Opinion
LLICV116005584S.
11-21-2012
Tammie BATTISTA v. James REDEKER, Commissioner of Transportation.
UNPUBLISHED OPINION
JOHN W. PICKARD, J.
Before the court is the defendant's motion for summary judgment (# 115) on the ground that there is no genuine issue of material fact that the defendant did not have notice of the specific defect which caused the plaintiff's accident. For the reasons stated, the motion for summary judgment must be denied.
I
FACTS
On October 28, 2011, the plaintiff, Tammie Battista, filed a one-count complaint alleging a violation of the highway defect statute, General Statutes § 13a-144, against the defendant, James Redeker, Commissioner of the Department of Transportation, arising out of a single motor vehicle accident, which occurred on January 28, 2010. On that date, at approximately 10:38 a.m., the plaintiff was driving her car on Federal Road (Route 7) in Brookfield, Connecticut when her car was caused to go out of control, veer off the road and eventually turn over as a result of snow and ice on the roadway. The plaintiff alleges that the defendant knew or should have known of the conditions, and breached its statutory duty by failing to make the roadway reasonably safe. On August 15, 2012, the defendant filed the present motion for summary judgment along with a supporting memorandum of law and evidentiary support. The plaintiff filed an objection along with evidentiary support on October 11, 2012. The defendant filed a reply memorandum on October 25, 2012. The matter was heard on the November 5, 2012 short calendar. Additional facts will be presented as necessary.
The complaint alleges only that the plaintiff was driving on Route 7. The evidence submitted by the parties indicates that the plaintiff was driving, specifically, on Federal Road, a state road in Brookfield, Connecticut. The segment in question is also part of Route 202.
II
DISCUSSION
A
Summary Judgment Standard
" 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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). " [T]he ‘ genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of 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).
B
Analysis
The defendant moves for judgment in its favor on the ground that there is no genuine issue of material fact that it did not have actual or constructive notice of the specific icy condition at 485 Federal Road, the location of the plaintiff's accident. The defendant argues that it plowed the road in question twice before the plaintiff's accident and was continuously plowing at the time the accident occurred. According to the defendant, it must have notice of the specific defect which caused the injury, not merely of the existence of a cause likely to produce the defect or notice of another defect. Thus, any evidence that it had actual or constructive notice of snowfall, other accidents or icy patches in the area is irrelevant to its notice of the specific icy patch at issue. Furthermore, the defendant asserts that the plaintiff cannot produce any evidence indicating the length of time the icy patch was present, and, thus, cannot establish that it was present for such a period of time that the defendant had constructive notice of the defect. The defendant contends that it acted reasonably under the circumstances of an ongoing snow storm in that it had every truck in the New Milford garage on the road.
Officer Mark Miller, who responded to the plaintiff's accident, testified in his deposition that the accident occurred at 487 Federal Road. In her deposition, the plaintiff testified that she was making a left hand turn into the Tile America parking lot on Federal Road when she slid off the road. The evidence submitted by the defendant references 485 Federal Road as the site of the accident. The parties, however, do not dispute the location of the accident and that it occurred as the plaintiff was attempting to turn into the Tile America parking lot on Federal Road. To avoid confusion, the court will refer to 485 Federal Road as the site of the alleged defect that caused the plaintiff's accident.
The defendant supports its position with an affidavit from Alan White, the transportation maintenance director for the district 1 office, as well as affidavits from Keith Anderson and Brian Engle, plow drivers for the Department of Transportation (" DOT"). Attached to White's affidavit are AccuWeather reports for January 27, 2010, and January 28, 2010. The defendant also submits the plaintiff's deposition testimony.
