Opinion
No. HHB-CV-05-5000116-S
March 30, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ( #111)
By motion for summary judgment, filed on January 30, 2006, the defendant City of New Britain (the city) seeks judgment on the first count of the plaintiff's complaint. Oral argument was heard by the court on March 20, 2006. For the reasons stated below, the court grants the motion.
I. BACKGROUND
In this matter, the plaintiff, Jeanne Rivers, alleges that, on January 7, 2003, she was injured when she fell on a sidewalk on Main Street in New Britain, Connecticut. The sidewalk abuts state-owned property at 185 Main Street, which is used as part of the Central Connecticut State University (the university), and parts of which are leased to private businesses. See affidavit of Robert A. Dudek, ¶¶ 5-6. In the first count of the complaint, Rivers claims that the city had a duty "to keep and maintain the sidewalks and streets within its territorial limits in a reasonably safe condition." See complaint, first count, ¶ 2. The city allegedly breached that duty by allowing an unreasonable accumulation of snow and ice on the sidewalk, resulting in the plaintiff's fall and injuries.
In addition, the plaintiff asserted claims against Stephen Korta, the commissioner of the state department of transportation, but these claims were dismissed on the ground of sovereign immunity. See #102.
The city argues that it is not liable to the plaintiff because it enacted an ordinance, authorized by General Statutes § 7-163a, pursuant to which it owed no duty of care to the plaintiff, since that statute provides that a municipality may be liable only if it owns or is in possession and control of the land abutting the sidewalk, provided that it "shall be liable for its affirmative acts with respect to such sidewalk." The motion for summary judgment was accompanied by a memorandum of law and the following exhibits: (1) a tax card for the property at 185 Main Street, (2) specifications for snow removal at 185 Main Street, (3) the university's purchase order for snow removal at 185 Main Street by Lawn Ranger, LLC, (4) Lawn Ranger's invoice for its snow removal services to the university, and (5) the deposition testimony of the plaintiff.
On March 8, 2006, the plaintiff filed her objection to the motion, accompanied by a memorandum of law, an affidavit of Lewis J. Mirante, a land surveyor, and portions of the plaintiff's deposition. On March 17, 2006, the plaintiff filed her supplemental affidavit in support of her objection to summary judgment. The plaintiff argues that § 7-163a does not shift the duty of care when the abutting landowner is the state and that the city, as owner of the sidewalk, is still responsible for snow and ice accumulation independent of the abutting landowner.
On March 17, 2006, the city filed a reply to the plaintiff's objection to the motion, along with the affidavit of Robert A. Dudek, the assistant city assessor.
II. STANDARD OF REVIEW
Practice Book § 17-49 provides that summary judgment shall be granted "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." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "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." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000).
"The movant must show 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." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 751-52, 660 A.2d 810 (1995). While "the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). The opposing party must do more than merely assert the existence of a disputed issue of fact. See Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court" in support of a motion for summary judgment. Id. "To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990).
The court notes that each party has presented uncertified evidence, in support of and in opposition to the motion. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) ("[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1).
Practice Book § 17-45 provides, in pertinent part, "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
However, our Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider uncertified evidence, and no objection was raised on that basis to such consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side.
III. DISCUSSION
Since 1672, municipalities have been responsible for maintaining the sidewalks within their borders. See Gould v. Hartford, 44 Conn.Sup. 389, 393-94, 691 A.2d 35 (1995). See also General Statutes § 13a-149. In Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001), our Supreme Court reiterated that "[a] town is not liable for highway defects unless made so by statute." (Internal quotation marks omitted.) It noted also that "in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." Id.
General Statues § 13a-149 provides, in 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 . . ."
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective `road or bridge' and (2) the party whom the plaintiff is suing must be the `party bound to keep [the location where the injury was sustained] in repair.'" Novicki v. New Haven, 72, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998). Although the language of the statute does not specifically include sidewalks, "[t]he word road or highway as used in the highway defect statute has usually been construed to include sidewalks." Id., 740.
Notwithstanding § 13a-149, the city argues that it is not liable for injuries related to the sidewalk by virtue of General Statutes § 7-163a. General Statutes § 7-163 a, provides in relevant part, that "[a]ny town . . . may, by ordinance, adopt the provisions of this section [and] [n]otwithstanding the provisions of section 13a-149 or any other general statute or special act, such town . . ., shall not be liable to any person injured . . . 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 . . . The owner . . . 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 . . ."
This statute, as our Appellate Court has explained, "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." (Footnote omitted.) Dreher v. Joseph, 60 Conn.App. 257, 261-62, 759 A.2d 114 (2000). The city has adopted an ordinance, New Britain Code § 21-8.1, which incorporated § 7-163a in its entirety.
