city Department of Public Works is responsible for and in fact does clear snow and ice from the area where the plaintiff fell.
The plaintiff filed a response to the motion for summary judgment filed by the city claiming also that the city cannot relieve itself from liability pursuant to § 7-163a. "Furthermore, the city has admitted responsibility for the removal of snow and ice from the sidewalk where Inzero fell" in deposition testimony. A deputy director of the Department of Public Works testified that in fact "the city clears snow and ice from the curb at the intersection of State and Olive Streets along Olive Street and over the bridge." From his testimony it is "clear" to the plaintiff that the city's responsibility for clearing included the area identified by Inzero as the location of her fall.
The court will try to address the issues raised. The standards to be applied on a motion for summary judgment are well known — the court cannot decide a material issue of fact dispositive of such a motion if it is in dispute, but if there are no such facts in dispute it should grant such a motion.
Resolution of the problem before the court requires some general observations on the common-law liability for injuries with regard to roads and highways, statutory modifications of that law including imposition of liability on governmental bodies, and common-law duties in general with the regard to injury occurring on premises.
It has always been the law that: "The establishment and maintenance of public highways is a function of the state . . . The state may, however, impose the duty of establishing or maintaining highways on any agency it chooses . . . as early as 1672 the state placed the burden of maintaining highways upon the towns . . . and with certain exceptions, they have ever since been charged with that duty." DeCapua v. New Haven, 126 Conn. 558, 560 (1940). This reflects the general common law, 39 AmJur2d "Highways, Streets, and Bridges," §§ 78, 89. The state has delegated this responsibility to the towns in § 13-99 of our general statues. State v. McMahon, commenting on the foregoing said that "the state imposes on cities the duty of constructing and maintaining, in condition safe for public travel highways within their limits and "Sidewalks are a part of the highway, and cannot be distinguished in respect to their construction, maintenance and care, from the rest of the highway," id., page 100.
Yet despite this municipal "duty," "the construction and maintenance of highways is, by our common law, a governmental act, and for negligence in the performance of that act the municipality is not liable," Riccio v. Plainville, 100 Conn. 61, 64 (1927); however, by statute the state has imposed liability on municipalities when someone is injured "by means of a defective" condition in the road, Scoville v. West Hartford, 131 Conn. 239, 242 (1944); Wethersfield v. National Fire Insurance Co., 145 Conn. 368, 371 (1958). That statute is § 13a-149 of the general statues. However, commenting on the ambit and required method of interpretation of that statute it has been said that where a court's jurisdiction arises solely from a statutory waiver of sovereign immunity, the statutory provision must be strictly construed," Duguay v. Hopkins, 191 Conn. 222, 232 (1983), Brennan v. Fairfield, 58 Conn.App. 191, 195 (2000).
Another statute which figures in this case is § 7-163a. That statute allows municipalities to limit or transfer their obligations under § 13a-149 and in relevant part reads as follows:
Sec. 7-163a. Municipal liability for ice and snow on public sidewalks. (a) Any (municipality) . . . 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 (municipality) . . . 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 . . .
The city of New Haven has passed an enabling ordinance under the statute; it is § 2.50 of New Haven's Code of ordinances.
The court will now try to discuss the arguments presented in the summary judgment motions filed by the parties.
(1)
The city has filed a motion arguing the matter should be dismissed against it because liability has been transferred, pursuant to § 7-163a C.G.S.A. and its ordinance, to the NHPA which possesses and controls the land abutting the sidewalk where the plaintiff fell. The NHPA in its motion says the very wording of § 7-163a does not permit the city to transfer liability. Sub-section (b) of the statute says the city shall not be liable to any person injured by the presence of ice or snow on the sidewalk "unless such municipality is the owner or person in possession and control of land abutting such sidewalk." The city owns the land leased by NHPA therefore liability cannot be transferred to that entity. The premise to the NHPA position relies on the common-law context in which this case arises. In other words without the operation of the transfer of liability statute (§ 7-163a) the NHPA would have no liability at common law to remove ice and snow. A party in control of premises abutting a sidewalk would be in the position of the owner of the land. In Abramczvk v. Abbey, 64 Conn.App. 442, 446 (2001) the court said:
An abutting landowner is ordinarily under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel. Tenney v. Pleasant Realty Corp., 136 Conn. 325, 329 . . . (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, . . . (1995).
The court has difficulty with NHPA's interpretation of § 7-163a. If subsection (c) of that statute is examined it says that the "owner or person in possession and control of land abutting a public sidewalk" shall have the same duty of care regarding snow and ice removal as the municipality had prior to any ordinance adopted pursuant to subsection (c). Given the common-law background in our state it could not be argued that there could be joint liability under subsection (c). As to premises liability in general our court has said that "liability can be predicated upon negligence in the control and possession of premises as opposed to mere ownership," Mack v. Clench, 166 Conn. 295, 296 (1974). It would be an odd position to say that if liability runs not to the owner but to the party in possession for an injury occurring on premises five feet from the sidewalk, somehow the owner is liable for a slip and fall on ice on the same sidewalk abutting the land. By diktat the statute makes the sidewalk part of the premises for liability purposes and the traditional rule of non-owner liability would apply because as compared to the owner "the person in possession is in a position of control and is best able to prevent harm," Connecticut Law of Torts, 3d ed, Wright, Fitzgerald, Ankerman, § 46, page 108. Besides in subsection (c) the statute uses disjunctive language "owner or person in possession and control"; the word "and" is not used. This in itself invites reference to traditional common law.
