Opinion
No. CV-04 5000175
June 8, 2005
MEMORANDUM OF DECISION
On November 2, 2004, the plaintiff, Carmel Suntino, filed a one-count complaint against the defendant, Webster Bank National Association. This action arises out of injuries the plaintiff allegedly sustained as a result of a fall on a public sidewalk in front of the defendant's business in West Haven, Connecticut.
On March 18, 2005, the defendant filed an apportionment complaint against the city of West Haven.
In her complaint, the plaintiff alleges a negligence claim against the defendant stating that the defendant caused the sidewalk to become depressed and uneven, failed to warn the public about the unsafe condition, failed to repair the faulty condition or keep the sidewalk in a safe condition, failed to properly inspect the sidewalk and knew or should have known about its dangerous condition.
On December 23, 2004, the defendant filed a motion for summary judgment, accompanied by a memorandum of law in support. The plaintiff filed a memorandum of law in opposition to the motion on February 2, 2005. The defendant filed a reply to the plaintiff's opposition to the motion on March 10, 2005. In support thereof, the defendant submitted a sworn affidavit of Gregory McKoy, the property manager for the defendant.
DISCUSSION
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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 light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). A material fact has been defined as a fact "which will make a difference in the result of the case." (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500 n. 11, 677 A.2d 1356 (1996). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary matter." Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
The defendant moves for summary judgment on the plaintiff's complaint on the ground that there are no genuine issues of material fact and it is entitled to judgment as a matter of law because an abutting landowner cannot be held liable for injuries resulting from a defective public sidewalk. The defendant further argues that it cannot be held liable for the plaintiff's fall in this case because the plaintiff fell on a public sidewalk due to a defective condition, and not due to snow or ice, which is the only recognizable form of landowner liability under Connecticut law.
In opposition, the plaintiff counters that the defendant's motion for summary judgment should be denied because genuine issues of material fact exist with regard to the defendant's liability for the plaintiff's injuries. In particular, the plaintiff argues that while a landowner is not normally liable for a defective condition of a sidewalk, such landowner will be liable for that defective condition and any resulting falls and injuries if the landowner contributed to the defective condition. The plaintiff further argues that disputed issues of fact remain as to whether the defendant contributed to the defective condition of the sidewalk and failed to repair it, and, thus, the motion for summary judgment should be denied.
The defendant replies that, although Connecticut law allows for liability against an abutting landowner for injuries resulting from an unsafe condition caused by the landowner's acts, there is no evidence in this case that the defendant caused the defective condition.
"An abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel." Wilson v. New Haven, supra, 213 Conn. 280. "Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons . . . 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, and, being the creature of statute or such ordinance, it can be no greater than that specifically imposed thereby." (Citations omitted.) Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937).
Under General Statutes § 7-148(c)(6)(C)(v), municipalities may transfer to abutting property owners the obligation to "remove snow, ice, sleet, debris or any other obstruction therefrom . . ." The statute does not, however, permit a municipality to shift its liability for injuries caused by defective sidewalks onto abutting property owners. Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0390082 (October 21, 2003, Doherty, J.) ( 35 Conn. L. Rptr. 676). See also Moss v. Bristol, Superior Court, judicial district of New Britain, Docket No. CV 98 487562 (December 21, 1999, Graham, J.) ( 26 Conn. L. Rptr. 580); Frederick v. Bristol, Superior Court, judicial district of New Britain, Docket No. CV 00 502804 (February 15, 2001, Swords, J.). In addition, the Appellate Court has noted that it was not aware of any statute that "specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners." Dreher v. Joseph, 60 Conn.App. 257, 262, 759 A.2d 114 (2000). Moreover, the plaintiff has not cited to any West Haven ordinance that purports to do so.
"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." Abramczyk v. Abbey, 64 Conn.App. 442, 446, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). In Gambardella v. Kaoud, 38 Conn.App. 355, 359, 660 A.2d 877 (1995), the Appellate Court held that the plaintiffs' allegations that "their injuries were caused by the defendants' in that said defendants caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof" . . . [are] of a positive act by the defendants, which, if proved at trial, could form the basis for the defendants' liability in negligence or public nuisance." According to the court, these allegations were adequate to raise fact issues precluding summary judgment in favor of the defendants.
In this case, the plaintiff alleges that the defendant "caused or allowed and permitted said public sidewalk to be or become depressed, uneven, unsafe, and dangerous for use of the public." Pursuant to Gambardella, these are allegations of affirmative acts that are sufficient to raise the material question whether the defendant caused the sidewalk to become defective. See also Webb v. Denny's Inc., Superior Court, judicial district of New Britain, Docket No. CV 99 049435 (April 30, 2002, Wiese, J.) (allegation that defendant "caused or allowed and permitted said sidewalk . . . [and that] it had repaired and replaced said sidewalk in the past but failed to do so in a proper fashion" is enough to overcome motion for summary judgment).
In an attempt to negate this issue of fact, the defendant submits an affidavit of Gregory McKoy, a property manager for the defendant, in which he states that none of the defendant's employees engaged in any positive acts which caused or created any depressed, uneven or dangerous condition on the sidewalk abutting its property. "It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard." Evans Products Co. v. Clinton Building Supply Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). Moreover, in Gambardella the court discounted affidavits of a similar nature, noting that such "averments are little more than denials of the facts alleged in the plaintiffs' complaint. Denials of the allegations in the complaint are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, supra, 38 Conn.App. 360. The defendant submits no other evidence in support of its argument.
For the foregoing reasons, a material fact, namely, whether the defendant engaged in a positive act which caused or created a dangerous condition on the sidewalk, is at issue. Therefore, the defendant's motion for summary judgment is denied.
Martin, J.