You asked if the state has any statutory responsibility for clearing snow and ice from sidewalks adjoining state highways. You also wanted to know who would be considered liable for an injury that occurs when snow has not been removed from such a sidewalk.

The Office of Legislative Research is not permitted to give legal opinions and this report should not be considered one.

SUMMARY

The state has the explicit statutory duty to remove snow and ice from sidewalks adjoining state highways only in two instances. CGS § 13a-91 requires the Transportation Commissioner to maintain sidewalks on bridges and approaches to bridges that he maintains. This responsibility explicitly includes the removal of snow and ice from the sidewalks.

The second statute, CGS § 13a-258 gives the commissioner the duty to maintain any sidewalk, including the removal of snow and ice, abutting property required for highway purposes, from the date the property was acquired for highway proposes until that section of the highway is completed. This law allows the commissioner to enter into an agreement with the municipality in which the sidewalks are located to perform this maintenance, including the removal of snow and ice, and reimburse it for its expenses.

A third law, CGS § 13a-92 requires the commissioner to maintain the sidewalks and bridges across the Connecticut River at Thompsonville and Warehouse Point. This law does not explicitly mention snow or ice removal.

State law makes the Commissioner of Transportation liable for injuries caused because of a defective sidewalk he is required to maintain (CGS § 13a-144). Thus, the commissioner's liability for injuries caused by snow and ice or sidewalks adjacent to state highways appears to be limited to situations covered by the three statutes.

While the courts appear to have limited the state's responsibility for sidewalks adjoining its roads and bridges to the situations covered by these specific enactments, the law allows the state to construct or reconstruct sidewalks along certain of its roads when it has an agreement with the municipality. When sidewalks are constructed under these agreements, the law requires the transportation commissioner to assume responsibility for ordinary maintenance of the sidewalk, but explicitly places responsibility for snow removal and correction of icy conditions with the municipality. Since 1981, municipalities have been able, under another state law, to transfer liability for injuries on public sidewalks resulting from snow or ice to the person owning or possessing the abutting property. To accomplish this, the municipality must adopt the provisions of the state law through an ordinance.

The Department of Transportation (DOT) has a long-standing policy with respect to its participation in constructing sidewalks along state roads. Under this policy, if the state reconstructs a road with state or federal funds and the project will disturb an existing sidewalk, the reconstruction of the sidewalk is included, in kind, in the reconstruction project. If DOT is constructing or reconstructing a state road in an area where there is no existing sidewalk and the community can show according to generally accepted design standards that a sidewalk is warranted, the state will construct the sidewalk, but only based upon a specific agreement with the municipality under which the municipality provides the nonfederal share of any costs associated with the sidewalk and agrees, in perpetuity, that it is fully responsible for all liability, maintenance, and snow and ice removal.

RELEVANT STATUTES

The State Defective Road Statute

As a general principle of law, the state is a sovereign entity and thus is immune from tort liability suits without its consent. A long history of case law decisions establishes that the state's sovereign immunity is absolute unless, through an act of the legislature, it gives its consent. One area in which the legislature has given such consent provides for suits against the transportation commissioner for defective highways, bridges, and sidewalks (CGS § 13a-144). Specifically, this law states:

"Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, ...may bring a civil action to recover damages sustained thereby against the commissioner in the superior court" (emphasis added).

This state defective road law was first enacted in 1925.

The Municipal Defective Road Statute

A second law (CGS § 13a-149) states that "any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. " This law is generally identified as imposing liability on municipalities for defective roads or bridges under their control. (Wright, Fitzgerald, and Ankerman, Connecticut Law of Torts, 3^rd Ed. , § 95, p. 297). This municipal roads statute has a significantly longer history than the state defective roads statute and derives its beginnings from a colonial enactment in 1672.

Snow Removal Laws

While these two laws set much of the context for consideration of the relative responsibilities of the state and its municipalities for sidewalks that adjoin public roads, there are several more that directly relate to questions of snow and ice removal from sidewalks. The first, CGS § 13a-91, also dates back to 1925, although its current requirements differ somewhat from its original form. This law establishes a specific duty for the transportation commissioner to maintain sidewalks on bridges and approaches to bridges he maintains and explicitly states that such maintenance "shall include responsibility for the removal of snow and ice from such sidewalks. "

However, while sidewalks on state highway bridges are, under most circumstances, the transportation commissioner's responsibility, a sidewalk constructed along a state road pursuant to a state-municipal agreement comes under a different requirement of the law. Under a 1949 law, the transportation commissioner is authorized to construct or reconstruct a footpath or sidewalk along either or both sides of any "state aid or trunk line highway" whenever he finds public safety requires it. But such construction must be by agreement between the commissioner and the authorized officials of the municipality. The law requires the municipality to provide the required right-of-way for the footpath or sidewalk at its expense unless the commissioner decides to construct it within the limits of the existing right-of-way. The state must assume all ordinary maintenance of the footpath or sidewalk, but the municipality is explicitly given the responsibility for removal of snow and correction of icy conditions on the footpath or sidewalk. CGS § 13a-91 reiterates these maintenance responsibilities for any footpath or sidewalk constructed or reconstructed in accordance with sidewalk agreements made in accordance with the 1949 law.

Another law also has relevance to the question of the extent of the state's relative responsibility for removing snow from sidewalks. The law requires the transportation commissioner to maintain any sidewalk, "including the removal of snow and ice," abutting property acquired for highway purposes, from the date it is acquired until the section of highway for which it was acquired is completed (CGS § 13a-258). The commissioner can make an agreement with the municipality for it to remove ice and snow from the sidewalk instead and reimburse it for the expense, but this does not release the commissioner from his duty to maintain the sidewalk.

Still another law, requires the transportation commissioner, from his general operations appropriations, to maintain and improve the "roads and drives," on the grounds of state institutions at the request of the state agency with jurisdiction over the property (CGS § 13a-30). While this law explicitly identifies snow and ice removal within the maintenance responsibility, the courts have determined that it does not impose a duty on him to maintain sidewalks as well. (Lipwich v. Frankel, 44 Conn. App. 651 (1997); certification denied 241 Conn. 907).

Liability of Abutting Property Owners

By law, municipalities have the power to require the owners or occupants of land adjacent a sidewalk to remove ice, snow, or other debris and, through their ordinances, set penalties for failing to do so (CGS § 7-148(c)(6)(C)(v)). In 1981, the legislature gave municipalities the additional power to transfer by ordinance the liability for injuries on public sidewalks resulting from the presence of snow or ice to the abutting landowner or possessor (CGS § 7-163a). To transfer its liability to the abutting landowner or possessor, the municipality must adopt the provisions of the statute through its ordinance. Passage of this law changed the legislature's traditional policy of making municipalities responsible for maintenance and repair of sidewalks within their jurisdictions by carving out snow and ice removal as an exception to their duty under CGS § 13a-149 provided they adopt an ordinance that incorporates the statutory provisions. In the absence of such an ordinance, liability under most normal circumstances would remain with the municipality, although the abutting owner might still be subject to penalties for violating municipal requirements for timely snow removal.

Several Connecticut court decisions have established that where the abutting property owner by some positive act made the highway or sidewalk more dangerous, he is liable for the defect and not the municipality. With respect to snow and ice situations, courts have held that the abutting owner was liable when the condition of the sidewalk was due to an increased volume of water dripping from a roof or building onto the sidewalk, but have refused to find the abutter liable when the icy condition resulted from the natural flow of surface water from the private land or building onto the sidewalk. (Kane v. New Idea Realty Co. , 104 Conn. 508 (1926); Young v. Talcott, 114 Conn. 675 (1932)). An abutting owner and not the municipality has also been found liable when his plowing of the snow caused ridges of ice that increased the danger of the public sidewalk (Dunn v. J. P. Stevens & Co. , 192 F. 2d 854). However, the courts have also held that the abutting owner has no liability when the defective sidewalk is not under his control. (Wilson v. New Haven, 213 Conn. 277 (1989)).

Judicial Interpretation of Liability and Snow Removal Statutes

Case decisions interpreting the scope of state and municipality liability under the two defective road statutes are numerous. As they relate to your question, there seem to be two relevant issues that emerge in the decisions. The first is whether sidewalks are to be considered inherently part of the road or highway. The second relates to the scope of the statutory duty the transportation commissioner has toward sidewalks that adjoin state roads.

The question of whether sidewalks are inherently part of the adjoining road was first addressed by the Connecticut Supreme Court in 1861. In Manchester v. Hartford, the court addressed the question in a case involving the predecessor of CGS § 13a-149, the current municipal defective road law. In its decision finding municipal liability, the court stated that it was "clear" that a sidewalk along a public street that was constructed and opened for public use and was used in connection with the rest of the street, must, "as part of the street" be maintained and repaired so it is reasonably safe and convenient for travelers exercising ordinary care. The court also stated that it had "no doubt" that the sidewalk on which the injury occurred was a part of the road. (Manchester v. Hartford, 30 Conn. 118, (1861)).

