Cynthia Goldstein v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 110.00)

I. INTRODUCTION

In this case, the plaintiff Cynthia Goldstein asserts a negligence claim against Cornell Brooklawn, LLC, the City of Bridgeport, and Coyote Flaco Restaurant as a result of injuries she alleges to have sustained when she fell.

In the First Count the plaintiff alleges that Cornell Brooklawn, LLC owned, controlled and maintained the premises located at 698–700 Brooklawn Avenue in Bridgeport and that alleges that Cornell Brooklawn, LLC was responsible for maintenance of all the land, property and sidewalks located on and in front of 698–700 Brooklawn Avenue.   The plaintiff alleges that on or about February 4, 2012, at approximately 6:30 p.m., she was walking on the sidewalk in front of 698–700 Brooklawn Avenue when she was caused to fall due to an elevated slab on the sidewalk which was uneven, dangerous and defective and that she sustained various injuries and damages as a result of her fall which injuries were caused by the negligence of Cornell Brooklawn, LLC.

The Second Count is directed to the City of Bridgeport and is brought pursuant to General Statutes § 13a–149, the defective highway statute.   The plaintiff alleges that the City of Bridgeport was charged with the proper care and maintenance of its highways, sidewalks and property, including the sidewalk in front of 698–700 Brooklawn Avenue.   The Third Count directed to Coyote Flaco Restaurant is not relevant to this motion.

According to the plaintiff's sworn deposition testimony submitted in support of the motion for summary judgment by Cornell Brooklawn, LLC, she stated “ ․ and I got just around that tree and evidently the sidewalk is not even, there's a raise in that sidewalk ․ My shoe got caught in the edge of that sidewalk that was elevated and I just started to scream because I was falling forward ․” Defendant also submitted the photograph which the plaintiff identified as best depicting the area on which she had circled the place she fell.   Plaintiff stated that she did not have any evidence that Cornell Brooklawn, LLC caused the edge in the sidewalk.

In his supporting affidavit, Laurence K. Hoffman, a Manager of Cornell Brooklawn, averred that Cornell Brooklawn, LLC owned, controlled, and maintained the premises located at 698–700 Brooklawn Avenue in Bridgeport and that the City of Bridgeport owns the sidewalk directly adjoining the premises.   He further stated that Cornell Brooklawn, LLC did not cause or contribute to the condition of the city sidewalk directly adjoining the premises that the plaintiff identified as the cause and location of her fall in her deposition testimony.   Finally, the pleadings indicate that the City of Bridgeport has admitted ownership of the subject sidewalk.

Cornell Brooklawn, LLC now moves for summary judgment as to the First Count of the plaintiff's complaint.   Cornell Brooklawn, LLC claims that it did not owe the plaintiff a duty of care because it did not control the sidewalk where the plaintiff fell and it did not cause or contribute to the condition of the sidewalk.

II. LAW AND ARGUMENT

The standard for summary judgment is well established.  “The judgment sought 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.”  Conn. Practice Book § 17–49.  “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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․” Fortin v. Hartford Underwriters Ins. Co., 139 Conn.App. 826, 841, 59 A.3d 247, 257 (2013).   A party opposing summary judgment must provide evidence showing a genuine issue of material fact.  (Internal citations omitted).  Voris v. Middlesex Mut. Assur.   Co., 297 Conn. 589, 602, 999 A.2d 741, 750 (2010).  “The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  Mozeleski v. Thomas, 76 Conn.App. 287, 290–91, 818 A.2d 893, 897 (2003).   If there is no duty then there is no negligence.   See Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357, 360 (1996).  “Where there is no legal duty, there can be no actionable negligence.   Unless some relationship exists between the person injured and the defendant, by which the latter owes a duty to the former, there can be no liability for negligence.”  Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102, 107 (1974).

“Liability for an injury due to defective premises does not depend on title, but on possession and control.”  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966);  see also Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773, 881 A.2d 379 (2005).”  ․ [P]ossession and control of the land subject a defendant to liability to persons injured on the land ․” Lin v. National R.R. Passenger Corp., 277 Conn. 1, 20, 889 A.2d 798 (2006).   The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises.  LaFlamme v. Dallessio, 261 Conn 247, 251, 802 A.2d 63 (2002).   “The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation and refers to the power or authority to manage, superintend, direct or oversee,” (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).

The plaintiff in the instant case brings this action against the City of Bridgeport under the defective highway statute and admitted in her deposition that she fell on the city sidewalk in an area where tree roots had disturbed the sidewalk.   Nonetheless, the plaintiff alleges that Cornell Brooklawn, LLC was required to maintain the sidewalk and therefore is liable for her injuries relying on the City of Bridgeport Municipal Code which requires adjacent landowners to maintain public sidewalks, but no cause of action arises from the failure to maintain the sidewalks.   Section 12.16.150(A) of the City of Bridgeport Municipal Code provides that “Every person owning any land upon or adjacent to which there is a sidewalk ․ shall keep such sidewalk at all times in a safe and convenient condition for the use of the public, and shall forthwith repair all defects and remove all obstructions in any way endangering the public travel upon the same ․” However, both the Connecticut Supreme Court and the Appellate Court have held that no cause of action arises from the breach of a duty imposed by a municipal ordinance unless the ordinance provides for a private right of action.

“It is a 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 remediable only by the municipal government or by enforcement of a penalty prescribed therein, and that there is no right of action to an individual citizen specially injured in consequence of such breach.”  (Emphasis added.)  Willoughby v. City of New Haven, 123 Conn. 446, 454, 197 A. 85 (1937).

“․ [I]t is the general rule of construction that even where an ordinance imposes on property owners a duty normally performed by the municipality, there is no private right of action unless plainly expressed in the ordinance.”   (Emphasis added).  Dreher v. Joseph, 60 Conn.App. 257, 263, 759 A.2d 114 (2000), citing Willoughby.   In Dreher, the plaintiff slipped and fell on an uneven portion of sidewalk adjacent to a building owned by the defendant.   The defendant argued that Connecticut law does not recognize a cause of action against an abutting landowner for injuries caused by defects in a sidewalk, absent a statute or ordinance to the contrary.   The plaintiff cited a municipal ordinance which read that “[e]very person owning land within the Borough upon or adjacent to which is or may be a sidewalk paved, concreted, constructed or worked, shall at all times keep such sidewalk in a safe, convenient condition for the use of the public and shall forthwith repair all defects which may occur in said sidewalk and at all times remove therefrom and keep the same free from all obstructions which in any way would impede public travel upon said sidewalk.”  Id., 260–61.   The defendant moved for summary judgment, which was granted by the trial court, and the plaintiff appealed.

The Appellate Court reviewed the language of the ordinance cited by the plaintiff.  “We note that a fair reading of the charter charges the abutting landowner with an obligation to keep the adjacent sidewalk in repair.   Nothing in the language of § 21, however, expressly makes the abutting landowner liable for injuries caused by the defective condition of such a sidewalk.”  Id., 261.   It noted that General Statutes § 7–163a not only permitted a town to adopt an ordinance requiring abutting landowners to remove ice and snow from public sidewalks, but empowered the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance but that there is no statutory counterpart that enables a municipality to shift liability for uneven sidewalks to abutting landowners.   The Appellate Court affirmed the trial court's decision granting summary judgment to the property owner.

The facts of this case are similar.   Both municipal ordinances require a landowner to take steps in order to protect pedestrians traveling on land abutting their property, imposing on landowners a duty otherwise belonging to the municipality.   However, neither allow for a private right of action when the landowner fails to comply with the ordinance.   Although Section 12.16.150(A) of the City of Bridgeport Municipal Code charged Cornell Brooklawn, LLC with an obligation to keep the sidewalk in repair, it does not make Cornell Brooklawn, LLC liable for injuries caused by the defective condition of the sidewalk.   The plaintiff's cause of action lies against the City of Bridgeport pursuant to the defective highway statute.

