Willoughby v. City of New Haven

• Decision Date: 21 December 1937
• Citation: 197 A. 85,123 Conn. 446
• Court: Connecticut Supreme Court
• Parties: WILLOUGHBY v. CITY OF NEW HAVEN et al.

197 A. 85

123 Conn. 446

WILLOUGHBY v. CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

December 21, 1937

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action to recover damages for personal injuries alleged to have been caused by snow and ice upon a sidewalk by Mary Willoughby against the City of New Haven and another, brought to the Superior Court in New Haven County and tried to the court. Judgment for the plaintiff against the named defendant, and in favor of the defendant the New Haven Savings Bank, from which the plaintiff and the named defendant appeal.

No error.

Thomas R. Robinson, Vincent P. Dooley, and Harold C. Donegan, all of New Haven, for City of New Haven.

Donald E. Cobey, of New Haven, for Mary Willoughby.

Samuel E. Hoyt and Spencer S. Hoyt, both of New Haven, for appellee New Haven Sav. Bank.

Charles A. Watrous, James W. Cooper, and J. Stephen Knight, all of New Haven, amici curiae.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

HINMAN, Judge.

The plaintiff brought her action to recover damages because of injuries alleged to be due to failure to keep a sidewalk free from defects due to snow and ice upon which she fell on February 15, 1936, against both the City of New Haven and the defendant bank as abutting property owner. The trial court held the city liable, and not the defendant bank. The principal claim of the defendant city is that the trial court erred in holding it instead of the abutting property owner liable, relying upon an act of the Legislature, 22 Sp.Acts 1935, p. 191, as transferring liability from the city to the abutting property owner. That act provided, in section 1, that any action brought against the city claiming damages for injuries under sections 1419 or 1420 of the General Statutes shall be tried to the court and, if judgment be rendered for the plaintiff, no costs or judgment fee shall be taxed against the defendant. Section 2 provided that: ‘ After the first day of July, 1935, the duty of keeping in reasonable repair sidewalks within the limits of said city shall devolve upon said city and said city is authorized to repair all sidewalks and to make appropriation for payment therefor in the month of September, 1935, and annually thereafter.’ Section 3, which is the provision directly involved in this case, provides that: ‘ The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner and said city is authorized to make suitable ordinances relating thereto.’

At the time of the plaintiff's fall and injury, this act was in effect, together with section 1420 of the General Statutes, providing that any person injured by means of a defective highway ‘ may recover damages from the party bound to keep it in repair’ ; also provisions of the New Haven charter giving the city sole control over streets and walks, with power of eminent domain in connection therewith, 17 Sp.Acts 1915, p. 220; giving the board of aldermen authority to require that sidewalks be kept free from ice and snow, 13 Sp.Acts 1899, p. 429; placing the charge of improvement, repair, and cleaning of streets and sidewalks in the bureau of streets under the director of public works, 13 Sp.Acts 1899, p. 411; and providing that the superintendent of streets shall remove snow and ice upon the default of an owner required to do so by ordinance, the expense to be a lien upon the adjoining property, and also recoverable by the city in an action therefor, 13 Sp.Acts 1899, p. 413.

Section 771 of the Ordinances, Rev.1928, p. 520, also in effect at that time, provided that any fall of snow or sleet upon any sidewalk caused by freezing or rain, or both, ‘ shall be removed or caused to be removed by the owner, tenant, occupant or person having the care, maintenance or rental of the land, building, * * * or premises, fronting upon said sidewalk, * * * within three hours after the cessation of said fall of snow, sleet, or rain, if in the daytime, and if said fall * * * occur in the nighttime, * * * before 9:00 o'clock in the forenoon of the day following’ ; it also provides for a fine of not more than $10 for each violation. This ordinance remained in effect thereafter until June 1, 1936, when the board of aldermen adopted an ordinance in substantially the same terms as section 771, except that the concluding paragraph provides that: ‘ Any person injured in person or property by means of a defective sidewalk * * * caused by an accumulation of snow or ice thereon, shall recover damages therefor from the adjoining property owner of the land.’ In 1937, the General Assembly passed another act, 22 Sp.Acts 1937, p. 982, amending the 1935 act, containing in the second section the same language as that of section 3 of the 1935 act, above quoted, with the addition that the adjoining property owner shall be liable in damages to the person so injured, and providing, further, for the giving of notice to the property owner similar to that provided in section 1420 of the General Statutes. Upon the situation above outlined, the defendant city claims that under the Special Act of 1935 sole liability to this plaintiff rests upon the defendant bank as the abutting property owner, while the latter claims that liability still rests solely upon the city.

