Opinion
No. CV 08-5014786 S
April 8, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION #112.00)
Plaintiff fell on a public sidewalk in the Town of Stratford which allegedly was cracked, uneven and in disrepair. In addition to notifying the town of a claim, the plaintiff brought this instant action against the alleged owners of property abutting the sidewalk where the plaintiff fell, alleging that they were negligent in their maintenance of the property. The defendant moves for summary judgment on the grounds that they owe no duty to the plaintiff as she fell on a public sidewalk as to which they had no duty to maintain.
The general rule in Connecticut is that an abutting landowner has no liability for injuries that were caused by the unsafe condition of a public sidewalk. Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829 (1989). Connecticut courts have, however, recognized two exceptions to the general rule. The defendant maintains that neither exception is applicable in this case.
The first exception is that an abutting landowner may be held liable where there is a valid statute or ordinance that shifts the duty to keep the sidewalk in a safe condition to the landowner, and that this statute or ordinance not only requires that the owner keep the sidewalk in a safe condition, but also provides that the landowner shall be liable for injuries occasioned by his failure to do so. Dreher v. Joseph, 60 Conn.App. 257, 261, 759 A.2d 114 (2000); Meyer v. Hamden, Superior Court, Judicial District of New Haven, Docket No. 01 0454489 (April 21, 2004, Thompson, J.).
The plaintiff directs the court's attention to Article V of the Stratford Town Code entitled "Maintenance." Section 186-51 of the article relates to responsibility for maintenance of sidewalks, stating that "[a]ll defective or unsafe sidewalks shall be promptly repaired, in accordance with Article IV of this chapter, concerning driveways, curbs, sidewalks, etc., by the person who owns or is in possession of the premises upon which or adjacent to which such sidewalk is located." The next section, § 186-52 relates to a failure to act after notice to keep areas clear of rubbish and snow. The plaintiff claims that summary judgment is inappropriate because Article V of the Town Code places liability on the adjacent Landowner and the determination of whether a sidewalk is adjacent to the homeowner's property presents a question of fact.
Section 186-52 provides, in relevant part: "If, after notice from the Town Manager or the Police Department, any person shall neglect or refuse, within a period of 12 hours, to remove any rubbish, snow, ice or sleet or, if such snow, ice or sleet cannot, by the exercise of reasonable effort, be removed, to properly sand or cinder such snow, ice or sleet, such person shall be subject to a fine . . ."
Although the materials offered by the defendant in support of their motion may not answer this question, that does not resolve the issue. Section 186-52 of the Stratford Code relates only to problems created by failures to remove such things as rubbish, snow, ice or sleet after notice of the problem from the Town Manager or the Police Department. This section is clearly not applicable to this case. The language of § 186-51 is apparently relevant; however this section does not provide that failure to fulfill the responsibility to maintain a sidewalk will subject the property owner to liability for injuries occasioned thereby. Such language is a key element to qualify under the exception to the general rule of non-liability of an abutting property owner. Dreher v. Joseph, supra, 60 Conn.App. 261. Moreover, "[n]o 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 a sidewalk." Foster v. Milford, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 07 5004267 (October 15, 2008, Radcliffe, J.) (46 Conn. L. Rptr. 476, 477); see Dreher v. Joseph, supra, 60 Conn.App. 261-62. Rather, the General Statutes only authorize a municipality to shift to the adjacent landowner the responsibility to clear ice and snow from a sidewalk and the liability for injuries resulting from the landowner's failure to so do. See General Statutes § 7-163a; see also Dreher v. Joseph, supra, 60 Conn.App. 261-62; Foster v. Milford, supra, 46 Conn. L. Rptr 477.
General Statutes § 7-163a provides: "Municipal liability for ice and snow on public sidewalks.
(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.
The second exception to the general rule of non-liability is "[a]n abutting landowner can be held liable . . . in negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner's positive acts." Abramczyk v. Abbey, 64 Conn.App. 442, 446, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). This action claims damages for injuries resulting from sidewalk defects caused by growing roots of a tree. No affirmative act of the landowner is claimed to have caused the roots to act as they did. Nothing is offered to connect acts of the landlord to the planting or growth of these roots. Judge Blue has put these types of claims in proper perspective:
"Is the growth of a root from a tree on land abutting the sidewalk an affirmative act of the landowner? However this question might be answered by some mystical eastern religions, the answer of the law of Connecticut is no. The growth of the tree, root and all, is an act of nature over which the landowner has no control. Of course, the landowner may have a responsibility to prune the trees' branches if they become a nuisance, but to give the landowner the responsibility of maintaining and repairing a sidewalk broken by a tree root is to give him the very responsibility which the law has squarely and exclusively placed upon the municipality." Coyle v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. 96884 (December 6, 1991, Blue, J.).
For these reasons, the motion for summary judgment is granted.