Robinson v. Cianfarini

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PATRICIA ROBINSON v. VINCENT
CIANFARANI, JR., ET AL.
(SC 19220)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued September 18—officially released November 25, 2014
Mark J. Migliaccio, for the appellant (plaintiff).
Stephen G. Murphy, Jr., for the appellees
(defendants).
Opinion
ROGERS, C. J. The dispositive issue in this appeal
is whether private landowners are liable for injuries
sustained by a third party as the result of the failure to
remove snow and ice from a public sidewalk abutting
their property. The plaintiff, Patricia Robinson, brought
an action alleging that she was injured as a result of
the negligence of the defendants, Vincent Cianfarani,
Jr., and Sharon Bahler, in failing to clear snow and
ice from a public sidewalk next to their property. The
defendants moved for summary judgment on the ground
that the town of Enfield (town) ordinances requiring
landowners whose property abuts public sidewalks to
clear those sidewalks of ice and snow did not impose
civil liability on the defendants for injuries to third
parties. Rather than defending against summary judg-
ment on the ground that there is a genuine issue of
material fact regarding whether town ordinances shift
civil liability to landowners, the plaintiff claimed that
the defendants were liable on several alternative negli-
gence theories. The trial court rendered summary judg-
ment on the ground that the town ordinances did not
shift civil liability to the defendants, and the plaintiff
thereafter filed this appeal.1 We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to the resolution of this case. The plaintiff was
injured when she slipped and fell on a patch of snow
and ice on a sidewalk abutting the defendants’ property.
The sidewalk was owned by the town, and, pursuant
to §§ 9-10 through 9-12 of the Enfield Code of Ordi-
nances,2 the defendants, as abutting landowners, were
subject to fines for failure to clear the sidewalk of ice
and snow. The plaintiff brought an action in negligence
and the defendants thereafter moved for summary judg-
ment, arguing that ‘‘[t]he applicable [t]own . . . ordi-
nance does not impose liability on the defendants for
such an incident on a public sidewalk . . . .’’ Relying
on Willoughby v. New Haven, 123 Conn. 446, 197 A. 85
(1937), and the fact that ‘‘the Enfield Code of Ordi-
nance[s] [§§] 9-10 through 9-13 makes the adjacent
homeowner criminally liable for not clearing the side-
walk of ice and snow, but does not specifically transfer
liability to the property owner so the claim is properly
against the town,’’ the trial court granted the defen-
dants’ motion for summary judgment. Subsequently, the
plaintiff filed motions to reargue and for clarification.
The trial court denied the motion to reargue but granted
the motion for clarification, whereby it rearticulated
that ‘‘the [town] ordinances do not transfer civil liability
to the property owners.’’ This appeal followed.
On appeal the plaintiff claims that, notwithstanding
the fact that this court concluded in Willoughby v. New
Haven, supra, 123 Conn. 453–54, that an ordinance
imposing penalties for failing to clear ice and snow
from a public sidewalk does not shift liability for injuries
to an abutting landowner, the defendants may be held
liable under alternative negligence theories. While not
specifically pleaded, the plaintiff argues that the defen-
dants can be held liable under common-law principles
governing the duty of care for property in their posses-
sion or over which they exercise control and the defen-
dants’ affirmative acts, and under the theory of
negligence per se. We disagree.
We begin by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides 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. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case.’’ (Internal quotation marks
omitted.) Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 312–13, 77 A.3d 726 (2013). ‘‘When . . . the
trial court draws conclusions of law, our review is ple-
nary and we must decide whether its conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Vendrella v. Astriab Family Ltd. Part-
nership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
We next review the substantive law governing liability
for injuries resulting from snow and ice accumulation
on public sidewalks. In Willoughby v. New Haven,
supra, 123 Conn. 451, this court applied established
principles regarding sidewalk and street defects to the
concern raised in the present case. ‘‘At common law
there is no liability upon an abutting property owner
for injuries resulting from the effects of natural causes
upon streets or sidewalks such as the accumulation of
snow or ice. Primarily it is the sole duty of the munici-
pality to keep its streets in reasonably safe condition
for travel, and not the duty of private persons. . . .
Therefore if the liability is or can be shifted from the
municipality to the individual it must be accomplished
by statutory or charter provision or by ordinance ade-
quately authorized by such provision, and, being the
creature of statute or such ordinance, it can be no
greater than that specifically imposed thereby.’’ (Cita-
tions omitted.) Id.