But disjunctive language is used in subsection (b) of § 7-163a also. If the NHPA interpretation is adopted we would have a situation where, as regards any land in the city abutting a sidewalk and not city owned, the party in possession and control would have a duty of snow and ice removal not the owner. But in a statute meant to be ameliorative toward municipalities the city, for no apparent reason, would be liable for injury caused by failure to remove ice and snow where it was the owner but where another entity was in possession and control. Admittedly, the statue is not a model of clarity, but frankly the court cannot answer the "how come" response that this latter observation invites.
The "unless the city owns or possesses and controls" language was placed in subsection (b) because without it that subsection read alone would absolve anyone of a duty as regards snow and ice removal where the city owned the land but no other entity was in possession or control of it. Where the city does not own the land but is in possession and control subsection (b) should be interpreted as saying liability should be on the city not on the owner. Where the city owns the land but another entity is in possession and control of the premises abutting the subject sidewalk the court will not interpret § 7-163a in such a way as to ignore the common-law matrix on which it is based and which is not ignored in subsection (e).
The court will not grant the NHPA motion for summary judgment based on the argument that § 7-163a does not permit the city to transfer liability in this situation.
(2)
However, the court will grant the NHPA motion as it is based on the assertion that the city, despite § 7-163a and any claim it would have otherwise had under that statute, in fact has removed ice and snow from the sidewalk where the plaintiff fell. The court has examined the deposition testimony of Mr. Pescosolido, deputy director of operations for the city, his marking on a photograph indicating the area of city snow and ice removal. It has compared that testimony and a photo marked by the plaintiff as to where she fell. It has also examined the November 23, 2004 affidavit of Gary Anderson, the acting maintenance supervisor of the NHPA. All of these materials suggest to the court that there is no material issue of fact over the issue of what entity in fact did snow and ice removal at the spot where the fall occurred.
In one section of its brief the city attempts to indicate that the plaintiff fell "in an area the NHPA maintains." It cites the Anderson, Pescosolido, and plaintiff's Inzero depositions. The references it makes to raise a material issue of fact are not convincing. Nothing in Inzero's testimony or notice to the city contradicts her explicit indication as to where she fell which was indicated on a photograph used at the deposition and marked as an exhibit to the summary judgment motions. Anderson's deposition testimony taken a week before his affidavit says the NHPA removes snow and ice along the State Street side of the intersection but the lady fell on the Olive Street sidewalk. Pescosolido did say the city did not remove snow in the area of the pedestrian light. But the plaintiff did not fall right near the pedestrian light; his markings on the photo attached as an exhibit compared to the plaintiff's photo markings indicate where she fell is where he indicated the city was in the practice of removing snow and ice.
In light of § 7-163a the practice of the city in removing snow and ice was gratuitous. This can be considered to be a waiver of any rights it had under the statute or perhaps more to the point the city would be liable just as any other gratuitous actor at common law. The gratuitous activity here was not any actual attempt at snow or ice removal immediately prior to this accident but the city's course of conduct in clearing this sidewalk. In Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 281, 282 (2000) the court said that it is a . . . "recognized principle of Connecticut law that one who gratuitously undertakes an act will be liable for performing it negligently. If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously . . . Zatkin v. Katz, 126 Conn. 445, 450 . . . (1940). One who gratuitously undertakes a service that he (she) has no duty to perform must act with reasonable care in completing the task assumed," see id., cf. Restatement (2d) Torts, § 323, Connecticut Law of Torts, Wright, Fitzgerald, Ankerman, § 31 page 54.
The analogy to this law is not directly on point because there is no allegation the snow removal was done negligently and created a danger but rather that it was not done at all. But it is instructive on the issue of allocating responsibility between the city and the NHPA which was in control of the abutting land and under § 7-163a would otherwise be liable to the plaintiff for failure to remove ice and snow. The NHPA can hardly be said to have violated any duty it had under § 7-163a if the city took upon itself to perform that duty. Furthermore, in order to be consistent with its general reasoning in the first part of this decision liability must be imposed on the city because, in effect, the city by taking upon itself the duty to remove ice and snow at this location (the sidewalk) was in possession and control of the location for these purposes. Thus liability should be upon the city alone despite § 7-163a, because the entity "in a position of control . . . is best able to prevent harm," Connecticut Law of Torts, 3d ed, Wright, Fitzgerald, Ankerman § 46, page 108.
Or to take a common sense approach if the city took it upon itself to clear the portion of the sidewalk of snow and ice at the point where the fall occurred, it would not be just to impose liability on a party who had every reason to rely on the duty assumed by the city. And the city can hardly be heard to complain if it failed to take advantage of any rights granted to it pursuant to § 7-163a which it could otherwise rely upon. Its actions with regard to this sidewalk could in a sense be regarded as "affirmative acts with respect to such sidewalk" which in any event by the statute's own terms prevents the city from relying on the statute and its ordinance to transfer liability to the NHPA.
The city's summary judgment motion is denied, that of the New Haven Parking Authority is granted.
Corradino, J.