Opinion
No. CV08-5005249-S
April 21, 2009
MEMORANDUM OF DECISION
FACTS
The plaintiff, Jean Marie Howard, brings this action against the Stonebridge Restaurant, and its owner, Richard Conine. She seeks to recover for injuries and damages which she claims to have sustained on July 21, 2006, after patronizing the restaurant.
The establishment is located at 50 Daniel Street, in the City of Milford. A public sidewalk is located in front of the premises.
On July 21, 2006, the plaintiff left the Stonebridge Restaurant, and was walking on the sidewalk. She claims to have fallen on the curb area of the sidewalk located nearest to the street.
According to her complaint, Jean Marie Howard fell "due to a crack in the cement" which she alleged was located "at the end of the driveway apron." As a result of the fall she claims to have suffered serious personal injuries, including a fracture of the fifth metatarsal and three broken toes.
She claims that the crack in the cement had existed for a period of time, and that the Stonebridge Restaurant, and/or its owner, Richard Conine, "knew or . . . should have known . . ." of the unsafe condition.
She claims that the defendants were negligent, due to their alleged failure to properly maintain the sidewalk, their failure to notice a change in the elevation of the sidewalk, the failure to inspect the area and effect repairs, and the failure to warn her of the unsafe condition of the curb area.
The defendants have moved for summary judgment. They claim that, as the owner or person in possession of the abutting property, they owed no duty of care to the plaintiff, Jean Marie Howard. They further claim that the City of Milford has a legal duty to keep the sidewalk in repair, and that the City may not, by ordinance, shift its liability for injuries sustained as the result of a defective sidewalk to the owner of real property which abuts the sidewalk.
STANDARD OF REVIEW — SUMMARY JUDGMENT
A trial court may properly render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law. Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).
The party seeking summary judgment has the burden of showing the absence of any genuine issue as to any material fact, and that it is entitled to a judgment, as a matter of law. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994); D.H.R. Construction Co. v. Donnelly, 180 430, 434 (1980). A material fact has been defined as one which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
Summary judgment shall be rendered forthwith, if affidavits and other materials submitted demonstrate the absence of a material fact. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402 (1987); Practice Book § 17-49. In determining a motion for summary judgment, the court must view all of the evidence in the light most favorable to the non-moving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995).
Although the purpose of a motion for summary judgment is to rest for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the complaint fails to set forth a viable cause of action, and the defect cannot be cured through re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (2005).
THE ALLEGEDLY DANGEROUS AND/OR DEFECTIVE CONDITION DESCRIBED IN THE PLAINTIFF'S COMPLAINT IS LOCATED ON A PUBLIC SIDEWALK
The plaintiff first claims that the ownership and control of the sidewalk and driveway apron where she claims to have fallen, is "subject to interpretation," and therefore represents a disputed issue of material fact.
This claim is not persuasive.
Appended to the defendant's motion for summary judgment are two photographs (Ex. C) showing the location of a crack in the cement which the plaintiff claims is defective. The crack is located on the portion of the curb which abuts the public highway.
In a portion of her deposition (Ex. D) which was included in the materials appended to the motion for summary judgment, Jean Marie Howard circled the allegedly defective condition which it is claimed caused her to fall, and become injured. This area (Ex. D, p. 30) is clearly part of the public sidewalk, which is in front of the Stonebridge Restaurant.
THE CITY OF MILFORD IS NOT AUTHORIZED TO SHIFT THE DUTY TO KEEP A PUBLIC SIDEWALK IN REPAIR, OR ITS DUTY TO THIRD PARTIES INJURED AS A RESULT OF A DEFECTIVE SIDEWALK FROM ITSELF, TO AN ABUTTING LAND OWNERThe plaintiff maintains that her action against the abutting landowner is authorized, pursuant to Section 20-25 of the Milford Municipal Code. That section, which deals with sidewalks, curbs, gutters and driveway approaches, reads:
(a) Every owner of property in the city upon or adjacent to which is a sidewalk, curb, gutter, driveway approach or grass snow shelf area shall at all times maintain the same in a safe and suitably repaired condition, including the removal of obstructions or other impediments to safe use by the public such as gravel, leaves, debris and the like . . .
(c) Failure of such property owner to adequately maintain such sidewalk, curb, gutter, driveway approach or grass snow shelf area shall result in liability by the property owner in the event of personal injuries arising as a result of the failure to maintain.
The defendants contend that no provision of state law permits the City of Milford to shift the duty either to repair a sidewalk, or to compensate persons injured as a result of a defective sidewalk, to the person owning the real property abutting the sidewalk. They maintain that § 13a-99 of the General Statutes places the duty to repair and maintain sidewalks on the city. The statute reads:
"Towns shall within their respective limits, build and repair all necessary highways and bridges . . ."
The duty to keep a highway in repair, pursuant to this statute, extends to sidewalks. Ryszkiewiez v. New Britain, 193 Conn. 589, 594 (1984); Moleske v. MacDonald, 109 Conn. 336, 341 (1929).
As the party bound to keep the sidewalk in repair, the defendants argue, the City of Milford is the entity to whom an injured party must look for compensation, pursuant to § 13a-149 of the General Statutes. The liability imposed upon the municipality under § 13a-149, C.G.S. is purely for breach of a statutory duty, and does not arise out of negligence. Lukas v. New Haven, 184 Conn. 205, 212 (1981); Hillier v. East Hartford, 167 Conn. 100, 104 (1974).
Section 13a-149, C.G.S.-"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."
