Smith v. Town of Greenwich, No. 17555.

• Court: Supreme Court of Connecticut
• Writing for the Court: Sullivan
• Citation: 278 Conn. 428,899 A.2d 563
• Docket Number: No. 17555.
• Decision Date: 06 June 2006
• Parties: Flora SMITH v. TOWN OF GREENWICH et al.<SMALL><SUP>*</SUP></SMALL&gt

899 A.2d 563 278 Conn. 428 Flora SMITH
v.
TOWN OF GREENWICH et al.^* No. 17555. Supreme Court of Connecticut. Argued January 6, 2006. Decided June 6, 2006.

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Joseph A. La Bella, for the appellant (defendant 200 Greenwich Acquisition, LLC).

Stewart M. Casper, with whom were Jeremy C. Virgil, Stamford and Harold R. Burke, Greenwich, for the appellee (plaintiff).

Karen K. Clark, with whom was Frank G. Usseglio, Hartford, for the appellee (defendant Ronald R. Passerelli, Jr.).

SULLIVAN, C.J., and BORDEN, KATZ, PALMER and VERTEFEUILLE, Js.

SULLIVAN, C.J.

This appeal arises from an action brought by the plaintiff, Flora Smith, against the defendants, 200 Greenwich Acquisition, LLC (Greenwich Acquisition), 19 West Elm Street Associates, LLC (19 West Elm Street), the town of Greenwich (town), and Ronald R. Passerelli, Jr., in connection with injuries that the plaintiff suffered when she slipped and fell on an ice patch on the sidewalk in front of certain property located in the town.¹ The plaintiff claimed, inter alia, that her injuries had resulted from negligence on the part of Greenwich Acquisition and 19 West Elm Street in maintaining the sidewalk. Following a jury trial, the court rendered judgment in favor of the plaintiff against Greenwich Acquisition only, from which Greenwich Acquisition appeals. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 30, 2000, a snowstorm deposited approximately thirteen inches of snow in the Greenwich area. In addition, it snowed less than one-half inch on both January 5 and January 9, 2001. On the morning of January 17, 2001, the plaintiff slipped and fell on a patch of ice on the sidewalk near the property line between Greenwich Acquisition's property and 19 West Elm Street's property, severely fracturing her ankle. The town owned the sidewalk where the plaintiff fell. The ice had formed next to a pile of snow that lay on a planting bed located on Greenwich Acquisition's property that was perpendicular to the sidewalk, as well as on the sidewalk abutting the bed. Warmer temperatures partially had melted the snow on the previous day, and ice had formed from the meltwater on the sidewalk adjacent to the snow pile between 4 a.m. and 7 a.m. on January 17, 2001.

Upon discovering the injured plaintiff, Joseph Voisene, the building manager for Greenwich Acquisition, called 911. A Greenwich police officer, John Thorme, arrived to care for the plaintiff and to conduct an investigation. At the time of the investigation, Thorme did not know the exact location of the boundary line between Greenwich Acquisition's property

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and 19 West Elm Street's property. Shortly after the accident, Voisene called Passerelli and asked him to remove the portion of the snow located on the sidewalk next to where the plaintiff had fallen.

The plaintiff filed a complaint against the town, Greenwich Acquisition and 19 West Elm Street. Greenwich Acquisition then filed an apportionment complaint against Passerelli claiming, inter alia, that, to the extent that the plaintiff had been injured as alleged, Passerelli had caused the injuries through his negligence. In her initial complaint, the plaintiff's only allegation against Greenwich Acquisition was that it negligently had failed to maintain the sidewalk. Greenwich Acquisition filed a motion for summary judgment, claiming that it had no legal duty to maintain the public sidewalk. The plaintiff subsequently filed, and the court granted, a request for leave to amend the complaint, seeking to add claims that Greenwich Acquisition had created a dangerous condition and a nuisance by piling snow at the base of its driveway adjoining the public sidewalk so that the runoff from melting snow created an ice slipping hazard. The plaintiff also amended her complaint pursuant to General Statutes § 52-102b (d),² to assert a direct claim of negligence against Passerelli. The trial court subsequently denied Greenwich Acquisition's motion for summary judgment, finding that genuine issues of material fact were in dispute. During jury selection, the plaintiff withdrew her claims against the town and Passerelli, leaving Greenwich Acquisition and 19 West Elm Street as the only direct defendants, although Passerelli remained as an apportionment defendant.