The plaintiff argues that § 7-163a allows the city to transfer liability only in instances where the abutting landowner could be held liable. She contends that, since the abutting landowner in this case is the state, the city remains responsible for the sidewalk. Alternatively, the plaintiff argues that § 7-163a should be construed to require the city, as owner of the sidewalk, to be liable for the sidewalk. In other words, she asserts that the "owner" referenced in § 7-163a is the owner of the sidewalk, not the owner of the abutting property. See plaintiff's memorandum of law, p. 3.
In her memorandum of law, p. 4, the plaintiff states that "[t]he parties do not dispute that the land abutting the public sidewalk at 185 Main Street is owned by the State of Connecticut."
As an initial matter, the plaintiff's alternative argument is unpersuasive. If the statute is interpreted to mean that the city, by owning the sidewalk, is liable for the sidewalk, then § 7-163a is rendered meaningless. "[I]t is a basic tenet of statutory-construction that the legislature [does] not intend to enact meaningless provisions." (Internal quotation marks omitted.) Echavarria v. National Grange Mutual Insurance Co., 275 Conn. 408, 415, 880 A.2d 882 (2005). Instead, according to its clear and unambiguous language, the "owner" in § 7-163a is the owner of the abutting land.
The meaning of § 7-163a is clear. It provides that "such town . . . 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 . . . provided such municipality shall be liable for its affirmative acts with respect to such sidewalk." (Emphasis added.) In this case, it is undisputed that the city does not own the land abutting the sidewalk. Also, no evidence has been presented that it was in possession and control thereof, and no affirmative acts by the city have been demonstrated. As such, the municipality "shall not" be liable for the plaintiff's injuries.
The plaintiff correctly points out that at least one Superior Court decision has denied a city's motion for summary judgment under § 7-163a. In Logan v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0466953 (December 29, 2003, Devlin, J.) ( 36 Conn. L. Rptr. 284), the plaintiff brought an action against the town after he was allegedly injured when he slipped and fell on a city sidewalk abutting state property. The city moved for summary judgment on the ground that it had transferred its responsibility for the sidewalk to the abutting landowner, i.e., the State of Connecticut, pursuant to § 7-163a and a provision of the city code. The court denied summary judgment, holding that the statute and the New Haven ordinance were insufficient to impose a legal burden on the state. See CT Page 6088 id. The court held that the "duty shifting provisions [in § 7-163a] are not applicable where . . . the adjoining landowner is the State of Connecticut." In support, the court cited the legislative history of § 7-163a, finding that "the legislature intended to transfer the then existing municipal obligation to clear ice and snow from public sidewalks to private landowners."
The plaintiff also relies on Gould v. Hartford, supra. 44 Conn.Sup. 389, 400, where the court discussed the legislative history of § 7-163a as well. There, however, the court was not asked to consider whether the municipality could be liable in the context of abutting state-owned property. The court's discussion in Gould was set forth in connection with the state's motion to dismiss on the ground of sovereign immunity.
This court, however, finds the language of § 7-163a unambiguous. If, after examining the text of a statute and considering its relationship to other statutes, "the meaning of the text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z. By the plain meaning of § 7-163a, which explicitly states that its provisions apply, "[n]otwithstanding the provisions of section 13a-149 or any other general statute or special act," municipalities are not liable for ice and snow sidewalk injuries unless the municipality owned the abutting land, possessed and controlled the abutting land, or engaged in affirmative acts that contributed to the plaintiff's injuries.
The plaintiff does not claim that this is an absurd or unworkable result. Also, it does not leave a person who was injured on a sidewalk which abuts state-owned property without a remedy. For example, such a claimant may present a claim against the state to the claims commissioner. See General Statute § 4-141 et seq.; Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 358 n. 4, 422 A.2d 268 (1979). "As undesirable as the plaintiff may find this statutory scheme, it nevertheless is the expression of a policy decision committed to the legislature. Thus, [w]e must resist the temptation which this case affords to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 313, 875 A.2d 498 (2005).
In addition, a plaintiff may seek relief, on negligence grounds, against a snow removal contractor, for claimed personal injuries. See Gazo v. Stamford, 255 Conn. 245, 246-58, 765 A.2d 505 (2001) (independent contractor owed duty of care to plaintiff claiming injuries from a slip and fall on icy and snowy property). Here, as noted above, the state engaged a contractor, Lawn Ranger, to provide snow removal, sanding, and application of ice melting services at 185 Main Street. See Exhibits B, C, and D to the city's memorandum of law.
VI. CONCLUSION
Accordingly, the city's motion for summary judgment is granted as to the first count of the plaintiff's complaint. It is so ordered.