Opinion
No. CV 02-0817774
March 28, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MAY 28, 2004, MOTION FOR SUMMARY JUDGMENT
On Nov. 6, 2001, plaintiff alleges, she traveled to the Old Town Hall in Stafford to vote in town elections. Old Town Hall, her June 21, 2002 complaint alleges, is located at 221 East Street, also known as Route 19. After parking in a designated parking area, she proceeded to cross East Street to enter the polling place to vote. As she approached the southernmost front door of the premises, she alleges, she tripped on an area of raised and/or uneven asphalt located on the road surface, suffering injuries.
The First Count of the complaint is brought against the Town of Stafford (Town) pursuant to General Statutes Section 52-557n. The Second Count is brought against the Town under Section 13a-149. The Third and Fourth Counts are brought, respectively, against the Republican Registrar of Voters and the Democratic Registrar of Voters. The Fifth Count seeks indemnification from the Town pursuant to Section 7-465. The Sixth and final count is brought against the Commissioner of the State Department of Transportation pursuant to Section 13a-144, and is not at issue.
Pursuant to a May 28, 2004, Motion for Summary Judgment, defendants move for summary judgment as to the first five counts of the complaint. Plaintiff objected to the motion in a November 18, 2004, memorandum in opposition. Defendants responded with a January 21, 2005 reply. Plaintiff retorted with a January 27, 2005 supplemental memorandum in opposition. The Court then ordered both sides to further brief the issues of whether Section 9-169 creates a private cause of action, and whether the requirement that the registrars of voters provide a suitable voting place imposed a discretionary, or a ministerial, duty.
The plaintiff acknowledges that summary judgment should be granted on the Second Count, brought pursuant to Section 13a-149. As counsel for the plaintiff explained at oral argument, the complaint was drafted before it became apparent that Route 19 was a state highway, not a town road. See Exhibit F, affidavit of Michael Waugh, attached to defendants' May 28, 2004, Motion for Summary Judgment. It states, among other things, that Route 19 is a state road, maintained and repaired by the State of Connecticut, not the Town of Stafford or its employees.
Having requested that the parties address the issue of whether Section 9-169 imposes a discretionary, or a ministerial, duty on the registrars of voters, following oral argument on March 14, 2005, the Court decided that it would be best to decide the pending motion only on the issues raised by the parties. Consequently, this memorandum does not address the issue of municipal immunity.
Having considered the argument of the parties, the Court grants the motion as to the first five counts of the complaint, for the reasons stated below.
Section 9-169 states as follows in relevant part:
The registrars of voters of any municipality taking such action shall provide a suitable polling place in each district but, if the registrars fail to agree as to the location of any polling place or places, the legislative body shall determine the location thereof.
Section 52-557n states as follows in relevant part:
(a)(1) Except 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to Section 13a-149. (2) Except 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.
Section 7-465 states as follows in relevant part:
(A) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of Section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to Section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.
Section 13a-144 states as follows in relevant part:
Any 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, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.
Section 13a-149 states as follows 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.
First Count
In the First Count of her June 21, 2002 complaint, plaintiff alleges that her fall and the resulting injuries were caused by the negligence of the Town and its agents, servants and employees acting in the scope of their employment or official duties, in the following respects:
a. in that they failed to provide lawful users of the premises, including the plaintiff, with reasonably safe public premises; and/or
b. in that the area of raised and/or uneven asphalt in the approach to the polling place was dangerous and defective and presented a falling hazard; and/or
C. in that they chose to use said premises as a polling place, when they knew, or should have known, of the danger that said area of raised and/or uneven asphalt presented to voters; and/or
d. in that they failed to provide adequate signs or warnings to the public of the dangerous and defective condition of the approach to the polling place, when in the exercise of reasonable care they should have done so; and/or
e. in that they failed to erect barriers or take other measures to prevent members of the public from tripping on said area of raised and/or uneven asphalt; and/or
f. in that they failed to provide members of the public, including the plaintiff, with a reasonably safe means of ingress and/or egress to and from the polling place; and/or
g. in that they failed to select a suitable polling place as required by Connecticut General Statutes § 9-169.
