Opinion
HHDCV186092390S
07-02-2019
Linda WILLIAMS v. TOWN OF EAST HARTFORD et al.
UNPUBLISHED OPINION
MATTHEW DALLAS GORDON, J.
Facts and Procedural History
The plaintiff in this personal injury action, Linda Williams, claims that she tripped and fell on a public sidewalk located in East Hartford, Connecticut on July 1, 2016. The plaintiff alleges that the owner of the property abutting the sidewalk, the defendant, Wilfredo Rosario, Jr., is legally responsible for her fall and resulting injuries based on the defendant’s failure to maintain the sidewalk in a reasonably safe condition.
The defendant has moved for summary judgment claiming that he did not owe the plaintiff a duty of care. The plaintiff responds that the defendant’s duty arises from the Town of East Hartford Code of Ordinances § 18-29, entitled, Maintenance of Sidewalk by Property Owner, which provides, in pertinent part, that "All public sidewalks, whether installed heretofore or hereafter, shall be maintained, repaired, replaced and kept clear by the abutting property owner at his expense ..." The plaintiff also relies on § 18-35, entitled, Maintenance of Sidewalks; Removal of Litter and Obstruction, which provides in pertinent part, that "Every person owning land within the Town upon or adjacent to which is a sidewalk, whether constructed by him or not, shall at all times keep the sidewalk in safe condition for the use of the public and shall have repaired all defects which may occur in the sidewalk ..." Finally, the plaintiff relies on General Statutes § 13a-149, which provides, in pertinent part, that "Any person injured in person or property by means of a defective road ... may recover damages from the party bound to keep it in repair."
For the reasons explained in this decision, the court concludes that the defendant is entitled to summary judgment as a matter of law.
II. Applicable Legal Standards
A. Summary Judgment
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." "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case ... [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment ... 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 ..." (Citations omitted: internal quotation marks omitted.) Andrade v. Lego System, Inc., 188 Conn.App. 652, 661-63, 205 A.3d 807, cert. denied, 331 Conn. 921, 205 A.3d 567 (2019). "[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).
B. Negligence
In McFarline v. Mickens, 177 Conn.App. 83, 92-93, 173 A.3d 417 (2017), cert. denied, 327 Conn. 997, 176 A.3d 557 (2018), the Appellate Court set forth the requirements for a cause of action alleging negligence against a landowner whose property abuts a public sidewalk. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... Our analysis in this case begins and ends with the first element, duty. 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 ... Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Citation omitted; internal quotation marks omitted.) Id., 92-93.
III. Discussion
In Dreher v. Joseph, 60 Conn.App. 257, 263, 759 A.2d 114 (2000), the Appellate Court upheld the trial court’s conclusion that absent a statute or ordinance to the contrary, Connecticut does not recognize a cause of action against an abutting landowner for injuries caused by a defective public sidewalk. In affirming the trial court’s entry of summary judgment in favor of the landowner, the Appellate Court noted the general rule regarding the construction of statutes and ordinances that impose upon property owners the performance of duties owed by a municipality to the public, namely, that unless it is clearly expressed otherwise, the breach of such a duty may be enforced solely by the municipality through a penalty imposed upon the property owner. "The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property owners to maintain sidewalk pavements or to remove snow and ice from the walks." (Internal quotation marks omitted.) Id., 261 (quoting Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937)). "[W]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent." (Internal quotation marks omitted.) Dreher v. Joseph, supra, 262.
In 1981, the Connecticut legislature enacted General Statutes § 7-163a, which specifically allows municipalities to adopt ordinances requiring abutting landowners to remove snow and ice on public sidewalks, and to shift liability to the abutting landowner for injuries caused by their failure to comply with the ordinance. In Dreher, the Court observed that, unlike § 7-163a, there is no statutory counterpart that specifically enables or authorizes a municipality to shift liability for sidewalk defects to abutting landowners. Dreher v. Joseph, supra, 262.
