Opinion
FSTCV156025335S
11-14-2016
Albert Stepniarek v. City of Norwalk
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Donna Nelson Heller, J.
The plaintiff Albert Stepniarek commenced this action, returnable June 9, 2015, against the defendant the City of Norwalk (the City or Norwalk) to recover monetary damages for injuries arising from a June 14, 2013 bicycle accident that occurred as he was leaving Shady Beach, a public beach in Norwalk, Connecticut. In his three-count amended complaint (#118.00), filed on April 7, 2016, the plaintiff asserts claims for negligence pursuant to General Statutes § 52-557n (count one); premises liability pursuant to General Statutes § 52-557n (count two); and liability under the defective highway statute, General Statutes § 13a-149 (count three). On June 15, 2016, the City filed an amended answer with three special defenses: that the plaintiff's injuries, if any, were caused by his own negligence and carelessness (first special defense); that the City is entitled to governmental immunity both at common law and pursuant to General Statutes § 52-557n (second special defense); and that the City is immune from liability pursuant to the recreational use act, General Statutes § 52-557f et seq. (third special defense) (#133.00).
The plaintiff filed his original complaint on May 15, 2015. The defendant filed an answer and special defense on October 5, 2015 (#104.00). The plaintiff filed an amended complaint on April 4, 2016 without first seeking leave to do so (#118.00). The defendant did not object and filed an amended answer with special defenses on June 15, 2016 (#133.00). Therefore, the amended complaint is the operative complaint.
On April 7, 2016, the City filed a motion for summary judgment with a supporting memorandum of law, the affidavit of Norwalk Police Officer Hector Delgado (the Officer Delgado affidavit), and related exhibits (#117.00). The plaintiff filed an objection to the motion for summary judgment on May 27, 2016 (#129.00) and a supplemental objection on July 11, 2016 (#138.00). On July 15, 2016, the City filed a reply memorandum in further support of its motion for summary judgment, together with the affidavit of Michael Mocciae, the director of the City's Recreation and Parks Department (the Mocciae affidavit), and additional exhibits (#139.00).
The court notes that the pleadings are chronologically out of order. The motion for summary judgment was filed on the same day as the plaintiff's amended complaint, and the plaintiff filed an objection before the defendant filed its amended answer with special defenses. The plaintiff was permitted to submit a supplemental objection to the defendant's motion for summary judgment after the defendant's amended answer was filed.
The City's motion for summary judgment was before the court on the July 18, 2016 short calendar. The court heard argument from counsel for the parties and reserved decision at that time. For the reasons set forth below, the City's motion for summary judgment is granted.
I
The following material facts are not in dispute: On June 14, 2013, at approximately 8:20 p.m., the plaintiff was riding his bicycle on a paved pathway at Shady Beach, a public beach that is owned and maintained by the City. Shady Beach is open to the general public. There is no fee or charge to enter Shady Beach. Free on-street parking is available in the area in which the beach is located and across the street at Taylor Farm Park. A City resident may obtain a free pass to park in the beach area itself. A nonresident may purchase a day pass to park in the beach area. Shady Beach is also easily accessible by public transportation as well as on foot or bicycle. The plaintiff did not pay a fee to enter Shady Beach.
The pathway upon which the plaintiff was riding on the evening of June 14, 2013 could be entered on either side of Shady Beach. At the east entry point was a gate-type structure, comprised of two wooden posts on each side. The east entry point previously had a removable metal bollard in the middle to prevent vehicles from driving through to the interior of the park, but the bollard was stolen several years ago. Instead of replacing the bollard at that time, the City determined to place a metal chain across the pathway, connected to each wooden pole, to prevent vehicular access.
The metal chain was in place on the evening of June 14, 2013. The metal chain was visible at that time. Two other bicyclists with the plaintiff safely rode their bicycles around the wooden posts. As the plaintiff left the pathway through the east entry point, he rode his bicycle between the wooden posts, his bicycle struck the metal chain, and he was thrown over the handle bars of his bicycle. He landed on the ground and sustained injuries. This appears to be the only reported incident of anyone riding, biking, running or walking into the metal chain and becoming injured.