This court also recognized in Willoughby that an ordi-
nance merely imposing a penalty for failure to clear
a sidewalk does not shift civil liability for injuries to
abutting landowners. Id., 454. This rule is grounded in
the public policy that, while a municipality may impose
penalties on abutting landowners in order to alleviate
its own labor and expenses, it still has the primary duty
to maintain public sidewalks in a safe condition. See,
e.g., Stevens v. Neligon, 116 Conn. 307, 312, 164 A. 661
(1933) (‘‘The [property owner’s] duty to remove the
snow and ice is one owed to the city. . . . [T]he city
ordinance cannot cast upon the property owner liability
to a traveler upon the highway for failure to perform
that duty. . . . The duty of the municipality is to use
reasonable care to keep its streets and sidewalks rea-
sonably safe for public travel.’’). Moreover, shifting ‘‘lia-
bility upon an individual may not be accomplished by
inference or unless expressly provided’’; Willoughby v.
New Haven, supra, 123 Conn. 456; because ‘‘[l]iability
for damages for sidewalk accidents is potentially formi-
dable—a fall on an icy sidewalk is often serious in its
consequences and the damages heavy.’’3 Id., 455–56.
Long after this court’s 1937 decision in Willoughby,
the legislature enacted just such a statutory vehicle
whereby it permitted municipalities to elect to transfer
civil liability to landowners with property abutting pub-
lic sidewalks. General Statutes § 7-163a4 grants munici-
palities the choice to adopt the statute’s provisions and
thereby transfer the municipalities’ liability to abutting
landowners for injuries arising from the failure to
remove snow and ice on public sidewalks. Since the
enactment of § 7-163a in 1981; see Public Acts 1981,
No. 81-340; municipalities across the state have incorpo-
rated the statute into their ordinances on removing ice
and snow from sidewalks by adopting the statutory
provision with clear, explicit language.5
Turning to the present case, the relevant town ordi-
nances, enacted long before the legislature adopted § 7-
163a, impose a penalty for a landowner’s failure to clear
abutting sidewalks of ice and snow, but are silent as
to transferring civil liability from the town to property
owners.6 See Enfield Code of Ordinances (1967), art.
III, §§ 9-10 through 9-13. Because the plaintiff has not
asked us to overrule Willoughby, and the town has not
adopted ordinance provisions under § 7-163a that shift
civil liability to the landowner, any potential liability
must remain exclusively with the town.
The plaintiff concedes that the town’s ordinances do
not shift liability in the manner prescribed by Wil-
loughby or § 7-163a. Nonetheless, she contends in
essence that, because the ordinances impose a duty
on the defendants to remediate hazardous conditions
created by the accumulation of snow and ice, that duty
can support a negligence action under one of the various
theories that she has advanced. The plaintiff’s rationale,
however, overlooks the fact that it is settled law that
the effect of the ordinances is to create a duty owed
by the abutting landowner to the municipality, not to
third parties traversing the sidewalk. See Stevens v.
Neligon, supra, 116 Conn. 312.
We further note that, although there is support for
the proposition that landowners can be held liable for
a defective condition that they have created on a side-
walk; see Perkins v. Weibel, 132 Conn. 50, 52–53, 42
A.2d 360 (1945); Calway v. William Schaal & Son, Inc.,
113 Conn. 586, 590–91, 155 A. 813 (1931); Hanlon v.
Waterbury, 108 Conn. 197, 200, 142 A. 681 (1928); Hart-
ford v. Talcott, 48 Conn. 525, 532 (1881); there are no
allegations or proof that such is the case here.7
Therefore, the plaintiff’s alternative theories of com-
mon-law liability based on negligence are governed by
the settled common-law rule.8 ‘‘An 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.’’
Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829
(1989); see also Willoughby v. New Haven, supra, 123
Conn. 451. In order for a landowner’s duty to the public
to exist, this common-law rule would have to have been
abrogated by statute or duly authorized ordinance. See
Caciopoli v. Lebowitz, 309 Conn. 62, 70–71, 68 A.3d
1150 (2013). As we have discussed previously herein,
however, neither § 7-163a nor the town’s ordinances
shifts liability to the landowner in the present case.
Accordingly, there is no basis to impose liability on
the defendants.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Espinosa was
not present when the case was argued before the court, she has read the
record and briefs and listened to a recording of the oral argument prior to
participating in this decision.
