Opinion
No. CV08 5025111
April 14, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#173)
PROCEDURAL AND FACTUAL BACKGROUND
This action is brought by the plaintiffs, Jeffrey Beal and Cheryl Beal, against the defendant, town of Guilford. The plaintiffs seek damages for personal injuries allegedly sustained when the plaintiff Jeffrey Beal, while operating a cement truck on Crooked Hill Road in the town of Guilford on or about April 10, 2008, had his truck become entangled in overhead wires, causing a utility pole to snap and crash through the window of his vehicle. The plaintiffs served written notice of injury on July 8, 2008 to the clerk of the town of Guilford pursuant to General Statutes § 13a-149. The plaintiffs served the defendant by hand with summons and complaint on November 14, 2008, and filed this action with the court on December 12, 2008. The plaintiffs subsequently filed an amended complaint on March 20, 2009. The plaintiffs set forth three claims against the defendant: count six alleges a claim pursuant to § 13a-149; count seven is grounded in negligence; and count eight claims a loss of consortium. In the sixth count of the amended complaint, it is alleged that the road was "upgraded according to the requirements of the town of Guilford" and that "overhead wires . . . were hanging too low over the roadway, and in an unsafe and dangerous condition, due either to the age of the overhead wires and poles to which the wires were attached, or due to the upgrading of the roadway . . ." The plaintiffs further allege that the defendant "breach[ed] its statutory duty to maintain its public highways in a condition safe for public use and travel . . . Solely as a result of the breach . . . the plaintiff suffered" various injuries. On December 7, 2009, the defendant filed an answer to the amended complaint.
Other named defendants are Connecticut Light Power Company, Southern New England Telephone Company, Comcast of New Haven, Brian Ferris Construction, and Fuda Construction. The instant motion for summary judgment is brought only by the town of Guilford, and thus, it will be referred to as "the defendant."
General Statutes § 13a-149 provides, in relevant part: "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 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 . . ."
The plaintiffs at oral argument conceded that summary judgment could be granted as to counts seven and eight. Thus, this memorandum addresses only the plaintiffs' sixth count against the defendant pursuant to § 13a-149.
On September 15, 2010, the defendant requested permission of the court to file a motion for summary judgment, and attached a memorandum of law in support of summary judgment. On October 13, 2010, the court, Lager, J., granted the defendant permission to file the motion for summary judgment. The defendant now moves for summary judgment on the ground that there is no genuine issue of material fact because the defect was not the sole proximate cause of the plaintiffs' injuries. In support of its motion for summary judgment, the defendant submits as evidence the affidavit of James A. Portley, town engineer for the town of Guilford. On January 27, 2011, the plaintiffs filed an objection to the motion for summary judgment, and submitted a memorandum of law in opposition. The plaintiffs did not submit any affidavit or other counterevidence. On January 28, 2011, the defendant filed a reply memorandum to the plaintiffs' memorandum in opposition. The court heard oral argument from the parties on January 31, 2011.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "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).
The defendant claims that there are no genuine issues of material fact and they are entitled to judgment as a matter of law because the plaintiffs cannot establish the element of sole proximate cause necessary to sustain its claim under § 13a-149. Specifically, the defendant argues that independent contractors performing construction "had complete control over the work being done on the subject roadway when this incident occurred." Furthermore, the defendant claims that "there is at the very least shared possession and control, and therefore the plaintiff cannot, as a matter of law, satisfy the sole proximate cause requirement." The plaintiffs counter that the defendant has not met its burden to show that are no genuine issues of material fact for trial. In particular, the plaintiffs claim that the defendant "had a non-delegable duty to maintain its roads in a safe way . . ." The plaintiffs argue that "the defect in the road — for which the town is liable — is the sole proximate cause of the injuries, and third party control over the work site has no bearing on the issue."
The plaintiffs bring this action pursuant to § 13a-149, commonly known as the municipality highway defect statute. Section 13a-149 provides, in relevant part: "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." The liability of a municipality "under § 13a-149 is purely for breach of a statutory duty and does not arise from negligence . . . Such liability represents a penalty for the town's failure to perform adequately its statutory duty to repair its roads, and it is solely the town's failure in that regard that renders it liable . . . Accordingly, because municipal liability under § 13a-149 is predicated exclusively on the town's failure to carry out its statutory duty, it follows that the manner in which a defect is created in and of itself has no bearing on the town's liability under the statute. Rather, it is the existence of the defect and the town's actual or constructive knowledge of and failure to remedy that defect that are of primary importance in making out a prima facie case of municipal liability under § 13a-149." (Citations omitted; emphasis in original; internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 364, 377-78, 972 A.2d 724 (2009).
In order to recover under § 13a-149, "a plaintiff must prove, by a fair 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.) Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). In analyzing the requisite element of sole proximate cause, "[m]unicipal liability under § 13a-149 may . . . be defeated by more than just the fact that the plaintiff was contributorily negligent . . . [I]f the negligence of a third party is also responsible for the plaintiff's injuries, the municipality will be completely exonerated." Smith v. New Haven, 258 Conn. 56, 65, 779 A.2d 104 (2001). "An issue of proximate cause is ordinarily a question of fact for the trier." (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn.App. 768, 773, 778 A.2d 262 (2001).
