Opinion
No. HHB CV07 5005813
March 27, 2009
MEMORANDUM OF LAW ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff commenced this action alleging that she suffered personal injury as a result of the defendant's negligence. The plaintiff was walking on a public sidewalk adjacent to a lot owned and controlled by the defendant when her foot tipped off the edge of the sidewalk. Because the earth next to the sidewalk was between one and two inches inches below the level of the sidewalk, she lost her balance, fell to the ground, and injured her shoulder and wrist.
The sidewalk is owned and controlled by the City of New Britain and passes over property — an expanse variously described as lawn, dirt, or mulch — under the control of the defendant hospital. The plaintiff alleges that the defendant had a duty to maintain the earth next to the sidewalk so that it did not present a danger to sidewalk pedestrians. She alleges that the dangerous condition was the drop off that is, that the defendant failed to maintain the earth next to the sidewalk so that the earth was generally level to the sidewalk, and so that the earth was of a sufficiently contrasting color so as to be readily perceived by a sidewalk pedestrian. The plaintiff also alleges that the defendant had a duty to direct adequate lighting from its property onto the sidewalk so that pedestrians like her could perceive the difference in levels between the sidewalk and the earth.
The defendant denies that it owes any such duties to the plaintiff. The defendant has moved for summary judgment. The plaintiff opposes the motion.
STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
The issue of whether a defendant owes a duty of care to a plaintiff is an appropriate matter for summary judgment because the question is one of law. There can be no cause of action for negligence unless there exists a cognizable duty of care. Whether a duty of care exists is a question of law to be decided by the court. See Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).
THE DUTY OF AN ADJOINING LANDOWNER TO TRAVELERS ON A PUBLIC WAY
The Restatement of Torts, Second, provides guidance concerning the duty owed by an abutting landowner to those traveling upon a public highway or right of way, including public sidewalks. First, the Restatement (Second) of Torts § 349 explains that there is no duty on the adjacent landowner to undertake conduct to render the adjacent highway safe or to warn of any condition that would render the highway unsafe. Section 349 states:
Any duty is actually on the party who possesses or controls the premises, whether or not that party owns the land outright. The court adopts the term "landowner" only for convenience.
A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.
It is clear that the owner of the adjacent land can only be subject to liability to travelers who are fully on the highway if the landowner causes injury by creating or maintaining a "structure or other artificial condition" on the highway itself. See, Restatement (Second) of Torts § 350.
But the plaintiff here claims that it was not any condition on the sidewalk itself that caused her to fall. Rather she claims it was a condition on the landowner's own property — on the earth next to the sidewalk — that caused her to fall. As to that, one must look to Section 368 of the Restatement (Second) of Torts, entitled "Conditions Dangerous to Travelers on Adjacent Highway":
A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidently brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel. [Emphasis supplied.]
Connecticut has adopted this principal of law. See Pion v. Southern New England Telephone Company, 44 Conn.App. 657, 662, 691 A.2d 1107 (1997); Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, 471-72, 784 A.2d 1041 (2001).
Assuming, arguendo, that this plaintiff is one whom the defendant could foresee would deviate from the ordinary course of travel — that is, one who might make a misstep at the edge of the sidewalk — the question becomes whether the defendant created or permitted there to be an "excavation or other artificial condition," id., adjacent to the sidewalk that would create an unreasonable risk. This court has been unable to find any case or case example that holds that a vacant lot composed of lawn, dirt, or mulch can qualify as an excavation or other artificial condition.
There is no dispute in this case that the sidewalk ran over ordinary earth. While there is evidence that the defendant did some landscaping on the lot such as throwing down mulch to control weeds, there is no evidence that the defendant ever adjusted the level of the earth next to the sidewalk, and certainly no evidence that the defendant ever lowered the level of the earth artificially or otherwise.
Indeed the cases that deal with hazards created on land adjacent to a highway from which travelers have accidentally veered are ones that describe significant construction to a greater or lesser degree. See, e.g., Military Highway Water Supply Corporation v. Morin, 114 S.W.3d 728, Tex.App. 13th Dist. (2003) (car collided with horse upon highway and then car careened off the road into a berm and three-foot excavation created by the abutting landowner, causing the car to flip over; held, abutting landowner owed duty to highway travelers).
The plaintiff points to only one case in which a change of level from a public sidewalk down to the defendant's property subjected a landowner to potential liability. In Paine v. Hampton Beach Improvement Co., 98 N.H. 359, 100 A.2d 906 (1953), the Supreme Court of New Hampshire held that the trial court erred in directing a verdict for the possessor of the property adjacent to the sidewalk where the drop off was six or seven inches, where the adjacent land had been cemented, and where the cement construction created by the defendant was "alike in color, texture, and material" to the elevated public sidewalk running next to it. In that case, it was undisputed that the defendant had created an "artificial condition."
There was a dispute over the chronology of the construction, that is, which event came first: the city raising the level of the pre-existing sidewalk or defendant excavating and cementing the adjacent area. The New Hampshire Supreme Court held the chronology to be immaterial. Paine, supra, 98 N.H. at 363-64.
But when there is no evidence that the adjacent landowner has done anything of significance to create an excavation or an artificial structure, but has only, at most, performed ordinary yard maintenance, there is no support for the proposition that the landowner owes a duty to travelers upon the sidewalk. To the contrary, such cases as there are that construe Section 368 of the Restatement tend to hold just the opposite. See, e.g., Fazio v. Fegley Oil Co., Inc., 714 A.2d 510. Pa.Comwth.(1998) (plaintiff injured in a sidewalk fall could not prevail upon showing that adjacent landowner failed to adjust grade of property to prevent water from running over and freezing on sidewalk).
As for the issue of inadequate illumination, there is no law at all that supports the plaintiff's claim that an abutting landowner has a duty to provide illumination for those traveling upon a public right of way.
CONCLUSION
In the absence of any evidence that the defendant created an excavation next to the sidewalk (or, indeed, did anything to lower the level of the adjoining earth), the court finds that the defendant owed no duty to this plaintiff.
The defendant is entitled to summary judgment.