Opinion
CV156059000S
01-06-2017
Monique Goutier v. Town of Hamden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112)
Robin L. Wilson, J.
FACTS
On March 7, 2016, the plaintiff, Monique Goutier, filed her revised complaint in this action against the defendant, Town of Hamden. The plaintiff alleges the following facts. On or about January 26, 2015, the plaintiff was an invitee on the defendant's property at 91 Circular Avenue in Hamden, Connecticut. The Brundage Community Branch public library is located on the property. On that date, the plaintiff was walking on a walkway that ran perpendicular to Circular Avenue and went from a separate sidewalk to the entrance of the library. As the plaintiff approached the entrance of the library and reached approximately the halfway point of the walkway, she slipped and fell on an accumulation of snow and ice. The plaintiff suffered injuries resulting from the defendant's negligence. The plaintiff seeks monetary damages for the injuries resulting from the slip and fall.
On May 3, 2016, the defendant filed a motion to strike the plaintiff's revised complaint, and attached a supporting memorandum of law. On July 1, 2016, the plaintiff filed an objection to the defendant's motion to strike, and attached a memorandum in support. On July 12, 2016, the defendant filed a reply to the plaintiff's objection, and on August 31, 2016, the plaintiff filed another reply in objection to the defendant's motion to strike. The motion was heard at short calendar on September 19, 2016.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " [A] motion to strike . . . requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
The defendant argues that the plaintiff's revised complaint, alleging negligence, should be stricken because the plaintiff's exclusive remedy is pursuant to General Statutes § 13a-149, the highway defect statute. In the alternative, the defendant argues should the court determine that § 13a-149 is not the plaintiff's exclusive remedy against the town, the plaintiff's claim is still barred by governmental immunity pursuant to General Statutes § 52-557n. The plaintiff counters that § 13a-149 does not apply because the area where the plaintiff fell is not a defective road or bridge within the meaning of the statute. The plaintiff further argues it is not apparent from the face of the complaint that the defendant was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, and therefore, the issue of governmental immunity pursuant to § 52-557n cannot be decided on a motion to strike.
" Generally, where a defendant argues that it is entitled to governmental immunity, it is required to plead the doctrine as a special defense . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995) . . . there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. [ Doe v. Board of Education, 76 Conn.App. 296, 299 n.6, 819 A.2d 289 (2003).] (Citation omitted; internal quotation marks omitted.)" Coe v. Board of Educ. Town of Watertown, 301 Conn. 112, 116, n.4, 19 A.3d 640 (2011).
" Our Appellate Court has stated that 'the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint . . . Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (city's motion to strike properly granted where complaint alleged that city failed to act 'reasonably, ' which necessarily requires exercise of discretion and judgment); Beach v. Regional School District Number 13, 42 Conn.App. 542, 553-54, 682 A.2d 118 (verdict in favor of defendant school district supervisor proper where plaintiff cafeteria worker failed to prove supervisor had some procedure in place regarding removal of ice, snow so as to make supervisor's duty ministerial), cert. denied, 239 Conn. 939, 684 A.2d 710 (1996). The duty . . . will be governmental [and therefore discretionary] if the nature and character of act or function be such. Hannon v. Waterbury, 106 Conn. 13, 17, 136 A. 876 (1927). And although the general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint. See Evon v. Andrews, supra, [505-07] . . . Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000) . . . Colon v. City of New Haven, [60 Conn.App. 178, 181-82, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034; 255 Conn. 908, 763 A.2d 1034 (2000). (Citation omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 854-55, 804 A.2d 928 (2002)." McCray v. New Haven Bd. of Educ., Superior Court, judicial district of New Haven, Docket No. CV-085016881, (February 7, 2012, Wilson, J.). In Segreto v. Bristol, supra, 71 Conn.App. 857, the Appellate Court held that the negligent maintenance of municipally owned property is a discretionary act where the complaint fails to allege " that the [municipality] had some policy or directive in place regarding those duties with which it or its employees had failed to comply."
