Opinion
No. MMX CV 09 5006828S
May 5, 2010
MEMORANDUM OF DECISION
The plaintiff, Anita Materazzo, by way of a second amended complaint dated October 26, 2009, alleges negligence against the defendant, City of Middletown, and alleges the following facts. Tree roots beneath the public sidewalk caused a change in elevation where the brick part of the sidewalk met the cement part of the sidewalk and created a tripping hazard in front of the Java Palooza Cafe located at 330 Main Street, Middletown, Connecticut. This tripping hazard occurred in an area where pedestrians could be expected to walk and had existed for an unreasonable length of time. On or about August 1, 2008, this tripping hazard caused the plaintiff to trip and fall, and, as a result, the plaintiff suffered severe and painful injuries, including a fractured wrist. The plaintiff exercised due care while walking on the sidewalk, and the tripping hazard was the direct and proximate cause of her fall. The defendant managed, maintained and controlled the sidewalk and knew or should have known about the tripping hazard. Furthermore, the defendant failed to warn the plaintiff of the tripping hazard, failed to make a reasonable inspection of the sidewalk and failed to repair the sidewalk and make it reasonably safe. Moreover, the defendant allowed the Java Palooza Cafe to block off part of the sidewalk. As a result, the plaintiff further alleges that the defendant City of Middletown is liable for the plaintiff's injuries and seeks money damages. The plaintiff also alleges that, pursuant to General Statutes § 13a-149, she timely gave Middletown a written notice of the injury and general description of same, and of the cause thereof and the time and place of its occurrence. On November 17, 2009, the defendant filed its answer and the special defense of contributory negligence. In its answer, the defendant denied or pleaded insufficient knowledge as to the substantive allegations in the complaint. Additionally, the defendant alleged in its special defense that the plaintiff failed to exercise due care by watching where she was walking.
General Statutes § 13a-149 provides in relevant part: "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."
A review of the following facts and procedural history is necessary to provide context for the motion presently before the court. On May 4, 2009, the plaintiff filed a three-count complaint sounding in negligence, one count each against the three defendants, Middletown, Neil Dinemman (Java Palooza) and Leka, LLC (Leka). The plaintiff amended her complaint on June 15, 2009. The allegations in count one of the first amended complaint are similar to those in the plaintiff's second amended complaint. In addition, the plaintiff alleged the following facts in counts two and three. Java Palooza, as the renter of the premises located at 330 Main Street, blocked off part of the sidewalk to allow its customers to dine outdoors, which forced the plaintiff to walk on the defective part of the sidewalk and, therefore, Java Palooza was liable for the plaintiff's injuries. Furthermore, Leka, as the owner of the premises, had a duty pursuant to Chapter 262, § 262-21B of the Middletown code of ordinances to maintain and repair the sidewalk and negligently breached that duty by failing to keep the sidewalk in a reasonably safe condition. Therefore, Leka was liable for the plaintiff's injuries.
Chapter 26, § 262-21B of the Middletown code of ordinances provides in relevant part: "Every person owning land within the [c]ity limits upon or adjacent to which there is now, or may be, a sidewalk . . . 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 of any tree situated between the curb of the street and the sidewalk shall be the responsibility of the [c]ity and shall be repaired at the expense of the [c]ity."
On May 20, 2009, Leka filed a motion for summary judgment on the ground that "Connecticut law does not allow a claim to be stated against an abutting landowner for defects on public sidewalks." Specifically, Leka argued that § 262-21B did not expressly shift liability to abutting landowners and that, absent an enabling statute, a municipality cannot shift liability for raised or uneven sidewalks to abutting landowners. Therefore, according to Leka, the plaintiff had no cause of action against it. In response, the plaintiff countered that Leka, as Java Palooza's landlord, had a nondelegable duty to maintain the sidewalk in a reasonably safe condition, and, relying on Gambardella v. Kaoud, 38 Conn.App. 355, 358, 660 A.2d 877 (1995), argued that Java Palooza, with Leka's knowledge, "performed a positive act in blocking off the sidewalk, which substantially contributed to the plaintiff's fall." To support her argument, the plaintiff filed an affidavit in which she swore that Java Palooza "had fenced off the sidewalk for its patrons to sit at tables," which forced her to walk on the defective portion of the sidewalk.
On June 23, 2009, the court, Taylor, J., granted Leka's motion for summary judgment. The court held that fencing off part of the sidewalk was not an affirmative act sufficient to be within the holding of Gambardella, that pursuant to Dreher v. Joseph, 60 Conn.App. 257, 262, 759 A.2d 114 (2000) municipalities have no authority to shift liability for raised or uneven sidewalks to abutting landowners and, therefore, that the plaintiff "failed to raise a material fact sufficient to meet her burden." As a result, this court entered judgment in favor of Leka, and the plaintiff withdrew her action against Java Palooza, leaving only one count of negligence against the defendant.
On January 29, 2010, the defendant filed a motion for summary judgment, supported by a memorandum of law and documentary evidence. On February 23, 2010, the plaintiff filed a memorandum of law in opposition to the defendant's motion, supported by documentary evidence, and the court heard the matter at the short calendar on March 15, 2009.