The Town, Republican Registrar of Voters Ann Haraghey and Democratic Registrar of Voters Joan Zelonka argue in their May 28, 2004, Motion for Summary Judgment and Memorandum in Support, that they are entitled to judgment because (1) the plaintiff's exclusive remedy against the defendants is pursuant to Conn. Gen. Stat. § 13a-149, the highway defect statute; (2) the plaintiff's claim against Ann Haraghey and Joan Zelonka fail as a matter of law as her exclusive remedy is pursuant to Conn. Gen. Stat. § 13a-149; (3) the plaintiff's cause of action pursuant to Conn. Gen. Stat. § 7-465 is barred by the exclusivity provision of the highway defect statute; and (4) the complaint fails to state a cause of action upon which relief may be granted as the defendants are not the party bound to keep the roadway in repair. Defendants also argue that Section 9-169 does not create a private cause of action.
The plaintiff disagrees. The plaintiff contends that she has asserted a valid action under Section 52-577n because Section 13a-149 does not apply to the unusual facts of this case, and because Section 13a-149 is not a remedy available to the plaintiff. Moreover, plaintiff contends that the Third and Fourth Counts do not purport to allege a private cause of action. These counts are based on negligence, plaintiff asserts; Section 9-169 is invoked merely to define the scope of the duty of the Registrars of Voters.
Standard for Granting Motions for Summary Judgment
Summary judgment is a method of resolving litigation when "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; Hammer v. Lumberman's Mut. Cas. Co., 214 Conn. 573, 578 (1990). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Hammer, 214 Conn. at 578, (quoting United Oil Co. v. Urban Redevelopment Comm'n, 158 Conn. 364, 379 (1969)).
The party seeking summary judgment has the burden of showing the nonexistence of any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984); D.H.R. Constr. Co. v. Donnelly, 180 Conn. 430, 434 (1980). "The courts hold the movant to a strict standard. To satisfy his burden, the movant must show that it is quite clear what the truth is, and that it excludes any real doubt as to the existence of any genuine issue of material fact." Miller v. United Technologies Corp., 233 Conn. 732, 751-52 (1995).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Connell v. Colwell, 214 Conn. 242, 246-47 (1990). "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 issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
Analysis First Count
Section 52-557n reads as follows in relevant part:
. . . no cause of action shall be maintained against a political subdivision of the state or its employees for damages resulting from injury to a person or property by means of a defective road or bridge except pursuant to Section 13a-149.
Our Supreme Court has ruled that plaintiffs bringing actions against municipalities based on allegedly defective road conditions may proceed only under Section 13a-149, which provides the exclusive remedy for such claims. Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 220 A.2d 551 (1993). ("In short, we construe Section 52-557n to provide that an action under the highway defect statute, Section 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision `for damages resulting from injury to any person or property by means of a defective road or bridge.'"). (Emphasis added.)
Plaintiff argues that Section 52-557n's prohibition on causes of action against municipalities for injury by means of defective roads except pursuant to Section 13a-149 should be understood to apply to defective municipal roads only. Plaintiff supplies no convincing support for this proposition. I agree with defendants that pursuant to its plain language, Section 13a-149 applies to all roadways and authorizes recovery by "[a]ny person injured in person or in property by means of a defective road or bridge . . . from the party bound to keep it in repair." (Italics added.) Liability under the plain language of the statute is not premised on ownership of the roadway or bridge; liability rests with the governmental entity charged with the duty to keep the property in repair, in this case, the State. Novicki v. City of New Haven, 47 Conn.App. 734, 742, 709 A.2d. 2 (1998); DeCapula v. City of New Haven, 126 Conn. 558, 560-61, 13 A.2d 581 (1940).
As defendants note, the case law clearly supports the proposition that Section 13a-149 provides the exclusive remedy in cases such as this one and that there can be no town liability for a roadway defect when the duty to repair belonged to some other entity. See, e.g., Colletti v. City of Bridgeport, 103 Conn. 117, 130 A. 175, 176 (1925) ("The duty of the town ends where the duty of maintenance in sufficient repair belongs to any particular person or persons in any particular case, and the liability for penalty extends only to `the town, or person which ought to secure, and keep in sufficient repair such ways.'"); Lavigne v. New Haven, 75 Conn. 693, 696, 55 A. 569 (1903). The legislative history cited by defendants also supports the argument that Public Act 86-338 (now Section 52-557n) purposefully retained Section 13a-149. See remarks of Representative Wollenberg, cited at page 8 of defendants' January 21, 2005, reply.
