Opinion
No. CV 05-5000564
May 22, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#108)
This case arises from an incident that occurred in March 2003, in which the plaintiff, Carmen Rivera, was injured when she allegedly slipped on an icy sidewalk on Park Street in Hartford, Connecticut that abuts state property. In count six of the complaint, the plaintiff claims that one of the defendants, Stephen E. Korta, the commissioner of the department of transportation (department), had a duty under General Statutes § 13a-144 and § 13a-149, "to keep and maintain the sidewalks and roadways within the territorial limits in a reasonably safe condition." Korta purportedly breached that duty by allowing an unreasonable accumulation of snow and ice on the sidewalk, resulting in the plaintiff's injuries.
General Statutes § 13a-144 provides, in relevant part: "Any person injured in person . . . through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court . . ."
General Statues § 13a-149 provides, in relevant part: "Any person injured in person by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . ." This is the defective road statute that applies to municipalities. Thus, it does not apply to Korta.
Korta filed a motion to dismiss count six on the ground of sovereign immunity. In addition, he filed an affidavit in support of his motion in which David Sawicki, the special services section manager for the department, attests that "the location where the plaintiff allegedly fell is not part of the State highway system, nor was part of the State highway system in March 2003." As such, "the Department of Transportation had no duty to maintain and/or repair Park Street and the adjacent, south side sidewalk where the plaintiff allegedly fell." In the plaintiff's objection to the motion, she concedes that "Park Street is not a part of the State highway program." Nevertheless, the plaintiff argues that the state's duty remains intact because the sidewalk abuts Plaza Road, which, she argues, is state property. She does not, however, submit any evidence in support of this assertion, nor is Plaza Road described anywhere in the complaint. Further, the plaintiff has not filed any affidavits to contradict Sawicki's statement that the department did not have a duty to repair or maintain the sidewalk where the plaintiff sustained her injuries. CT Page 9297
The complaint provides that the plaintiff "was walking eastbound on the south side of the sidewalk on Park Street, in Hartford . . . approximately 88" from the curb, 24'11" east of the west corner of a fence surrounding 505 Hudson Street and 33' from an unnumbered light pole with a snow route sign . . ."
I. Commissioner's Liability for Defective Sidewalks Under General Statutes § 13a-144
Section 13a-144, which is known as the defective highway statute, specifically authorizes "[A] person injured in person . . . through the neglect or default of the state . . . by means of any defective highway . . . or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . [to] bring a civil action to recover damages sustained thereby against the commissioner . . ." As our Supreme Court recently noted, § 13a-144 "is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state . . . [B]ecause there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144 . . . Moreover, [w]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . ." (Citations omitted; internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02 (2005).The plaintiff, "in order to avail [herself] of the state's waiver of sovereign immunity on a highway defect claim . . . must bring [herself] within the ambit of the state highway defect statute." Id., 502. Accordingly, she must show that her injuries occurred on a defective highway or sidewalk "which it is the duty of the commissioner . . . to keep in repair." General Statutes § 13a-144. The legislature has delineated, in General Statutes §§ 13a-91(a), 13a-92 and 13a-258, which sidewalks the commissioner has a duty to maintain. In this case, however, the plaintiff has not alleged that the sidewalk where she fell is within the scope of any of these statutes. Rather, she relies on the proximity of the sidewalk to a road that she describes as state property.
General Statutes § 13a-91(a) provides, in relevant part: "The commissioner may cause to be constructed or reconstructed a sidewalk on any bridge or approaches to any bridge on any state highway when in his opinion public safety so requires. Except as provided in subsection (ii), all sidewalks on bridges or approaches to bridges maintained by the commissioner shall be maintained by said commissioner, and such maintenance shall include responsibility for the removal of snow and ice from such sidewalks . . ."
General Statutes § 13a-92 provides: "The sidewalks on the bridges across the Connecticut River at Thompsonville and Warehouse Point shall be maintained by the commissioner."
General Statutes § 13a-258 provides: "The Commissioner of Transportation shall maintain any sidewalk, including the removal of snow and ice, abutting property acquired for highway purposes, from the date of acquisition until the section of highway for which the property was acquired is completed. The commissioner may agree with the municipality in which such sidewalk is located that it perform such maintenance of, and removal of snow and ice from, such sidewalk as the commissioner deems necessary and reimburse the municipality for the expense thereof provided such agreement shall not, for the purposes of section 13a-144, release the commissioner from the duty to maintain such sidewalk. Any person using such sidewalk shall do so at such person's own risk when such sidewalk is posted in accordance with section 13a-115."
