Catherine Cristadore v. City of Norwich et al. (2011)

MEMORANDUM OF DECISION

Facts and Procedural History

This action arises from the plaintiff's, Catherine Cristadore's, August 31, 2009 fall on a sidewalk in Norwich, Connecticut.   On March 7, 2011, the plaintiff filed a three-count complaint against the city of Norwich, Loren Lichtenstein, and Leon Ferber.   Lichtenstein and Ferber, the defendants for the purposes of this decision, filed a motion for summary judgment on April 7, 2011.   The plaintiff filed her objection on May 2, 2011.   The defendants filed their reply on May 11, 2011.

Discussion

“Practice Book § 17–49 provides that summary 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)   Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

In her complaint, the plaintiff alleges that the defendants “owned, possessed, controlled and/or maintained the sidewalk adjacent to Washington Street and more particularly the sidewalk located adjacent to the property located at 156 Washington Street in Norwich, Connecticut ․ On August 31, 2009 ․ the plaintiff ․ was walking in a southerly direction on the sidewalk adjacent to the residence known as 156 Washington Street, or more specifically, five or more feet south from the driveway edge of 156 Washington Street, in Norwich, Connecticut, when she was caused to slip and fall due to the irregular and broken surface and raised section of the sidewalk ․ The plaintiff's injuries and damages were caused by the negligence and carelessness of the defendant[s] in one or more of the following ways ․” The complaint goes on to list several specific ways in which the defendants were negligent, including by failing to level, cordon off, inspect, and repair the irregular and broken surface and raised section of the sidewalk.

The defendants argue that they are entitled to summary judgment because they did not lease, own, possess, control and/or maintain the sidewalk where the plaintiff allegedly fell.   In support of their motion, the defendants provide their March 31, 2011 affidavits.   They both attest:  “On August 31, 2009 I owned the property located at 156 Washington Street in Norwich, CT 06360 ․ Although I do not know exactly where Ms. Cristadore fell, the sidewalk in front of my home is a public sidewalk that runs the entire length of Washington Street ․ I did not own, lease, possess, maintain or control the public sidewalk in front of my property on Washington Street.”

The plaintiff counters that a Norwich Ordinance establishes that abutting landowners have a duty to keep sidewalks in repair.   Section 19–5 of the Code of Ordinances of Norwich is titled “Sidewalk repair-Duty of Abutting owners.”   It provides:  “It shall be the duty of abutting property owners to keep sidewalks in such repair that they shall not constitute a hazard to persons passing thereon.”   In their reply, the defendants argue that the ordinance cited by the plaintiff does not shift liability onto the abutting landowner.   Further, they contend that even if the ordinance did shift liability to the abutting landowner, it would be invalid pursuant to General Statutes § 7–163.   That statute permits a municipality to shift both the duty and liability for snow and ice on public sidewalks to abutting landowners.

Recently, in Carroll v. Stonington, Superior Court, judicial district of New London, Docket No. CV 09 5013181 (October 21, 2010, Cosgrove, J.), this court granted a motion for summary judgment filed by abutting landowners on the ground that they owed no duty to the plaintiff, who allegedly fell on a cracked and broken sidewalk outside of their home.   At the time of the plaintiff's fall, there was an ordinance in effect that stated:  “Every person owning property abutting a sidewalk or served by a private access street shall maintain conditions safe for passage of pedestrians on said sidewalk.”   The plaintiff alleged that the abutting landowners violated the ordinance and failed to repair, maintain and properly inspect the broken sidewalk and consequently, the plaintiff suffered serious injuries as a result of her fall.

The abutting landowners argued that they were entitled to summary judgment because they owed no legal duty to the plaintiff because they did not possess, control or take any positive action affecting the cracked and broken sidewalk where the plaintiff allegedly fell.   Further, they contended that even if they violated the Borough's ordinance, they owed a duty toward the Borough alone and violation of the ordinance does not provide for a private right of action by an injured pedestrian.   In support of their motion, they submitted their own signed and sworn affidavits.

The court agreed with the abutting landowners.   It explained:  “Under the common law, [a]n abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel ․ An abutting landowner can be held liable, however, in negligence ․ for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner's positive acts ․ Abutting owners have only been held liable for injuries from defective sidewalks where under charter provisions they were not only charged with the duty of keeping sidewalks in repair but also expressly made liable for injuries occasioned by defective condition thereof ․ It is the general rule of construction of statutes or ordinances which impose upon property owners the performance of a part of the duty of a municipality to the public that a legislative intent is indicated, unless it is plainly expressed otherwise, that a breach thereof shall be remedial only by the municipal government ․ and that there is no right of action to an individual citizen specially injured in consequence of such a breach ․ By statute, General Statutes § 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’ as used in [§ 13a–149] has usually been construed to include a sidewalk ․ General Statutes § 13a–99 provides in relevant part:  ‘Towns shall, within their respective limits, build and repair all necessary highways and bridges ․ except when such duty belongs to some particular person ․’ The Supreme Court has consistently ․ interpreted the ‘particular person’ language in § 13a–99 to account for those rare instances in which the legislature has specifically authorized the delegation of the duty to maintaining public highways to a particular person or entity by statute, special act or public charter ․” (Citations omitted;  internal quotation marks omitted.)  Id.