Plaintiff argues, nevertheless, that Section 52-557n is applicable because defendants failed to carry out their official duties pursuant to Section 9-169 in the providing of a "suitable" polling place. This argument, discussed in detail in the analysis of the Third, Fourth and Fifth Counts, is rejected insofar as it relates to the First Count for the reasons set out below. The Court concludes that the specifications of negligence contained in (a) through (f) of paragraph 8 in the First Count cannot, and do not, circumvent the exclusive application of the highway defect statute. Such allegations could be creatively asserted against town officials in other contexts, vitiating the viability of the statute. Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2000). As defendants note, the limitation of Section 52-557n applies to injuries caused by alleged roadway defects. The issue, in other words, is not what official allegedly breached a duty which might have prevented the alleged defect from presenting harm; the issue, rather, is the narrower one of what caused the injury asserted. The facts presented to the Court, see motions and attachments relating to the pending motion, make it clear that the area where the fall is alleged to have occurred was within a public roadway, on Rte. 19, and that the claimed proximate cause of the fall was an area of allegedly "raised and/or uneven asphalt," bringing it within the reach of the highway defect statute.
Third, Fourth and Fifth Counts:
The Third Count is directed against Ann Haraghey, the Town's Republican Registrar of Voters. The Fourth Count is directed against Joan Zelonka, the Town's Democratic Registrar of Voters. The claims in these counts are identical to each other, and to a significant extent, identical to the allegations put forth in the First Count, alleging that the incident was caused by the negligence and carelessness of the respective defendants, as follows:
a. in that they failed to provide lawful users of the premises, including the plaintiff, with reasonably safe public premises; and/or
b. in that the area of raised and/or uneven asphalt in the approach to the polling place was dangerous and defective and presented a falling hazard; and/or
c. in that they chose to use said premises as a polling place, when they knew, or should have known, of the danger that said area of raised and/or uneven asphalt presented to voters; and/or
d. in that they failed to provide adequate signs or warnings to the public of the dangerous and defective condition of the approach to the polling place, when in the exercise of reasonable care they should have done so; and/or
e. in that they failed to erect barriers or take other measures to prevent members of the public from tripping on said area of raised and/or uneven asphalt; and/or
f. in that they failed to provide members of the public, including the plaintiff, with a reasonably safe means of ingress and/or egress to and from the polling place; and/or
g. in that they failed to select a suitable polling place as required by Connecticut General Statutes § 9-169.
In the Fifth Count, plaintiff claims indemnity from the Town pursuant to Section 7-465, based on the negligence alleged in the Fourth and Fifth Counts. The ruling on the Third and Fourth Counts dictates the ruling on the Fifth Count.
All of the allegations of the Third, Fourth and Fifth Counts are premised on the assumption that the registrars of voters have a duty, pursuant to Section 9-169, to protect voters against harm alleged to have been caused by a defective condition on Route 19, and that if they fail to do so, they are subject to an action for money damages. The Court concludes that Section 9-169s statutory requirement that the registrars of voters provide a "suitable polling place" does not permit a private cause of action first, because this statute imposes responsibilities on registrars as to the public at large, not individuals claiming to have been injured; and second, because the narrow duty to create a "suitable" voting place does not impose an actionable duty on registrars to create a "safe" polling place, relative to state highway defects, as a consequence of a claimed personal injury.
Section 9-169 is part of Chapter 146 of our General Statutes, "Elections." 9-169 is entitled "Voting districts." It states in relevant part that "The registrars of voters of any municipality . . . shall provide a suitable polling place in each district . . ." (Emphasis added.) The statute itself is part of a comprehensive set of election statutes the goal of which is to establish a fair and workable voting system for the public. Section 9-169 contains no language suggesting that a violation should create a private action for money damages by one allegedly injured on a road or highway, much less one maintained and repaired by the State of Connecticut; nor does the legislative history of this provision, which the Court has examined. Complaints alleging noncompliance with Section 9-169 — as well as other voting provisions — may be made to the State Elections Enforcement Commission under Section 9-7b. The Commission has the power to investigate complaints and levy penalties for persons found to be in violation of various election provisions. Where the legislature has failed to expressly provide for a private cause of action, see, e.g., Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984), the question becomes whether a private action for money damages can be implied. The Court must examine whether the legislative body intended to create a private remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979). See also Holly Hill Holdings v. Lowman, 30 Conn.App. 204, 219, 619 A.2d 853, 860, aff'd on other grounds, 226 Conn. 748, 628 A.2d 1298 (1993). Plaintiff has provided no basis upon which the Court could conclude that the legislature intended to create a private remedy for violation of Section 9-169; or that the underlying purpose of the statute was to create a private remedy. See e.g., Ward v. Greene, 267 Conn. 539, 548-61 (2004).