"The law involving the state's duty of care with respect to sidewalks associated with its highways is somewhat distinctive and is by now well established." Gould v. Hartford, 44 Conn.Sup. 389, 393 (1995) ( 15 Conn. L. Rptr. 254). ( Gould offers an instructive review of the law involving the state's duty with respect to sidewalks associated with its highways.) In essence, statutes dealing with state highways and the duties of the highway commissioner are concerned with vehicular traffic and the incidents thereof; sidewalks are subjects of purely local interest and the statutes do not impose upon the commissioner any legal obligation for their condition. Hornyak v. Fairfield, 135 Conn. 619, 621-22. See Moleske v. MacDonald, 109 Conn. 336 (1999).
"The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk `which it is the duty of the highway commissioner to keep in repair.' Ordinarily, this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies within the limits of a trunk-line highway . . . [W]here the state takes over an existing street or highway as a state road, it assumes the responsibility for its use and maintenance for all purposes incident to vehicular traffic, and it leaves undisturbed the existing responsibility of the municipalities for sidewalks and the like." (Citations omitted; internal quotation marks omitted.) Tuckel v. Argraves, 148 Conn. 355, 358-59 (1961). A claim brought under the defective highway statute is "fatally defective" if it lacks "any allegations showing that [the allegedly defective sidewalk] was a sidewalk which it was `the duty of the highway commissioner to keep in repair.'" Id., 359.
"Significantly, the legislature has underlined the correctness of this approach by specifically designating a limited number of sidewalks that are to be maintained by the commissioner." Gould v. Hartford, supra, 44 Conn.Sup. 395. These statutes, as previously noted, include §§ 13a-91(a), 13a-92, and 13a-258.
When, as in the present case, a plaintiff alleges that she was injured as a result of a defective sidewalk that is not covered by these statutes, she cannot assert a claim against the commissioner under § 13a-144, as he does not have a duty to maintain the sidewalk. Moreover, as the Supreme Court noted in Amore v. Frankel, 228 Conn. 358, 367-69 (1994), when the commissioner submits an affidavit in support of a motion to dismiss a defective highway claim and the statements therein are sufficient to defeat the presumption of the truth of the plaintiff's allegations that the commissioner had a duty to maintain the area where the plaintiff was injured, the plaintiff has an obligation to submit factual allegations that bring her within the ambit of the § 13a-144. A plaintiff's decision not to respond leaves "the pleadings bare of any facts that could have colorably supported a claim of responsibility pursuant to the exception to sovereign immunity contained in § 13a-144." Id., 369. In such circumstances, a trial court properly grants the commissioner's motion to dismiss. Id.
Accordingly, when, as in the present case, the commissioner submits unrebutted evidence that he did not have a duty to maintain an allegedly defective sidewalk where a plaintiff sustained his or her injuries, the judges of the trial court routinely dismiss such claims, on the basis that the state has waived its sovereign immunity under § 13a-144 only where such a duty exists. See, e.g., Gould v. Hartford, supra, 44 Conn.Sup. 395; Rosadini v. Sullivan, Superior Court, judicial district of New Haven, Docket No. CV 00 0445529 (February 11, 2002, Booth, J.) ( 31 Conn. L. Rptr. 349); Levine v. Devore Baking Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0350194 (June 19, 1998, Skolnick, J.) ( 22 Conn. L. Rptr. 332) and Cartwright v. Frankel, Superior Court, judicial district of Windham, Docket No. CV 94 0048749 (March 19, 1996, Sferrazza, J.) ( 16 Conn. L. Rptr. 322).
II. State's Liability for Removal of Ice and Snow From Sidewalks Abutting State Property
The plaintiff also argues that where, as here, a city has an ordinance that requires property owners to clear ice and snow from the sidewalks adjacent to their buildings, such an ordinance applies to the state. Although the Connecticut appellate courts have not ruled on this issue, several judges of the Superior Court have decided that it does not. These decisions include one in which the court interpreted the specific provision of the Hartford municipal code that would apply to this case.
