Opinion
No. 387059
July 30, 2004
MEMORANDUM OF DECISION
The plaintiff has brought a complaint against two defendants in two separate counts. The first count is against the city of Bridgeport (city) pursuant to General Statutes § 13a-149 and alleges that the plaintiff fell and sustained injuries as a result of a defective sidewalk. The sidewalk was allegedly defective because it is "jagged, depressed, uneven, unsafe and dangerous for the use of the public." The second count is against the defendant Bridgeport Gateway Apartments, Inc. (Gateway). The second count incorporates the allegations of the prior count and further alleges that Gateway owned some or all of the land on which the sidewalk is located. The second count also states that in the course of maintaining its property, Gateway or its employees "caused the condition of the public sidewalk to become broken and dangerous," a condition which Gateway failed to repair. This condition, it is alleged, is a nuisance which Gateway affirmatively "created, permitted, continued or maintained."
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."
Gateway has moved for summary judgment on the grounds that "there is no authority, statutory or otherwise, by which the defendant can be held liable for a third party's injuries resulting from a public sidewalk that is in disrepair and that is adjacent to the defendant's property." In support of its motion, Gateway has submitted the affidavit of its property manager who states that the sidewalk on which the plaintiff fell was not owned by, maintained, controlled or possessed by Gateway; that if the sidewalk was defective, it was due to the growth of tree roots under the sidewalk slab, which caused it to become uneven; that "[o]n a number of occasions prior to December 25, 2000, [he] spoke to the City Tree Warden notifying him of this concern and requested that the City correct the problem"; but that despite his requests, the city failed to do anything. Gateway also has submitted photographs of the area where the plaintiff fell. They depict a building, next to which is a very narrow grassy or dirt area that abuts the sidewalk. Along the sidewalk is a narrow grassy area on which a tree of some vintage is standing. Several feet behind the tree is a stop sign. The tree abuts the curb of a roadway which the plaintiff has alleged is Alanson Road. At least two sidewalk slabs have heaved upward because roots of the tree are erupting beneath them.
The plaintiff has not submitted a brief in opposition to Gateway's motion and did not appear for oral argument. The city, however, has filed opposing briefs and appeared and argued in opposition to Gateway's motion. The city argues (1) that there is a municipal ordinance that requires an abutting property owner to maintain a sidewalk and keep it clear of obstructions, and (2) an abutting property owner may be liable for maintaining a nuisance on a public sidewalk, and (3) Gateway has possession and control over the area on which the offending tree stands.
"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 . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. [See Practice Book § 17-46.]" (Internal quotation marks omitted.) Bebry v. Zanauskas, 81 Conn.App. 586, 589, 841 A.2d 282 (2004).
I
Gateway argues that it cannot be liable in nuisance to the plaintiff since (1) the duty to keep a public sidewalk in good repair rested on the city, and (2) it owed no common-law duty to the plaintiff.
Since the plaintiff fell on a public sidewalk while exercising her rights as a member of the public, any nuisance would necessarily be a public nuisance. "Section 821B of the Restatement (Second) of Torts defines a public nuisance as an unreasonable interference with a right common to the general public . . . Whether an interference is unreasonable in the public nuisance context depends, according to the Restatement (Second), on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . . . 4 Restatement (Second), supra, § 821B. The rights common to the general public can include, but certainly are not limited to, such things as the right to use a . . . highway . . . Id., § 821D, comment (c)." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 356 n. 5, 788 A.2d 496 (2002).
Gateway argues that it was the city's duty to keep the sidewalk in repair and that Gateway had no duty to maintain the sidewalk. Gateway is correct that it was the city's duty to keep the sidewalk in good repair. General Statutes § 13a-99 provides that "[t]owns shall, within their respective limits . . . repair all necessary highways . . . except when such duty belongs to some particular person." The word "town" includes a city, such as Bridgeport. General Statutes § 13a-1(b). The duty to repair highways includes sidewalks as well. Ryszkiewicz v. New Britain, 193 Conn. 589, 594, 479 A.2d 793 (1984). Therefore, it was the city's duty "to keep in good repair that portion of the sidewalk on which the plaintiff fell." Id.
