177 Conn. App. 83
Conn. App. Ct.2017Background
- On May 14, 2013 the plaintiff fell on a public sidewalk in Meriden adjacent to property owned by Janet Mickens and sued Mickens’ estate for negligence.
- The plaintiff alleged the sidewalk was broken and cracked with "wildly growing" grass concealing the defect, and that Mickens failed to cut the grass, warn, or otherwise remedy the danger.
- Defendant moved for summary judgment, arguing abutting landowners do not owe a duty to maintain public sidewalks absent (a) statute/ordinance shifting liability or (b) a positive act by the landowner that created the hazardous condition.
- Plaintiff relied on a Meriden ordinance requiring owners to cut grass and argued the grass (not the crack) created a distinct condition for which the owner was liable; she also argued factual disputes existed about whether grass concealed the defect.
- Trial court granted summary judgment for the defendant, reasoning grass growth is naturally occurring (not a positive act), the plaintiff had abandoned reliance on the ordinance at argument, and municipalities bear primary responsibility for sidewalk maintenance.
- Plaintiff’s motions to reargue and to amend (to correct date/name errors) were denied or left unresolved; she appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether genuine issues of material fact (e.g., grass concealing crack) precluded summary judgment | The grass concealed the crack and was a proximate cause of the fall, creating material factual disputes | Defendant conceded the fall occurred on the broken sidewalk but argued duty is dispositive; facts about how the fall occurred are immaterial absent duty | No — factual questions about how grass contributed are immaterial because there is no duty by the abutting owner absent statute/positive act |
| Whether the Meriden grass-cutting ordinance shifted liability to the abutting landowner | Ordinance §180-42 imposes duty to cut grass and thus shifts responsibility for sidewalk safety to the owner | Ordinance does not expressly create third-party liability; shifting municipal duty requires clear statutory/ordinance language | No — ordinance does not sufficiently or expressly shift liability to landowner and plaintiff abandoned reliance on it at argument |
| Whether naturally growing grass can constitute a "positive act" by the landowner that creates liability | Grass concealing a defect creates a non-sidewalk condition for which an abutter may be liable | Grass growth is natural and not a landowner’s positive act; absent a positive act, no duty exists | No — naturally occurring grass is not a positive act by owner and does not trigger abutter liability |
| Whether the trial court improperly relied on facts from another case (Marino) or violated due process by citing it | Citing Marino meant the court relied on facts outside the record without notice, denying plaintiff due process | Court cited Marino only for legal reasoning on a factually similar issue; defendant cited Marino in filings | No — use of a prior, similar decision for legal guidance was proper and did not deprive plaintiff of due process |
Key Cases Cited
- Robinson v. Cianfarini, 314 Conn. 521 (Conn.) (abutting landowner not liable for defective public sidewalk absent statute/ordinance shifting liability or positive act by owner)
- Sanzone v. Board of Police Commissioners, 219 Conn. 179 (Conn.) (definition of "highway defect" for municipal liability under §13a-149)
- Wilson v. New Haven, 213 Conn. 277 (Conn.) (common-law rule that abutting landowner ordinarily owes no duty to keep public sidewalk reasonably safe)
- Gambardella v. Kaoud, 38 Conn. App. 355 (Conn. App.) (positive-act exception: abutter liable where unsafe sidewalk condition was caused by defendant’s affirmative conduct)
- Willoughby v. New Haven, 123 Conn. 446 (Conn.) (municipal ordinance must clearly and specifically shift liability to abutter to create third-party cause of action)