Viewed from a slightly different perspective, it is necessary to ask whether Section 9-169 imposes a duty on registrars of voters which should inure to the benefit of a plaintiff in a personal injury case in which a plaintiff claims to have fallen on a defect in a road or highway maintained and repaired by the State of Connecticut. The essential elements of a negligence case are duty, breach of duty, proximate cause, and injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The existence of a duty of care is a question of law to be resolved by the court. Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). There can be no liability if there is no duty.
Our Supreme Court has set out a two-pronged test to be used in analyzing the existence of a claimed duty. Mendillo v. Board of Education, supra, 246 Conn. 483-84. This inquiry requires "(1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part invokes the question of foreseeability, and the second part invokes the question of policy." Id. In Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003), our Supreme Court set out four factors to review in determining whether public policy suggests the imposition of a duty: "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." The Court concludes that, to the extent they are relevant to the analysis, these factors militate against finding the existence of a duty.
The Court agrees with the defendants' argument that as a matter of law, public policy considerations militate against finding the existence of a duty given the circumstances of this case, and that to recognize a duty owed by the Registrars of Voters to plaintiffs like Janice Emhoff would extend liability well beyond what society is prepared to sanction. "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy to lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." Jaworski v. Kiernan, 241 Conn. 399, 406, 696 A.2d 332 (1997), quoting Maloney v. Conroy, 208 Conn. 392, 400-01, 545 A.2d 1059 (1998).
By its plain terms, Section 9-169 requires registrars of voters to provide suitable polling places in each district in the interest of making polling places accessible to voters. The providing of a suitable polling place is, self-evidently, a function registrars must undertake for the benefit of the public at large, for the civic good, not for private individuals who have other remedies against other parties available to them. Moreover, as defendants note, the word "suitable" is not synonymous with "safe." Of course, as a general proposition, registrars of voters will generally choose suitable polling places which are safe for the public.
But given the facts of this case, to accept plaintiff's argument would be to impose new duties of registrars of voters to inspect roadways — and perhaps other allegedly dangerous conditions — near polling places. These duties are clearly properly performed by other persons with other sets of skills, not registrars of voters.
Plaintiff argues that the unique facts of this case, i.e., the location of the polling place directly next to the highway, combined with the precise location of the alleged defect near the door to the polling place, justify imposing a duty upon the registrars of voters to assure the road's safety. I do not agree. No matter how plaintiff couches it, she seeks to impose on the registrars duties that fall outside the scope of what the statute envisions. Plaintiff also contends that the registrars themselves, in deposition testimony, opined that providing a "suitable" polling place included providing a safe polling place. For example, at her June 4, 2004 deposition, Ann Haraghey answered "yes" when asked if it was her feeling that it was "specifically the registrars of voters" responsibility to provide a "safe place" for people to vote. It is not surprising they might feel that way. But their personal views are irrelevant to the issue of whether Section 9-169 imposes on registrars of voters a continuing legal duty to inspect roads and streets appurtenant to polling places.
The existence of a duty is a question of law. "If a court determines, as a matter of law, that a defendant owes no duty to the plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Construction, Inc. v. Fusco Corp., 231 Conn. 384, 650 A.2d 153 (1994). The Court concludes that, under the facts of this case, as a matter of law, the registrars of voters owed no duty to the individual plaintiff to ensure that Route 19 was free of defects, both because 9-169 creates no private cause of action for plaintiff and because the duty plaintiff seeks to impose on the registrars does not exist. Doe v. Lasaga, 2004 Ct.Sup. 4055 (March 10, 2004).
Conclusion
For the reasons stated above, defendants' motion for summary judgment is granted as to the First, Second, Third, Fourth and Fifth Counts.
Douglas S. Lavine Judge, Superior Court