The court continued:  “One such delegation of the town's duty is embodied in General Statutes § 7–163a, which permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks and also empowers the town to shift liability to the landowner for injuries caused by a violation of the ordinance.   According to the Supreme Court, [o]ur research does not reveal ․ any statutory provision comparable to § 7–163a that would permit the [municipality] to transfer its general duty [under § 13a–99] to maintain and repair its roads onto a third party ․ Similarly, according to the Appellate Court, [w]e are not aware ․ of any statutory counterpart [to § 7–163a] that specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners ․ Liability for damages for sidewalk accidents is potentially formidable ․ It is certainly reasonable that imposition of such a new and serious liability upon an individual may not be accomplished by inference or unless expressly provided.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In light of these principles, the court then examined the Stonington Borough Ordinances.   Specifically, the court looked at the ordinance cited by the plaintiff, which, in relevant part, stated:  “Every person owning property abutting a sidewalk or served by a private access street shall maintain conditions safe for passage of pedestrians on said sidewalk ․” Then the court considered the following section, which outlined the remedy for a violation.   It stated:  “[T]he Board [of Warden and Burgesses] shall have the authority to correct [the unsafe condition] and to charge the person responsible for the violation a reasonable fee for such service.”   The court then concluded that “[n]othing in the language of the ordinance renders the abutting landowner liable for injuries caused by the defective condition of a public sidewalk.”   Id.

It further reasoned:  “In the present case, the court cannot find any support for the plaintiff's assertion that she has the right to bring a lawsuit against the [abutting landowners] for injuries sustained from a cracked and broken sidewalk abutting their property.   Indeed, when Superior Courts have been faced with this precise legal issue in other municipalities across the state, they have consistently ruled that the abutting landowner does not owe a duty to the injured pedestrian and that there is no statutory authority for a private right of action by the pedestrian against the landowner for failure to maintain a public sidewalk.   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 ․ [T]he General Statutes only authorize a municipality to shift to the adjacent landowner the responsibility to clear ice and snow from a sidewalk and the liability for injuries resulting from the landowner's failure to do so ․ There are no similar existing provisions that give a third party the right to bring a lawsuit against an abutting owner for injuries due to defects other than snow and ice.   The duty to the [injured] plaintiff is that of the municipality.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Here, the defendants have provided the court with affidavits which state that the plaintiff fell on a public sidewalk that they did not own, lease, possess, maintain or control.   The plaintiff has offered no evidence to contradict this assertion and instead, relies exclusively on § 19–5, which provides:  “It shall be the duty of abutting property owners to keep sidewalks in such repair that they shall not constitute a hazard to persons passing thereon.”   The plaintiff, however, overlooks §§ 19–6 through 19–8.

Section 19–6 states:  “The director of public works shall inspect or cause to be inspected, as often as may be necessary, all sidewalks in the city for the purpose of determining whether there are any sidewalks so broken, cracked, defective or uneven that they are dangerous and unsafe to walk upon or are in such condition that they are likely to cause or contribute to persons falling or stumbling thereon.”   Section 19–7 states:  “Whenever a sidewalk is found to be dangerous and unsafe to walk upon or in such condition that it is likely to cause or contribute to persons falling or stumbling thereon, the director of public works shall order the owner of property abutting said sidewalk to repair the same in accordance with specifications as shall be deemed reasonable by the director of public works.   An order to make such repairs shall be in writing and may be given to the owner in person or by registered or certified mail addressed to him at his last known place of abode or business as set forth in the records of the assessor's office of the City of Norwich.   Said order shall specify the date by which the repairs shall be made, which in no case shall be less than 30 days after service of said order on the abutting owner as prescribed herein.   A copy of sections 19–5—19–8.3 shall be served with said order.”   Finally, § 19–8 states:  “Whenever said abutting owner fails, neglects or refuses to make repairs to a sidewalk ordered by the director of public works, it shall be the duty of the director of public works to repair the same at the expense of the abutting owner.   The director of public works may cause the repairs to be made by city employees or by private contractor and shall charge the abutting owner the actual cost thereof plus a sum equal to 20 percent thereof to help to defray administrative costs incurred to carry out the purposes of sections 19–5—19–8.3.”

Like in Carroll v. Stonington, supra, Superior Court, Docket No. CV 09 5013181, “[n]othing in the language of [these ordinances] renders the abutting landowner liable for injuries caused by the defective condition of a public sidewalk.”   Rather, an abutting landowner is liable to Norwich if the director of public works finds that a sidewalk is broken, cracked, defective or uneven.   As a result, there is no genuine issue of material fact that the defendants owe no duty to the plaintiffs.   The plaintiff's claim against the defendants fails because an abutting landowner cannot be held liable “absent a positive act by the landowner or a legislative enactment specifically authorizing a private right of action,” neither of which are present here.

Conclusion

For all of the foregoing reasons, the defendants' motion for summary judgment is hereby granted.

Martin, J.

Martin, Robert A., J.