In count one of his amended complaint, the plaintiff alleges that the City was negligent when it replaced the removable metal bollard with a metal chain that was placed below eye level. In count two, the plaintiff alleges that the City was negligent when it replaced the metal bollard with the metal chain; failed to place signs or give other verbal or visual warnings of the presence of the chain; failed to paint or otherwise coat the chain with bright or reflective material; and failed to place lighting or other illumination in the area of the chain so that it would be visible during the twilight hours. In count three, the plaintiff alleges a defective highway claim pursuant to General Statutes § 13a-149.
In its amended answer with special defenses, the City admits that it is a municipal corporation and that it owns, possesses, controls, and maintains the public beach known as Shady Beach. It alleges in its first special defense that the plaintiff's own negligence caused his injuries. The City also contends that it is entitled to governmental immunity both at common law and pursuant to General Statutes § 52-557n (second special defense), and it claims that it is immune from liability under the recreational use act, General Statutes § 52-557f et seq.
II
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." Practice Book § 17-49. " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 5, 942 A.2d 334 (2008).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). " When a motion for summary judgment is supported by affidavits and other documents, an adverse party . . . must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Citation omitted.) Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).
" 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]." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). " While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Roe #1 v. Boy Scouts of America Corp., 147 Conn.App. 622, 640, 84 A.3d 443 (2014).
III
The City has moved for summary judgment on the grounds of recreational use immunity; General Statutes § 52-557f et seq.; and governmental immunity; General Statutes § 52-557n; as well as on the ground that the plaintiff has failed to state a claim under the defective highway statute. General Statutes § 13a-149. The court will address each below, turning first to the City's claim that it has immunity under the recreational use act.
A
Subsection (a) of General Statutes § 52-557g provides in pertinent part that " [e]xcept as provided for in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, or fee . . . 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 any warning of a dangerous condition, use, structure, or activity on the land . . ." General Statutes § 52-557g(a). Under subsection (b) of § 52-557g, " [e]xcept as provided for in section 52-557h, an owner of land who . . . invites or permits without charge, rent, or fee . . . any person to use the land . . . for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury . . . caused by an act or omission of the owner." General Statutes § 52-557g(b). Municipalities are specifically included within the definition of " owner"; General Statutes § 52-557f(3); and bicycling is included within the definition of " recreational purpose." General Statutes § 52-557f(4).
General Statutes § 52-557f(1) defines " charge" as " the admission price or fee asked in return for invitation or permission to enter or go upon the land." General Statutes § 52-557f(1). See also Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 170, 508 A.2d 58 (1986) (construing " charge" to mean a " quid pro quo, i.e., a charge in exchange for permission to enter that land at that time " [emphasis in original; internal quotation marks omitted]). " Parking fees may be considered an 'admission price or fee asked in return for invitation or permission to go upon land' . . . if the parking fee is a guise to charge admission fees." (Citation omitted; emphasis added; internal quotation marks omitted.) Onze v. West Haven, Superior Court, judicial district of New Haven, Docket No. CV93 0043486S, (February 22, 1996, Skolnick, J.) (finding no genuine issue of material fact existed because parking fees were " operational or maintenance charge" not guise to charge admission fee); see also Wiersch v. State, Superior Court, judicial district of New London, Docket No. 526866, (March 8, 1995, Hurley, J.) (13 Conn.L.Rptr. 598, ) (finding genuine issue of material fact as to whether parking fee was de facto admission fee based on testimony that fee " represent[ed] direct revenue from access by public into Harkness Memorial" and that it was " virtually impossible for anyone to walk to [the park]"); Mazzucco v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 89-262283, (July 23, 1993, Lager, J.) (9 Conn.L.Rptr. 488, ) (finding genuine issue of material fact as to nature of " seasonal pass" parking fee where it was " necessary to enter [the beach] by way of a vehicle" [internal quotation marks omitted]).
