Landerman v. Town of Simsbury, No. Cv 99-0593934 (Feb. 16, 2000)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKEThis is an action to recover damages for personal injuries sustained by plaintiff when a companion slipped on an icy sidewalk and accidentally struck him in the eye. The first count brought against the Town of Simsbury under General Statutes §13a-149 alleges that the fall took place in the Simsbury Farms recreation complex owned by the Town while plaintiff "was walking on a sidewalk from the paddle tennis court toward the parking lot" and that the sidewalk was a "defective road" under the statute.

Defendant Town moves to strike the first count as being insufficient because the sidewalk is not one used for public travel.

The parties agree that "road" as used in § 13a-149 has usually been construed to include sidewalks but not parking lots.

Defendant argues that because the instant sidewalk neither abuts nor is near a public roadway, is used strictly for walking between the parking lot and paddle tennis courts and is not connected with the use of the highway for travel, it is not a "road" under the statute. Plaintiff claims that whether the CT Page 2158 sidewalk is a roadway under the statute is a question of fact, not to be decided on a motion to strike.

In the leading case of Baher v. Ives, 162 Conn. 295 (1972) it was held that a town may be held liable for a defect which is close to but not on the traveled portion of a highway.

The only allegation made by the plaintiff as to location is that plaintiff was "walking on a sidewalk from the paddle tennis courts toward the parking lot." No reference whatsoever is made to any public road or highway or that the location was near such a public road. The allegation in paragraph one that the recreation complex was "located at 100 Old Farms Road", does not add much in terms of sufficiency.

The decisions which extend coverage of the defective highway statute to sidewalks are based on the assumption that such sidewalks are used by those traveling on the public road or highway. Failure, in a defective sidewalk case, to allege some proximity or connection of the sidewalk with a public road or highway, creates an insufficiency of coverage under General Statutes § 13a-149. Durham v. So. New England TellecommunicatorCorp. , 1997 WL 771577 (Conn.Sup. ) 1997 (December 3, 1997, Levine, J.).

Motion to strike first count is granted.

Jerry Wagner Judge Trial Referee