In contrast, the plaintiff asserts that there are questions of fact regarding whether the defendant had actual or constructive notice of the specific defect that caused the plaintiff's accident, and whether the defendant acted reasonably to clear the subject road. According to the plaintiff, the defendant received numerous complaints about poor road conditions on Federal Road prior to the plaintiff's accident. Despite this notice, the defendant failed to plow or treat the area where the plaintiff's accident occurred even though four hours had elapsed from the beginning of the snow storm. Furthermore, the plaintiff asserts that there were at least seven incidences on state roads in Brookfield that led to calls for service being made to the Brookfield police department.
In support of her position, the plaintiff submits her affidavit and the affidavit of Kelli Simmons, an employee working at 475 Federal Road, which is adjacent to the accident site, at the time of the plaintiff's accident. The plaintiff also submits excerpts from her deposition transcript, the deposition of Mark Miller, the police officer who responded to the accident, and the deposition of Glen Curtis, the highway maintenance general supervisor.
In reply, the defendant argues that it did not have actual or constructive notice because, although there were several calls to the defendant on the morning of January 28, 2010, regarding accidents and icy conditions in other areas of Brookfield, there were no calls to the defendant reporting ice or other dangerous road conditions at the exact location of the plaintiff's accident prior to the plaintiff's accident. The defendant also contends that the plaintiff cannot establish that the defendant had constructive notice because the plaintiff has not provided evidence as to when the defect came into existence, arguing that the fact that it was snowing for four hours does not mean that the defect existed for four hours. Finally, the defendant argues that it responded in a timely and appropriate manner to the ongoing storm, noting that the storm was unexpected but that all available resources, personnel and equipment were deployed to respond to the storm.
General Statutes § 13a-144 provides in relevant part that " [a]ny 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." " To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 675-76, 768 A.2d 441, 1 G.D.R. 76 (2001). The " statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation. That is, the defendant's obligation under § 13a-144 is to remedy a highway defect once he: (1) has actual notice of a specific defect; or (2) is deemed to have constructive notice of a specific defect ... [T]he defendant's statutory obligation is to act reasonably in remedying a defect of which he has actual or constructive notice." (Citations omitted.) Id., at 676-77, 768 A.2d 441, 1 G.D.R. 76.
" [P]roof of prior icing conditions alone does not satisfy the notice requirement of § 13a-144 ... [T]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient." (Internal quotation marks omitted.) Id., at 678, 768 A.2d 441, 1 G.D.R. 76.
In the present case, the evidence submitted by the defendant indicates that the DOT uses AccuWeather for its weather forecasts and, typically, gets a daily weather report with updates as necessary. Approximately twenty-four hours before the plaintiff's accident, the DOT received its report for January 27, 2010, which indicated that the day would be sunny to partly cloudy with a high temperature between forty to forty-eight degrees. The forecast for midnight through 6 a.m. on January 28, 2010, was partly cloudy with a low temperature between twenty to twenty-eight degrees and winds southwest four to eight miles per hour. The forecast for the rest of January 28, 2010, called for increasing winds with clouds and sun, and a rain or snow shower from midday on, with the high temperature between thirty-four and forty-two degrees and winds west-southwest twelve to twenty-five miles per hour. The next AccuWeather report received by the DOT was at 6:15 a.m. on January 28, 2010, the date of the incident. That forecast stated that snow showers would move into the state that morning. The area where the plaintiff's accident occurred was predicted to receive a coating to one inch of snow. The area of Federal Road where the plaintiff's accident occurred is maintained by the DOT's New Milford garage. In response to the early morning report, Glen Curtis, the supervisor for the New Milford garage, called his crew leader and directed him to call five of its drivers into work early. In addition to those five drivers, three other drivers arrived early and were also directed to begin plowing operations, which included spreading melting materials. Thus, some trucks were on the road before 8 a.m. and, by 8 a.m., all of the plow trucks in the New Milford garage were on the road.