On the first day of trial, the trial court denied a motion in limine by Passerelli seeking to preclude evidence concerning the apportionment complaint. Passerelli argued that under Gazo v. Stamford, 255 Conn. 245, 257-58, 765 A.2d 505 (2001), a property owner could not name a snow removal contractor as an apportionment defendant under the circumstances of this case. The trial court declined to rule on the motion at that time. Later in the trial, however, the trial court, sua sponte, granted Passerelli's motion for summary judgment on the basis of its interpretation of Gazo. The court subsequently submitted the case to the jury on the theories of negligence and nuisance only. The jury returned a verdict in favor of the plaintiff against Greenwich Acquisition and found no fault on the part of 19 West Elm Street. It assessed 70 percent negligence to Greenwich Acquisition, and 30 percent to the plaintiff. Subsequently, the trial court denied Greenwich Acquisition's motions to set aside the verdict, to determine collateral source reduction, and for remittitur. The trial court rendered judgment in favor of the plaintiff, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, Greenwich Acquisition claims that the trial court improperly: (1) declined to instruct the jury that, for Greenwich Acquisition to be liable for the accumulation of ice on the public sidewalk, the plaintiff needed to prove that Greenwich Acquisition's positive act altered the natural flow of water from its property; (2) declined to direct a verdict in its favor when the evidence was insufficient to establish that the ice on the sidewalk did not result from a natural accumulation of snow

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and the natural flow of water from Greenwich Acquisition's property; (3) allowed the plaintiff to introduce evidence that Greenwich Acquisition, through its snow removal contractor, Passerelli, had performed subsequent remedial measures by removing snow from the sidewalk after the plaintiff's fall; (4) declined to instruct the jury that evidence regarding Passerelli's removal of snow from the sidewalk after the incident was not relevant to the issue of whether Greenwich Acquisition was negligent; (5) rendered summary judgment in favor of Passerelli, on the ground that, as a matter of law, a property owner may not assert an apportionment claim against a snow removal contractor; and (6) denied Greenwich Acquisition's motion for summary judgment where Greenwich Acquisition argues that it did not owe a duty to the plaintiff to maintain the public sidewalk, because the applicable ordinance failed to transfer the town's liability to Greenwich Acquisition. We reject these claims, and, accordingly, affirm the judgment of the trial court.

I

We first address Greenwich Acquisition's claim that the trial court improperly declined to instruct the jury that, for Greenwich Acquisition to be liable for the accumulation of ice on the public sidewalk, the plaintiff needed to prove that Greenwich Acquisition's positive act altered the natural flow of water from its property. We disagree.

The record reveals the following additional facts and procedural history. Greenwich Acquisition submitted a request to instruct the jury on the law as stated in Young v. Talcott, 114 Conn. 675, 678-79, 159 A. 881 (1932), and Langlois v. Murphy, 15 Conn.Supp. 137, 138 (1947). These cases state that a landowner whose property is next to a public sidewalk "is not liable for the formation of ice upon a public sidewalk due to the natural flow of surface water from [its] land. . . .

"[A] showing [is] required that the defendant so maintained [its] premises as to cause the water which flowed from [its] premises to be diffused upon the sidewalk in a manner substantially different in volume or course than would naturally have been the case."³ (Citation omitted.) Langlois v. Murphy, supra, 15 Conn. Sup. at 138. The trial court stated: "I just don't think this whole thing of flow of water is relevant to this case," and did not include the instruction requested by Greenwich Acquisition in its charge to the jury. Instead, the trial court instructed the jury as

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follows: "An important principle of law in Connecticut, and this is really the key to understanding and deciding this case, is that an abutting landowner . . . [is] under no duty to keep the public sidewalk in front of [its] propert[y] in a reasonably safe condition for public travel.

"An abutting landowner . . . can be held liable, however, in either negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowners' positive act. . . .

"By positive act, we mean taking affirmative steps to create the hazard that caused the accident and resulting injuries.

"The plaintiff alleges that the positive act in this case was the piling up of a mound of snow, which resulted in the later thaw and freeze cycle.

"Now, the opposite side of that coin is that if the accumulation of snow, the pile of snow in issue, was not created by the affirmative act of the defendant[s], but rather was a natural accumulation of snow, then the defendants cannot be held liable or responsible to the plaintiff."

Later, in explaining the concept of causation, the trial court stated that "[t]he test for cause in fact is simply would the accident or incident have occurred were it not for the defendants' conduct?

"The second component of legal cause is proximate cause....