Opinion
UWYCV136020773S
11-09-2016
Julie Burt v. City of Waterbury
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #129
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
On November 4, 2015, the defendant filed a motion for summary judgment arguing that there is no genuine issue of material fact as to whether it maintained and controlled the area where the plaintiff fell; therefore the city contends that pursuant to § 13a-149, it is entitled to judgment as a matter of law. The motion was accompanied by a memorandum of law and a number of exhibits. On July 29, 2016, the plaintiff filed a memorandum in opposition to the motion for summary judgment and submitted a number of exhibits. The matter was heard on short calendar on August 1, 2016.
II. FACTS
On April 1, 2014, the plaintiff Julie Burt, filed a second amended complaint against the defendant, the city of Waterbury, alleging a breach of the duty to keep and maintain the sidewalk and streets within its territorial limits in a reasonably safe condition pursuant to General Statutes § 13a-149. The plaintiff alleges the following facts in the complaint. On April 30, 2010, the plaintiff was walking along the sidewalk south of the entrance to 180-182 Grand Street when her foot became caught in an approximately 6" by 3" uncovered metal box embedded in the sidewalk, causing her to fall and sustain injuries and damages.
The plaintiff's first action against the defendant was dismissed on July 23, 2012 because of defective service of process. On July 23, 2013, the marshal in his return attested that the present action was personally delivered to him for service upon the defendant. In compliance with General Statutes § 52-593a(a), he made service on the defendant within thirty days of receiving delivery of the writ, summons and complaint. As a result, the present action was timely commenced pursuant to the savings statute. General Statutes § 52-592.
General Statutes § 13a-149 provides in relevant part: " 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 . . ."
The 6" x 3" uncovered metal box is also referred to as the curb box.
III. DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 right most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures written admissions and the like." Practice Book § 17-45.
The defendant submitted the following in support of the motion for the court's consideration: 1) a copy of the notice of claim sent to the town clerk by certified mail on July 7, 2010 as required by § 13a-149, 2) a certified copy of the plaintiff's deposition dated April 30, 2015, 3) copies of three black and white photographs of the sidewalk and curb box where the plaintiff claims to have fallen, and 4) the affidavit of Denis Cuevas, P.E. the general manager of Water Pollution Control for the city of Waterbury. The plaintiff submitted a certified copy of the deposition testimony of Denis Cuevas dated March 8, 2016 and copies of four color photographs of the sidewalk and curb box where the plaintiff claims to have fallen.
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . when documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of Am., 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" [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, cert denied, 264 Conn. 904, 823 A.2d 1221 (2003). " 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." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
As a threshold issue, the court must determine the admissibility of the evidence provided by the parties as noted above. Each has submitted supporting documents and exhibits including certified deposition testimony and documents certified and supported by affidavits. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment" (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert denied, 310 Conn. 915, 76 A.3d 628 (2013). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins., Co. of America, supra, 310 Conn. at 324 n.12 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 467, 976 A.2d 23 (2009). In the present case, inasmuch as the affidavit of Cuevas is based on his personal knowledge and the depositions are certified, these documents meet the requirements for the admissibility of evidence. In addition, neither party has objected to the submission of any evidence and both rely on some of the same photographs of the curb box and sidewalk.
See footnote #4.
In its memorandum of law in support of the motion for summary judgment, the defendant argues that it is entitled to judgment as a matter of law pursuant to § 13a-149, because there is no genuine issue of material fact that the defendant had a duty to maintain the metal box on which the plaintiff claims to have fallen. Specifically, the defendant argues that this duty is the responsibility of the adjacent property owner, not the defendant. In response, the plaintiff counters that there are multiple issues of fact as to who has the duty regarding the maintenance and control of the curb box. In particular, the plaintiff argues that the fact that the maintenance of the curb box is the responsibility of the adjacent landowner is not supported by any statute, ordinance, written agreement, or other legal authority.