1
The plaintiff appealed to the Appellate Court and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
2
Article III, § 9-11 (a), of the Enfield Code of Ordinances (1967) provides
in relevant part that ‘‘[i]t shall be the duty of every owner or occupant of
any premises within the town where there is a sidewalk, to remove or cause
to be removed from such sidewalk, any and all snow, and ice . . . .’’
Article III, § 9-12 (a), of the Enfield Code of Ordinances (1967) provides
in relevant part that ‘‘[w]henever any owner or occupant of premises . . .
whose duty it is to remove snow and ice . . . shall fail, refuse or neglect
to comply with the same or shall otherwise violate any provision of this
article shall be deemed guilty of a misdemeanor and fined as provided in
section 1-8.’’
We note that the Enfield Code of Ordinances was recodified in 2006
and these relevant provisions were renumbered as §§ 74-102 and 74-103,
respectively. Additional changes were made in 2009. For purposes of clarity
and convenience, we refer, as did the parties to this appeal, to the orginal
codification of the relevant ordinances.
3
In addition, ‘‘[i]t 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 . . . . When 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.’’ (Citation omitted; internal quotation marks omitted.)
Willoughby v. New Haven, supra, 123 Conn. 454.
4
General Statutes § 7-163a provides in relevant part: ‘‘(a) Any town . . .
may, by ordinance, adopt the provisions of this section.
‘‘(b) Notwithstanding the provisions of section 13a-149 or any other gen-
eral statute or special act, such town . . . shall not be liable to any person
injured in person or property caused by the presence of ice or snow on a
public sidewalk unless such municipality is the owner or person in posses-
sion and control of land abutting such sidewalk . . . provided such munici-
pality shall be liable for its affirmative acts with respect to such sidewalk.
‘‘(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. (2) No action to recover damages
for injury to the person or property caused by the presence of ice or snow
on a public sidewalk against a person who owns or is in possession and
control of land abutting a public sidewalk shall be brought but within two
years from the date when the injury is first sustained.’’
5
See, e.g., Bridgeport Code of Ordinances, tit. 12, § 12.16.160 (A) (‘‘[t]he
provisions of . . . General Statutes [§] 7-163a are adopted, and are set forth
in subsections B and C of this section’’); New Haven Code of Ordinances
(2005), art. III, div. 2, § 2-87 (a) (‘‘[t]he [c]ity of New Haven hereby adopts
the provisions of . . . General Statutes [§] 7-163a as amended from time to
time, captioned ‘Municipal liability for ice and snow on public sidewalks’ ’’);
Norwalk Code, c. 95, § 95-10 (A) (‘‘[t]he provisions of [§] 7-163a of the . . .
General Statutes are hereby adopted and are set forth in [s]ubsections B,
C, D and E hereof’’).
6
The town’s ordinances were adopted pursuant to General Statutes (1949
Rev.) § 632, which provides in relevant part: ‘‘Towns may make by-laws
concerning sidewalks within their respective limits . . . may, by such by-
laws, regulate the use and provide for the maintenance thereof . . . [and]
may provide for the removal of snow and ice from such sidewalks by
the owner, tenant or occupant of premises adjoining and fronting on such
sidewalk and may fix a penalty not exceeding five dollars for each violation
of such by-laws. The selectmen may construct or repair such walk or remove
any snow or ice therefrom upon the default or neglect of the owner, tenant
or occupant of such adjoining premises to comply with such by-laws. . . .’’
Section 632 subsequently was recodified as General Statutes § 7-118, which
was repealed in 1982; see Public Acts 1982, No. 82-327, §12; but this same
authority is reflected in General Statutes § 7-148 (c) (6) (C) (v).
7
The complaint alleges neither that the defendants had possession of, or
control over, the sidewalk abutting their property, nor that they committed
affirmative acts creating the icy condition on the sidewalk. Rather, it alleges
that they failed to take affirmative steps to remediate an existing condition
on what was indisputably a public sidewalk.
8
The plaintiff also argued before this court that the defendants may be
held liable pursuant to General Statutes § 13a-149, which generally governs
damages resulting from defective roads and bridges. The plaintiff failed,
however, to raise this claim before the trial court, and we decline to review
this unpreserved claim in the absence of exceptional circumstances ‘‘in
which the interests of justice, fairness, integrity of the courts and consistency
of the law significantly outweigh the interest in enforcing procedural rules
governing the preservation of claims.’’ Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 160, 84 A.3d
840 (2014).