The sources of municipal authority are well defined. Because Connecticut municipalities are creatures of the state, they have no inherent legislative authority. Simons v. Canty, 195 Conn. 524, 529 (1985); New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499 (1981); Connelly v. Bridgeport, 104 Conn. 238, 252 (1926). They may only exercise those powers expressly granted to them by the Connecticut General Assembly. City Council v. Hall, 180 Conn. 243, 248 (1980); Pepin v. Danbury, 171 Conn. 74, 83 (1976); or such powers as are necessary to enable them to discharge the duties and carry into effect, the objects and purposes of their creation. Perretta v. New Britain, 185 Conn. 88, 102 (1981); Bredice v. Norwalk, 152 Conn. 287, 292 (1964).
The question is not whether any provision of state law prohibits a municipality from acting, but rather whether any statute contains authorization for the municipal activity. Avonside v. Zoning and Planning Commission, 153 Conn. 232, 236 (1965).
The principle that a municipality may only exercise those powers given to it by the General Assembly, either through a statute or a Special Act, is rooted in the Connecticut Constitution. Article TENTH, Sec. 1 of the Connecticut Constitution, provides that the General Assembly:
shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers . . . of such political
subdivision.
The delegation of authority to a municipality has been narrowly construed. Simons v. Canty, supra, 530. An enumeration of powers in a statute is uniformly held to forbid those things which are not enumerated. State ex rel Barnard v. Ambrogio, 162 Conn. 491, 498 (1972).
Section 7-148(c)(1)(6)(C)(v) of the General Statutes, permits a municipality to impose certain obligations upon the possessor of land adjacent to a sidewalk. The statute permits a municipality to:
(v) Require owners or occupants of land adjacent to any sidewalk or public work to remove snow, ice, sleet, debris, or other obstruction therefrom, provide penalties upon their failure to do so, and cause such snow, ice, sleet, debris or other obstruction to be removed and make the cost of removal a lien on such property.
While permitting reimbursement to the municipality for the cost of removing "snow, ice, sleet, debris or other obstruction . . ., "the statute does not permit a municipality to shift to the occupier of the land the obligation to keep the sidewalk in repair. The obligations imposed upon the person in possession of the land are simply a means of discharging the statutory duty of the municipality to "keep open and safe for public use and travel and free from encroachment or obstruction the streets, sidewalks and public places of the municipality." § 7-148(c)(1)(C)(ii), C.G.S.
Section 7-136a of the General Statutes, permits a municipality, at its option, to shift the burden of clearing ice or snow from a sidewalk to the person in possession or control of the land abutting the sidewalk, and to make the person in control of land abutting a sidewalk liable to persons injured by breach of the duty imposed.
Section 7-163a(c)(1)-The owner or person in possession or control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice and 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 the breach of such duty is the proximate cause of said injury.
The statute, originally Public Act 81-340, applies only to the presence of ice and snow, and does not involve any obligation by an abutting landowner to repair a sidewalk, or to keep the sidewalk free of defective conditions which do not involve the presence of ice or snow.
No provision of the General Statutes authorizes a municipality, by ordinance, to shift its statutory duty to keep a sidewalk in repair to the person in possession or control of land abutting a sidewalk, and to render that person liable for personal injuries sustained as a result of a dangerous and/or defective condition. Dreher v. Joseph, 60 Conn.App. 257, 262 (2000). If any such statute existed, § 7-163a, C.G.S. would have been unnecessary, redundant, and superfluous.
Liability for damages sustained in sidewalk accidents is potentially formidable, given the serious consequences which may flow to an injured person. Statutory authorization for liability must be clear and unambiguous. It cannot be supplied by inference. Willoughby v. New Haven, 123 Conn. 446, 455-56 (1937). No court should by implication or conjecture, supply such authorization, when the General Assembly has declined to specifically supply the authority to a municipal legislative body.
As a general rule, those owning or occupying land abutting a public street or sidewalk are under no obligation to keep the street or sidewalk in front of the property reasonably safe for public travel. Perkins v. Weibel, 132 Conn. 50, 52 (1948).
An abutting landowner, absent express legislative authorization, may only be liable if he places something on the highway, and injury is sustained thereby. An abutting owner or occupier is under a duty to use his land, in a manner that does not injure travelers in their lawful use of the highway, and may be liable for a breach of that duty. Calway v. William Schaal Son, Inc., 113 Conn. 586, 591 (1932) (water coming off a roof and forming on a sidewalk); Hanlon v. Waterbury, 108 Conn. 197, 201 (1928) (gasoline spilling onto a sidewalk). Where an abutting owner has not, by his own act, created a condition on a highway or sidewalk dangerous to travelers, the municipality bears the burden of keeping the highway in reasonably safe condition. Stevens v. Neligon, 116 Conn. 307, 310 (1933).
The plaintiff has not attempted to allege facts which would support a claim that the Stonebridge Restaurant or Richard Conine operated the restaurant in a way which rendered the sidewalk in front 50 Daniel Street, Milford, unsafe for public travel.
Section 7-163a(c)(1), C.G.S. imposes upon the owner of land abutting a sidewalk, at the option of the municipality, the same duty ". . . which the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section . . ." Implicit in this provision, is the statutory obligation of the municipality to keep the sidewalk in repair.
To the extent that Section 20-25 of the Milford Municipal Code seeks to impose upon the owners or occupiers of land abutting a public sidewalk the obligation to keep the sidewalk in repair, or liability for injuries sustained by persons using the sidewalk, the ordinance is ineffective, and is not authorized by law.
The motion for summary judgment filed by the defendants Stonebridge Restaurant and Richard Conine is GRANTED.