" The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road . . . and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 42 n. 12, 974 A.2d 820 (2009), aff'd. 304 Conn. 298, 39 A.3d 1065 (2012). General Statutes § 13a-149 further provides in relevant part that " [t]owns shall, within their respective limits, build and repair all necessary highways and bridges . . . except when such duty belongs to some particular person . . . " The word 'road' as used in [§ 13a-149] has usually been construed to include a sidewalk." Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949). Moreover, " [t]he term sidewalk is meant to apply to those areas that the public uses for travel." Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998); cf. Day v. Borough of Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028120-S (July 29, 2016, Roraback, J.) [62 Conn.L.Rptr. 713, ] (metal box cover is within a part of the sidewalk).
The rule in Connecticut has been that " [p]rimarily it is the sole duty of the municipality to keep its street in reasonably safe condition for travel, and not the duty of private person . . . Therefore, if the liability is or can be 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, 123 Conn. 446, 451, 197 A. 85 (1937).
In the present case, the defendant contends that it does not maintain the area on which the plaintiff claims to have fallen; rather the area is maintained by the owner of the property adjacent to the location where plaintiff allegedly fell. Cuevas, General Manager of Water Pollution Control for the city of Waterbury, testified in his affidavit that the metal or curb box located in a sidewalk is part of the sewer venting system, and that the city is not responsible for the maintenance or repair of the box; the responsibility of the box is on the adjacent property owner.
" Abutting owners have only been held liable for injuries from defective sidewalk where under charter provisions they were not only charged with the duty of keeping sidewalks in repair but also expressly made liable for injuries occasioned by defective condition thereof." Willoughby v. New Haven, supra, 123 Conn. 454. " [A]n ordinance merely imposing a penalty for failure to clear a sidewalk does not shift civil liability for injuries to abutting landowners . . . [W]hile a municipality may impose penalties on abutting landowners in order to alleviate its own labor and expenses, it still has the primary duty to maintain public sidewalks in a safe condition." (Citation omitted). Robinson v. Cianfarani, 314 Conn. 521, 525, 107 A.3d 375 (2014). " [S]hifting liability upon an individual may not be accomplished by inference or unless expressly provided . . ." (Citation omitted; internal quotation marks omitted). Id. 526.
In his deposition and affidavit, Cuevas testified that there are no city ordinances or state statutes which hold adjacent property owners liable for injuries resulting from the failure to maintain curb boxes. In addition, he attested that there is nothing in the sewer application process that sets forth the responsibilities of the property owner with regard to the maintenance and repair of the curb box nor anything in writing that actually places the responsibility of the maintenance and repair of the curb box on the landowner. Instead, when there is an issue with the curb box, the city notifies the property owner that it is " their responsibility." This testimony is not accompanied with any document which sets forth specifically when, how or to what extent the adjacent property owner is " responsible." Thus there is no writing that Mr. Cuevas is aware of that places the responsibility of the maintenance or the repair of the curb box specifically to the landowner. What is also interesting is the curb box itself is only a cover that leads to the hook up to the sanitary sewer for the property. There is a sewer permit which is issued by the WPCA that discusses the understanding that the owner is responsible for the sewer line but does not include the curb box. Nothing specifically refers to the curb box which is placed in the sidewalk for the abutting property owner. Therefore, no evidence was provided that there is a specific ordinance or charter provision which would transfer this responsibility for the sidewalk/curb box to the landowner in any authoritative manner.
It is important to distinguish Regs., Conn. State Agencies § 16-11-61(4), which states that " [i]n the case of class 1 utilities . . . the customer at his own expense shall furnish, install, own, and maintain the necessary curb box . . ." " 'Class 1 utilities" means water companies having annual revenues of twenty thousand dollars or more." Regs., Conn. State Agencies § 16-11-50. " 'Water company' includes every person owning, leasing, maintaining, operating, managing or controlling any pond, stream, well or distributing plant or system employed for the purpose of supplying water to fifty or more consumers." (Emphasis added.) General Statutes § 16-1. The term " water company" does not encompass sewage disposal facilities, which is the function of the curb box in the present case. Therefore, Regs., Conn. State Agencies § 16-11-62(4) does not mandate customers to maintain a curb box which facilitates sewage disposal, as it is not a curb box related to class one utility.
