Opinion
No. CV 02 0390082
October 21, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Paulina Gonzalez, filed a two-count amended complaint against two defendants, the City of Bridgeport and the Charles Dougiello and Sons Funeral Home, on March 5, 2002, alleging that she was injured on February 1, 2000, when she slipped and fell on ice on the sidewalk at the corner of 798 Park Avenue and West Liberty Street in Bridgeport, Connecticut.
The first count alleges statutory negligence against Bridgeport for allowing snow and ice to accumulate and remain on the sidewalk in violation of General Statutes § 13a-149.
The second count alleges that Dougiello and Sons was negligent in allowing the sidewalk to become and remain slippery, for it "controlled, possessed, managed and/or maintained" the sidewalk where the plaintiff sustained her injuries.
On July 23, 2003, Bridgeport filed a motion for summary judgment on count one of the plaintiff's complaint accompanied by a memorandum in support and a copy of Bridgeport city ordinance Section 12.16.160. The plaintiff did not file a memorandum in opposition.
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 (1989). "[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." Mozeleski v. Thomas, 76 Conn. App. 287, 290 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 514 (2003). "The judgment sought 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." Practice Book § 17-49. "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." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252 (2003).
Bridgeport moves for summary judgment on the ground that it "has no legal duty or liability for injuries caused by snow and ice on sidewalks in the public right of way . . ." It cites General Statutes § 7-163a and city ordinance § 12.16.160 as authority for this proposition.
Pursuant to General Statutes § 52-163: "The court shall take judicial notice of: . . . (3) ordinances of any town, city or borough of this state . . ."
General Statutes § 13a-149, the defective highway statute, provides that "[a]ny 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." "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks." Novicki v. New Haven, 47 Conn. App. 734, 740 (1998). The legislature placed the duty of repairing roads, and therefore sidewalks, on the town in which the road is located, "except when such duty belongs to some particular person . . ." General Statutes § 13a-99. "In 1981, the legislature enacted General Statutes § 7-163a, which not only permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks, but also empowers the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance." Dreher v. Joseph, 60 Conn. App. 257, 261-62 (2000). Bridgeport took advantage of this provision and enacted § 12.16.160 which provides in relevant part:
Liability for ice and snow on public sidewalks.
A. The provisions of Connecticut General Statutes Section 7-163a are adopted, and are set forth in subsections B and C of this section.
B. Notwithstanding the provisions of Section 13a-149 of the General Statutes or any other general statute or special act, the city 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 the city is the owner or person in possession and control of land abutting such sidewalk. CT Page 11168
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 prior to the effective date of the ordinance codified in this section . . . and shall be liable to persons injured in person or property where a breach of duty is the proximate cause of injury.
"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." Carter v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 374413 (March 19, 2002, Rush, J.) ( 31 Conn. L. Rptr. 540, 541). See 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) (denying abutting property owner's motion to strike because Norwalk ordinance effectively shifts liability for injuries caused by snow/ice on sidewalk away from municipality and onto abutting landowner); 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) (denying property occupiers' motion for summary judgment because New Haven ordinance effectively shifts liability for injuries caused by snow/ice on sidewalk to abutting property owner/occupier); Brown v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 95 0370079 (January 9, 1997, Freedman, J.) (granting town of Hamden's motion for summary judgment because town ordinance shifts liability for injuries caused by snow/ice on sidewalk to the abutting property owner); Lopez v. Rivera, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 94 0537675 (April 11, 1996, Sheldon, J.) (denying property owner's motion for summary judgment because "[t]he duty of Hartford landowners to clear ice from the public sidewalks abutting their properties . . . has been imposed by § 31-150 of the Hartford Municipal Code, which implements § 7-163a of the Connecticut General Statutes").
In Carter v. Bridgeport, supra, by way of a motion to strike, the court addressed the effect of ordinance § 12.16.160 on Bridgeport's liability for injuries sustained by the plaintiff when she slipped on snow and ice that had accumulated on a sidewalk. The plaintiff opposed the city's motion to strike and argued that despite the enactment of § 12.16.160, "pursuant to § 12.16.150 [of the Bridgeport ordinances], Bridgeport continues to have a duty . . . to remove snow and ice from public sidewalks in certain circumstances and can be held liable . . . for breaching said duty." Carter v. Bridgeport, supra, 31 Conn. L. Rptr. 540. Section 12.16.150 provides in relevant part: "C. Every owner or occupant of any land or building, or the owner or lessee of any unoccupied land or building, shall keep and maintain any sidewalk adjoining such land and building free from snow, ice or sleet, by which such sidewalk shall be obstructed or rendered unsafe. Whenever such sidewalk shall be permitted to remain covered with snow, ice or sleet for more than six hours after the same shall have been deposited or formed thereon, the director of public facilities shall remove such snow, ice or sleet from the sidewalk . . ." In ruling on the motion to strike, the trial court determined that these two ordinances can be read consistently. "Section 12.16.150[C.] requires that abutting landowners keep and maintain the sidewalks adjoining their land free from snow, ice or sleet . . . It also requires that the municipality remove the snow, ice and sleet if an abutting landowner fails to do so . . . Section 12.16.160 specifies that the abutting landowners are liable, and that the city is not liable, to persons who are injured due to the presence of snow or ice on public sidewalks . . . It also provides that . . . [i]f Bridgeport takes action to remove snow, ice or sleet from a public sidewalk, it can . . . be held liable for the injuries proximately caused by its `affirmative act' in so doing." Carter v. Bridgeport, supra, 31 Conn. L. Rptr. 542. Thus, because the plaintiff failed to allege that the city took an affirmative act the court granted the city's motion to strike, finding that "Bridgeport has shifted its liability for injuries proximately caused by the accumulation of ice and snow on public sidewalks to abutting landowners." Id.
The same result has been reached with regard to a similar ordinance in another municipality. Bottone v. St. Philip Roman Catholic Church Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 95 0143007 (July 29, 1996, Arnold, J.), is entirely analogous to the present case. In Bottone, the plaintiff sued both the abutting property owner and the city of Norwalk for injuries she sustained when ice and snow on a sidewalk caused her to slip and fall. Id. Pursuant to the authority granted by General Statutes § 7-163a, Norwalk had passed an ordinance that shifted liability to the abutting property owner for injuries caused by snowy and icy conditions on sidewalks. Id. The court thus granted Norwalk's motion for summary judgment, for "[t]here [was] no genuine issue of fact as to whether . . . Norwalk had a duty to remove the snow and ice from the location where the injuries occurred. The plaintiff has alleged that the church had possession and control of the sidewalk and the injury occurred on that sidewalk. The plaintiff has not provided the court with contradictory evidence." Id.
In the instant case the court finds that the defendant, City of Bridgeport has demonstrated that there is no genuine issue of material fact regarding its liability for the plaintiff's injuries. Bridgeport city ordinance § 12.16.160 shifts liability for injuries caused by the accumulation of snow and ice on its sidewalks away from the city and onto the abutting property owner. The plaintiff in the present case alleged in her amended complaint that Dougiello and Sons "controlled, possessed, managed, and/or maintained" the sidewalk at the time the plaintiff attained her injuries.
The plaintiff did not file a memorandum in opposition to Bridgeport's motion for summary judgment and has not provided any other evidence to demonstrate that a genuine issue of material fact exists.
For the foregoing reasons, the defendant's motion for summary judgment is hereby granted.
Joseph W. Doherty, Judge