Katherine Fitzpatrick v. City of Norwich et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT ANNE MORIARTY'S MOTION TO STRIKE (# 111)

The plaintiff, Katherine Fitzpatrick, filed a three-count substituted complaint (complaint) on December 18, 2012.   In count one, against the City of Norwich, the plaintiff alleges liability based on the following facts.¹  On April 23, 2010, the plaintiff was walking on the sidewalk on the west side of Washington Street in Norwich, in front of 244 Washington Street.   There was a section of the sidewalk that was broken and/or missing a concrete paver, resulting in an uneven walkway.   The broken sidewalk was controlled, owned, maintained, repaired and/or inspected by the city of Norwich.   The broken sidewalk caused the plaintiff to fall, the primary impact being on her chin and front teeth.   As a result of the fall, the plaintiff suffered damage to her teeth, a concussion, and numerous other injuries and related losses.   Paragraph 8 of count one alleges that her injuries and losses were caused by a breach by the city of Norwich of statutory duty in one or more of the following ways:  a) the area where the plaintiff fell was missing pavers, was of varying heights, and was in disrepair rendering pedestrian traffic dangerous;  b) that condition had existed for an unreasonable time with no corrective measures having been taken;  c) the sidewalk was not reasonably safe;  and d) the defendant city should have known of the condition and remedied it, but failed to do so.

Counts two and three are against Anne Moriarty (defendant).   On April 18, 2013, the defendant moved to strike those counts.   The plaintiff filed an opposing memorandum on May 10, 2013.   The motion was argued on May 13, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).

Viewing its allegations in this light, count two—which repeats the condition and events alleged in count one but attributes all pertinent responsibility to Anne Moriarty—alleges negligence based on the following key facts.²  On April 23, 2010, the plaintiff was walking on the sidewalk on the west side of Washington Street in Norwich, in front of the defendant's property at 244 Washington Street.   There was a section of the sidewalk that was broken and/or missing the concrete paver, resulting in an uneven walkway.   The broken sidewalk was controlled, owned, maintained, repaired and/or inspected by the defendant.³  The broken sidewalk caused the plaintiff to fall, the primary impact being on her chin and front teeth.   As a result of the fall, the plaintiff suffered damage to her teeth, a concussion, and numerous other injuries and related losses.   The remainder of this paragraph is from paragraph 9 of count two:  the defendant failed to keep the sidewalk abutting her property in such repair that it was not a hazard;  failed to repair, paint, mark or otherwise correct said hazardous, dangerous and defective condition;  failed to keep the sidewalk level and replace missing concrete;  failed reasonably and properly to inspect the sidewalk and thus discover the dangerous and defective condition;  failed to warn the plaintiff of the dangerous condition of the sidewalk;  and failed to close off the sidewalk.

Count three of the complaint incorporates all of count two except that, instead of the facts alleged in paragraph 9 of count two, count three substitutes the allegation—here treated as a fact—that the defendant created and maintained a public nuisance because the broken sidewalk was a dangerous condition for pedestrians.

DISCUSSION

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   Practice Book § 10–39(a).  “[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

Count two relies in essence on Norwich Code of Ordinances § 19–5, which provides as follows:  “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 defendant argues that count two fails to state a cause of action upon which relief may be granted because, under General Statutes § 13a–99, towns have the duty to “repair all necessary highways” and that duty cannot be delegated, except as to clearing snow and ice accumulation.   The defendant argues that, because the city of Norwich cannot delegate its duty to repair highways, and therefore sidewalks along city streets, except for snow and ice, § 19–5 created no duty on the defendant and, therefore, the plaintiff has not, in count two, alleged a duty sufficient to state a claim for negligence.   The plaintiff claims that an issue of fact exists as to whether the defendant or the city of Norwich is responsible for maintaining the sidewalk which caused the plaintiff's fall and, essentially, that § 19–5 legally transferred liability of the city to the defendant.⁴

“Municipalties, because they are creatures of the state, have no inherent legislative authority.”  Simons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985).   They may only exercise those powers expressly granted by the legislature.   See City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980).  “General Statutes § 13a–149 provides in relevant part that ‘[a]ny 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 ․’ General Statutes § 13a–99 further provides in relevant part that ‘towns shall, within their respective limits, build and repair all necessary highways and bridges ․ except when such duty belongs to some particular person.’   “ Dreher v. Joseph, 60 Conn.App. 257, 260, 759 A.2d 114 (2000).   The Appellate Court acknowledged, in Dreher v. Joseph, that General Statutes § 7–163a permits a municipality 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 abutting landowner for injuries caused by a violation of the ordinance.”  Id., 261–62.   The court, however, distinctly stated that it was not aware “of any statutory counterpart that specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners.”  Id., 262.   The Dreher court considered the exception created in the statute for snow and ice and pointed out that “[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.”   (Internal quotation marks omitted.)  Id.