General Statutes § 7-163a provides in relevant part as follows:
The plaintiff urges the court to adopt the reasoning of Dumas v. Schumanski, Superior Court, judicial district of New London at Norwich, Docket No. 105155, 1996 WL 366376 (May 23, 1996, Hendel, J.) (16 Conn.L.Rptr. 613). In that case, the court concluded that the language of General Statutes § 13a-149 indicating that "[a]ny person injured ... by means of a defective road or bridge may recover damages from the party bound to keep it in repair"; when read in conjunction with a municipal ordinance shifting responsibility for sidewalk maintenance to abutting property owners, clearly and unambiguously places liability for any injuries caused by a defective sidewalk on the abutting property owner. The problem with the plaintiff’s argument is that it was specifically analyzed and rejected by Dreher . "Dumas, however, is not binding precedent, and, for the reasons previously stated, it also is not persuasive. Neither § 21 of the charter nor § 13a-149 explicitly makes abutting landowners liable for injuries caused by defective sidewalks; see Willoughby v. New Haven, supra, 123 Conn. at 454, 197 A. 85; and it is the general rule of construction that even where an ordinance imposes on property owners a duty normally performed by the municipality, there is no private right of action unless plainly expressed in the ordinance." Dreher v. Joseph, supra, 60 Conn.App. 263.
The principles set forth in Dreher were reiterated in Robinson v. Cianfarani, 314 Conn. 521, 528-29, 107 A.3d 375 (2014), wherein the Supreme Court held that the plaintiff’s claims of negligence were governed by the "settled common-law rule" that "[a]n 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." Id. (quoting Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829 (1989)). "In order for a landowner’s duty to the public to exist, this common-law rule would have to have been abrogated by statute or duly authorized ordinance ... As we have discussed previously herein, however, neither § 7-163a nor the town’s ordinances shifts liability to the landowner in the present case. Accordingly, there is no basis to impose liability on the defendants." (Citations omitted.) Robinson v. Cianfarani, supra, 529.
The plaintiff in Robinson argued, as does the plaintiff herein, that the defendant should be held liable under General Statutes § 13a-149.
More recently, in McFarline v. Mickens, 177 Conn.App. 83, 93, 173 A.3d 417 (2017), the Appellate Court reconfirmed that "without a statute that confers liability or the creation by the abutting landowner of the cause of the injury to the plaintiff, the landowner owes no duty to members of the public traversing the public sidewalk." Id. Noting the long-established common-law and statutory principle that municipalities have the primary duty to maintain public sidewalks in a reasonably safe condition, McFarline held: "This primary duty cannot ordinarily be delegated to or imposed upon a third party by contract or ordinance. 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 ... Abutting landowners, therefore, are generally not liable for injuries caused by defects on public sidewalks adjacent to their property ... The common-law rule is that the abutting landowner is under no duty to keep a public sidewalk in front of his property in a reasonably safe condition for travel ... Moreover, shifting liability cannot be accomplished by inference or by alleging alternative theories of common-law negligence." (Citations omitted; internal quotation marks omitted.) Id., 93-94.
The court noted two exceptions to the common-law rule against imposing liability upon abutting landowners. "First, municipalities, in limited circumstances, can confer liability onto the abutting landowner through a charter provision, statute, or ordinance. Second, landowners may be liable for injuries caused by defects they created by their own actions." McFarline v. Mickens, 177 Conn.App. 83, 94, 173 A.3d 417 (2017), cert. denied, 327 Conn . 997, 176 A.3d 557 (2018).
The principles set forth in McFarline, Robinson, and Dreher lead the court to conclude that the defendant is entitled to summary judgment in his favor because the East Hartford Code of Ordinances do not expressly shift liability for injuries resulting from defective sidewalks to abutting landowners. See Mahoney v. Mobil Oil Corp., Superior Court, judicial district of Hartford, Docket No. CV-970568849-S, 1997 WL 781952, (December 4, 1997, Aurigemma, J.) (21 Conn.L.Rptr. 138), where the court faced a similar fact pattern involving the same two East Hartford ordinances and concluded that the plaintiff’s claim was insufficient as a matter of law because although the defendant owed a duty to the town to keep the sidewalk in repair, it did not owe such a duty to the plaintiff. Moreover, there was no evidence in Mahoney that the defendant created the alleged defective condition that caused the plaintiff’s injuries. As in Mahoney, this court concludes that although the Town of East Hartford Code of Ordinances do impose a duty on property owners to maintain and repair abutting public sidewalks, the landowner’s duty is owed exclusively to the city. Additionally, the plaintiff has made no allegation that the defendant himself created the condition that the plaintiff alleges caused her to fall.
Conclusion
Having carefully considered the defendant’s motion for summary judgment and the plaintiff’s objection, and having entertained oral argument at which counsel for the plaintiff and defendant were given a full opportunity to set forth their respective positions, the court concludes that the defendant is entitled to summary judgment as a matter of law because he did not owe the plaintiff a duty to maintain the sidewalk at issue in a reasonably safe condition. Judgment may therefore enter in favor of the defendant.
(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 ... shall not be liable to any person injured ... 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.
(c) 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 ... and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury ...