Opinion
No. CV10-6007283
July 6, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 128)
The Motion for Summary Judgment now before the court arises out of a one-car automobile accident in which both the driver and his passenger were killed. The tragedy is compounded by the fact that both of the decedents were minors. The dispositive facts are not in dispute. The question presented is whether the underlying cause of action in two virtually identical apportionment complaints filed by the defendants against officials of the Town of Wallingford is legally unsustainable in light of the highway defect statute, Conn. Gen. Stat. § 13a-149. For the reasons briefly set out below, the answer to this question is in the affirmative.
The operative facts are contained in the pleadings of the parties. The documents filed by the parties with respect to the Motion for Summary Judgment show no genuine dispute as to any material fact. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
The fatal one-car accident in question occurred on Williams Road in Wallingford on January 20, 2008. Both the driver, George McLean, and his passenger, Tyler Priore, were killed in the accident. Subsequently, in 2009, the administrators of Tyler Priore's estate (who also happen to be his parents) brought the first-party action in this case against the administrators of George McLean's estate (who also happen to be his parents). The various administrator-parents are suing and being sued on various theories in both their administrative and personal capacities, but none of these complexities affect the legal issue presented here. For purposes of this decision, we'll collectively call the first-party plaintiffs "Priore" and the first-party defendants (and apportionment plaintiffs) "McLean."
Priore alleges that George McLean "lost control of the motor vehicle causing it to travel across the double yellow painted center line where such vehicle struck a wood mailbox and galvanized metal post with its right, front bumper. Following the impact with the mailbox post, the Nissan 350Z became airborne over the driveway of number 592 Williams Road leading with its right side making contact with a small embankment on the south side of the driveway and overturning onto its roof first into a small cluster of trees before coming to a final rest with the front half of the vehicle positioned on an embankment and the rear of the vehicle in the northbound travel lane of Williams Road." Tyler Priore's death is alleged to have been caused by the negligence of George McLean.
Priore commenced the first-party action against McLean in 2009. In 2010, McLean filed two apportionment complaints against various officials of the Town of Wallingford. There are two apportionment complaints because George McLean's parents qua parents and his parents qua co-administrators of his estate are separately represented, but the various apportionment plaintiffs have adopted each other's arguments, so none of these complexities matter here. Similarly, numerous apportionment defendants have been named, but all of them are municipal officials of the Town of Wallingford, so none of these complexities matter either. So we'll continue to call the first-party-defendants-apportionment-plaintiffs "McLean," and we'll call the apportionment defendants the "Town Officials."
McLean alleges that a "construction project [resulted] in a narrowing of Williams Road, producing an uneven road surface, permitting the existence of a raised and exposed catch basin and which was left unlit in the area where the motor vehicle accident alleged by the plaintiffs occurred . . . The construction project in and around the accident failed to have any signs, cones, barrels, markings, lights or warnings whatsoever that would alert drivers of the impending construction area . . . On January 20, 2008, George Lucas McLean was driving on Williams Road, when he suddenly came upon the unsigned and unmarked construction area, causing him to lose control of his vehicle and collide with a tree causing his death and the death of Tyler Priore." McLean further alleges that the Town Officials were negligent in designing and supervising the construction project and failing to warn drivers of its hazards.
The Motion for Summary Judgment now before the court claims that, "The undisputed facts in this case trigger the application of C.G.S. § 13a-149." The motion was argued on July 5, 2011.
The arguments on the motion boil down to two questions: (1) Is the underlying cause of action in the apportionment complaints a highway defect action? (2) If the answer to the first question is Yes, can an apportionment complaint be filed here? The answer to the first question is Yes, and the answer to the second question is No.
(1) McLean's claims invoke § 13a-149 "because they contemplate that the [apportionment] plaintiff's injury occurred as a result of a defective road that the town was `bound to keep . . . in repair.'" Ferreira v. Pringle, 255 Conn. 330, 343, 766 A.2d 400 (2001). The fact that the Town Officials, rather than the Town of Wallingford itself, have been sued is not controlling. The statute precludes actions against municipal officers "as a means of circumventing § 13a-149." Id., at 354. The "construction area" alleged to be the proximate cause of the damages here strongly resembles the construction area found to be a highway defect in Machado v. City of Hartford, 292 Conn. 364, 366, 972 A.2d 724 (2009). For this reason, the underlying cause of action in the apportionment complaints is a highway defect action.
(2) An apportionment complaint cannot logically coexist with a highway defect action in Connecticut. "[B]ecause the sole proximate cause doctrine precludes municipal liability, not only where the plaintiff was contributorily negligent, but also where other purported tortfeasors or independent nontortious factors contributed to the injury, no right to indemnification exists in actions brought pursuant to § 13a-149." Smith v. City of New Haven, 258 Conn. 56, 60, 779 A.2d 104 (2001).
Judge Lager succinctly analyzed the legal problem in Kaniza v. Salvati, 34 Conn. L. Rptr. 557 (2003), and the reasoning of that case is applicable here. The legal problem is this. Unless McLean's negligence is deemed to have proximately caused Priore's damages, there will be no basis for apportionment. But if McLean is found liable, such a finding would completely defeat any claim against the Town Officials under § 13a-149. Smith v. City of New Haven, supra. "Consequently there would be no basis to apportion anything against these parties." 34 Conn. L. Rptr., at 558. See Bradley v. Randall, 45 Conn.App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997) aff'g, 18 Conn. L. Rptr. 636 (1996). For this reason, an apportionment complaint cannot be filed here.
The defects in the apportionment complaints are fundamental defects of law. They cannot be cured by repleading. The Motion for Summary Judgment must consequently be granted.