The Superior Court has addressed the present issue before.   In Skoglund v. Salvation Army, Inc., Superior Court, judicial district of Litchfield, Docket No. CV–10–6002756–S (July 10, 2012, Roche, J.), the plaintiff was walking on the sidewalk in front of The Salvation Army when she was caused to trip and fall on a brick that was raised and tilted above the surface of the sidewalk.   Her complaint alleged that The Salvation Army was liable by virtue of its status as the owner of land in front of which was the defective sidewalk.   The Salvation Army argued that, as an abutting landowner, it owed no duty of care to the plaintiff because Connecticut law does not allow a municipality to shift its statutory obligation to repair uneven, raised and tilted sidewalks to abutting landowners.  Id. In deciding in the defendant's favor, the court held, “[n]o provision of the General Statutes authorizes a municipality by ordinance, to shift its statutory obligation to keep a sidewalk in repair to one in possession or control of the land abutting a sidewalk ․ [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 so do.”   Id.

The court used similar reasoning in Foster v. Milford, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–07–5004267–S (October 15, 2008, Radcliffe, J.) [46 Conn. L. Rptr. 476], where the City of Milford adopted an ordinance requiring the owner of property adjacent to a sidewalk to maintain that sidewalk.   The court reasoned that, when deciding whether a municipality is acting within its power, “[t]he question is not whether any provision of state law prohibits a municipality from acting, but rather whether any statute contains authorization for the municipal activity.”  Id., citing Avonside v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965).  “No provision of the General Statutes authorizes a municipality by ordinance, to shift its statutory obligation to keep a sidewalk in repair, to one in possession or control of the land abutting the sidewalk.”  Id. “To the extent that [§ ]20–25 of the Milford Municipal Code seeks to impose upon owners or occupiers of real property abutting a public sidewalk, the obligation to keep the sidewalk in repair, the ordinance is ineffective, and is not authorized by law.”  Id. The same conclusion was reached in a case involving a similar ordinance in Danbury, where the court concluded that “[n]o provision of the General Statutes authorizes the City of Danbury to imitate Pontius Pilate, and shift the burden of liability for injuries occasioned by defective sidewalks away from itself, and toward individual citizens, taxpayers, businesses, homeowners and nonprofit corporations.   Any such authority must be specifically conferred by act of the General Assembly.   It cannot be assumed in the absence of an express authorization.”  Hutchinson v. City of Danbury, Superior Court, judicial district of Danbury, Docket No. CV–98–0331013–S (February 8, 1999, Radcliffe, J.) [24 Conn. L. Rptr. 3].

Although General Statutes § 7–148(c)(1)(6)(C)(v) permits cities to impose certain duties on the possessor of land adjacent to sidewalks in the cases of snow and ice, that statutory permission does not authorize Norwich Code of Ordinances § 19–5, quoted above.

The plaintiff argues that our Supreme Court has acknowledged the ability of municipalities to transfer liability for defects in the sidewalks, citing Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937).   She fails to recognize that, in Willoughby, the Supreme Court was discussing the transfer of liability by ordinance for removal of snow and ice.   While municipalities can adopt and enforce ordinances requiring landowners to remove snow and ice and making those landowners liable when they fail to do so, “[w]e are not aware ․ of any statutory counterpart that specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners.”   Dreher v. Joseph, supra, 60 Conn.App. 262.   The city of Norwich's ordinance delegating the duty to repair sidewalks to abutting landowners is not authorized by law and the defendant has no duties under that ordinance.   All of the duties, acts and omissions upon which count two is based appear to arise only from the Norwich ordinance.   The defendant's motion to strike count two must be granted.

Turning to count three, the defendant argues that it should be stricken because the plaintiff's nuisance claim is barred under the exclusivity provision of the Highway Defect Statute.  General Statutes § 52–557n “bars any action for injury to person or property caused by a defective road unless it is brought pursuant to General Statutes § 13a–149.”  Cook v. Turner, 219 Conn. 641, 643, 593 A.2d 504 (1991).   The plaintiff counters that this exclusivity provision is only meant to apply to municipalities, not private parties.   There are two reasons the defendant's argument is unpersuasive.   First, count three is not an action under the “Highway Defect Statute” § 13a–149 is not mentioned in count three.   Second, even if count three was based on § 13a–149, it is well established that the Highway Defect Statute and the § 52–557n exclusivity provision apply to political subdivisions, not private parties.  Section 52–557n does provide that “an action under the highway defect statute, § 13a–149, is a plaintiff's exclusive remedy against a municipality or other political subdivision.”  (Emphasis added.)  Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991).   The exclusivity provision of § 52–557n does not bar a plaintiff from asserting a cause of action in tort against individuals whose actual conduct was the proximate cause of the injury.  Id., 192–93.  “An abutting landowner can be held liable ․ in negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner's positive acts.”  (Emphasis added.)  Abramczyk v. Abbey, 64 Conn.App. 442, 446, 780 A.2d 957 (2001).   Therefore, the motion to strike count three on this ground is without merit.

