Opinion
FSTCV156025018S
02-19-2016
Olha Dudnyk v. Tag Forrest, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE No. 104
Hon. Charles T. Lee, J.
Before the court is the defendants' motion to strike the plaintiff's revised complaint. For the reasons set forth below, the court grants the defendants' motion.
BACKGROUND
The plaintiff, Olha Dudnyk, filed a two-count revised complaint against the defendants, Seaboard Property Management, Inc. (Seaboard), and TAG Forest, LLC (TAG Forest), on August 21, 2015. The revised complaint contains two identical counts, sounding in negligence, against Seaboard and TAG Forest respectively and alleges the following facts: In February 2015, TAG Forest owned the land and a building in which a CVS Pharmacy (CVS) was located at 11 Forest Street in Stamford, Connecticut. During the relevant period, Seaboard was TAG Forest's property manager for the property. On February 24, 2015, the plaintiff exited the CVS and was walking on the abutting public sidewalk when she slipped on ice and snow and fell. The plaintiff suffered several injuries from the fall, including a broken ankle. The plaintiff alleges that the defendants' negligence in not removing or failing to properly remove the snow and ice from the public sidewalk caused the plaintiff's injuries.
On August 31, 2015, the defendants jointly filed a motion to strike the revised complaint and a memorandum in support on the ground that the plaintiff failed to state a cause of action against the defendants. On September 30, 2015, the plaintiff filed a memorandum of law in opposition. On October 23, 2015, the defendants filed a reply. Oral argument was heard on October 26, 2015.
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
In the amended complaint, the plaintiff pleaded that the defendants' negligence caused the plaintiff's injuries in at least one of several ways, which can be summarized as either the defendants' failure to properly remove the snow from the sidewalk or their actions in only partially removing snow from the sidewalk. In their motion to strike, the defendants argue that parties can be held liable for injuries caused by snow and ice on the public sidewalk only when the municipality has enacted a statute explicitly shifting liability from the municipality to entities that own the abutting property. The defendants argue that Stamford has not enacted such a statute and, therefore, the defendants are not be liable for the plaintiff's injuries. In her memorandum in opposition, the plaintiff argues that the defendants' actions, in affirmatively attempting to clear the snow, created a duty of care, which the defendants breached when they negligently removed the snow. In their reply, the defendants argue that, regardless of the plaintiff's alternate theories of negligence, they did not have a duty of care to the public and, therefore, cannot be held liable for injuries suffered on a public sidewalk.
In the present case, the court must determine whether the defendants had a duty of care to the public to keep the public sidewalk abutting the CVS reasonably safe for travel. " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . 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." (Internal quotation marks omitted.) D'Angelo Development & Construction Corp. v. Cordovano, 121 Conn.App. 165, 184-85, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).
The controlling principles of law were established in the leading case of Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937). In that case, our Supreme Court held, " At common law, there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon streets or sidewalks such as the accumulation of snow or ice. 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.) " [Absent a contradictory statute, ] [t]he remedy of persons injured for damages sustained in consequence of snow and ice upon a sidewalk remains exclusively against the city." Id., 123 Conn. 453.
Stamford code of ordinances § 214-16a provides: " The owner, occupant or person or condominium association in charge of any land in the city which is in front of, along or adjoining any sidewalk shall, after the ceasing of the fall of snow or ice on such sidewalk and after the freezing of any water or moisture thereon, remove or cause to be removed such snow or ice from such sidewalk, and if the same cannot be wholly removed, shall sprinkle or cause to be sprinkled thereon sand or other proper substance so that such sidewalk shall be safe for public travel." Section 214-31.1 further provides: " All persons, as principals or agents, causing, participating in, or in any way responsible for any violation of this Article shall be severally guilty of such violation and shall each be fined not less than twenty-five dollars ($25) nor more than ninety dollars ($90) for each offense."
" [A]n ordinance merely imposing a penalty for failure to clear a sidewalk does not shift civil liability for injuries to abutting landowners . . . This rule is grounded in the public policy that, while a municipality may impose penalties on abutting landowners in order to alleviate its own labor and expenses, it still has the primary duty to maintain public sidewalks in a safe condition." (Citation omitted; emphasis in original.) Robinson v. Cianfarani, 314 Conn. 521, 525, 107 A.3d 375 (2014). " Long after this court's 1937 decision in Willoughby, the legislature enacted just such a statutory vehicle whereby it permitted municipalities to elect to transfer civil liability to landowners with property abutting public sidewalks. General Statutes § 7-163a grants municipalities the choice to adopt the statute's provisions and thereby transfer the municipalities' liability to abutting landowners for injuries arising from the failure to remove snow and ice on public sidewalks. Since the enactment of § 7-163a in 1981 . . . municipalities across the state have incorporated the statute into their ordinances . . . by adopting the statutory provision with clear, explicit language." (Citation omitted; footnote omitted.) Id., 526-27.