General Statutes § 13a-1(b) provides in relevant part: "Wherever in the general statutes or special acts pertaining to highways the word `town' is used, it shall include city or borough."
The city, however, argues that it has delegated this duty to landowners such as Gateway, whose property abuts public sidewalks pursuant to its Charter and Code of Ordinances. Gateway concedes, as it must, that there is a municipal ordinance that provides: "Every person owning any land upon or adjacent to which there is a sidewalk . . . shall keep such sidewalk at all times in a safe and convenient condition for the use of the public, and shall forthwith repair all defects and remove all obstructions in any way endangering the public travel upon the same." Municipal Code of the City of Bridgeport § 12.16.150(A). In addition, the city points to Sections 16 through 19 of Chapter 11 of the Bridgeport City Charter and argues that by virtue of these provisions, Gateway was "the party bound to keep the traveled portion of a public road [the sidewalk] in repair," within the ambit of General Statutes § 13a-149. However, Gateway argues that this ordinance simply imposes a duty to the public and does not make an abutting landowner liable for injuries caused by a defective sidewalk. The court agrees with Gateway.
The Charter of the City of Bridgeport provides as follows:
Section 16. Construction of sidewalks and gutters. The city council shall have power and authority, from time to time, as public convenience may require, to designate and establish the width, course, height, and grade of all sidewalks and gutters in and upon the streets and highways in the city. The city council may, from time to time, order the proprietor or proprietors of the land and buildings fronting such sidewalks and gutters, at their own expense, to grade, raise, or form such sidewalks and gutters on their several fronts, according to the width, course, height and grade designated as aforesaid, and also to lag, pave or make such sidewalks and gutters in such manner and of such materials as the city council shall direct; and the city council may limit such time as it may deem reasonable for so grading, raising, forming, flagging, paving, or making such sidewalks or gutters. In cases where the land or buildings fronting such sidewalks or gutters shall be holden for a term of years, or any other estate less than a fee simple, the city council may, by its order, apportion in such manner as it shall judge equitable the expenses of raising, grading, forming, flagging, paving, or making such sidewalks and gutters, among the different persons having an interest in the lands or buildings holden as aforesaid. The giving of said orders according to the requirements of Section one hundred and thirty shall be good and sufficient notice under the provisions of this section.
Section 17. Completion of work by city upon neglect of owners to comply with orders of city council. If any proprietor of any such land or buildings shall neglect to grade, raise, form, flag, or make any such sidewalk or gutter, in such manner, of such materials, and within such time as the city council may, after such notice, and after the expiration of the time ordered, instruct the director of public facilities to raise, grade, form, flag, pave, or make such sidewalk or gutter, and may adjust and liquidate the expense thereof, and such expense shall be a lien or real encumbrance on such land and building in favor of the city, and payment thereof may be enforced by the city, and in like manner, as provided in Section one hundred and twenty-eight in the case of benefits assessed for the layout or alteration of streets and highways, and the provisions of said Section in relation to liens and the collection of benefits are incorporated into this Section and made applicable to such expense, mutatis mutandis.
Section 18. Sidewalk repairs — How compelled. The director of public facilities of the city of Bridgeport shall have authority, whenever, in his judgment, public convenience or necessity may require, to order the proprietor or proprietors of any land or building fronting on any highway or street in said city to repair the sidewalks, curbs or gutters on their several fronts in the manner and within the time specified in such order. A written or printed notice in the name of the director of public facilities left by any person with or at the usual place of abode of such proprietor or proprietors, residing in the city, at least fourteen days before the time specified in such order for the making of such repairs or replacement shall be good and sufficient notice under the provisions of this section. If the proprietor or proprietors, as the same shall appear upon the records of the tax assessor, at least twenty-one days before the time specified in such order for the making of such repairs or replacement shall be good and sufficient notice under the provisions of this section.
