Opinion
No. CV 11 6016589
April 14, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
PROCEDURAL AND FACTUAL BACKGROUND
On December 20, 2010, the plaintiff, Katherine Cocchiaro, filed a two-count complaint against the defendant, Town of Wallingford (Town). Count one alleges a breach of the defective highway statute, General Statutes § 13a-149, and public nuisance in count two. The plaintiff alleges that she was injured when she tripped over a drain pipe that was protruding out of the ground in the grassy area located adjacent to a sidewalk. According to the plaintiff, she was walking from the sidewalk across the grassy area to her parked car when she was injured.
On February 1, 2011, the defendant filed the present motion to strike (#101) count two of the plaintiff's complaint sounding in public nuisance. The defendant argues that the plaintiff's exclusive remedy is pursuant to the defective highway statute and that a cause of action sounding in public nuisance is barred by the exclusivity provision of that statute. The plaintiff did not file an objection and was not present at the March 7, 2011 short calendar for oral argument on this matter.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
The defendant argues that the plaintiff's nuisance claim should be stricken because General Statutes § 13a-149 is the plaintiff's exclusive remedy against a municipality and its employees for damages resulting from injury by means of a defective road. According to the defendant, it is well settled that nuisance claims for injuries caused by a highway defect are barred by General Statutes §§ 13a-149 and 52-557n.
"[General Statutes §] 13a-149 legislatively abrogated the common-law immunity afforded to municipalities for injuries caused by defective highways . . . Under § 13a-149, [a]ny 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 . . . [The Connecticut Supreme Court] [has] construed [General Statutes] § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citation omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 37, 974 A.2d 820, cert. granted, 293 Conn. 927, 980 A.2d 910 (2009).
Generally, a plaintiff is able to seek recovery under alternate and inconsistent theories. Practice Book § 10-25. However, it is well established that General Statutes § 13a-149 is a plaintiff's exclusive remedy in an action against a municipality for damages resulting from a highway defect. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991); see Himmelstein v. Windsor, supra, 116 Conn.App. 39-40. "Thus, if, as a matter of law, allegations contained in a complaint invoke § 13a-149, other counts which set forth alternative theories of recovery are insufficient and not viable unless a plaintiff has alleged a separate factual predicate that does not fall within the statute." Zebelman v. New Haven Parking Authority, Superior Court, judicial district of New Haven, Docket No. CV 10 6008785 (December 14, 2010, Wilson, J.); see Himmelstein v. Windsor, supra, 40 n. 9. "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law which may be determined on a motion to strike." Sanzone v. Board of Police Commissioners, supra, 201. Thus, this court must first determine whether the plaintiff's allegations fall within General Statutes § 13a-149. See Himmelstein v. Windsor, supra, 38.
"[A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . [T]o fall within the ambit of § 13a-149, a person must simply be on the highway for a legitimate purpose connected with travel and that the defect need not be on the actual traveled portion of the highway." (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, supra, 116 Conn.App. 37. "Reasonable latitude is allowed to meet the exigencies of travel." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 343, 766 A.2d 400 (2001). "The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel." (Citation omitted; internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 394-95, 900 A.2d 82 (2006).
The plaintiff alleges that the Town is charged with the reasonable care and maintenance of the highways and public sidewalks within the city limits pursuant to General Statutes § 13a-149; the Town maintained, managed and controlled the grounds at the Moses Y. Beach School, including the grassy area adjacent to the northerly sidewalk of Christian Street; there was a drain pipe located in that grassy area; the grassy area was in a dangerous, defective and unsafe condition because a drain pipe was protruding out of the ground and it was covered by leaves and debris, thereby creating a tripping hazard; and the plaintiff was injured while walking from the sidewalk across the grassy area to her parked car on Christian Street. As a matter of law, these allegations constitute a highway defect for the purposes of General Statutes § 13a-149. Since the protruding drain pipe was located in a grassy area adjacent to a sidewalk, it is reasonable to anticipate that the public would encounter it in the ordinary course of travel between a parked vehicle and a sidewalk. See Ferreira v. Pringle, supra, 255 Conn. 330 (plaintiff's claim fell under the defective highway statute where the complaint alleged that he tripped on a remnant of a severed steel signpost embedded in the ground while he was disembarking a public bus onto a grassy embankment).
The allegations contained in count one are incorporated into count two.
In Kumah v. Brown, 127 Conn.App. 254 (2011), the appellate court found that Himmelstein was not controlling because it was distinguishable on its facts. In Kumah, "unlike in Himmelstein, the plaintiffs [did] not [allege] that Interstate 95 is a road that the town is `bound to keep . . . in repair' pursuant to § 13a-149." In the present case, the plaintiff did allege that the Town was bound to keep the grassy area adjacent to the sidewalk in repair pursuant to General Statutes § 13a-149. Therefore, Kumah is distinguishable and Himmelstein controlling in that the plaintiff's nuisance count falls within the scope of General Statutes § 13a-149.
As count two sets forth an allegation of a municipal highway defect, General Statutes § 13a-149 is the exclusive remedy available to the plaintiff. "In Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, our Supreme Court expressly held: `In short, we construe § 52-557n to provide that an action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge.'" (Emphasis in original.) Himmelstein v. Town of Windsor, supra, 116 Conn.App. 40. Accordingly, count two of the complaint sounding in nuisance is stricken.