The duty to maintain the curb box differs from the treatment of snow and ice removal from public sidewalks in this city. The duty to keep the sidewalks clear of snow and ice and liability for injury from snow and ice on sidewalks has been expressly shifted by the defendant onto the adjacent property. See Waterbury, Conn. Code § § 99.55 and 99.56 (1967). See also Charter of Waterbury § 11B-2 (" [t]he duty of keeping sidewalks within the City free from snow and ice shall remain upon adjoining property owners"). Absent legal authority delegating the duty to maintain the sidewalk and curb box or expressly shifting liability for injury therefrom to adjacent property owners, the defendant has not met its burden to show the absence of a genuine issue of material fact as to it not having the duty to maintain the area on which the plaintiff claims to have fallen.
The defendant cites to Waterbury v. Clark, 91 Conn. 254, 99 A. 578 (1917) (Clark) for the proposition that " the abutting landowner is responsible for repair of sewer boxes and is liable for injury resulting from a defective sewer box or other structure on a city sidewalk which has become defective form disrepair." This case is distinguishable. In Clark, the city of Waterbury was suing a property owner to recover damages which the city was compelled to pay on account of personal injuries sustained by a pedestrian due to a defective sidewalk in front of the property owner's premises. Id., 256-57. The Supreme Court stated that in the former action brought by the injured pedestrian against the city, the city alone, defended that action. Now, in this subsequent action by the city against the property owner adjacent to whose property the defective sewer box was located, our Supreme Court stated: " [A]s applicable to the present case, the judgment in the former action of [Rigney v. Waterbury] settled the following questions: (1) that the injury occurred as the result of the negligent construction of the sidewalk, or allowing it to remain in a defective condition as alleged in the first case; (2) that it was not caused by the [comparative negligence] of the injured party; and (3) that damages were fixed by the amount of the former judgment . . . It necessarily follows that by the trial of the former case the defendant [property owner] is not now estopped to show that he was under no duty in respect to the defect or condition of the sidewalk in question, and that it was not through his fault that the accident occurred." (Citation omitted.) Id., 258. Thus, Clark does not stand for the proposition that adjacent property owners are responsible for the defects of sidewalks and curb boxes, but rather that adjacent property owners are free to try their case to determine whether there is a duty upon adjacent property owners to maintain sidewalks and curb boxes.
In further support of its contentions that the adjacent property owner is liable for injuries resulting from defective sidewalks and curb boxes, the defendant cites Purcell v. Waterbury, 6 Conn.Supp. 125 (1938). In Purcell, the court stated that " if the presence of the sewer box in the sidewalk did render the sidewalk unsafe it would be [the adjacent property owner who would be primarily liable." Id., 127. In support of this conclusion, the court in Purcell cites Clark and two provisions in the Charter of Waterbury. As previously explained, Clark does not stand for the proposition that adjacent property owners are primarily liable for sidewalk defects. Id. Additionally, the current version of the Charter of Waterbury does not include any provisions making the adjacent property owner responsible for sidewalks and curb box defects. Lastly, this court is not bound by the decisions reached in Purcell. In re Noah B., Superior Court, judicial district of Middlesex, Juvenile docket, (February 16, 2005, Rubinow, J.) (trial is not constrained to apply factual or legal determinations made by another trial court).
Because the defendant fails to provide any authority which makes clear that the defendant is not responsible for the maintenance of curb boxes, and that the defendant is not liable for injuries caused by defective curb boxes, there remains a genuine issue of material fact as to whether the defendant did not maintain the area on which the plaintiff claims to have fallen.
IV. CONCLUSION
Based upon the above, the motion for summary judgment is denied.