The City contends that it is immune from liability under the recreational use act because it does not charge anyone for access to Shady Beach. Shady Beach is free and open to the public for recreational purposes, including bicycling. In response, the plaintiff argues that a genuine issue of material fact exists as to whether the City charges an " admission fee, " so that it would not be entitled to recreational use immunity, because nonresidents are charged for day passes to park at the beach. According to the plaintiff, parking fees are de facto admission fees. The court does not agree.
The plaintiff also suggests in his memorandum in opposition that the wilful or malicious failure to warn exception applies, or at least raises a genuine issue of material fact for a jury to decide. The plaintiff does not, however, allege in his amended complaint that the City wilfully or maliciously failed to guard or warn against the dangerous condition--i.e., the metal chain--or offer any evidence in opposition to the City's motion for summary judgment to demonstrate that such an issue of fact exists.
Cases such as Wiersch and Mazzucco v. Fairfield, supra, Superior Court, Docket No. CV 89-262283 (9 Conn.L.Rptr. 488, ) are readily distinguishable. In Wiersch, the court found that, based on the facts and evidence presented, there was a genuine issue of material fact as to the nature of the parking fees at Harkness State Park thus precluding summary judgment in favor of the state under the recreational use act. Wiersch v. State, supra, Superior Court, Docket No. 526866 (13 Conn.L.Rptr. 598, ). In Mazzucco , the court held that " a genuine issue of material fact [existed] as to whether the fees assessed for seasonal parking permits are simply a charge for the privilege of parking near the beach, which would not constitute a charge within the meaning of the act, or a means by which the Town of Fairfield charges admission for the use of its beach, which would defeat the immunity provided by the act." Mazzucco v. Fairfield, supra, Superior Court, Docket No. CV-89-262283 (9 Conn.L.Rptr. 488, ). In each case, affidavits and deposition testimony demonstrated that the only way to enter the park or beach was to drive in and pay the parking or seasonal permit pass fee, thus raising an issue of fact regarding whether the parking fee was a de facto admission fee. See Wiersch v. State, supra ; Mazzucco v. Fairfield, supra .
The plaintiff has not submitted any evidence similar to that offered in Wiersch or Mazzuco to establish a genuine issue of material fact regarding whether the fee charged a nonresident for a day pass to park inside the beach area at Shady Beach is a de facto admission fee. All that the plaintiff has offered is a page that appears to have been printed from the City's official website which shows the Shady Beach nonresident parking fee and states that " Parking in Shady Beach is for resident sticker cars only" next to the heading " Admission Fee." The plaintiff has not provided any evidence to counter the Mocciae affidavit or to dispute that Shady Beach is accessible on foot and by public transportation as well as by vehicle, that free parking is available on the street and across the street in Taylor Farm Park, that residents may obtain free parking stickers, and that residents and nonresidents alike may enter and use Shady Beach without charge.
Both parties attached pages that appear to have been printed from various websites to their memoranda of law without properly authenticating the documents. See Code of Evidence § 9-1 and commentary.
The court finds that no genuine issue of material fact exists as to whether the City charges an admission fee to enter Shady Beach. It is clear that the City does not do so. Therefore, the City is entitled to recreational use immunity pursuant to General Statutes § 52-557g with respect to the plaintiff's claims for negligence and premises liability set forth in counts one and two of the amended complaint.
B
The City also contends that summary judgment should enter in its favor because it is entitled to governmental immunity pursuant to General Statutes § 52-557n. General Statutes § 52-557n(a)(1) provides in pertinent part that " [e]xcept 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 . . ." General Statutes § 52-557n(a)(1). Under subdivision (2) of § 52-557n(a), " [e]xcept 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." General Statutes § 52-557n(a)(2). The City maintains that its alleged negligent conduct--replacing the metal bollard with a metal chain attached below eye level, without adding warning signs, painting it with bright or reflective paint, and or illuminating the area--was discretionary in nature, and, therefore, cannot be the basis of a negligence claim under General Statutes § 52-557n.
