Opinion
NNHCV156055579S
01-20-2016
Ellen Gribko v. Jean Albert
UNPUBLISHED OPINION
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#107)
Matthew E. Frechette, J.
The issue presented is whether the court should grant the defendant's motion for summary judgment on the grounds that there is no genuine issue of material fact in that it did not have a duty to keep the sidewalk where the plaintiff fell clear of snow and ice, and that the plaintiff's claims are barred by the exclusivity provision of the highway defect statute. The court grants the defendant's motion for summary judgment.
FACTS
The plaintiff, Ellen Gribko, filed a two-count complaint in this action against the town of Wallingford (Wallingford), and Jean Albert on June 25, 2015 In her complaint, the plaintiff alleges the following relevant facts. Albert is a resident of Wallingford, Connecticut, and the owner and resident of property located at 374 North Colony Road. The plaintiff is a resident of Middlefield, Connecticut, and on or about December 17, 2013 at approximately 8:20 a.m., she was walking along the sidewalk on North Colony Road. Around that time and place, the plaintiff suddenly and without warning was caused to slip and fall, which resulted in various injuries and losses. The plaintiff alleges that her injuries and losses were caused by the negligence and carelessness of Albert in, inter alia, failing to maintain and inspect the sidewalk and warn the plaintiff of the dangerous condition. The plaintiff further alleges that Albert violated Wallingford town ordinance § § 198-14 and 198-15 in failing to remove all snow, sleet, and/or ice and failing to sprinkle a suitable substance on the sidewalk to keep it in a safe condition. The plaintiff also brings this action against Wallingford pursuant to General Statutes § 13a-149 (the highway defect statute) citing negligence in failing to maintain and inspect the sidewalk.
The plaintiff attached the following to her complaint: Notice of intent to commence action to the city of Wallingford and certified mail receipt. (Pl.'s Ex. A.)
Section 198-14 provides for the maintenance of sidewalks and provides that: " Every person owning any land within the Town limits, upon or adjacent to which there now is or may be a sidewalk paved, constructed or worked, 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 in said walk and remove therefrom all obstructions in any way endangering or impeding the public travel upon the same, except that any defect in any sidewalk caused by the roots or limbs of any tree situated in the part between the curb and the sidewalk shall be the responsibility of the town, and the same shall be repaired at the expense of the town.
Section 198-15 provides in relevant part: " B. 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 18 hours after the same has fallen or from whatever cause located thereon or within 18 hours after sunrise when the same has fallen in the nighttime. The removal shall be sufficient to clear a path at least three feet in width over the entire length of the sidewalk . . . 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 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."
General Statutes § 13a-149 provides for injuries by means of defective roads and bridges and states 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 . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.
The motion for summary judgment presently before the court was filed by Wallingford, and it will be referred to as the defendant herein.
The defendant filed a motion for summary judgment on count two on August 10, 2015, on the ground that there is no genuine issue of material fact in that it did not have a duty to keep the sidewalk where the plaintiff fell clear of ice and snow. The defendant further maintains that the plaintiff's negligence claims are barred by the exclusivity provision of the highway defect statute. This motion was supported by a memorandum of law. On September 15, 2015, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment. The defendant filed a reply memorandum on December 4, 2015. This matter was heard at short calendar on December 7, 2015.
The defendant attached the following exhibits in support of its motion: statutory quitclaim deed to G. Jean Albert (Def.'s Ex. A); portions of the Wallingford Code (Def.'s Ex. B, C & D); a copy of C.G.S. § 7-163a (Def.'s Ex. E).
DISCUSSION
I
Standard of Review
" Summary judgment is a method of resolving litigation when 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 . . . The 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 . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " [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).
II
General Statutes 13a-149
As a preliminary matter, the court must determine if this case was brought pursuant to General Statutes § 13a-149, the highway defect statute. The defendant argues that the plaintiff's negligence claims against it must fail because her exclusive remedy is found in General Statutes § 13a-149, the highway defect statute. The plaintiff agrees that the highway defect statute is the exclusive remedy, and maintains that this cause of action has been brought accordingly. The plaintiff, however, takes issue with the defendant's position that the plaintiff's allegations that it was negligent in failing to enforce its ordinances renders her claims against it invalid.
" A town is not liable for highway defects unless made so by statute." Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). " [A]n action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge." (Internal quotation marks omitted.) Steele v. Stonington, 225 Conn. 217, 220, 622 A.2d 551 (1993).
An accumulation of ice and snow on a sidewalk is a highway defect for purposes of the statute. See Monteiro v. East Hartford, Superior Court, judicial district of Hartford-New Britain, Docket No. CV-94-0534950-S, (January 11, 1995, Corradino, J.) (13 Conn. L. Rptr. 285, 287).
