DocketNumber: No. CV 94-0537675S
Citation Numbers: 1996 Conn. Super. Ct. 3355
Judges: SHELDON, J.
Filed Date: 4/11/1996
Status: Non-Precedential
Modified Date: 4/18/2021
3. The defendant, her agents, servants and/or employees exercised complete control and possession over the property including the sidewalk in front of the property.
4. On or about February 8, 1994, at about 9:10 a.m. plaintiff was walking on the sidewalk in front of the property when suddenly and without warning she was caused to slip and fall due to an accumulation of ice on the sidewalk.
5. The plaintiff's fall was caused by the negligence and carelessness of the defendant in one or more of the following ways:
a. defendant failed to keep the sidewalk in front of her property clear of ice;
b. defendant failed to give adequate warning regarding the unsafe ice condition of the sidewalk in front of the property;
c. defendant failed to properly and reasonably inspect the sidewalk in front of the property;
d. defendant failed to keep the sidewalk in front of the property in CT Page 3357 a reasonably safe condition;
e. defendant failed to take measures to remove or dissolve the accumulation of ice on the sidewalk despite the existence of the ice on the sidewalk for an unreasonable period of time;
f. defendant knew, or in the exercise of reasonable care should have known of the unsafe and dangerous icy condition of the sidewalk, and should reasonably have taken measures to remedy or correct the dangerous and unsafe conditions, but failed to take measures to remedy or correct the dangerous and unsafe conditions;
g. defendant failed to remove ice and/or failed to remove or sand ice sufficiently, in violation of Hartford Municipal Code §§ 31-143 and 31-145.
Complaint, ¶¶ 3-5.
The defendant has answered the plaintiff's Complaint by denying all allegations of negligence against her and asserting special defenses of failure to mitigate damages and contributory/comparative negligence. The plaintiff, in her Reply, has denied both special defenses.
Defendant Rivera now moves this Court for summary judgment on the ground that the plaintiff's Complaint does not state a claim upon which relief can be granted. In support of her Motion, she argues: (1) that the plaintiff's Complaint sounds only in common-law negligence, for it states no statutory basis for imposing liability upon the defendant, as is required for the proper assertion of a statutory claim by § 109A of the Connecticut Practice Book;1 and (2) that the Complaint thus fails to state a claim upon which relief can be granted, for a landowner has no common-law duty to keep the public sidewalks abutting her property clear of ice CT Page 3358 and snow. The defendant has supported her Motion with two memoranda of law.
The plaintiff opposes the defendant's Motion, arguing that even though she has no common-law right of action against the defendant, she may properly pursue, and has sufficiently pleaded, a valid statutory cause of action against her under §
For the following reasons, the Court agrees with the plaintiff that the defendant's Motion for Summary Judgment must be denied.
There is considerable uncertainty as to whether a trial court may appropriately grant summary judgment on the ground that the complaint on which judgment is sought fails to state a claim upon which relief can be granted. In Boucher Agency, Inc. v. Zimmerman,
Boucher . . . seems to indicate that a motion for summary judgment can be used to test the legal sufficiency of the complaint prior to judgment. While recognizing Boucher, the fact that it was decided in 1971 and has not been cited for that proposition to this date, leads us to the conclusion that it is anomalous.
Id., n. 9.
Against this uncertain background, prudence requires this Court to presume that the Boucher case, however anomalous, remains the law of the State of Connecticut. The Court will therefore decide the merits of the defendant's claim.
(a) When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.
Under this rule, the defendant argues, any statutory cause of action must fail if the statute on which it is based is not "specifically identified by its number" in the plaintiff's complaint. Id.
Though this argument has some superficial appeal, there are two important reasons why it must be rejected. CT Page 3360 First, where, as here, a challenged pleading alleges all the essential elements of a valid statutory claim, rejection of that claim for failure to cite the underlying statute would be pointless and gratuitous, for the one true purpose of § 109A — to give the pleader's adversary fair notice of his statutory claims — would have been satisfied. If the claim were disallowed for such technical non-compliance with the rule, the ends of justice would be very poorly served. Secondly, and more importantly, the acceptance of the defendant's argument would violate controlling Connecticut case law interpreting and applying § 109A. Under those authorities, it is conclusively established that "the requirement of § 109A is directory rather than mandatory," and thus that the failure of a challenged pleading to comply with that requirement cannot defeat a statutory claim that is otherwise properly presented therein. Rowe v. Godou,
In Rowe, the Appellate Court was asked to find error in the granting of a motion to strike which had been based upon, but failed to cite, a statute. Rejecting this argument, the Court determined that the motion was properly considered by the trial court because, even though it violated § 109A, it otherwise gave sufficient notice of the pleader's statutory claim.
Similarly, in DeVita, the Appellate Court ruled that a complaint which was based upon but failed to cite a statute presented a proper, legally sufficient claim under that statute since its allegations clearly fell within the statute, and the statute superseded all similar pre-existing common-law causes of action. Reasoning that there could thus be "no confusion about the basis of the plaintiff's cause of action, and . . . no doubt that [the unnamed statute] served as the basis for the . . . action[,]" the Court concluded that "the plaintiff's failure to plead specifically the statute will not, in this case, bar his claim . . . from effective appellate review." Id., 104.
III CT Page 3361
Against this background, the defendant's challenge to the legal sufficiency of the plaintiff's Complaint must obviously be rejected. The plaintiff clearly bases her cause of action on the defendant's alleged breach of a duty to remove ice from the public sidewalk abutting her Hartford property. The duty of Hartford landowners to clear ice from the public sidewalks abutting their properties did not exist at common law, but has been imposed by § 31-150 of the Hartford Municipal Code, which implements §
It is so ordered this 11th day of April, 1996.
Michael R. Sheldon, J.