When a negligence claim is asserted against a municipal defendant, such as the City in this case, the court must first determine whether the municipality's alleged acts or omissions were ministerial or discretionary in nature. " [W]hile a municipality is generally liable for the ministerial acts of its agents, § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the 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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117-18, 19 A.3d 640 (2011).
" [M]unicipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010). " In order to create a ministerial duty, there must be a city charter, provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner." (Citation omitted; internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 224, 131 A.3d 771 (2016). " In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity . . . A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." (Internal quotation marks omitted.) Id.
While " [t]he existence of a breach of a ministerial duty may be established by showing the defendant possessed prescribed procedures or policies to which it failed to adhere"; Haberern v. Castonguay, Superior Court, judicial district of Hartford, Docket No. CV-02-0820429-S (May 27, 2005, Wagner, J.T.R.) [39 Conn.L.Rptr. 441, ]; the plaintiff, in his opposition to the City's motion for summary judgment, does not present any evidence demonstrating that a city code, statute, policy, or directive exists that dictates how the City must act in maintaining Shady Beach, or the paved pathway in particular; that requires the City to perform certain duties; and/or that prescribes the manner in which such duties are to be completed.
Absent evidence of such a policy or directive, or any other evidence to show that the City's discretionary duties were somehow transformed into ministerial duties in this case, it is apparent that the City was engaged in duties that were discretionary in nature and inherently involved the exercise of judgment. See Martel v. Metropolitan District Commission, 275 Conn. 38, 50-51, 881 A.2d 194 (2005) (absent evidence of policy or directive, defendants' determinations whether to supervise, inspect and maintain trails and when to mark, close, or barricade trails, if at all, inherently required exercise of judgment); Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (defendants' acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment); Segreto v. Bristol, 71 Conn.App. 844, 857-58, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) (city's allegedly negligent design and maintenance of stairwell was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment).
Finding that the City's alleged acts or omissions were discretionary and not ministerial does not, however, conclude the court's analysis with respect to whether the City is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B). The plaintiff contends that his claim falls within the exception to General Statutes § 52-557n(a)(2)(B) because he was an identifiable person who was at risk of imminent harm.
The identifiable victim/imminent harm exception to governmental immunity arises when it is " apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . [T]his exception [has been construed] to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [T]his 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. All three of these factors . . . must be met for a plaintiff to overcome qualified immunity." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. at 118.
" An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person . . . The exception is applicable only in the clearest cases . . . Although the identifiable person contemplated by the exception need not be a specific individual, the plaintiff must fall within a narrowly defined identified [class] of foreseeable victims." (Citations omitted; internal quotation marks omitted.) Thivierge v. Witham, 150 Conn.App. 769, 779, 93 A.3d 608 (2014). Indeed, " [t]he only identifiable class of foreseeable victims that [the Connecticut Supreme Court] ha[s] recognized for . . . purposes [of the foreseeable victim/imminent harm exception] is that of school children attending public schools during school hours. In determining that such schoolchildren were within such a class, [the Supreme Court] focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). The courts have refused to expand " this class to parents or children engaged in school-sponsored activities outside of mandatory school hours . . ." Jahn v. Board of Education, 152 Conn.App. 652, 668, 99 A.3d 1230 (2014).
" The rule has been narrowly applied outside of the public school context . . . and [the] few cases in which a specific plaintiff has been held to be an identifiable victim are largely limited to their facts." (Citations omitted; internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 862, 137 A.3d 765 (2016). See Grady v. Somers, 294 Conn. 324, 328, 356, 984 A.2d 684 (2009) (town resident who was injured at transfer station not within class of foreseeable victims because he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so); Jahn v. Board of Education, supra, 152 Conn.App. at 666-68 (injured student not within class of foreseeable victims when injury occurred at swim meet, after normal school hours, which was an extracurricular, non-mandatory activity that required a participation fee); Thivierge v. Witham, supra, 150 Conn.App. at 780 (cannot construe exception so broadly as to apply to visitor to dog owner's property who was bitten by dog after municipal officer's alleged failure to enforce restraint order, as any number of potential victims could have come into contact with dog after order issued).
