Abutting Property Owner

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July 22, 2009

Common Law Rule - no Duty to Maintain or Repair the Public Way

Under the common law rule, an owner of land abutting a public street or a sidewalk generally has no duty to maintain or to repair the public way. An abutting property owner may be found liable under one of the following exceptions to the common law rule: where the condition is created by the abutting property owner; where the condition is created for the special use and benefit of the abutting property owner; where the abutting property owner negligently constructs or repairs the street or the sidewalk; or where a statute or ordinance expressly imposes liability upon the abutting property owner.[1] In the absence of one of these exceptions, an abutting property owner is not liable for any defects or dangerous conditions existing on the streets or sidewalks.

The responsible governmental entity has the primary duty to maintain the streets and sidewalks in a reasonably safe condition. Persons who use public roadside rest area facilities provided by the state are "licensees" to whom the only duty owed is to refrain from wantonly or willfully inflicting injuries.[2]

Condition Created by Abutting Property Owner

Connecticut follows the common law rule that an abutting landowner is ordinarily under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel.[3] An abutting landowner can be held liable, however, in negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner's positive acts.[4]

This exception is illustrated by two Connecticut Supreme Court cases from the first half of the twentieth century. Hanlon v. City of Waterbury[5] involved a defendant who maintained a gas pump 4 inches away from a tar sidewalk. Gasoline would spill from the pump onto the sidewalk, rendering it unsafe for travel. The defendant was deemed responsible for the condition, just as he would have been had he by his act made a dangerous hole in a sidewalk.

Similarly, Perkins v. Weibel[6] involved a defendant who operated a restaurant and allowed grease to seep from the front of his building and accumulate on the public sidewalk. He, like the defendant in Hanlon, was held responsible for the resulting condition.[7]

Abramcyk v. Abbey[8] is instructive on this point. In Abramcyk, the plaintiff pedestrian was injured when he tripped over a raised cast-iron water pipe. The pipe was on the landowner's premises, but within a right-of-way owned by the city. The landowner mowed the grass and removed weeds from the area around the pipe, but did not engage in any affirmative act to change the condition of the pipe or to conceal the pipe in any way. The trial court was not convinced that by mowing the grass around the pipe, the landowner exercised possession and control of the pipe, nor was there evidence to prove that the defendant's positive acts caused the water pipe to be a tripping hazard. The trial court found that the subsequent repair of the pipe constituted evidence of the city's control. The trial court thus concluded that, as a matter of law, the landowner had no liability for the alleged hazardous condition, and the Appellate Court agreed.

Condition Created for the Special Use or Benefit of Abutting Property Owner

A number of courts have held that if an abutting property owner uses the public way for his own convenience and benefit, he has a duty to maintain it in a reasonably safe condition. Thus, if an abutting property owner negligently permits a dangerous condition to exist for some private use or benefit he may be liable to an injured party.

The special use theory presupposes that an abutting property owner has a right to use the streets or the sidewalks in a legitimate manner in connection with his business. When the activities of the business, conducted for an economic benefit, create a hazard on the public street or sidewalk, the abutting property owner has a duty to protect the public from injury. If responsibility for the maintenance of the abutting sidewalk is shared by multiple owners or is otherwise disputed, the party that retains control over the abutting area, either actually or constructively will usually be liable for any dangerous conditions found to exist on those portions of the premises.[9]

Negligent Construction and Repair by Abutting Property Owner

Even though an abutting property owner generally has no duty to construct or to repair the public street or sidewalk, once an attempt to repair it is made, the owner has a duty to exercise reasonable care. However, liability will not be imposed if the abutting property owner's repairs are not related to the place of the accident.

[1] Wilson v. City of New Haven, 213 Conn. 277, 280 (1989).

[2] See DeLeonardo v. City of New Haven, 1996 Conn. Super. LEXIS 2676.

The plaintiff tripped over a tree stump in a grassy "tree belt" area near a public telephone, which was located between the public sidewalk and the abutting public street. The abutting landowner was entitled to summary judgment because the landowner owed no duty, as a matter of law, to keep the "tree belt" area free from dangerous obstructions. The telephone company, however, was not entitled to summary judgment, because a fact question remained regarding whether, by maintaining its public telephone in the "tree belt" area, the telephone company had assumed some special responsibility for keeping the surrounding area free from dangerous obstructions.

[3] Tenney v. Pleasant Realty Corp., 136 Conn. 325, 329 (1949).

[4] See Gambardella v. Kaoud, 38 Conn. App. 355, 359 (1995).

[5] 108 Conn. 197 (1928).

[6]132 Conn. 197 (1945).

[7] See also Swain v. Leninski, 2003 Conn. Super. LEXIS 966 (sweeping a sidewalk several times a day is not a "positive act" that imposes on the sweeper the responsibility of maintaining the sidewalk in reasonably safe condition.)

[8] 64 Conn. App. 442 (2001).

[9] See, e.g., Valentas v. Toys "R" Us, 1998 Conn. Super. LEXIS 3055. The plaintiff fell on a sidewalk immediately adjacent to a toy store. The lessee of the store was entitled to seek indemnification from the lessor of the premises. Under the terms of the parties' lease agreement, the lessor expressly retained control over the abutting sidewalk area adjacent to the leased premises.