A similar issue was brought before our Supreme Court in Steele v. Stonington, supra, 225 Conn. at 217. The principal issue in Steele was whether the trial court was correct in granting summary judgment to the defendant town on the ground that the plaintiff's action was based on negligence rather than the highway defect statute. The court disagreed with the ruling, stating, " [t]he defendant argues that the plaintiff's claim should be construed as one based upon negligence rather than § 13a-149 because the plaintiff's complaint contains specific allegations of negligence. Common law negligence principles are, however, a foundation for determining whether the defendant breached its duty under § 13a-149 . . . [E]ven though the plaintiff's cause of action is statutory, principles of negligence are instructive in analyzing the extent of the defendant's duty to the plaintiff . . . Indeed, although the cause of action under § 13a-149 is predicated upon a defective highway, we have long held that the municipality's liability under the statute resembles liability for negligence . . . If a difference does exist between an action predicated on the municipal highway defect statute and negligence, that difference, except for the requirement that the plaintiff act with due care, is paper thin. So, for example, we have held that to establish liability [under § 13a-149], the plaintiff ha[s] the burden of proving (1) the existence of a defect which resulted from the failure of the defendant to use reasonable care to keep the . . . [highways] within its control in a reasonably safe condition for public travel; (2) notice, either actual or constructive, to the defendant of the defect; and (3) the exercise by him of due care . . . The similarities between these requirements and the elements of negligence are so strong that it was not inappropriate for the plaintiff to allege negligence in stating a claim under § 13a-149." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 220-21.
The plaintiff has met his burden in alleging the elements necessary for a claim pursuant to the highway defect statute. First, the plaintiff alleges the existence of a defect, an accumulation of snow and ice on the sidewalk that was a result of the defendant's failure to use reasonable care to keep the sidewalk in a reasonably safe condition. Second, notice to the defendant is attached to the complaint. Lastly, the plaintiff alleges that she was caused to slip and fall " suddenly and without warning, " while walking along the sidewalk, which infers that she was exercising due care at the time. The plaintiff has sufficiently alleged liability, therefore, and count two against the defendant falls within the purview of the highway defect statute.
III
Liability Shifting Statute
The defendant's primary argument is that it is entitled to summary judgment because it did not owe a duty to the plaintiff to keep the sidewalk clear of ice and snow. Specifically, the defendant points to the Wallingford codes, which provide that it is the responsibility of the abutting landowner or occupant to remove snow, sleet, and ice from abutting sidewalks. The defendant argues that the ordinance incorporates General Statues § 7-163a, which makes its intent clear in that liability lies with the abutting landowner. The plaintiff replies that the defendant has not properly shifted liability to the landowner, and therefore it still owed the plaintiff a duty. More particularly, the plaintiff argues that the defendant did not use clear, explicit language to transfer liability, and further it retained control by providing for a " sidewalk inspector" in its ordinances.
General Statutes § 7-163a, municipality liability for ice and snow on public sidewalks, 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 own 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."
" 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." (Internal quotation marks omitted.) Robinson v. Cianfarani, 314 Conn. 521, 525, 107 A.3d 375 (2014).
" [T]he legislature enacted . . . 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; see Public Acts 1981, No. 81-340; municipalities across the state have incorporated the statute into their ordinances on removing ice and snow from sidewalks by adopting the statutory provision with clear, explicit language." (Footnote omitted.) Id., 526-27.
The plaintiff in the present case argues that in addition to adopting the provisions of section 7-163a, the defendant must use clear, explicit language to shift liability to the landowners. The plaintiff directs the court's attention to the ordinances of Bridgeport and New Haven, towns that have adopted section 7-163a in similar ordinances, and in addition to doing so, use language that shifts liability to the landowner. The plaintiff additionally points to Robinson v. Cianfarani, supra, 314 Conn. at 521. In Robinson, the plaintiff town appealed from the trial court's granting the landowner's motion for summary judgment on the ground that the town's ordinances did not shift civil liability to the landowners. The Robinson court affirmed the decision of the trial court, observing that, " an ordinance merely imposing a penalty for failure to clear a sidewalk does not shift liability for injuries to abutting landowners . . . This rule is grounded in 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 . . . Moreover, shifting liability upon an individual may not be accomplished by inference or unless expressly provided . . ." (Internal quotation marks omitted.) Id., 525-26. Further, " the relevant town ordinances, enacted long before the legislature adopted § 7-163a, impose a penalty for a landowner's failure to clear abutting sidewalks of ice and snow, but are silent as to transferring civil liability from the town to property owners . . . Because . . . the town has not adopted ordinance provisions under § 7-163a that shift civil liability to the landowner, any potential liability must remain exclusively with the town." Id., 528. (Citations omitted; internal quotation marks omitted.) Id., 527-28.
