Opinion
No. CV05 400 50 17
October 26, 2005
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO STRIKE (#110.00)
The plaintiff, Carol Heck, has brought this action to recover uninsured motorist benefits from her insurance carrier for injuries received in a car accident on August 25, 2003. The apportionment plaintiff, Amica Mutual Insurance Company (Amica), alleges that the stop sign through which the uninsured tortfeasor drove was obscured by the overgrowth of a tree on property owned by the apportionment defendant, Tyler-Wolff, LLC (Tyler-Wolff). Amica alleges that the injuries suffered by the plaintiff were the result of the apportionment defendant's failure to prune or otherwise maintain the tree on its property.
General Statutes § 23-59 provides in relevant part: "[t]he 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 . . . 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." General Statutes § 23-65(6) also provides that: "[t]he removal, pruning or wilful injury of any shrub or ornamental or shade tree . . . without the consent of the tree warden . . . shall be subject to the penalty . . ." Taken together, these two statutes "make 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 any parts of trees extending within those limits, though the trees themselves stand on private grounds . . ." Muratori v. Stiles Reynolds Brick Co., 128 Conn. 674, 678, 25 A.2d 58 (1942).
In Watson v. Alpert, for example, the court held that where a defendant's trees or shrubs have limbs or branches extending over a public road, their care, custody and exclusive control is with the tree warden. Watson v. Alpert, Superior Court, judicial district of New CT Page 13355-z Haven, Docket No. CV 99 432749 (September 26, 2002, Robinson-Thomas, J.) ( 33 Conn. L. Rptr. 171). The court concluded that, in such a situation, "the [owner of the property] did not owe a duty of care to the plaintiff with respect to the tree on his property. Without such a duty, there cannot be any actionable negligence on his part." Id. In the present case, Tyler-Wolff owed no duty of care to the plaintiff with respect to the tree on its property, and because there is no duty, there is no actionable negligence on its part.
Amica also alleged that Tyler-Wolff is liable for its failure to control the growth of its trees that obscure sight lines on the property. On this claim, however, Amica has failed to cite any statutory or case law to support its proposition. There has been no allegation of any injury based upon someone's entry onto the landowner's property, and there is no allegation of a breach of duty to an invitee, licensee, and or trespasser. Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). The only recognized basis for liability for the obscuring of a stop sign by overgrown trees or shrubs is pursuant to the above-mentioned statutes which provide, where applicable, for responsibility on the tree warden. Muratori v. Stiles Reynolds Brick Co., supra, 128 Conn. 674.
Based on the foregoing, even though the tree involved in this case may stand on Tyler-Wolff's property, General Statutes §§ 23-59 and 65 vests the care and control of limbs or branches which extend over a public road with the municipal tree warden. Tyler-Wolff's motion to strike is therefore granted. CT Page 13355-aa