In 1925, the legislature adopted what was the predecessor of CGS § 13a-144, the current state defective road law. In 1929, the Connecticut Supreme Court once again reviewed the question of the status of sidewalks under this law and came to an entirely different conclusion. In 1929, the Court heard a case, Moleske v. MacDonald, involving someone who had been injured in a fall on a sidewalk that ran along a state-maintained highway. Suit was filed under the 1925 act. The court acknowledged that the word "road" had often been held to include sidewalks and that the Supreme Court had given it that meaning in several earlier decisions on the municipal defective road law (the predecessor of CGS § 13a-149). But in its decision in Moleske, the court observed that the word is also "often used in a more restricted sense, as applying only to that portion actually used for vehicular traffic. " (Moleske v. MacDonald, 109 Conn. 339 (1929)). Quoting from its decision in State v. McMahon, it observed that the power and duty to build and maintain highways does not necessarily include the duty to build and maintain sidewalks. It continued, "The construction of a sidewalk, like the establishment of a building line, may well be independent of the construction of a street and in most cities sidewalks, because they are more closely related to the adjoining land and serve more directly the use of that land, are made the subject of separate rules and are constructed in pursuance of separate authority" (State v. McMahon, 76 Conn. 97 (1903)). (Ironically, this appears to be a case of first impression upholding a Meriden by-law requiring abutting landowners to remove snow from sidewalks within a certain time of its accumulation against a constitutional challenge. )

The court went on to state that it was "apparent" that "road" was a comprehensive term and therefore the "sense in which it is employed is determinable from the intent and purpose of the statute in which it appears" (Id. ). It then turned to a review of the 1925 act to determine the legislature's intent. With passage of the 1925 legislation, it reasoned, the legislature had changed the long-standing policy under which, in 1672, it had delegated through passage of the first defective road statute the governmental duty of building and maintaining public highways. The court observed a similar policy with "imposing the duty upon each town as to sidewalks within its own limits" (Id. 340).

The 1925 highway acts changed the established policy by providing for state aid to towns for constructing certain public highways under specific prescribed conditions and for state construction and maintenance of certain highways as part of a state trunk line system (the precursor of the current state highway system). But while it, in effect, reclaimed a portion of this governmental duty for the state, the court's examination of the entirety of the 1925 enactment found "no purpose and we conceive it contrary to the policy of the State reflected in its legislation, to interfere with or modify the obligations of towns for any roads or other avenues of travel which are of only local concern. Sidewalks are of this character. They serve local convenience almost wholly and have no relation to, nor do they contribute to, the facilitating of that public travel which the State aims to serve by the establishment of state aid and trunk line roads between the towns and across the State" (Id. 341). The court pointed to several other portions of the 1925 highway act, including a section requiring the highway commissioner to maintain each bridge on any state aid road, exclusive of any sidewalk on such a bridge, as further support of its conclusion that the legislature's intent was to leave them within the sphere of local authority and responsibility.

In a recent 1995 decision denying the claim of state and municipal liability of a person injured as a result of falling on an icy municipal sidewalk abutting property containing an entrance ramp to I-84, the Superior Court for the Judicial District of Hartford-New Britain observed, "Moleske remains the law today" (Gould v. Hartford, 44 Conn. Sup. 389). The court concluded, furthermore, that the legislature "has underlined the correctness of this approach by specifically designating a limited number of sidewalks that are to be maintained by the commissioner. " It identified the requirement to maintain sidewalks constructed or reconstructed on state highway bridges (CGS § 13a-91), a duty to maintain the sidewalks on the bridges crossing the Connecticut River at Thompsonville and Warehouse Point (CGS § 13a-92), and the statutory duty to maintain and remove ice and snow from sidewalks abutting property acquired for highway purposes until the section is completed (CGS § 13a-258) as unequivocal evidence of the intent to both make the commissioner responsible for these sidewalks and to allow someone injured by a defect in them to sue the commissioner under CGS § 13a-144.

CURRENT DOT POLICY ON SIDEWALKS

DOT has an established policy regarding its involvement in constructing or reconstructing sidewalks along state highways or when state or federal funds will be used for the project. (DOT Policy No. HWYS-19)

On state roads, the policy states that if a sidewalk already exists and the roadway is to be reconstructed with state or state and federal funds and the project will disturb an existing sidewalk, the reconstruction of the sidewalk "in kind" will be included in the project. When the state constructs or reconstructs a bridge in an area where sidewalks exist or "are likely to exist," they will be included in the project.

For situations where sidewalks do not currently exist and the state is constructing or reconstructing a state road, sidewalks will be included in the limits of the project if the municipality (1) can demonstrate, in accordance with the generally accepted standards of the American Association of State Highway and Transportation Officials (AASHTO) that a sidewalk is warranted; (2) enters into an agreement with DOT to provide the entire non-federal share of the design and construction costs, including right-of-way and utility costs, and (3) enters an agreement with the state, in perpetuity, that clearly states that the municipality is "fully responsible for all liability, maintenance, and snow and ice removal. " These conditions also apply when the project involves only state funds, except that, since there is no "non-federal share" of costs, the municipality must agree to pay for all sidewalk design and construction costs, including those associated with rights-of-way and utilities.

When an improvement is being made to a local roadway with federal-aid funds, the municipality, once again, must demonstrate that inclusion of a sidewalk satisfies generally accepted AASHTO standards and warrants and agree to provide the non-federal share of costs. The state will not participate in the construction of any sidewalk when no federal funds are involved.

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