Specifically, in Gould v. Hartford, supra, 44 Conn.Sup. 389, the plaintiff, who fell on a sidewalk that abutted state property, sued the commissioner of transportation on the basis, in part, of Hartford municipal code § 31-150, which imposes a duty on landowners to remove ice and snow from sidewalks that abut their property, and imposes liability on them if they breach this duty. As the court noted, the municipality's ability to absolve itself of liability is authorized by General Statutes § 7-163a, which provides in relevant part: "(a) Any town . . . may, by ordinance, adopt the provisions of this section. (b) Notwithstanding the provisions of section 13a-149 . . . such town . . . shall not be liable to any person injured in person . . . 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 . . . (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 . . ." This statute, "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." Dreher v. Joseph, 60 Conn.App. 257, 261-62 (2000).
Hartford municipal code § 31-150, which does not appear to have been amended since Gould v. Hartford, provides in relevant part: "(a) The provisions of G.S. § 7-163a are hereby adopted . . . (b) Notwithstanding the provisions of G.S. § 13a-149 . . . the city shall not be liable to any person injured in person . . . caused by the presence of ice or snow on a public sidewalk unless the city is the owner or person in possession and control of land abutting such sidewalk, other than land used as a highway or street . . . (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 this section . . . and shall be liable to persons injured in person . . . where a breach of such duty is the proximate cause of such injury . . ."
In Gould v. Hartford, supra, the issue before the court was whether the statute's provision allowing the municipality to shift its duty and liability to landowners applies when the state is the landowner, and thus constitutes a waiver of the state's immunity. In holding that the municipality could not transfer its duty and liability to the state, the court explained that "the traditional policy of the state has been to make municipalities responsible for the maintenance and repair of sidewalks within their respective jurisdictions. In 1981, the legislature changed this policy with respect to the presence of ice and snow on public sidewalks by enacting General Statutes § 7-163a." Id., 396.
Although the court acknowledged that, on its face, the statute applied to "all owners of land abutting public sidewalks, the court examined the legislative history of § 7-163a and concluded that it indicated that the legislature only intended to allow municipalities to transfer their duty and liability to private landowners." Id., 400. The court further reasoned that if the ordinance were to apply to the state, it "would require a vast undertaking on the part of the state. In order to comply with this municipal command, the state would be obliged to identify all of the sidewalks abutting its many properties and employ and mobilize a sizeable work force to clear them of ice and snow. A duty of this description cannot be imposed upon the state without its explicit authorization . . . The same is plainly true of the legal burden imposed by the ordinance." Id., 399-400.
Subsequent cases have concurred with this logic. In Logan v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0466953 (December 29, 2003, Devlin, J.) ( 36 Conn. L. Rptr. 284), the plaintiff brought an action against the town after he was allegedly injured when he slipped and fell on a city sidewalk abutting state property. The city moved for summary judgment on the ground that it had transferred its responsibility for the sidewalk to the abutting landowner, i.e., the state of Connecticut, pursuant to § 7-163a and a provision of the city code.
The court denied summary judgment, holding that the statute and the New Haven ordinance were insufficient to impose a legal burden on the state. Id., 285. In Bostick v. Willimantic, Superior Court, judicial district of Windham at Putnam, Docket No. CV 010065265 (January 29, 2002, Potter, J.), the plaintiff brought an action against the state under § 7-163a, in which she alleged that she slipped and fell on an accumulation of ice and snow on a sidewalk abutting property that was leased by the state. The state filed a motion to dismiss on the ground of sovereign immunity. The court, relying on Gould v. Hartford, held that "the state retains sovereign immunity in the present action because there is no express or implied waiver of immunity in § 7-163a . . . Absent explicit authorization, the court cannot read an implicit waiver of sovereign immunity into the statute . . ." Bostick v. Willimantic, supra, Superior Court, Docket No. CV 01 0065265. This court concurs with and adopts this line of reasoning. At its core, the modern purpose of sovereign immunity is to prevent serious interference with governmental functions and the imposition of enormous fiscal burdens on the state. Miller v. Egan, 265 Conn. 301, 313-14 (2003).
The defendant Korta's motion to dismiss is granted because the plaintiff has failed to bring her claim against him within the category of claims for which the state has waived its sovereign immunity.