Peter Montefuscoli v. John Ryan (2013)

MEMORANDUM OF DECISION

In this civil action the plaintiff seeks to recover damages for personal injuries he sustained when he slipped on ice on February 13, 2010, while walking on a public sidewalk located beside Weaver Street in Greenwich.   In the first count of his amended complaint dated May 12, 2011, the plaintiff alleges the defendant, who owns real property abutting the public sidewalk, caused the sidewalk to “become icy, defective, unsafe and dangerous.”   In the second count, the plaintiff claims that the defendant is liable for damages pursuant to the provisions of General Statutes § 7–163a(c)(1).   In the third count, the plaintiff claims that the plaintiff breached duties imposed on him under Chapter 11, Article 2 § 11–7 of the Greenwich Municipal Code.

Presently before the court is the defendant's motion for summary judgment dated December 12, 2012.   In that motion the defendant claims that there is no material issue of fact with respect to any of the plaintiff's claims and asks the court to enter summary judgment in his favor.   Attached to the motion are:  a copy of Chapter 11, Article 2 § 11–7 of the Greenwich Municipal Code (Ex. B);  and a copy of portions of the plaintiff's deposition taken on April 27, 2012.

On February 13, 2013, the plaintiff filed an objection to the motion for summary judgment.   Attached to the objection was an extract from the deposition of the defendant taken on January 10, 2013.   In that deposition the defendant stated that he had removed all the snow from the sidewalk in front of his property on February 11, 2010, two days before the plaintiff's fall.   The court heard the motion on short calendar on April 8, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279 (1989);  Practice Book § 17–49.  “[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ To satisfy his burden the movant must make a showing 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.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11 (2008).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd., Partnership, 243 Conn. 552, 554 (1998).  “On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Citation omitted;  internal quotation marks omitted.)   Vitale v. Kowal, 101 Conn.App. 691, 696–97, cert. denied, 284 Conn. 904 (2007).

“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 (2000).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).

The court will first consider that plaintiff's claims under General Statutes § 7–163a(c)(1) and under Chapter 11, Article 2 § 11–7 of the Greenwich Municipal Code. The second count repeats the allegations of common law negligence set forth in the first count, but adds an additional allegation that the defendant's negligence was in “violation of Conn. Gen.Stat. § 7–163a(c)(1).”   Subsection (a) of that statute empowers any Connecticut municipality to adopt the provisions of the statute by ordinance.   Subsection (b) allows a municipality to avoid liability for snow and ice on public sidewalks except where the municipality creates the condition by its affirmative actions or owns the land abutting the sidewalk.   Subsection (c)(1) imposes the same duty on the owner of property abutting a public sidewalk that the municipality would otherwise have had.

The allegations of the second count are insufficient to state a cause of action against the defendant.   The statute under which the plaintiff bases his claims does not, in the absence of an implementing ordinance, impose any duties on owners of property abutting a public sidewalk.   The defendant's motion for summary judgment with respect to the second count is, accordingly granted.

In his third count the plaintiff claims that Chapter 11, Article 2 § 11–7 of the Greenwich Municipal Code imposes liability on the defendant for failure to remove snow and ice from the sidewalk abutting his property.   That ordinance provides:

Sec. 11–7—Snow and ice removal;  safe condition;  penalty.

(a) All owners, tenants and occupants of land or buildings adjoining which there has been constructed a sidewalk shall at all times keep the sidewalk free from snow and ice.

(b) All snow and ice shall be removed as soon as possible and not later than eighteen (18) hours after the fall of snow or the formation of ice.

(c) All sidewalks upon which there shall be any snow and/or ice shall be kept in a safe condition by spreading thereon sand, ashes, salt or other material.

(d) Any person who fails to comply with the provisions of this section shall be fined twenty-five dollars ($25) and shall reimburse the town for the expenses of removal and/or the expense of keeping the sidewalk in a safe condition.

(Ord. & Reg., § 8–1, 10/14/1958.)

The ordinance was adopted on October 14, 1958 and naturally makes no reference to General Statues § 7–163a which was not enacted until 1981.   In Svorka v. Greenwich, judicial district of Stamford/Norwalk, Docket No. CV 90 0109738 (November 3, 1995, Lewis, J.) [15 Conn. L. Rptr. 371], a superior court considered whether Chapter 11, Article 2 § 11–7 of the Greenwich Municipal Code could possibly be considered an ordinance contemplated by General Statues § 7–163a shifting liability from the municipality to the owners of property abutting public sidewalks.   In a well reasoned decision, the court held that unless a municipal ordinance clearly provided otherwise, violation of a duty imposed on a property owner by an ordinance does not create liability to a person injured as a consequence of such a violation.   The court found that the consequence of any such violation are limited to liabilities to the municipality for the penalties provided in the ordinance.   The court finds that there is no issue of material fact that the Town of Greenwich never adopted an ordinance pursuant to General Statutes § 7–163a shifting liability from the town to abutting property owners.   Accordingly, the court grants the defendant's motion for summary judgment with respect to the third count of the plaintiff's complaint.