Section 19. Same — Power of director of public facilities to make. If any proprietor or proprietors of any such land shall neglect to repair or relay any such sidewalks, curbs or gutters in such manner and with such materials and within such time as said director of public facilities shall order and limit, said director may, after notice given as aforesaid, and after the expiration of the time so limited, repair or relay such sidewalks, curbs or gutters, and may adjust and liquidate the expense thereof; and such expense when reported to and accepted by the city council shall be a lien or real encumbrance of such land and buildings in favor of the city, and payment thereof may be enforced by the city, and in like manner, as provided in Section one hundred and twenty-eight of the charter of the city in the case of benefits assessed for the layout or alteration of streets and highways, and the provisions of said Section in relation to liens and the collection of benefits are incorporated in this Section and made applicable to such expense, mutatis mutandis.
What the court stated in Dreher v. Joseph, 60 Conn.App. 257, 261, 759 A.2d 114 (2000), applies here. "[A] fair reading of the charter [and municipal ordinance] charges the abutting landowner with an obligation to keep the adjacent sidewalk in repair. Nothing in the language of [the charter or ordinance], however, expressly makes the abutting landowner liable for injuries caused by the defective condition of such a sidewalk.
"`[A]butting owners have only been held [statutorily] liable for injuries from defective sidewalks 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, 123 Conn. 446, 454, 197 A. 85 (1937)." Id., 261 (also discussing that municipalities have authority to shift liability onto abutting property owners for violation of an ordinance to remove ice or snow from sidewalks, but not to shift liability for raised or uneven sidewalks onto abutting landowners. Id., 261-62).
Nothing in the charter provisions or ordinance cited by the city expressly imposes liability for injuries on abutting landowners. Accordingly, Gateway's liability to the plaintiff may not be premised on the violation of a statute.
II
Gateway next argues that it does not have a common-law duty to the plaintiff.
The common-law rule often stated is that "[a]n abutting landowner is ordinarily under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel. Tenney v. Pleasant Realty Corp., 136 Conn. 325, 329, 70 A.2d 138 (1949). 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. See Gambardella v. Kaoud, 38 Conn.App. 355, 359, 660 A.2d 877 (1995)." Abramczyk v. Abbey, 64 Conn.App. 442, 446, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). Gateway contends that the growth of a root of a tree is not a "positive act" of the landowner.
Coyle v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 096884, 5 Conn. L. Rptr. 342 (December 6, 1991, Blue, J.), on which Gateway relies, is directly on point. In Coyle, the plaintiff was injured when she fell on a public sidewalk that was defective because a tree root protruding through the sidewalk had caused it to heave upward, "resulting in a large gap in the sidewalk surface." The individual defendants owned the abutting property on which the tree was growing. The plaintiff's complaint against the defendants claimed a breach of a statutory duty and nuisance. The statutory claim was based on a municipal ordinance that provided: "Whenever any person shall cause any defect in, or place, or cause to be placed, any obstruction on, any of the streets of the city, such person shall be held to answer any claim for damages . . ." The court held that the ordinance echoed the requirements of the common law, which required that the abutting owner commit an affirmative act to be liable, and that the growth of a tree root was not an affirmative act. "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 tree's 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." Id.
The common-law rule of non-liability for the effects of natural causes, however, has a noteworthy exception, recognized in dicta in Sawicki v. Connecticut Ry. Lighting Co., 129 Conn. 626, 30 A.2d 556 (1943). There, the defendant Railway Company had built a retaining wall on land which closely adjoined an existing highway and constructed a fence along the top. Id., 631. People had long used the top of the wall as a sidewalk. Id., 630. The wall was constructed along a boundary line and extended somewhat over the property of the adjoining owner, the Hallock Company. Id., 635. The plaintiff was standing on the top of the wall, when she fell through the fence and was injured. Id., 627. She sued both the Railroad Company and the Hallock Company and recovered judgment only against the latter. Id. The plaintiff appealed claiming that the Railroad Company was liable and the Hallock Company appealed claiming that it was not. Id. The Supreme Court agreed with both appealing parties. Id., 635. In the course of its discussion, the court stated: "We have . . . in the opinion in this case, held that the area formerly occupied by the Railway Company had not become a part of the highway, but that, by throwing it open for the use of the public, the Railway Company was under an obligation to perform a like duty to that which would have rested upon the municipality. By analogy, it might be said that the law as to defects in highways in the strict sense of the term would be applicable. However, if we look at the proposition from the standpoint of two adjoining private owners of land, the result seems to be the same. The situation is covered by § 363 of the Restatement, 2 Torts: `Neither a possessor of land, nor a lessor, vendor or other transferor thereof is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway . . . Comment: a. The rule stated in this Section applies although the possessor, vendor or lessor recognizes or should recognize that the natural condition involves a risk of bodily harm to persons outside the land' We have not found cases directly in support of this text but the rule is logically sound." (Emphasis added.) Id., 634-35. Although the facts in Sawicki did not involve a tree, the court in that case clearly signaled its approval of the Restatement rule.
