Opinion
HHDCV136038731S
12-30-2015
Naishaly Camilo v. Town of Manchester
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Cesar A. Noble, J.
This municipal sidewalk fall down case comes before the court on a motion for summary judgment filed by the defendant, the Town of Manchester (hereinafter the " Town"), claiming that the plaintiff's claim under General Statutes § 13a-149 fails as a matter of law because the liability for this loss, which it attributes solely to the icy condition upon which the plaintiff fell, was transferred by statute and Town ordinance to abutting land owners. The court agrees and grants summary judgment in favor of the Town.
Section 13a-149 provides in pertinent 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."
FACTS AND PROCEDURAL HISTORY
The following procedural history is pertinent to the summary judgment motion. The minor plaintiff filed this action against the Town, Corey's Catsup and Mustard, LLC, and Serenity Realty Management, LLC. She claims she suffered injuries from falling on a sidewalk as a result of ice formed as a consequence of water leaking from a fire hydrant. The plaintiff alleges that Corey's Catsup and Mustard, LLC, and Serenity Realty Management, LLC were the owner or persons in possession of premises abutting the area of the sidewalk where she fell.
The operative complaint is styled " Amended and Revised Complaint" and dated May 7, 2013. It is in seven counts. The first is a claim by the minor plaintiff against the Town under § 13a-149 for injuries from a fall on an icy sidewalk adjacent to premises known as 623 Main St., Manchester, Connecticut. It alleges that a nearby fire hydrant was in a defective, unsafe and dangerous condition in that it was leaking water that was freezing the sidewalk. The second count claims liability pursuant to § 7-163a on the part of Serenity Realty Management, LLC, as the owner or person in possession and control of 623 Main Street, Manchester, Connecticut. The third count makes a similar claim for liability as to the co-defendant, Corey's Catsup and Mustard, LLC. The fourth count is brought in the name of the mother of the minor plaintiff seeking compensation for money damages related to medical bills paid on behalf of her daughter and is derivative of the claims alleged in the first, second, and third counts. The fifth count alleges liability on the part of the Town pursuant to General Statutes § § 52-557n and 7-148 for its failure to keep the sidewalk reasonably safe due to the presence of the leaky fire hydrant causing the formation of ice. The sixth count makes a claim for nuisance against the Town on the same factual predicate. The seventh count contains claims by the mother of the minor plaintiff for her daughter's medical bills derivative of the allegations contained in the fifth and sixth counts.
Upon motion of the defendant Town, the court, Peck, J., struck counts five and six on the basis that the Municipal Highway Statute, § 13a-149, is the sole and exclusive remedy in an action against a municipality for damages resulting from a highway defect. See Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). The court, however, denied the Town's motion to strike the first count.
The Town's motion for summary judgment addresses the seventh count presumably under the misapprehension that this count is related to the first. Because of the court's decision this misunderstanding need not be addressed.
The Town filed a motion for summary judgment on August 3, 2015, to which the minor plaintiff objected on September 23, 2015. The matter was argued on September 28, 2015.
The Town argues in its motion for summary judgment that it is not liable to the plaintiff because it transferred its liability pursuant to General Statutes § 7-163a for the presence of the ice on the sidewalk upon which the plaintiff fell to the owner or person in control of land abutting the sidewalk and the highway defect which caused the plaintiff's fall and injuries was the presence of ice on the sidewalk. In support of its motion for summary judgment, the Town appends a certified copy of § 279-24 of the Town of Manchester Ordinances. The Town also provided a certified copy of portions of the plaintiff's transcript. The plaintiff testified at her deposition that she fell on the sidewalk at the corner of Main Street and Pearl Street in Manchester, in an area of the sidewalk " that sort of dips into the crosswalk area . . ." She further testified that the cause of her fall was ice which formed from water emanating from the leaky fire hydrant.
Section 7-163a provides in pertinent part: " (a) Any town . . . may, by ordinance, adopt the provisions of this section. (b) Notwithstanding the provisions of section 13a-149 . . . such town . . . shall not be liable to any person injured in person or property, caused by the presence of ice or snow on a public sidewalk unless such municipality is the owner or person in possession and control of land abutting such sidewalk . . . (c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury."
