Harold Cohen et al. v. Town of Windsor Locks et al. (2010)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATED JUNE 14, 2010

FACTS AND PROCEDURE:

On or about September 12, 2005 the plaintiff, Harold Cohen, (hereinafter “Harold C.”) was walking down the sidewalk and/or walkway outside and near the entry to the Windsor Locks Public Library (hereinafter “Library”) with his wife, the plaintiff, Susan Cohen, (hereinafter “Susan C.”) when he was allegedly caused to slip and fall on a portion of the sidewalk allegedly as the result of the sidewalk being defective at that place.   He has brought a claim for negligence against the Town of Windsor Locks (hereinafter “Town”) claiming common-law negligence against the Town and claiming injuries as a result of the aforesaid fall.   Based upon representations by defendants' attorney, the land and sidewalk area was owned by the Library, and the Town constructed the building known as the Windsor Locks Public Library which was on adjacent land of the Library.   There was a lease from the Town to the Library for the building only.   The consideration for the lease, inter-alia, was $10 for a 99-year term.   The second count of the complaint is on behalf of Susan C. for loss of consortium which, of course, is a derivative claim from the claim of her husband, Harold C.

The third count is common-law negligence against the Windsor Locks Public Library, Inc., a Connecticut corporation licensed with the Connecticut Secretary of State, and the fourth count is against the Library on behalf of Susan C. for loss of consortium.

The defendants have moved for summary judgment on the basis of sovereign (municipal) immunity on the part of the Town and a claim by the defendants that the Library was not in control or possession of the sidewalk where Harold C. fell because it had assigned to the Town and its Public Works Department the responsibility of maintaining and repairing the sidewalk.   Briefs were filed by the parties, and a hearing was held before this Court on Tuesday, October 12, 2010.

STANDARD OF REVIEW:

“A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law.”  Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 257 (1984);  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).

A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact.  Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).   To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact.  Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971).   The test that has been stated is:  “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.)  Cummings & Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).

ISSUES AND FINDINGS:

1. Is the Town Immune from Liability Because of its Sovereign Immunity?

The short answer is Yes.

It is well settled law that a municipality is generally immune from liability for its tortious acts at common law.   The scope of municipal immunity is defined in C.G.S. § 52-557n and in part by common-law principles concerning such immunity.   Possible exceptions to that immunity is if there is a count against an employee of the Town or a count based upon a statute that abrogates municipal immunity.   Neither claim is made in this case.

Connecticut General Statutes § 52-557n provides for municipal immunity unless the actions of the Town are ministerial.   There is no allegation that the actions of the Town are ministerial.   It is clear that there was no written policy or directive as to how the sidewalk was to be maintained and/or repaired, and it is clear to this Court that the actions of the Town were discretionary in nature.   See Segreto v. City of Bristol, 71 Conn.App. 844, 855 (2002).

The plaintiffs claim that the activity of the Library generated a special corporate benefit for the inhabitants of the Town. Plaintiffs claim that a municipality acts in a proprietary capacity when it leases property to private individuals and obtains compensation for same.   The Court rejects this argument because leasing the building to the Library is not a lease to private individuals, and the $10 rental is certainly not a benefit to the Town as lessor.   In any event, this would only be regarding the building and not the sidewalk area which was always owned during this period by the Library.

The Court finds that the plaintiffs cannot overcome municipal immunity in this case, and accordingly Summary Judgment is granted as to the Town of Windsor Locks.

2. Is the Library Potentially Liable for the Injuries Suffered by the Plaintiffs?

The short answer is Yes.

The Library is a separate, private corporation which is separate from the municipality, and, therefore, cannot take advantage of municipal immunity.

The lease between the Town as lessor of the building and the Library as tenant of the building was submitted by the defendants with their reply brief dated July 29, 2010.   Paragraph four of the lease states, inter-alia, as follows:

The LESSEE shall provide snow, ice, rubbish removal, recycling and grounds care for those portions of the areas adjoining the premises which are the subject of this lease.  (Emphasis added.)

Although defendants' attorney, in oral argument, claimed that this section could be ambiguous, the Court finds that the words “grounds care” are very clear and means that all parts of the premises other than the building itself are the responsibility of the Library.   Even if it were ambiguous, it is well settled law that when a contract is ambiguous, it is held against the party that drafted it.   It is unclear as to whether the Town or the Library drafted this lease, but it was certainly not the plaintiffs.

The defendants claim that there was an oral agreement between the Town and the Library that the Town and its Public Works Department would be responsible for maintenance of the grounds including the sidewalk, and defendants' attorney points to affidavits from the defendants to that effect.   However, defendants overlook paragraph 11 of the lease which states as follows.

This instrument contains the entire agreement among the parties.   The agreement may be modified only by written agreement signed by both parties.   (Emphasis added.)

This provision alone bars the defendants from relying upon any oral agreement between each other.   Accordingly, responsibility for the maintenance of the sidewalk is that of the Library.

Moreover, this situation is somewhat analogous to the owner of an apartment building who hires a private contractor to clear the parking lot of ice and snow.   If there is a failure to adequately clean the parking lot, it may well be that the private contractor is liable for any injuries, but the owner of the property is also liable because it is well settled law that the owner of property cannot contract away its liability to another party.

Accordingly, the Motion for Summary Judgment as to the Library is denied.

CONCLUSION

The Motion for Summary Judgment as to the town of Windsor Locks in Counts One and Two is granted.   The Motion for Summary Judgment as to the Windsor Locks Public Library, Incorporated Counts Three and Four is denied.

Rittenband, J.T.R.

Rittenband, Richard M., J.T.R.