In the first count of his complaint the plaintiff alleges that his injuries were caused by the negligence of the defendant.   In Connecticut, liability is not generally imposed on the owner of property abutting a public sidewalk for unsafe and dangerous conditions existing on the sidewalk.  Wilson v. New Haven, 213 Conn. 277, 280 (1989).   There are two exceptions to this rule.   The first exception exists when an ordinance adopted pursuant to General Statutes § 7–163a shifts liability for the failure to remove snow and/or ice from the municipality to the abutting property owner.   As discussed above, no such ordinance was adopted by the Town of Greenwich.   The second exception arises when an unsafe condition on a public sidewalk is created by the abutting property owner.  Gambardella v. Kaoud, 38 Conn.App. 355, 358 (1995).

In paragraph 6 of his complaint the plaintiff makes the following allegations regarding the negligence of the defendant:

“Said occurrence was due to the negligence and carelessness of the Defendant in one or more of the following ways:

a.  IN THAT he caused or allowed said ground of said property, and immediate vicinity thereof to become icy, defective, unsafe, and dangerous.

b. IN THAT he caused or allowed and permitted improper, unsafe, and inadequate repairs to be made to the ice, which was present on the ground at said property.

c. IN THAT he failed to erect or maintain proper safeguards, warnings, signs, or failed to otherwise warn the Plaintiff of the aforesaid dangerous conditions.

d. IN THAT he failed to maintain the ground at said property in safe condition to insure that the Plaintiff would not be caused to slip and fall as a result of the ice which existed and which were known and should have been known to the Defendant.

e. IN THAT he failed to properly inspect the ground at said property wherein the Plaintiff was caused to fall as a result of not removing the ice.

f. IN THAT he failed to maintain the premises owned by the Defendant in good and safe condition for the Plaintiff and others.

g. IN THAT he otherwise failed to exercise the degree of care required under the circumstances.”

Subparagraphs c. thorough g. do not allege any positive acts taken by the defendant to cause an unsafe condition to exist on the public sidewalk abutting his property.   However, subparagraph a. and b. arguably contain allegations of positive acts of the defendant.   Subparagraph a. contains an allegation that the defendant “caused ․ said ground of said property, and immediate vicinity thereof to become icy, defective, unsafe, and dangerous.”   Similarly, subparagraph b alleges that the defendant “caused ․ improper, unsafe, and inadequate repairs to be made to the ice which was present on the ground at said property.”   The references to “said property” could be construed as reference to the sidewalk where the plaintiff fell.

With respect to the first count, the defendant claims that there is no issue of material fact that the plaintiff did not take any positive acts which created a cause for the presence of any snow and ice on the sidewalk in front of his property which may have created the dangerous condition which resulted in the plaintiff's injuries.   In support of that claim the plaintiff relies on the deposition testimony of the plaintiff and an affidavit signed by the defendant dated December 12, 2012.   In his deposition testimony the plaintiff admitted that he did not have personal knowledge of any positive act which the defendant took to cause snow and ice to be present on the public sidewalk.   The plaintiff further testified that he believed that the ice would not have been on the sidewalk had the owner of the abutting property properly removed the snow from the sidewalk.   In his affidavit the defendant claims that on or before February 13, 2010 he “did not, through any positive act, cause ice to be on the sidewalk in front of [his] property.”

In his opposition to the motion for summary judgment dated February 13, 2013, the plaintiff relies on the defendant's deposition testimony in which the defendant stated that he had removed snow from the sidewalk abutting his property on February 11, 2010 after an accumulation of approximately twelve inches of snow.   The removal was accomplished by use of a snow blower.   The defendant also conceded that he may have used a shovel on certain parts of the sidewalk.   The defendant testified that following the removal of the snow he could not recall whether the surface of the sidewalk was wet or dry.

The court finds that the affidavit of the defendant does not, in itself, furnish a basis for the grant of summary judgment.   Such an affidavit amounts to “little more than a denial of the facts alleged in the plaintiffs' complaint.”  Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488–89 (1971).   The court recognizes that the plaintiff's case is exceedingly weak.   In the absence of direct evidence that the defendant caused the condition of the sidewalk by any positive act, the plaintiff is obliged to rely upon circumstantial evidence.   In order to find for the plaintiff, a finder of fact would have to believe the defendant's testimony that he had attempted to remove snow from the sidewalk, but find that, in some manner, these positive actions had been responsible for the presence of ice on the sidewalk two days later.   In considering a motion for summary judgment it is not up to the court to determine the strength of a plaintiff's case, however weak, but merely to determine whether the moving party has sustained his burden of demonstrating the absence of an issue of material fact.   Although the question is a close one, the court finds that the defendant has not sustained that burden.   Accordingly, the defendant's motion for summary judgment with respect to the first count of the plaintiff's complaint must be denied.

CONCLUSION

The court grants the defendant's motion for summary judgment with respect to the second and third counts of the plaintiff's complaint, and denies the motion with respect to the first count.

David R. Tobin, J.T.R.

Tobin, David R., J.T.R.