DISCUSSION
Practice Book § 17-44 provides in relevant part: "In any action . . . any party may move for a summary judgment at any time . . ." Practice Book § 17-49 provides: "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] requires that judgment 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Citations omitted; internal quotation marks omitted.) Washington v. Blackmore, 119 Conn.App. 218, 220-21, 986 A.2d 356 (2010).
The defendant argues that it is entitled to judgment as a matter of law because the existence of the tripping hazard was not the sole proximate cause of the plaintiff's injuries. Specifically, it argues that the following factors contributed to the plaintiff's fall: (1) Java Palooza fenced off part of the sidewalk to provide outside dining for its customers, which forced the plaintiff to walk over the area where she tripped; (2) the plaintiff moved out of the way of pedestrians walking towards her; and (3) the plaintiff was not looking at the sidewalk. In response, the plaintiff counters that the defendant had the sole duty to keep the sidewalk in repair, and that pursuant to Judge Taylor's ruling, partially fencing off the sidewalk did not contribute to the plaintiff's fall. Therefore, the tripping hazard was the sole proximate cause of the plaintiff's fall.
Section 13a-149 provides 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." "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 395, 900 A.2d 82 (2006). Further, "[a]lthough pedestrians are bound to make reasonable use of their senses to ascertain the condition of the ground and the area over which they are passing, the general rule is that pedestrians can assume that a municipality has performed its duty to maintain the sidewalks under its control in a reasonably safe condition for the ordinary use of pedestrians unless the contrary is evident or reasonably should have been evident." Rodgriguez v. New Haven, 183 Conn. 473, 478, 439 A.2d 421 (1981).
Additionally, "[t]o recover under § 13a-149, a plaintiff must prove, inter alia, that the defect was the sole proximate cause of her injuries." Nicefaro v. New Haven, 116 Conn.App. 610, 620, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). Furthermore, "[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321-22, 852 A.2d 703 (1994). Our Supreme Court has held that whether a partially blocked off sidewalk is the proximate cause of a pedestrian's injuries is a question of fact because the "question of proximate cause is so fundamentally one of fact and inference that, even where . . . there is no serious dispute about the material facts, it should be left to the jury if it is open to a reasonable difference of opinion." Edgecomb v. Great Atlantic Pacific Tea Co., 127 Conn. 488, 492, 18 A.2d 364 (1941).
In addition, "[b]ecause a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence . . . To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill." (Citations omitted; internal quotation marks omitted.) Nicefaro v. New Haven, supra, 116 Conn.App. 621. "In order to find contributory negligence . . . the court must conclude that the plaintiff did not use reasonable care . . . In determining the care that a reasonable prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the [plaintiff] at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised." (Internal quotation marks omitted.) Abate v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 07 5004438 (February 18, 2009, Cohn, J.). Although "the burden rests with the plaintiff in an action brought under § 13a-149 to demonstrate freedom from contributory negligence;" Nikiel v. Turner, 119 Conn.App. 724, 728, 989 A.2d 1088 (2010); the question of contributory negligence is one of fact for the trier's determination. Cote v. Hartford, 128 Conn. 483, 487, 23 A.2d 868 (1942).
Further, "negligence on the part of the plaintiff or an independent third party may serve as a defense to liability under the sole proximate cause requirement of § 13a-149 when such negligence combines with the defect to cause the plaintiff's injuries. Such liability, however, also may be defeated by the concurrence of an existing defect and nonnegligent intervening factors . . . Thus, it is not the mere existence of third party negligence that defeats municipal liability under § 13a-149 but, rather, the existence of any intervening factors unrelated to the defect itself whether negligent or not, that combine with the defect to cause the plaintiff's injuries." (Citations omitted.) Machado v. Hartford, 292 Conn. 364, 378-79, 972 A.2d 724 (2009). Our Supreme Court has stated that stepping aside to allow other pedestrians to pass by is not an intervening factor sufficient to defeat the sole proximate cause requirement. Cote v. Hartford, supra, 128 Conn. 488.
The defendant argues that the plaintiff's sworn testimony admits that several factors besides the tripping hazard contributed to her fall. Specifically, the defendant points to the affidavit the plaintiff submitted in opposition to Leka's motion for summary judgment. In her affidavit, the plaintiff stated in relevant part: "I was forced to walk in this area where the cement met the brick portion of the sidewalk . . . because [Java Palooza] had fenced off the sidewalk for its patrons to sit at tables. This fenced off area, is obvious to everyone, including the owner of the property, [Leka] . . . This act of the tenant made the dangerous condition more likely to cause my fall." Furthermore, the defendant notes that the plaintiff, in her objection to Leka's motion for summary judgment, stated that "[Leka] and [its] agent, [Java Palooza], created the circumstances which caused the plaintiff to trip." The defendant also points to the plaintiff's deposition testimony in which she states that she was looking straight ahead rather than down at the sidewalk, and that she moved out of the way of oncoming pedestrians just prior to tripping. Relying on Machado, the defendant contends that on the basis of this evidence intervening factors combined with the tripping hazard, and, therefore, the tripping hazard was not the sole proximate cause of the plaintiff's fall.
