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Premises Liability: Property owner owed no duty after area where plaintiff fell was found to be owned by the Town of West Hartford

Janis K Malec

This action involves a premises liability claim in which the plaintiff alleges that she was injured when she stepped into a hole on a grassy area between the curb and the sidewalk in front of the defendant’s home. On May 24, 2019, the plaintiff exited a parked vehicle in front of the defendants’ property. After exiting the vehicle, the plaintiff alleges that she stepped into a hole approximately one foot wide and obscured or partially obscured with grass in the tree belt, causing injury and damages. The plaintiff further alleges that the defendants retained possession and control of the tree belt, are responsible for its maintenance and upkeep, and were negligent in allowing the hole to exist on their property.

The defendants move for summary judgment, arguing that there are no genuine issues of material fact that the tree belt where the plaintiff allegedly fell is owned and/or controlled by the Town of West Hartford, not the defendants, and thus they owe no duty to the plaintiff. Alternatively, the defendants contend that if the court were to find that they were in possession and control of the tree belt, the plaintiff was a trespasser, not an invitee, and they had no notice of any alleged defect. In support of their motion, the defendants submit photographs of their property, an affidavit of their expert land surveyor, affidavits from the defendants, and excerpts from the plaintiff’s deposition.

The court cites Section 1-2 of the Code of the Town of West Hartford which defines “sidewalks” as “[a]ny portion of a street between the curb line and the adjacent property line intended for the use of pedestrians, excluding parkways.” Under Connecticut law, an abutting landowner is not liable for the unsafe condition of an adjacent public sidewalk unless the unsafe condition is caused by the abutting landowner. The Connecticut Supreme Court has held that 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.” Furthermore, the defendants established that they do not own the tree belt. Pursuant to their expert, he was able to opine with a reasonable degree of professional land surveying certainty that the plaintiff’s alleged fall “took place on land that is not a part of the defendant’s property. Rather, the plaintiff’s alleged fall took place on public property owned by the town…” Having met their burden of showing that there is no genuine issue of material fact and that they are entitled to summary judgment as a matter of law on the duty issue, the burden shifts to the plaintiff to show the existence of a genuine issue of material fact precluding summary judgment.

The plaintiff offers no evidence contesting the fact that the Town owns the tree belt. Instead, the plaintiff argues that the defendant had possession and control of the tree belt because, based on the language on the Town’s website page, an “adjacent landowner is responsible for the mowing of the grass between the sidewalk and the street.” However, the court explains, the plaintiff failed to establish that the statement on the Town’s website constitutes a statute or ordinance. Moreover, the same website confirms that the Town is responsible for maintaining the physical condition of 300 miles of “sidewalks” which, as noted above, is defined under the code to include the tree belt. Lastly, the plaintiff failed to show that the defendants undertook any positive act that created an unsafe condition. They simply arranged to have the grass in the tree belt mowed. Accordingly, the court grants the defendants’ motion for summary judgment. Cosme v. Eagan, No. HHD-CV21-6143057-S, 2023 WL 4446653 (Conn. Super. Ct. July 7, 2023)