In Robinson, the plaintiff alternatively argued that, regardless of a liability-shifting statute, the defendants could still be liable under another theory of negligence, e.g., that the defendants' affirmative actions created a duty of care. Id., 524. The Supreme Court concluded that " [t]he plaintiff's rationale, however, overlooks the fact that it is settled law that the effect of the ordinances is to create a duty owed by the abutting landowner to the municipality, not to third parties traversing the sidewalk." (Emphasis in original.) Id., 528. The court added that, " although there is support for the proposition that landowners can be held liable for a defective condition that they have created on a sidewalk . . . there are no allegations or proof that such is the case here." (Citations omitted; emphasis in original.) Id. " Therefore, the plaintiff's alternative theories of common-law liability based on negligence are governed by the settled common-law rule. 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." (Footnote omitted; internal quotation marks omitted.) Id., 528-29.
In the present case, the plaintiff cites to Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), to support her claim that the defendants' affirmative actions in improperly clearing the snow created a duty of care to members of the public. In Gazo, the Supreme Court held that a contractor hired by the property owner to remove snow from a public sidewalk had a duty of care, arising out of his contractual obligations, to pedestrians using the sidewalk. Gazo v. Stamford, supra, 255 Conn. 251. The court stated that " [t]here is no question that [the contractor] had a duty to [the property owner] under their contract to perform its contractual duties in a reasonable manner so as to prevent injury to persons using the sidewalk. It is not an unreasonable extension of that duty to go beyond [the property owner] to include those members of the public, like the plaintiff, who are injured by the breach of that duty." Id.
ANALYSIS
Preliminarily, the Stamford code of ordinances does not contain a provision shifting liability for injuries caused by snow and ice on the public sidewalk from the municipality to property owners. Following the rationale of Willoughby and Robinson, Stamford code of ordinances § 214-16 imposes a duty on the defendants to the municipality of Stamford, but not to members of the public using the sidewalk. Willoughby v. New Haven, supra, 123 Conn. 452; Robinson v. Cianfarani, supra, 314 Conn. 528. Stamford code of ordinances § 214-16 does not create a duty of care towards the plaintiff and, therefore, cannot support a claim for negligence.
In late 2014, Stamford Mayor David Martin proposed an ordinance that, if adopted, would have shifted liability from the municipality to individuals for injuries sustained for the failure to removed snow on a public sidewalk. In a memorandum received by the Board of Representatives on December 4, 2014, Mayor Martin stated, " We were notified on November 25, 2014 of a recent court case decided by the CT Supreme Court that emphasized that in order to shift liability from a municipality to an individual for an injury sustained for failure to remove snow on sidewalks, a town or city must explicitly adopt the provisions of C.G.S. 7-163a. We immediately forwarded this information to the Law Department, and today the Law Department has advised that an amendment to Chapter 214 [of the Stamford code of ordinances] is necessary in order to protect the city from potential liability." The proposed liability-shifting ordinance was to be included into the Stamford code of ordinances as § 214-17. However, the proposed ordinance ultimately was not added to the Stamford code of ordinances.
The plaintiff argued that the defendants' positive actions created a duty of care to the plaintiff. The plaintiff alleged that the defendants did not have a duty to remove the snow from the sidewalk, and therefore, by partially removing the snow, the defendants' positive actions created a duty of care to the public. This assertion is misguided. As made clear in Robinson, the defendants, in fact, did have a duty to remove the snow from the sidewalk, but that duty was owed to the municipality, rather than the public. Robinson v. Cianfarani, 314 Conn. at 528. Although there is case law to support the contention that landowners can be held liable when a member of the public is injured by a defective condition that the landowner created on the public sidewalk, the plaintiffs have not sufficiently alleged that the defendants' actions created a defective condition such that the defendants had an additional duty of care to the plaintiff. Id.
Finally, Gazo is distinguishable from the present case. In Gazo, the court held that the contractor's duty of care to the plaintiff was a natural extension of his contractual duties to the property owner. In the present case, the plaintiff has not alleged that there was a contract between the defendants or that either defendant had a contractual duty to remove snow from the sidewalk abutting the building. Without these facts, the holding in Gazo is not applicable in the present case. Further, Gazo was decided before Robinson and does not address Stamford code of ordinances § 214-16.
The plaintiff has failed to sufficiently allege that the defendants had a duty of care to the plaintiff, arising either from a statute, or positive actions, or otherwise. Because the plaintiff has not sufficiently pleaded that the defendants had a duty of care to her, the plaintiff has not sufficiently alleged a claim for negligence against either defendant.
CONCLUSION
By reason of the foregoing, defendants' motion to strike the amended complaint is GRANTED.