Central to the court's inquiry regarding whether a particular person is an identifiable victim under the exception is whether that person was legally required to be on the premises where the injury occurred. " [U]nder our case law . . . we have interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue . . ." (Internal quotation marks omitted.) Texidor v. Thibedeau, supra, 163 Conn.App. at 862. See Durrant v. Board of Education, supra, 284 Conn. at 109 (" There is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled" (emphasis omitted)).
No genuine issue of material fact exists as to whether the plaintiff voluntarily rode his bicycle on a paved pathway in Shady Beach on the evening of June 14, 2013. No evidence has been offered to suggest that he was in any respect required to be there. " A plaintiff's mere presence as an invitee on the property where he or she sustains an injury is not sufficient to make him or her a member of an identifiable class of foreseeable victims for purposes of the exception to governmental immunity." Texidor v. Thibedeau, supra, 163 Conn.App. at 863. Accordingly, the plaintiff was not within a class of identifiable victims for purposes of the identifiable victim/imminent harm exception to governmental immunity under General Statutes § 52-557n(a)(2)(B).
With respect to the second prong of the exception--whether the harm was imminent--our Appellate Court recently explained that " [t]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant 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 . . . This test focuses on the 'magnitude of the risk, ' not on the temporal or geographical scope of that risk . . . In short, the question is whether a situation is so dangerous that it merits an immediate response." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 165 Conn.App. 44, 70-71, 138 A.3d 1012, cert. granted, 322 Conn. 907, 143 A.3d 603 (2016) (citing and quoting Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014)).
Applying this standard, the court finds that the plaintiff has failed to make a threshold showing of imminent harm. The plaintiff offered no evidence to dispute the statements in the Officer Delgado affidavit that the metal chain was visible " to the naked eye, " that there was sufficient light at the time of the accident to see the chain, and that two other bicyclists with the plaintiff safely rode their bicycles around the wooden posts. The plaintiff also does not dispute the Mocciae affidavit, which provides that " [i]n the several years preceding the incident involved in this case, and for all the years since, there has not been another reported incident of anyone riding, biking, running or walking into this chain and becoming injured (other than the claim made by the Plaintiff in this case), " and further states that " [t]o the best of my knowledge and belief this has been the only reported incident of anyone becoming injured by riding, biking, running or walking into this chain."
Officer Delgado affidavit, ¶ ¶ 7, 10, 11, 17 (#117.00).
Mocciae affidavit, ¶ ¶ 20, 21 (#139.00).
Accordingly, the identifiable victim/imminent harm exception to governmental immunity is not applicable here. The plaintiff's claims against the City for negligence and premises liability are barred by the doctrine of governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B).
C
Because the City is entitled to recreational use immunity pursuant to General Statutes § 52-557g, it had no duty to keep the Shady Beach pathway where the plaintiff's bicycle accident occurred safe for entry or use or to give any warning of a dangerous condition or structure there. As a result, the plaintiff cannot state a claim for which relief can be granted under General Statutes § 13a-149, which provides in pertinent part that " [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 . . ." (Emphasis added.) General Statutes § 13a-149.
Moreover, even if the City had such a duty, the recreational character of the pathway would preclude a claim under General Statutes § 13a-149 because the pathway would not be considered a road pursuant to the statute. See Chuka v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV065002125S, (May 1, 2009, Cronan, J.) (47 Conn.L.Rptr. 635) (concluding Greenway, a public walkway, not open to vehicular traffic and used as recreation area was not like a sidewalk used in ordinary course of travel). Accordingly, the City is entitled to summary judgment in its favor on the plaintiff's defective highway claim set forth in count three of the amended complaint.
IV
For the reasons set forth above, the City of Norwalk's motion for summary judgment (#117.00) is hereby GRANTED, and the plaintiff's objection thereto (#129.00; #138.00) is OVERRULED.