In moving for summary judgment, the defendant does not claim that the plaintiffs were contributorily negligent, or that the negligence of a third party contributed to cause the alleged injuries suffered. Instead, the defendant argues simply that "the various contractors had complete control over the work being done on the subject roadway at the time this incident occurred, and thus the plaintiff cannot establish sole proximate cause." In support of this argument, the defendant submits an affidavit from its town engineer which states, inter alia, that "the town of Guilford was not involved in the day-to-day operations of the project, nor was it responsible for performing daily inspections relative to the project"; and that "subcontractors had complete control over the work being done on said roadway when the subject incident occurred." Furthermore, the project "involved raising Crooked Hill Road," and that "construction work in connection with the project was still ongoing at the time of the subject incident"; and that the defendant is "not aware of any requirement that the town inspect power lines in connection with permitted third party excavation within a public roadway."
In a case with similar alleged facts, Machado v. Hartford, supra, 292 Conn. 364, our Supreme Court analyzed the power of a municipality to delegate its duty to maintain its public roadways under General Statutes § 13a-99. In Machado, a motorist was injured on a roadway under construction by a third party independent contractor, when she hit a large depression that had developed as a result of the repair work. Id., 366. The plaintiff brought suit against the city of Hartford pursuant to § 13a-149 for negligently failing to, inter alia, warn of the construction, light the construction area, and reroute traffic. The city asserted that the independent contractor was the party responsible for the defective road because it "had control over the manner and means of performing that work" and "had the duty to maintain a safe work site during the construction process." Id., 368. The court held that the city, absent any showing of a legislative exception to § 13a-99, had a nondelegable duty to maintain the road in a reasonably safe condition and repair. Id., 373-74. Further, the court upheld the trial court's finding of municipal liability under § 13a-149 for the motorist's injuries, despite evidence that the defect was caused by the independent contractor. Id., 381. The court reasoned that the mere existence of third party negligence does not itself defeat a town's liability under the highway defect statute, but that a municipality must show "rather the existence of any intervening factors unrelated to the defect itself, whether negligent or not, that combine with the defect to cause the plaintiff's injuries." (Emphasis in original.) Id., 379.
General Statutes § 13a-99 provides, in relevant part: "Towns shall, within their respective limits, build and repair all necessary highways and bridges . . . except when such duty belongs to some particular person."
The defendant here does not assert that a third party's negligence created the defect, but instead argues that any showing of shared possession and control of the roadway renders it impossible for the plaintiffs to prove sole proximate cause. The court's legal analysis in Machado nonetheless fits comfortably within the similar alleged factual circumstances of the present case to render the defendant's argument without merit. As in Machado, the defendant claims a third party had control over the work being performed on the roadway. Similarly, the defendant here has not provided evidence of any legislative exception that would allow it to shift its statutory duty to maintain the highway in safe condition onto a third party contractor. Nor has the defendant claimed and shown the existence of any negligent, or non-negligent, intervening factors, unrelated to the alleged defect, which combined to cause the plaintiffs' injuries.
Importantly, the injury in Machado, as in the present case, occurred on a roadway under construction at the time of the incident by an independent contractor. See Machado v. Hartford, supra, 292 Conn. 366. Despite this shared possession and control by the third party contractor, our Supreme Court found the municipality to be liable because it had a nondelegable statutory duty to maintain its roadways, and it had not shown any intervening factors unrelated to the defect itself which combined to cause the plaintiff's injuries. Id., 380-81. The defendant here has not presented sufficient evidence on summary judgment that would, as a matter of law, distinguish and entitle it to a different result from Machado on similar alleged factual circumstances. Thus, the defendant's argument that the mere showing of shared possession and control, in and of itself, is sufficient evidence to grant it summary judgment is unavailing.
The Superior Court cases cited by the defendant for the proposition that a mere showing of shared possession and control of a roadway negate the element of sole proximate cause are not analogous nor persuasive in light of Machado. None of the cases cited address the inability of a municipality, absent legislative exception, to transfer its general duty to maintain and repair its roads onto a third party independent contractor.
Moreover, a finding that municipal liability could be defeated under any circumstances by merely showing that a roadway was under shared possession and control at the time of injury does not support the purpose of the highway defect statute. The Machado court, in reference to that defendant's proposed rule that municipal liability be defeated simply by virtue that the defect was created by third party negligence, stated it would lead to "absurd results" such that: "Under such a rule, for example, a municipality could have clear knowledge of a dangerous defect caused by the negligence of a third party, consciously delay remedying that defect indefinitely and without justification, and yet avoid liability for an accident that occurs months later despite the fact that it had a nondelegable duty to repair that defect in a reasonable amount of time . . . Such a result would vitiate the purpose and effect of both §§ 13a-99 and 13a-149." Machado v. Hartford, supra, 292 Conn. 380 n. 16. Similar absurd results would be yielded under the defendant's proposed rule; effectively allowing a municipality to delegate and abrogate its statutory duty to care for its roads during the duration of any roadway construction by an independent contractor, no matter whether it had knowledge of the existence of a highway defect, and even if the defect was wholly unrelated to any factors related to the construction work going on at the time.
As the defendant has not submitted evidence showing that, as a matter of law, its alleged failure of its statutory duty to maintain and repair its roadways was not the sole proximate cause of the plaintiffs' injuries under § 13a-149, it cannot be said that the defendant is entitled to summary judgment as to count six of the amended complaint.
CONCLUSION
Accordingly, for the foregoing reasons, the court denies the defendant's motion for summary judgment as to count six, and grants summary judgment on counts seven and eight.