Opinion
No. CV08 5022947S
April 13, 2009
MEMORANDUM OF DECISION RE DEFENDANT TOWN OF WALLINGFORD'S MOTION TO DISMISS (#104)
The present case is a personal injury action resulting from the plaintiff's fall on an icy sidewalk on February 14, 2008. The plaintiff filed a two-count complaint on September 4, 2008. Count one, against the defendant, the town of Wallingford, is brought under the Highway Defect Statute, General Statutes § 13a-149. Count two, against Comfort Care of Wallingford, LLC, alleges negligence in its failure to adequately maintain adjacent sidewalks.
The defendant filed a motion to dismiss for lack of subject matter jurisdiction on December 8, 2008. The defendant argues that through a series of ordinances it has fully transferred liability for the removal of snow and ice from sidewalks to abutting landowners. Therefore, the defendant claims, because it has no affirmative duty to remove snow from public sidewalks, it is entitled to dismissal of this action. The plaintiff filed its objection on December 30, 2008, and the defendant filed its reply on March 24, 2009.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Cox v. Aiken, 278 Conn. 204, CT Page 6475 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"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 or bridge' 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.'" Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998). The court's subject matter jurisdiction "is tied to the determination of which entity had the duty to maintain the property at the precise location of the plaintiff's fall." Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001). Here, the defendant claims this court lacks subject matter jurisdiction because it has no affirmative duty to remove snow and ice from its sidewalks.
"Municipalities ordinarily have a duty of care with respect to the maintenance of public sidewalks, and, under General Statutes § 13a-149, they are liable for damages caused by a breach of that duty. Pursuant to General Statutes § 7-163a, however, a municipality may adopt an ordinance that shifts to the owner of the land abutting a public sidewalk both the duty of care and liability with respect to the presence of snow and ice on the sidewalk." Rivers v. City of New Britain, 288 Conn. 1, 2-3, 950 A.2d 1247 (2008).
General Statutes § 7-163a provides: "(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, city, borough, consolidated town and city or consolidated town and borough shall not be liable to any person injured in person or property 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, provided such municipality shall be liable for its affirmative acts with respect to such sidewalk. (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. (2) No action to recover damages for injury to the person or to property caused by the presence of ice or snow on a public sidewalk against a person who owns or is in possession and control of land abutting a public sidewalk shall be brought but within two years from the date when the injury is first sustained."
Wallingford has the following ordinances. Sections 6 and 13 of Wallingford's "Sidewalk Ordinance," enacted January 26, 1982, address snow removal on public sidewalks. Section 6(b) of the "Sidewalk Ordinance" states: "The owner, tenant, occupant or any person having the care of any land or building adjoining any sidewalk or gutter within the town limits shall, after the cessation of any storm of snow, ice or sleet, if in the daytime within eight (8) hours and, if in the night, before eleven o'clock in the forenoon succeeding, cause the same to be removed from so much of such sidewalk as shall be paved, concreted, cemented or worked . . ." Section 6(d) states: "The members of the Police Department of the Town shall report all violations of Sections 6a and 6b herein to the Prosecuting Attorney, Mayor or Sidewalk Inspector of the Town shall cause to be left with the owner, tenant, occupant or other person having the care or charge of any such building or lot of land, a written or printed notice that the responsible person has incurred the penalty provisions prescribed by this section and will incur a further obligation to pay for the removal of said snow or ice upon further delay to comply with these sections within four (4) hours of the notice." In addition, § 6(e) states: "After the expiration of the time limit in said notice for removing such snow, ice or sleet, it shall be the duty of the Sidewalk Inspector to cause the same to be removed and the expense thereof shall be and continue to be a lien and real encumbrance in favor of said town and upon such land or buildings . . ." (Emphasis added.)
Finally, § 13 of the "Sidewalk Ordinance" expressly adopts and incorporates § 7-163a; it states: "The provisions of Public Act 81-340 are hereby adopted and made a part of this Sidewalk Ordinance." "The Connecticut Superior Court has found that this type of ordinance, which expressly states that liability for injuries is transferred from a city to abutting property owners, is sufficiently clear and unambiguous to transfer liability away from the city and onto the abutting property owner. See, e.g., Welter v. Ponger, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182878 (October 1, 2001, Lewis, J.) (30 Conn. L. Rptr. 460, 461 n. 1); Shubert Performing Arts Center, Inc. v. Boppers of New Haven, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0342816 (May 21, 1998, Moran, J.) (22 Conn. L. Rptr. 238, 239); Brown v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 95 0370079 (January 9, 1997, Freedman, J.); Lopez v. Rivera, Superior Court, judicial district of Hartford, Docket No. CV 94 0537675 (April 11, 1996, Sheldon, J.)." Carter v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 00 374413 (March 19, 2002, Rush, J.) (31 Conn. L. Rptr. 540, 541).
Public Act 81-340 codified General statutes § 7-163a.
In addition to the "Sidewalk Ordinance," Wallingford has § 198-15 of the Code of the Town of Wallingford, enacted June 12, 2001. Section 198-15(B) states: "The owner or occupant of any land or building adjoining any sidewalk constituting a part of any public highway within the limits of the town shall cause to be removed therefrom any and all snow, sleet and ice within eighteen (18) hours after the same has fallen or from whatever cause located thereon or within eighteen (18) hours after sunrise when the same has fallen in the nighttime. The removal shall be sufficient to clear a path at least three (3) feet in width over the entire length of the sidewalk." In addition, § 198-15(D) provides: "If the owner or occupant shall neglect to clear the sidewalk within the time specified, or shall neglect to keep the sidewalk in a safe condition for public travel at all times, the Police Department shall issue a citation to the owner or occupant for said neglect which shall provide notice of at least twelve (12) hours that unless the sidewalk is cleared or made safe for public travel, the Sidewalk Inspector may cause the sidewalk to be cleared or made safe for public travel at the expense of the owner of the premises." (Emphasis added.)
The defendant asks this court to read § 13 of the "Sidewalk Ordinance" in conjunction with § 198-15 of the Code of the Town of Wallingford. When these two provisions are considered together, the defendant argues that Wallingford has no affirmative duty to remove snow and ice from public sidewalks. Section 13, which adopts General Statutes § 7-163a, transfers liability from Wallingford to the abutting landowner. Although Wallingford has a duty to give a neglectful landowner a citation pursuant to § 198-15(D), it has no affirmative duty to remove the snow. Such removal is permissible, but not mandated by the section; "the Sidewalk Inspector may cause the sidewalk to be cleared or made safe for public travel." (Emphasis added.) This court notes that § 198-15 must be read in conjunction with § 13 of the "Sidewalk Ordinance" in order to fully transfer liability from Wallingford to abutting landowners. Section 198-15 alone does not adequately transfer liability to landowners because it does not expressly make landowners liable for injuries which occur as a result of defective conditions on the sidewalks. See Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937) ("Imposition upon abutting owners of a duty to clear walks of snow and ice, with a provision of a penalty by fine and costs for failure to do so or for clearing the same by the municipality and collection of the cost from the abutting owner, is not sufficient to render the individual, instead of the city, liable for injuries sustained by reason of snow or ice thereon"); see also Dreher v. Joseph, 60 Conn.App. 257, 261-62, 759 A.2d 114 (2000).
The defendant makes no mention of § 6 of the "Sidewalk Ordinance" in its motion to dismiss, but attaches the entire ordinance as an exhibit. Section 6(e) does not contain the permissive language found in § 198-15 (D), rather the language is mandatory; "it shall be the duty of the Sidewalk Inspector to cause the same to be removed." (Emphasis added.) The plaintiff in her opposition, relies only upon the language of § 198-15(D).
"In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. (Citations omitted; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 157, 788 A.2d 1158 (2002)." Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003). "When conflicting statutes cannot reasonably be reconciled, it is a well settled principle of construction that the later statute repeals by implication the earlier one to the extent of the repugnance. Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521, 468 A.2d 574 (1983). A later enactment will be given that effect without regard to the characterization of either act as general or specific . . . Since repeal by implication is generally disfavored, however, that route is incumbent upon us only when the two relevant statutes cannot stand together." (Citation omitted.) Blue Sky Bar, Inc. v. Stratford, 4 Conn.App. 261, 264, 493 A.2d 908 (1985), aff'd, 203 Conn. 14, 523 A.2d 467 (1987).
There is an inherent conflict between § 6 of the "Sidewalk Ordinance" and § 198-15 of the Code of the Town of Wallingford, which bears directly on the issue before this court. More specifically, § 6(e) and § 198-15(D) are irreconcilable. Accordingly, this court will give effect to the later enactment, § 198-15. Because § 198-15(D) mandates only that the defendant give a citation to a landowner who fails to remove snow and ice from their sidewalks and merely permits the defendant to remove snow and ice, this court finds that the defendant has no affirmative duty to remove snow and ice from its public sidewalks. As such, the defendant is entitled to dismissal of this action.
The failure of both of the parties to mention § 6 is perhaps an indication that they considered it repealed by the later enactment of § 198-15.
The defendant's motion to dismiss for lack of subject matter jurisdiction is hereby granted.