Bridgeport Municipal Code 12.16.160 provides for liability for ice and snow removal on public sidewalks and provides in relevant part: " 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, other than land used as a highway or street, provided the city shall be liable for its affirmative acts with respect to 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 prior to the effective date of the ordinance codified in this section adopted pursuant to the provisions of Connecticut General Statutes Section 7-163a and shall be liable to persons injured in person or property where a breach of duty is the proximate cause of injury . . ."
New Haven Municipal Code section 2-87 titled Municipal liability for ice and snow on public sidewalks (formerly section 2-50) provides in relevant part: " (a) the City of New Haven hereby adopts the provisions of Conn. General Statutes sect. 7-163a as amended from time to time, captioned " Municipal liability for ice and snow on public sidewalks." (b) The City of New Haven shall not be liable to any person or property caused by ice and snow on a public sidewalk, unless the city owns or is in possession and control of the land abutting such sidewalk, other than land that is used as a highway or street. However, the city shall be liable for its affirmative acts regarding such sidewalk. (c) [Responsibility of owner; time limitation re action for damages.] (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 abutting his/her property as the municipality had prior to the effective date of this section [Nov. 21, 1981], and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury . . ."
The court in Robinson cited to the town's ordinances as follows: " Article III, § 9-11(a), of the Enfield Code of Ordinances (1967), provides in relevant part that '[i]t shall be the duty of every owner or occupant of any premises within the town where there is a sidewalk, to remove or cause to be removed from such sidewalk, any and all snow, and ice . . .' Article III § 9-12(a), of the Enfield Code of Ordinances (1967) provides in relevant part that " [w]henever any owner or occupant of premises . . . whose duty it is to remove snow and ice . . . shall fail, refuse or neglect to comply with the same or shall otherwise violate any provision of this article shall be deemed guilty of a misdemeanor and fined as provided in section 1-8." Robinson v. Cianfarani, supra, 314 Conn. at 523 n.2.
The plaintiff also cites Foster v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-14-6045328-S, (December 15, 2014, Wilson, J.), to support her argument that Wallingford needed to adopt provisions of the statute with the addition of " clear, explicit language." In Foster, the court held that there was no evidence to establish that the city adopted an ordinance which shifts liability onto landowners to inspect or repair public sidewalks abutting their property.
The present case is distinguished from the facts in both Robinson and Foster . In Robinson, the town neither shifted liability in its ordinances nor did it adopt the General Statutes provision that would shift liability. Further, in Foster, the defendant acknowledged that there was an ordinance that shifted liability in connection with the removal of snow and ice. The plaintiff in that case, however, was injured when she fell over an uneven sidewalk caused by the roots of a tree--a condition that the ordinances did not provide for. Unlike the defendant in the present case, the municipalities in Robinson and Foster had not adopted any statute which would shift liability to the abutting landowner. See also Graichen v. Kennedy, Superior Court, judicial district of Hartford, Docket No. CV-13-6039019-S, (October 16, 2015, Wahla, J.) (granting motion for directed verdict where town ordinance did not contain language expressly shifting liability to abutting landowners or adopt statutory provisions).
The case law requires expressly adopting the provisions of section 7-163a in order to relieve a municipality of the duty to keep a sidewalk clear of snow and ice. Although the Wallingford ordinances seemingly only require an abutting landowner to remove snow and ice, the defendant has additionally incorporated provisions of the liability shifting statutes. Section 198-22 of the Wallingford town code states that: " The provisions of Public Act 81-340 are hereby adopted and made a part of this article." Public Act 81-340 was adopted into General Statutes § 7-163a, and thus by adopting this provision, the defendant has shifted liability to the landowner. Accordingly, since the defendant expressly adopted General Statutes § 7-163a, there is no genuine issue of material fact in that the defendant did not owe the plaintiff a duty, and the court grants the defendant's motion for summary judgment on this ground.
The present case is analogous to a 2009 Superior Court case, Dohna v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV-08-5022947-S, (April 13, 2009, Licari, J.), vacated, (May 11, 2009). In Dohna, Wallingford moved to dismiss the case for lack of subject matter jurisdiction on the ground that it had no duty to remove snow and ice from the sidewalk pursuant to the same ordinances as the ones in the present case. The court in that case found that liability was properly shifted to the abutting landowners with Wallingford's adoption of the provisions of Public Act 81-340 (7-163a). Moreover, in regards to the sidewalk inspector, the court observed, " [a]lthough 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." This decision was vacated by the same court, Licari, J., on other grounds, but the reasoning remains undisturbed.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment.