Opinion
AANCV156018817S
11-29-2016
Rose Ellen Nemec v. Town of Ansonia
UNPUBLISHED OPINION
RULING ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
Barry K. Stevens, J.
STATEMENT OF THE CASE
This action was instituted by the plaintiff, Rose Ellen Nemec, against the defendant Town of Ansonia. The revised complaint alleges the following. On July 5, 2013, the plaintiff was walking in the grassy area adjacent to a " certain bituminous drive and adjacent property located at Nolan Field in Ansonia, Connecticut, " when she suddenly and without warning fell into a hole approximately fifteen inches in depth. Complaint, ¶ ¶ 3, 4. This fall caused her to suffer economic and noneconomic damages. The defendant owns and controls the " bituminous drive and adjacent property located at Nolan Field, in Ansonia, Connecticut." Complaint, ¶ 3. The town was bound or obligated to keep the bituminous drive in good repair, including where the " defect of the hole" was located. Complaint, ¶ 6.
The complaint asserts five counts. Count one is against the Town of Ansonia and is based on the highway defect statute, General Statutes § 13a-149. The second count is also against the Town and asserts a claim for negligence under General Statutes § 52-557n. The third count is against " members of the emergency planning district" of the Town and seeks indemnification under General Statutes § 7-465. The fourth count is against " such agent, servant or employee" of the Town committing the negligence resulting in the plaintiff's injuries and seeks indemnification under General Statutes § 7-101a. The fifth count is against the Town for public nuisance under § 52-557n. Pending before the court is the defendant's motion to dismiss count one of the complaint and motion for summary judgment as to counts two through five. For the following reasons, this motion to dismiss and the motion for summary judgment are granted.
General Statutes § 13a-149 provides the following: " 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. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefore. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
General Statutes § 52-557n(a) provides the following: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
DISCUSSION
I
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). It is well established that " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 626.
The principles of subject matter jurisdiction are well established. " Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763, 741 A.2d 956 (1999).
The defendant claims that the court does not have subject matter jurisdiction over the first count of the complaint, asserting a claim under § 13a-149, because the plaintiff failed to provide notice of her claim within ninety days of the fall as required by this statute. The plaintiff sent a note, but there is no dispute that the plaintiff did not send this notice within the ninety days required by the statute. This notice requirement is a jurisdictional condition to maintaining this statutory cause of action. Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). Thus, the defendant's motion to dismiss count one of the complaint must be granted because the plaintiff failed to provide notice as required by the statute.
In her objection to the motion for summary judgment, the plaintiff argued that the time period for filing the notice of claim under § 13a-149 should be subject to equitable tolling. At oral argument, the plaintiff's counsel withdrew this equitable tolling claim. See generally, Skurtu v. Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (jurisdictional time requirements are not subject to equitable tolling).
II
A
The defendant next seeks summary judgment as to the remaining counts of the complaint. The standards governing the court's consideration of a motion for summary judgment are well established. " Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Patel v. Flexo Converters USA., Inc., 309 Conn. 52, 56-57, 68 A.3d 1162 (2013).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of [material] fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
1.
The defendant first argues that the court should enter summary judgment on counts two through five because § 13a-149 creates an exclusive remedy against a municipality for damages resulting from a highway defect. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1995). In response to this argument, the plaintiff indicates that the discovery establishes that the location of the fall occurred on a grassy area between a blacktop walkway and the property line, and that the location is about 24 feet away from the public pathway. The court agrees with the plaintiff that the pleadings, discovery, and submissions presented by the parties establish the existence of a material issue of disputed fact on whether the fall was in an area involving pedestrian travel within the meaning of the defective highway statute. The existence of such a factual dispute precludes summary judgment on this ground.
2.
Alternatively, the defendant contends that, assuming arguendo that the defective highway statute is inapplicable, the defendant is still entitled to summary judgment on counts two through five because of the recreational use statute, General Statutes § 52-557g. Section 52-557g(a) provides that an owner of land who makes land available to the public without charge for recreational purposes owes no duty of care to keep the land " safe for entry or use by others for recreational purposes, or to give warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes." For the purposes of the recreational use statute, " owner" is defined to include municipalities. General Statutes § 52-557f(3).
The full text of General Statutes § 52-557g(a) is as follows: " Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes."
As alleged in the complaint, the plaintiff's fall occurred in Nolan Field. Nolan Field was owned and controlled by the Town. The plaintiff does not contest the defendant's evidence that at the time of the plaintiff's fall, the field was open to the public free of charge for recreational use. There is no dispute that discovery establishes that when the plaintiff fell, she was walking her dogs in an open area of the field. The plaintiff also does not contest the defendant's claim that the plaintiff's use of the field for walking her dogs was a recreational purpose.
The plaintiff's only response to the defendant's argument that the complaint is barred by the recreational use statute is that the statute does not apply to municipalities. As previously stated, the statute explicitly defines " owner" as including municipalities, with certain exceptions that are either inapplicable here, or not cited or relied on by the plaintiff. The plaintiff's reliance on Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996), is misplaced. In Conway, the Supreme Court held that the recreational use statute was inapplicable to property owned by municipalities. Id., 680. Conway, however, was decided before 2011 when the legislature amended the definition of " land" under the recreational use statute to include land owned by municipalities. Cf. Blonski v. Metropolitan District Commission, 309 Conn. 282, 304-06, 71 A.3d 465 (2013) (comparing the original statute to the 2011 amendment). Thus, on the basis of this record and on the parties' positions, the court concludes that the defendant is correct and the recreational use statute applies to absolve the city from the duty of care that would otherwise apply.