The facts of this case also follow Agosto v. City of Bridgeport, 1990 WL 261994 (Conn.Super.) (December 18, 1990) (Flynn, J.).   In Agosto, the plaintiff cited the same City of Bridgeport ordinance when she argued that the defendant adjoining landowners were responsible for the injuries she sustained when she fell on a sidewalk.   The trial court rejected the plaintiff's argument and granted the adjoining landowner's motion for summary judgment:

Because the Bridgeport Ordinance which shifts sidewalk maintenance responsibility to the abutting landowners does not specify that any liability shall attach to the noncomplying landowner beyond reimbursement of the city for any expense required to be made in the event of the landowner's default, no private right of action is created and the plaintiffs have no negligence action against the property owners.  Id.,*1.

Both Dreher and Agosto demonstrates that noncompliance with a municipal ordinance does not give rise to a cause of action, unless that right is plainly expressed in the ordinance.   Cf. General Statutes § 7–163a(c)(1) (“The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury ”) (emphasis added).

Similar conclusions were reached in other Superior Court decisions.   See Drons v. Town of New Canaan, 1994 WL 645990 (Conn.Super.) (November 8, 1994) (Lewis, J.) (concluding violation of ordinance to keep sidewalk in safe condition did not create a private cause of action);  Nemit v. Malon, 1995 WL 43692, 13 Conn. L. Rptr. 385, (Conn.Super.) (January 25, 1995) (Schimelman, J.) (granting motion to strike negligence per se count based on the alleged violation of housing code);  Svorka v. Town of Greenwich, 1995 WL 656878 (Conn.Super.) (November 3, 1995) (Lewis, J.) (attached) [15 Conn. L. Rptr. 371] (reasoning violation of ordinance did not create a cause of action absent language to the contrary);  Moss v. City of Bristol, 1999 WL 1567793 (Conn.Super.) (December 21, 1999) (Graham, J.) [26 Conn. L. Rptr. 580] (holding that alleged breach of ordinance which required a landowner to keep sidewalk and adjacent areas free of holes, hazards, and defects did not create a cause of action);  Frederick v. City of Bristol, 2001 WL 219775 (Conn.Super.) (February 15, 2001) (Swords, J.);  Stavola v. Town of Wethersfield, 2001 WL 984898 (Conn.Super.) (July 24, 2001) (Swords, J.);   Borchers v. Robards, 2002 WL 652382 (Conn.Super.) (March 20, 2002) (Wagner, JTR) (stating that ordinance did not expressly confer liability);  Swain v. Leninski, 2002 WL 1492171 (Conn.Super.) (June 2, 2002) (Arnold, J.);  Howard v. Stonebridge Restaurant, 2009 WL 1532112 (Conn.Super.) (April 21, 2009) (Radcliffe, J.) (reasoning that ordinance which shifted liability arising from a failure to keep a sidewalk in repair was not authorized under the General Statutes and thus was invalid);  Carroll v. Borough of Stonington, 2010 WL 4609371 (Conn.Super.) (October 21, 2010) (Cosgrove, J.) (concluding the failure to comply with ordinance did not give rise to a cause of action).

There are no genuine issues of material fact as to whether Cornell Brooklawn, LLC owed the plaintiff a duty of care.   Cornell Brooklawn, LLC did not control the sidewalk and it did not cause or contribute to the condition of the sidewalk, nor does the municipal ordinance in question give rise to a private cause of action against an adjoining property owner.   The Motion for Summary Judgment is granted.   Pursuant to the foregoing case law and the documentary evidence submitted in support of its motion, Cornell Brooklawn, LLC has shown that it is entitled to judgment as a matter of law.

SOMMER, J.

Sommer, Mary E., J.