On the day in question, two plow drivers were assigned to Federal Road: Brian Engle and Keith Anderson. As is standard DOT practice, Engle and Anderson were sent out to cover different parts of the same route. Once all roads in a particular assignment have been plowed once, drivers team up to form an echelon and both trucks then plow the road in tandem and staggered fashion. The trucks continue to plow and apply material to the roads until after the storm has stopped and the roads are clear. According to Engle, when he arrived at work, he checked his truck, loaded it with material to spread on the road and headed out southbound to plow Federal Road. He plowed and spread material down Federal Road from New Milford to Danbury, which took him by 485 Federal Road. Engle attests that he first plowed the stretch of road where the accident occurred at approximately 8:30 a.m. Engle then went down White Street in Danbury and stopped at the Danbury garage to reload his truck, after which he proceeded back up his route in reverse order. Engle again plowed 485 Federal Road. Engle and Anderson then met up at " Four Corners" which is the intersection of Route 25 and Route 202. They formed an echelon going down Federal Road past 485. It was during this pass when Engle saw the plaintiff's car in a ditch. Engle recalled exchanging words with the police officer at the scene who used foul language to express his displeasure at the condition of the roads.
Anderson's affidavit states that he plowed south along Route 25 through the Brookfield Town Center until he reached Route 6, at which point he turned around and plowed back north on Route 25. When he reached the intersection with Route 133 (aka Junction Road), he turned west on Junction Road and continued plowing operations. Once he reached Federal Road, he turned south, reloaded in Danbury and headed back north along Federal Road. He turned east onto Junction Road and then back north along Route 25. There he met up with Engle at the intersection of Route 25 and Route 202. They then plowed in echelon formation south along Federal Road. Anderson recalled driving by the scene of an accident at 485 Federal Road, and recalled a police officer at the scene exchanging words with Engle.
According to her deposition and affidavit, on January 28, 2010, the plaintiff left her house on Beardsley Road in New Milford and went to Blue Bonnet Knolls, also in New Milford. This was, approximately, a seven mile drive. When she left her house on Beardsley Road, it was snowing and sleeting. The roads were dusty with snow and just starting to cover over, with perhaps an inch of snow. The plaintiff stayed at Blue Bonnet Knolls for approximately thirty minutes and then left to go to a Tile America store on Federal Road. When she left Blue Bonnet Knolls, it was still snowing and sleeting but the weather had deteriorated. Normally, the drive from Blue Bonnet Knolls to the Tile America store would take approximately ten to fifteen minutes. On that morning, however, it took the plaintiff thirty minutes because of the weather. Upon entering Federal Road, the plaintiff estimated that there were, approximately, two inches of snow on the ground and there was no evidence that the road had been plowed. The plaintiff did not observe any plows on the road from the time she left Blue Bonnet Knolls until the time of the accident. When the plaintiff arrived at her destination, she started to turn left into the store's parking lot when her car slid off the road.
Blue Bonnet Knolls is a rental property owned by the plaintiff.
Kelli Simmons, who was working at 475 Federal Road, adjacent to the accident scene, attests that, after the accident, she went outside and noted that it did not appear that Federal Road had been plowed or treated. Simmons described the road as being covered with two inches of heavy, wet snow/slush, and stated that the road conditions had been poor on Federal Road for at least two hours prior to the plaintiff's accident.
Officer Mark Miller testified in his deposition that, on the day in question, it began snowing at approximately 6:30 a.m. and the plaintiff's accident occurred at approximately 10:38 a.m. The first DOT snowplow seen in the area was after his arrival on the accident scene, some four hours after it had started snowing. According to Miller, Federal Road had not been plowed and was covered with snow and ice. Miller noted in the plaintiff's accident report that the Brookfield police department made numerous calls to the DOT that morning due to poor road conditions on Federal Road, Route 25 and Route 133. Additionally, prior to the plaintiff's accident, seven calls were made to the police department for service on state roads as a result of the weather. These calls pertained to accidents on Route 25, Route 133, the intersection of Federal Road and Route 133, the intersection of Federal Road and Candlewood Lake Road, Obtuse Road, and 201 Federal Road.