Since Sawicki, the Restatement rule has been re-worded, but its essence for present purposes remains substantially unchanged. Restatement (Second), Torts § 363 now provides:
(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.
(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.
(Emphasis added.) While Comment b to the Restatement rule states that "natural condition of lard . . . include[s] the natural growth of trees, weeds and other vegetation upon land not artificially made receptive to them," subsection (2) of § 363 removes "trees on land near the highway" from the general rule of nonliability. Thus, under subsection (2) of the rule, liability is imposed with respect to trees near a highway in an urban area, whether the trees are a natural part of the landscape or were planted.
Comment b to the Restatement (Second), Torts § 363 states: "`Natural condition of the land' is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them. On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces."
In Toomey v. State, Superior Court, judicial district of Litchfield, Docket No. CV 91 0057183 (February 18, 1994, Dranginis, J.), the court adopted the rule in Restatement (Second), Torts § 363, in a case in which the State was cast in the position of a private adjoining landowner by virtue of an act of the claims commissioner waiving sovereign immunity. Id., part V.
The Toomey court did not adopt the urban-rural distinction in the Restatement rule. However, the resolution of Gateway's motion does not require that this court determine whether the Restatement's urban-rural distinction should be applied, since the sidewalk on which the plaintiff fell is located in the City of Bridgeport which is unquestionably an urban area. See Johnson v. Commissioner, 218 Conn. 403, 421, 589 A.2d 1214 (1991) (observing that Bridgeport is an urban town); State v. Townsend, 167 Conn. 539, 549, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975) (same); Stokes v. Lyddy, 75 Conn.App. 252, 269, 815 A.2d 263 (2003) (observing that Bridgeport is an urban area).
This court holds that Restatement (Second), Torts, § 363 as recognized in its earlier version by the Supreme Court in Sawicki v. Connecticut Ry. Lighting Co., supra, 129 Conn. 634-35, and followed in its current version by the Superior Court in Toomey v. State, supra, is the law of Connecticut. That Restatement rule recognizes that the failure of a possessor of land to "exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway" is an exception to the general rule of non-liability for natural conditions of the land Moreover, the root is part of the tree. Webster's Third New International Dictionary (root); Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980, 982 (1988); State v. Ellis, 382 S.W.2d 225, 233 (Mo.Ct.App. 1964); Carroll v. Lowell, 321 Mass. 98, 71 N.E.2d 763, 764 (1947). Thus, in Deberjois v. Schneider, 254 N.J. 694, 604 A.2d 210 (1991), aff'd, 260 N.J.Super. 518, 617 A.2d 265 (1992), the court held that a residential property owner was liable for the dangerous condition of a sidewalk caused by the roots of a tree in his front lawn. To the extent that Coyle v. Waterbury, supra, suggests that the general rule is one of non-liability for injury or damage occasioned by the natural growth of trees, including tree roots, this court declines to follow it.
However, under the undisputed facts of this case, the court holds that Gateway's common-law duty has been modified by statute. At all relevant times, Connecticut General Statutes § 23-59 has provided: "The town or borough tree warden shall have the care and control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town or borough, except those along state highways under the control of the Commissioner of Transportation . . . Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds." Damage to a tree within the limits of a public way without permission is punishable by a fine of damages. See General Statutes § 23-65(b). These statutes have been applied to cities as well as towns. See Nutmeg Paper Boxes, Inc. v. Johnson, 17 Conn.Sup. 107 (1950); Mitchell v. Meriden, 3 Conn. Cir. 498, 502-03, 217 A.2d 487 (App.Div. 1965), cert. denied, 155 Conn. 718, 231 A.2d 282 (1967); cf. General Statutes § 13a-1(b) ("Wherever in the general statutes . . . pertaining to highways the word `town' is used, it shall include city or borough"). In Muratori v. Stiles Reynolds Brick Co., 128 Conn. 674, 677-78, 25 A.2d 58 (1942), the Supreme Court recognized that the legislative ancestors to these statutes, General Statutes (Rev. 1930) § 2197 and § 876c of the 1935 Cumulative Supplement to the General Statutes, made "it clear that the legislative intent was to vest exclusive control in the tree warden of all trees standing within the limits of a highway or of any parts of trees extending within those limits, though the trees themselves stand on private grounds, except as other public authorities have jurisdiction." (Emphasis added.) Id., 678.