For example, the plaintiff's fall occurred in a grassy area adjacent to a paved walkway that encircles Nolan Field. Although the parties' submissions indicate that Nolan Field itself includes baseball and football fields, the plaintiff does not contend that the area of her fall occurred on a " playing field" that would not be covered by the recreational use statute. See General Statutes § 52-557f(2).
3.
The defendant makes the additional argument that the city is entitled to summary judgment on counts two through five of the complaint because of the governmental immunity provided under § 52-557n(a). Section 52-557n(a)(2), provides in part that " a political subdivision of the state shall not be liable for damages to person or property caused by . . . negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." See Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014) (municipal employees " are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society" [footnote omitted; internal quotation marks omitted]).
The plaintiff does not contest the defendant's position that the negligent acts as alleged in the complaint involve the exercise of judgment or discretion sufficient for the invocation of the discretionary function doctrine. The plaintiff argues that the " identifiable person-imminent harm exception" to governmental immunity is applicable in this case. " The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Citations omitted; footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006). " [T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [in which case] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 313, 101 A.3d 249 (2014).
The defendant argues that as a matter of law, the plaintiff has not alleged any facts sufficient to support the applicability of the imminent harm exception to discretionary act immunity. In response, the plaintiff insists that summary judgment is unavailable because material issues of disputed fact exist in this case regarding the application of imminent harm exception. The court agrees with the defendant.
Although the court agrees with the defendant that the plaintiff has failed to show the elements necessary for the applicability of the identifiable person-imminent harm exception to governmental immunity, the court disagrees with the defendant's insinuation that this exception is limited to plaintiffs who are " legally compelled" to be at the location of the accident. Whether a plaintiff is legally compelled to be at the location of the accident is an important, but not a controlling factor in applying the imminent harm exception. Grady v. Somers, supra, 294 Conn. 324 (" whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims"); see also Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) (jury question presented on whether plaintiff's decedent was identifiable victim when on-duty town police officer watched ongoing physical altercation in bar's parking lot involving plaintiff's decedent and did not intervene until after plaintiff's decedent was shot and killed).
As previously stated, there are three elements of the identifiable person-imminent harm exception: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that the danger requires immediate action to prevent injury. The plaintiff testified at her deposition that on several occasions she had previously mentioned the hole to town employees, whose names she did not remember. Thus, issues of fact may be presented as to the first and third elements of the identifiable person-imminent harm exception, namely whether the danger was " imminent" and " apparent." There are no issues of material fact regarding the plaintiff's failure to prove the second element of this exception that requires her to show that she was an " identifiable victim."
To establish that the danger was imminent, the plaintiff must show that the dangerous condition was so apparent to the municipal defendant and that the " dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Footnote omitted.) Haynes v. Middletown, supra, 314 Conn. at 323. To establish that the dangerous condition was sufficiently " apparent" to a municipal official " the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm." Edgerton v. Clinton, 311 Conn. 217, 231, 86 A.3d 437 (2014).
" With respect to the identifiable victim element, we note that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009). " [W]hether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims." Id., 355.
As a matter of law, the plaintiff has neither alleged anything in her complaint, nor submitted any admissible evidence to support a claim that she was an " identifiable victim" under the imminent harm exception. The plaintiff's allegations indicate that on July 5, 2014, she chose to walk her dogs in " the grassy area adjacent to the . . . bituminous drive." Complaint, ¶ 4. She was not legally compelled to be at that specific location. There are no facts of any kind separating or differentiating the plaintiff from anyone else of the general public who may have utilized this area of the field. There is no evidence indicating that any municipal official actually knew of her presence or had a reason to know about her specific presence at the scene when the accident occurred. See Texidor v. Thibedeau, 163 Conn.App. 847, 863-64, 137 A.3d 765, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016) (plaintiff not shown to be identifiable victim when defendants had no way of knowing about plaintiff's presence at location of injury).
Moreover, the plaintiff does not even claim that she was a member of a " foreseeable class of victims" for the purpose of the imminent harm exception. Schoolchildren attending public school during school hours are the only group recognized by our Supreme Court as an identifiable class of foreseeable victims under the imminent harm exception. Grady v. Somers, supra, 294 Conn. 352.
In summary, the plaintiff has not satisfied all the elements necessary for the applicability of the identifiable person-imminent harm exception to governmental immunity. The plaintiff's arguments to the contrary are rejected. Because the Town and its employees or agents are entitled to governmental immunity under § 52-557n(a)(2)(B), counts three and four of the complaint seeking " indemnity" under § 7-465 and § 7-101a must also fail. " For a plaintiff to prevail on an indemnification claim against a municipality, he or she must first allege and prove in a separate count that an employee of the municipality was negligent." Texidor v. Thibedeau, supra, 163 Conn.App. 865. Additionally, the court agrees with the defendant that count four fails as a matter of law because General Statutes § 7-101a only provides indemnification for a municipal employee from its municipal employer and does not prove a right of action by a plaintiff against the municipality itself. Schoell v. Hebron, Superior Court, judicial district of New London, Docket No. CV-15-6025460-S (July 29, 2016, Bates, J.) (62 Conn.L.Rptr. 753, ).
CONCLUSION
Therefore, for these reasons, the defendant's motion to dismiss count one is granted and the defendant's motion for summary judgment as to the remaining counts is also granted. The plaintiff's objection to these motions is overruled.