Section 279-24 of the Town of Manchester Ordinances provides in pertinent part: " (A) Notwithstanding the provision of § 13a-149 of the General Statutes of the State of Connecticut . . . the Town of Manchester shall not be liable to any person injured in person or property caused by the presence of ice or snow on a public sidewalk unless the Town of Manchester is the owner or person in possession and control of land abutting such sidewalks, other than land used as a highway or street, provided that the Town of Manchester shall be liable for its affirmative acts with respect to such sidewalk. (B) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk abutting his property as the municipality had prior to the effective date of this section, adopted pursuant to the provisions of [General Statutes § 7-163a] . . ." The ordinances may be properly considered as they were under seal and certified as true copies of the original by the town clerk. See Conn. Code Evid. § § 9-1 and 9-3.
The minor plaintiff objected to the motion for summary judgment with the argument that there is only one defect here which consists of an indistinguishable combination of the leaky fire hydrant and the ice. The minor plaintiff points to the court's prior decision denying the Town's motion to strike the first count as law of the case for the proposition that " the fire hydrant leaking water that froze is a defect and can lead to sole proximate cause." The plaintiff insists that because there is no other evidence that the water from which the ice was formed came from any source other than the fire hydrant, the fire hydrant must be the defect that is the sole proximate cause of the plaintiff's injuries.
The Town argued in its motion to strike that the plaintiff's complaint alleges two distinct defects, the leaky fire hydrant and the ice, which rendered the complaint subject to a motion to strike because § 13a-149 is clear that there can only be one defect constituting the sole proximate cause of the plaintiff's injuries. The Town also argued that the ice could have come from melting snow or precipitation. The plaintiff countered that she sufficiently alleged that the defective fire hydrant was the proximate cause of her injuries. The court concluded that " reading the allegations in the light most favorable to the plaintiff, she has sufficiently alleged that the defective fire hydrant was the sole proximate cause of her accident." (Emphasis added.) Camilo v. Manchester, Superior Court, judicial district of Hartford, Docket No. CV-13-6038731-S,
(December 10, 2013, Peck, J.). Thus, the issue that was before the court, the sufficiency of the complaint, was different than is presented here, whether there is a genuine issue as to a material fact that would prevent the Town's entitlement to judgment as a matter of law.STANDARD OF REVIEW
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
DISCUSSION
The general law regarding liability pursuant to § 13a-149 is clear. " It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases . . . The state legislature . . . possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities . . . Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144]. Therefore, because the state has permitted itself to be sued in certain circumstances, [our Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 811, 92 A.3d 1016 (2014).
In order " [t]o 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 . . ." (Emphasis in original; internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 364, 376, 972 A.2d 724 (2009).
" [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . ." Bellman v. West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 (2006). " The word road or highway as used in the highway defect statute has usually been construed to include sidewalks." Id., 395. " Sidewalks can be considered defective for the purposes of § 13a-149 by reason of snow and ice." Escourse v. 100 Taylor Ave., LLC, supra, 150 Conn.App. 814.
The dispositive issue is the identity of the defect which was the proximate cause of the plaintiff's fall. Although initially appealing, any construction in which the leaky fire hydrant is deemed to be the defect under § 13a-149 is erroneous. The fallacy of the argument becomes evident once its premise is followed to its natural conclusion. If the leaky fire hydrant were in fact the defect which caused the plaintiff's injury it follows that the defect would be cured simply by shutting the hydrant off. This would, however, only stop the flow of water and would not render the icy sidewalk any less slippery. The leakage of water from the hydrant, in the absence of the intervening factor of weather, would not be the cause of the ice. The defect upon which the plaintiff fell is in fact the ice. The fire hydrant is merely the condition productive of the defect.