General Statutes § 23-59 provides:
The town or borough tree warden shall have the care and control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town or borough, except those along state highways under the control of the Commissioner of Transportation and except those in public parks or grounds which are under the jurisdiction of park commissioners, and of these the tree warden shall take the care and control if so requested in writing by the park commissioners. Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds. The tree warden shall expend all funds appropriated for the setting out, care and maintenance of such trees and shrubs. The tree warden shall enforce all provisions of law for the preservation of such trees and shrubs and of roadside beauty. The tree warden shall remove or cause to be removed all illegally erected signs or advertisements, placed upon poles, trees or other objects within any public road or place under the tree warden's jurisdiction. The tree warden may prescribe such regulations for the care and preservation of such trees and shrubs as the tree warden deems expedient and may provide therein for a reasonable fine for the violation of such regulations; and such regulations, when approved by the selectmen or borough warden and posted on a public signpost in the town or borough, if any, or at some other exterior place near the office of the town or borough clerk, shall have the force and effect of town or borough ordinances. Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden's control, the tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough and the selectmen or borough warden shall order paid to the person performing such work such reasonable compensation therefor as may be determined and approved in writing by the tree warden. Unless the condition of such tree or shrub constitutes an immediate public hazard, the tree warden shall, at least ten days before such removal or pruning, post thereon a suitable notice stating the tree warden's intention to remove or prune such tree or shrub. If any person, firm or corporation objects to such removal or pruning, such person, firm or corporation may appeal to the tree warden in writing, who shall hold a public hearing at some suitable time and place after giving reasonable notice of such hearing to all persons known to be interested therein and posting a notice thereof on such tree or shrub. Within three days after such hearing, the tree warden shall render a decision granting or denying the application, and the party aggrieved by such decision may, within ten days, appeal therefrom to the superior court for the judicial district within which such town or borough is located. The tree warden may, with the approval of the selectmen or borough warden, remove any trees or other plants within the limits of public highways or grounds under the tree warden's jurisdiction that are particularly obnoxious as hosts of insect or fungus pests."
General Statutes § 23-65(b) provides in relevant part: "(b) Any person, firm or corporation, other than a tree warden or deputy tree warden, who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction, shall be fined not more than the appraised value of the shrub or tree and shall be liable civilly for damages in any action brought by the property owner or the authority having jurisdiction affected thereby . . ."
Since the exclusive control of tree roots with public roads and grounds was vested in the city, Gateway was powerless to remedy the problem. As a very practical matter, it could not, without violating General Statutes §§ 23-59, 23-65, go into and under the public way, disturb the sidewalk and remove the root of the tree that was causing the sidewalk to heave. Any common-law duty it may have had to do so was superceded by those statutes.
Moreover, Gateway satisfied any residual common-law duty it owed. It is uncontroverted that on a number of occasions prior to the date of the plaintiff's fall, Gateway's property manager, Robert Pagliano, spoke to the city tree warden, notifying him that the growth of tree roots under the sidewalk had caused it to become uneven and requesting that the city correct the problem. Had Gateway removed all semblance of the tree on its own property, the sidewalk defect would have remained. Nothing that Gateway could have done on its own property could have corrected the problem and Gateway could have done nothing to the sidewalk to render it level. Under the circumstances, the only reasonable conclusion that a finder of fact could reach is that, as a matter of law, Gateway "exercise[d] reasonable care to prevent an unreasonable risk of harm arising from the condition of [the tree] on [its] land near the highway." Restatement (Second), Torts § 363(2).
The motion for summary judgment is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court