In response, the plaintiff counters that pursuant to Judge Taylor's ruling, Java Palooza's act of fencing off the sidewalk was not a positive act which contributed to the plaintiff's fall. The plaintiff also argues that the defendant alone has a duty to maintain and repair the sidewalk, there is no evidence that the defendant could shift this duty to abutting landowners and there is no evidence that either Java Palooza or Leka created the tripping hazard. On the contrary, the plaintiff points to the defendant's engineering expert's report and two tree inspection reports requested by the defendant that, according to the plaintiff, concluded that the uneven sidewalk caused the plaintiff's fall and "present sufficient evidence that there is a defect, that it should have been discovered and that the [defendant] had time to remedy it." The plaintiff further argues that she has consistently pleaded that the tripping hazard was the sole proximate cause of her trip and fall. Finally, the plaintiff contends that whether she should have seen the defect is a question of fact. In addition to her documentary evidence, the plaintiff also submitted a close-up photograph of the tripping hazard and two photographs of the fenced off sidewalk in front of Java Palooza.
The court first addresses the issue of whether the plaintiff's actions contributed to her fall. Our Supreme Court's decision in Cote is instructive. In that case, the plaintiff, while walking on the public sidewalk, tripped and fell due to a defect in the sidewalk caused by two upheaved flagstones. Although the plaintiff saw the defect while some distance away, she decided to step over it rather than avoid it by taking another route. As she drew near the defect, she stepped aside to allow another pedestrian to pass her, and after doing so, she continued on and tripped over the defect. The trial court concluded that, inter alia, the defective sidewalk was the sole proximate cause of the plaintiff's injury and entered judgment for the plaintiff. Thereafter, the defendant appealed on the grounds that, inter alia, the plaintiff's negligence and the intervention of the passing pedestrian contributed to her fall and, therefore, the defective sidewalk was not the sole proximate cause of the plaintiff's injury. The court affirmed, holding that "[w]hile these facts were evidential of a lack of due care on the plaintiff's part, it cannot be said that either singly or together they established contributory negligence as a matter of law . . . and notwithstanding these facts the question of her contributory negligence was one of fact for the court's determination." Cote v. Hartford, supra, 128 Conn. 487. Furthermore, the court determined that the plaintiff's stepping aside to allow another pedestrian to pass her was not an intervening act that made the defect any less the sole proximate cause of the plaintiff's injury because "the plaintiff's injury was the direct result of a defect in the sidewalk which naturally exposed her to danger in relation to those events naturally incident to its use, [and] this effect cannot be accorded to the nonculpable conduct of this fellow traveler." Id., 488.
Similarly, the plaintiff in the present case stated in her deposition testimony that she tripped on the sidewalk after stepping aside to allow other pedestrians to pass by. The plaintiff also stated that she was looking straight ahead rather than down at the ground. The exercise of due care did not require the plaintiff to continually keep her eyes on the sidewalk while walking, but only to exercise a degree of watchfulness that a reasonable prudent person would observe. See Lawson v. Waterbury, 115 Conn. 716, 718, 161 A. 667 (1932). Furthermore, a recent superior court decision has held that stepping aside to allow other pedestrians to pass by does not establish contributory negligence. See Abate v. New Britain, supra, Superior Court, Docket No. 07 5004438. Moreover, as noted previously, the plaintiff had a right to assume that the defendant maintained the sidewalk in a reasonably safe condition for public travel. Thus, the trier could find that it was reasonably prudent for the plaintiff to look forward rather than down at the sidewalk because of the oncoming pedestrian traffic. Finally, although the plaintiff previously argued that the fence erected by Java Palooza forced her to walk over the tripping hazard, which according to the defendant established third-party contributory negligence, Judge Taylor implicitly rejected that argument when he concluded that fencing off part of the sidewalk was not a positive act sufficient to be within the holding of Gambardella. Therefore, construing the evidence in a manner most favorable to the plaintiff, an issue of material fact exists as to whether those actions, either singly or together, established contributory negligence.
The court next addresses whether intervening factors combined with the tripping hazard caused the plaintiff's injuries. As the plaintiff points out, neither moving out of the way of oncoming pedestrians nor fencing off part of the sidewalk created the tripping hazard. Nevertheless, pursuant to Machado the court must examine all the facts and circumstances to determine whether unrelated intervening factors combined with the defect so as to defeat the sole proximate cause requirement. As noted previously, stepping out of the way of oncoming pedestrians is not an intervening act sufficient to defeat the sole proximate cause requirement. Furthermore, viewing the photographs submitted by the plaintiff in a light most favorable to her, the modest dimensions of the fence in relation to the broad dimensions of the sidewalk raises a question of fact as to whether the fence was an intervening factor. Consequently, as the question of proximate cause involves a fact-driven analysis, it cannot be said as a matter of law that those acts combined with the defective sidewalk caused the plaintiff's injuries.
Accordingly, the defendant's motion for summary judgment is denied.