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 municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons. 2 McQuillin, Municipal Corporations, § 681; Hartford v. Talcott, 48 Conn. 525, 534, 40 Am.Rep. 189; Stevens v. Neligon, 116 Conn. 307, 309, 312, 164 A. 661; Rochester v. Campbell, 123 N.Y. 405, 412,25 N.E. 937, 938, 10 L.R.A. 393, 20 Am.St.Rep. 760; Toutloff v. Green Bay, 91 Wis. 490, 494, 65 N.W. 168. 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 adequately authorized by such provision, and, being the creature of statute or such ordinance, it can be no greater than that specifically imposed thereby. Imposition upon abutting owners of a duty to clear walks of snow and ice, with a provision of a penalty by fine and costs for failure to do so or for clearing the same by the municipality and collection of the cost from the abutting owner, is not sufficient to render the individual, instead of the city, liable for injuries sustained by reason of snow or ice thereon. ‘ The labor performed by those who obey and the fines and expenses paid by those who do not, measure the extent of the advantages * * * derived.’ Hartford v. Talcott, supra, 48 Conn. 525, at page 534, 40 Am.Rep. 189; 2 McQuillin, Op.Cit., § 902. ‘ So far as defects * * * result wholly from the operations of nature, the proprietor at whose front they exist is without responsibility for them. Therefore, where ice has accumulated upon the sidewalk to a dangerous extent it is the duty of the municipality to remove or cover it within a reasonable time after its formation.’ Hartford v. Talcott, supra, 48 Conn. 525, at page 532, 40 Am.Rep. 189.

Practically every city has an ordinance similar in substance to the New Haven ordinance in effect at the time of this injury. Section 771, Rev.1928, e. g., see State v. McMahon, 76 Conn. 97, 55 A. 591. Some cities have in their charters provisions, such as those in the New Haven charter from 1917 to 1921, 18 Sp.Acts 1921, p. 500, that the city shall not be liable for any injury occasioned by ice or snow upon sidewalks, except when combined with some structural defect. See, for example, Waterbury, 12 Sp.Acts 1895, p. 443, as to the effect of which we said that because of this charter provision ‘ delimiting the existing statutory action for injury from snow and ice on a sidewalk,’ no cause of action can arise due to snow or ice alone. Wladyka v. Waterbury, 98 Conn. 305, 309, 310, 119 A. 149; Krooner v. Waterbury, 105 Conn. 476, 136 A. 93. It has not been held, and we are not aware of any case in which it has been claimed, that such charter provision imposed upon the property owner any liability to a person injured, for failure to remove snow or ice, and an ordinance merely requiring property owners to do so, and providing a penalty for failure, is insufficient to create such a liability. Stevens v. Neligon, supra, 116 Conn. 307, at page 313, 164 A. 661.

In Stevens v. Neligon, supra, regarding a claim made under a provision of the Meriden charter (quoted 116 Conn 307, at page 310, 164 A. 661, 662) that, ‘ Any person who shall cause any defect in or place or cause to be placed any obstruction on any of the streets * * * shall be held to answer any claim for damages which may be made by reason thereof against said city,’ we said (116 Conn. 307, at page 312, 164 A. 661, 663): ‘ We do not construe the act * * * to impose a liability upon a property owner for a defect in the streets of the city which he did not himself create. * * * If it had been the intention of the Legislature to cast upon property owners in Meriden the primary duty of keeping the streets reasonably safe, which would include the duty to remedy a defect, such as a dangerous condition caused by snow or ice, for the creation of which they were not responsible, it doubtless would have found apt words to create such a duty.’ The same may be said regarding the claimed intent by the act of 1935 to relieve the city of all liability for injuries arising from snow or ice on sidewalks and impose it upon the abutting property owner. Where the intent is to transfer liability...