Glen Curtis, the highway maintenance general supervisor, testified in his deposition that Federal Road should have been plowed between 7:30 a.m. and 8:00 a.m. As early as 7:58 a.m., the DOT received a call of icy conditions in Brookfield pertaining to Routes 133 and 202. The DOT received a second call at 8:25 a.m. regarding icy conditions on Route 25.
Based on the evidence submitted by both parties, there is no genuine issue of material fact that the defendant did not have actual notice of the specific defect which caused the plaintiff's accident. As stated in Ormsby v. Frankel, supra, 255 Conn. at 678, 768 A.2d 441, 1 G.D.R. 76, " proof of prior icing conditions alone does not satisfy the notice requirement of § 13a-44 ... [T]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient." (Internal quotation marks omitted.) In the present case, the evidence indicates that the defendant had actual notice of snow on Federal Road and of accidents on other parts of Federal Road and other state roads in the vicinity of the plaintiff's accident. There is no evidence, however, that the defendant had notice of any icy conditions at 485 Federal Road. See, e.g., White v. Westport, 72 Conn.App. 169, 804 A.2d 1011 (2002) (upholding trial court's exclusion of evidence pertaining to presence of sand in the general area of the plaintiff's accident because the evidence did not relate to the actual accident site).
" To charge the defendant with constructive notice, it [is] incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." Falkowski v. MacDonald, 116 Conn. 241, 245, 164 A. 650 (1933). " Unless the facts are undisputed and are such that but one inference reasonably can be drawn from them, the question of constructive notice is one of fact for the jury." Matchulot v. Ansonia, 116 Conn. 55, 57, 163 A. 595 (1932).
The plaintiff's claim that the defendant had constructive notice of the exact defect that caused her accident is supported by the testimony of Officer Miller, the affidavit of Kelli Simmons and weather related calls pertaining to other state roads in Brookfield. The plaintiff also cites to Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990), for the proposition that evidence of prior accidents is admissible to prove the existence of a particular physical condition, situation or defect. The plaintiff fails to note, however, that in Hall, the plaintiff sought to introduce evidence " of a prior accident that occurred at the same intersection ..." Id. Here, the plaintiff has not presented any evidence of previous or recurring icy patches at 485 Federal Road. See Ormsby v. Frankel, supra, 255 Conn. at 677-81, 768 A.2d 441, 1 G.D.R. 76 (plaintiff was permitted to provide evidence of the existence of previous and recurring icing conditions " at the same location where the plaintiff's accident occurred"). Moreover, there is no evidence of accidents at 485 Federal Road prior to the day of the plaintiff's accident, or previous to the plaintiff's accident on January 28, 2010. The plaintiff's evidence indicates only that there were icy patches in the general area of Federal Road and that there was snow on the ground at the time of the accident.
Nonetheless, the totality of the evidence submitted by both parties, viewed in the light most favorable to the plaintiff, indicates that there are genuine issues of material fact as to when the icy condition was created, how long it existed prior to the accident and whether 485 Federal Road was plowed prior to the plaintiff's accident. Although Engle attests that he plowed 485 Federal Road twice prior to the plaintiff's accident, Kelli Simmons attests that she came outside after the plaintiff's accident and it did not appear that Federal Road had been plowed or treated. Simmons described the road as being covered with two inches of heavy, wet snow/slush, and stated that the road conditions had been poor on Federal Road for at least two hours prior to the plaintiff's accident. Likewise, Officer Miller testified that the first DOT snowplow seen in the area was after his arrival on the accident scene, some four hours after it had started snowing, and that Federal Road had not been plowed and was covered with snow and ice.
The defendant argues that Simmons' affidavit is insufficient to raise an issue of fact because she had been working indoors all morning.
" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). As there remain genuine issues of material fact concerning whether the defendant had constructive notice, the motion for summary judgment must be denied.