Wilson v. City of New Haven, 13606
| Decision Date | 26 December 1989 |
| Docket Number | No. 13606,13606 |
| Court | Connecticut Supreme Court |
| Parties | Richard W. WILSON v. CITY OF NEW HAVEN, et al. |
Jackson T. King, with whom, on the brief, was Susan King Shaw, New Haven, for appellant (plaintiff).
William C. Turney, New Haven, for appellee (defendant Yale University Elizabethan Club Corp.).
Before SHEA, CALLAHAN, COVELLO, HULL and SANTANIELLO, JJ.
The plaintiff brought this action against the defendants, the city of New Haven and the Yale University Elizabethan Club Corporation (Elizabethan Club), seeking damages for injuries sustained as a result of a fall on October 3, 1981, caused by a raised, broken and uneven section of sidewalk located on College Street in New Haven. Count one was directed against the city for breach of a statutory duty. Count two alleged negligence against the Elizabethan Club, the abutting landowner.
The Elizabethan Club filed a motion for summary judgment asserting that there were no material issues of fact and that it owed no duty to the plaintiff. The motion was granted by the trial court and affirmed by the Appellate Court in a per curiam opinion, Wilson v. New Haven, 17 Conn.App. 806, 550 A.2d 902 (1988).
We granted certification of the plaintiff's appeal from the Appellate Court limited to the question of whether the Appellate Court erred in affirming the trial court's granting of the Elizabethan Club's motion for summary judgment.
The plaintiff argues that the Appellate Court erred in: (1) failing to consider the common law exceptions to the general rule of no liability of an abutting landowner; (2) ruling that repairs subsequent to the accident by the abutting landowner did not raise a material issue of fact because the abutting landowner owed no duty at the time of the accident; and (3) ruling that the location of the accident did not raise a material issue of fact regarding the abutting landowner's duty.
The factual background of this case is as follows: The plaintiff instituted an action to recover damages for injuries he sustained when he allegedly fell on a section of public sidewalk that abuts property owned and occupied by the Elizabethan Club. The Elizabethan Club filed a motion for summary judgment. The affidavits submitted in support of the motion for summary judgment indicated that the street on which the accident occurred contained a ten foot wide public sidewalk. The city had designated a five foot area extending from the curb to the center of the sidewalk as a "treebelt" strip, apparently because there were unpaved sections of sidewalk at intermittent points designed for the planting of trees. The site of the accident was alleged to be two feet from the curb, which would place it within the "treebelt" portion of the sidewalk. Repairs were made to the site by the abutting landowner approximately two months after the accident, but there was no claim of any repairs prior to the accident. This court must therefore decide under these facts whether the trial court erred in granting the motion for summary judgment.
Summary judgment is a method of resolving litigation when 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. Practice Book § 380; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984). The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. See Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The test for granting summary judgment is whether the moving party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).
The abutting landowner argues that under the facts of this case it owes no duty to the plaintiff. 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. Tenney v. Pleasant Realty Corporation, 136 Conn. 325, 329, 70 A.2d 138 (1949); Jankowski v. Bridgeport, 34 Conn.Sup. 1, 3, 373 A.2d 1 (1977). In the instant case the plaintiff does not claim that there is a statute or ordinance that created a duty owed to the plaintiff by the abutting landowner. The plaintiff argues that under the common law a showing of control or maintenance of the area of the accident may give rise to a duty owed by the abutting landowner, and that he has raised issues of fact concerning control or maintenance of the sidewalk. None of the affidavits submitted supports this contention.
The trial court found that repairs made subsequent to the accident do not raise a material issue of fact because control after the accident does not establish a duty at the time of the accident. In reaching this decision the trial...
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