Continuing the inquiry into the legal sufficiency of count three, “[a]lthough an abutting owner is under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel, he is, like any other person, liable in damages for an injury resulting from a nuisance created or maintained by him thereon, or from a condition upon his premises which endangers travelers in their lawful use of the walk.”  Hanlon v. Waterbury, 108 Conn. 197, 197, 142 A. 681 (1928).  “If an abutting owner, or a contractor or any other person by his act made a dangerous hole in a sidewalk he would have committed a nuisance for which he would be responsible in damages for injury resulting from his act.”  Id., 200.   When a nuisance is found to exist, “responsibility for the nuisance is imposed upon the person creating or maintaining it.”  Id. In the case of Hanlon v. Waterbury, the defendant company was found to be liable for a hazardous condition on the sidewalk abutting its property when gasoline leaked and caused that sidewalk to become slippery.  Id., 201.   The gasoline leak was caused by the manner in which the defendant conducted its business and the defendant was aware of the hazardous condition being created.  Id.

In Brennan v. D & P Real Estate Associates, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–10–6007837–S (August 24, 2012, Tyma, J.), however, the court denied the plaintiff's motion for summary judgment because the plaintiff failed to present “any evidence that the defendants, by their positive act, created the condition of the sidewalk.”

In the present case, the plaintiff alleges that the defendant “created and maintained a public nuisance” without alleging any positive act causing the hazardous condition on the subject sidewalk or, therefore, causing the plaintiff's injury.   Without an allegation of some specific act of the defendant creating a nuisance, count three is legally insufficient.   Therefore, the motion to strike count three on this ground must be granted.

CONCLUSION

Based on the foregoing, the court grants the defendant's motion to strike counts two and three of the substituted complaint.

Cole–Chu, J.

FOOTNOTES

FN1. The city of Norwich is not a party to this motion to strike.   Though a motion to strike admits all well pleaded facts of the claim to which the motion is directed;  see Faulkner v. United Technologies Corp, 240 Conn. 576, 588, 693 A.2d 293 (1997);  allegations in other claims are not admitted.   However, a summary of count one is useful to understanding the present issues..  FN1. The city of Norwich is not a party to this motion to strike.   Though a motion to strike admits all well pleaded facts of the claim to which the motion is directed;  see Faulkner v. United Technologies Corp, 240 Conn. 576, 588, 693 A.2d 293 (1997);  allegations in other claims are not admitted.   However, a summary of count one is useful to understanding the present issues.

FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   The facts from counts two and three here summarized are not complete but are all that is needed for analysis of this motion.   The allegations that the defendant had a duty under Norwich Code of Ordinances § 19–5 to keep the sidewalk in such repair that it would not constitute a hazard to pedestrians, and that she violated that duty, are omitted from the summary of facts because they are conclusions of law..  FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   The facts from counts two and three here summarized are not complete but are all that is needed for analysis of this motion.   The allegations that the defendant had a duty under Norwich Code of Ordinances § 19–5 to keep the sidewalk in such repair that it would not constitute a hazard to pedestrians, and that she violated that duty, are omitted from the summary of facts because they are conclusions of law.

FN3. Control and ownership, at least, could reasonably be regarded as conclusions of law.   However, the complaint must be construed in favor of sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013)..  FN3. Control and ownership, at least, could reasonably be regarded as conclusions of law.   However, the complaint must be construed in favor of sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

FN4. The claim that the defendant was liable for the condition of the sidewalk is, of course, inconsistent with count one, which claims the city had that liability.   However, alternative, even inconsistent, pleading is permitted.   See Vidiaki, LLC v. Just Breakfast and Things!!!, 133 Conn.App. 1, 24, 33 A.3d 848 (2012)..  FN4. The claim that the defendant was liable for the condition of the sidewalk is, of course, inconsistent with count one, which claims the city had that liability.   However, alternative, even inconsistent, pleading is permitted.   See Vidiaki, LLC v. Just Breakfast and Things!!!, 133 Conn.App. 1, 24, 33 A.3d 848 (2012).

Cole–Chu, Leeland J., J.