As to the second element required to establish liability under § 13a-149, notice, it has long been recognized that " [t]he notice . . . of a highway defect causing injuries which a municipality must receive as a condition precedent of 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.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919); see also Lombardi v. East Haven, 126 Conn.App. 563, 574-75, 12 A.3d 1032 (2011). The issue in Carl v. New Haven was whether notice to the municipality of the presence on a sidewalk of water trickling from melting snow, coupled with the knowledge that freezing conditions were to follow, was sufficient to create liability on the municipality. The court held that the law could not support a finding of notice because " knowledge of the existence of the conditions of water and weather, calculated in the natural course of events to produce an icy condition of the [side]walk, was [not] the equivalent of notice of an existing icy condition . . ." Carl v. New Haven, supra, 93 Conn. 628.
Similarly, in Pajor v. Wallingford, 47 Conn.App. 365, 376, 704 A.2d 247 (1997), the notice of runoff from a snowbank, which would naturally freeze at night when temperatures dropped, was considered insufficient notice of the defect itself. The defendant had requested a charge to the effect that " the notice required by law to impose liability on the town is notice of the particular defect that caused the injury and not merely of conditions naturally productive of the defect and in fact producing it." Id., 372. The Appellate Court found error in the trial court's not charging the language requested. While the court's charge " attempted to focus the attention of the jury on the icy condition of the sidewalk as the defect . . . [i]t did not inform the jury, however, that it would be insufficient under the statute for the town to have notice only of conditions naturally productive of the defect, such as snowbanks that melted during the day and caused water to flow across the sidewalk that would freeze when the temperature dropped." (Emphasis added.) Id., 376.
The decisions in Carl and Pajor inform the court's conclusion that the leaking fire hydrant in this case was not the defect that caused the plaintiff's injuries. In these cases, the defendant municipalities had notice of the conditions productive of the defect, in both cases accumulated snow. Had the conditions productive of the defect been the actual defect, then the notice required under the statute would have existed.
In Agriesto v. Fairfield, 130 Conn. 410, 35 A.2d 15 (1943), the court addressed the issue of whether a two inch deep hole in the street or the ice within the hole was the defect that caused the plaintiff to slip and fall when her foot came into contact with the ice. The Town of Fairfield defended the case on the basis that the only defect was an accumulation of ice and that the plaintiff's fall was caused solely by slipping on it. The court set aside the jury verdict in favor of the defendant because it had only charged the jury on the ice as the defect to the exclusion of the hole. The court felt that the insufficiency of notice as to the presence of ice may have resulted in the defendant's verdict whereas the hole, if believed to have been the causative defect, had been present for a longer period. The Supreme Court found error in the setting aside of the verdict finding that the creation of the ice eliminated the hole as the sole proximate cause of the plaintiff's injury. See id., 415. It held that " the only existing defect operative at the time to produce the plaintiff's fall was the slippery condition of the ice which had supplanted [the hole.]" Id. As the Supreme Court commented in response to a related argument, " [l]iability depends upon the existence of a defect, not the underlying causes which produced it . . . No liability arises unless and until the highway has been rendered defective." (Citations omitted; internal quotation marks omitted.) Id., 417.
Similarly, the fire hydrant may have produced the water that formed the ice upon which the plaintiff fell but it was the slipping on the ice that was the sole cause of the plaintiff falling. As with Carl and Pajor, eliminating the condition that produced the defect after the defect was created, in those cases the accumulated snow and here the fire hydrant, without remedying the actual defect, the ice, would not have avoided the injury. Our law does not impose liability upon a municipality for its failure to eliminate potential causes of snow and ice. It is only when the defect has been created and exists for a sufficient period, and it ought reasonably to have been corrected, that liability is visited upon the municipality.
The responsibility for the ice is therefore determinative of the Town's liability in this matter. " General Statutes § 7-163a grants municipalities the choice to adopt the statute's provisions and thereby transfer the municipalities' liability to abutting landowners for injuries arising from the failure to remove snow and ice on public sidewalks." (Footnote omitted.) Robinson v. Cianfarani, 314 Conn. 521, 526-27, 107 A.3d 375 (2014). Pursuant to § 7-163a, the Town transferred its liability for the injuries related to the presence of snow and ice to abutting landowners by its enactment of Ordinance § 279-24. Accordingly, the Town has no liability for any injuries caused by such ice and snow. The defendant's motion for summary judgment is therefore granted.