In the present case, the plaintiff alleges in her revised complaint that the defendant was negligent: " a. In that [it] failed to maintain its property in a reasonably safe condition, and allowed snow and ice to accumulate on the walkway to a point where it was dangerous; b. In that [it] failed to plow, sand, salt or otherwise remove the ice and/or snow from the walkway; c. In that [it] should have known that failure to remove the dangerous accumulation of ice or snow created a hazardous condition to invitees of the library; d. In that [it] failed to block off or barricade the walkway to prevent Plaintiff from walking in the area, or otherwise warn Plaintiff of the dangerous accumulation of snow and ice on the walkway; and/or e. In that [it] failed to inspect and/or adequately inspect the premises." Pl. Rev. Comp., p. 3. As in Segreto, the revised complaint contains no allegation that the town had some policy or directive in place regarding those duties with which it or its employees had failed to comply, thus, on the face of the complaint the plaintiff alleges acts and omissions on the part of the town which involve discretion. Accordingly, should the court reach the defendant's alternative ground of governmental immunity, the court can consider said ground. However, since the court's determination of whether the plaintiff's exclusive remedy is pursuant to § 13a-149 is dispositive of the motion, the court will first address this issue.
I
General Statutes § 13a-149 and Exclusivity
Section 13a-149, the highway defect statute, provides in relevant part: " Any person injured in person or property . . . by means of a defective road . . . may recover damages from the party bound to keep it in repair . . . No action for any such injury shall be maintained against any town . . . 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 . . ." In addition, General Statutes § 52-557n(a)(1) provides, in relevant part: " 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 . .." (Emphasis added.) " Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001).
" [I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." Ferreira v. Pringle, supra, 255 Conn. 341. Courts have held that " [e]ven if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff's exclusive remedy is § 13a-149. If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein . . ." Bellman v. West Hartford, 96 Conn.App. 387, 393-94, 900 A.2d 82 (2006); see also Ferreira v. Pringle, supra, 255 Conn. 340 (allegations invoked § 13a-149, despite plaintiff not pleading it).
" Under § 52-557n(a)(1), we first must determine whether the plaintiff's claim is a claim for damages against a municipality 'resulting from injury to any person or property by means of a defective road.' . . . If the answer is yes, then the party seeking relief is bound to pursue such relief pursuant to § 13a-149." (Citation omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 816, 92 A.3d 1016 (2014). In the present case, the plaintiff did not plead § 13a-149 as a means for recovery, but instead pled under a theory of negligence. If the allegations, however, invoke the defective highway statute, then § 13a-149 is the plaintiff's exclusive remedy, and thus, the plaintiff would be unable to recover under a theory of negligence. Accordingly, the court now looks to whether the plaintiff's allegations invoke § 13a-149.
II
" The plain meaning of the word highway is [a] main road or thoroughfare; hence a road or way open to the use of the public . . . [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . [T]he distinctive feature of a highway for which a claim may arise under § 13a-149 is that it is open to public use." (Citation omitted; internal quotation marks omitted.) Cuozzo v. Orange, 147 Conn.App. 148, 158, 82 A.3d 647 (2013), aff'd, 315 Conn. 606, 109 A.3d 903 (2015). As such, Connecticut courts have construed § 13a-149 to apply to sidewalks. " The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . To fall within the statute, a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway . . . rather, a person must [simply] be on the highway for some legitimate purpose connected with travel thereon . . . The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel." (Citation omitted; internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn.App. 394-95; see also Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949) (word " road, " as used in highway defect statute, usually construed to include sidewalk); Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998) (walkway that ran from street to public school exit constituted road within meaning of highway defect statute), abrogated on other grounds by Vejseli v. Pasha, 282 Conn. 561, 572, 923 A.2d 688 (2007) (holding that municipalities are immune from liability only, not from suit).
Courts have considered three factors to determine whether a public walkway is a road within the meaning of § 13a-149. The factors are: " (1) whether [it] is open to the public at all times, (2) whether [it], like a sidewalk, is used in the ordinary course of travel, and (3) whether the alleged [defect] is proximate enough to a road or highway so as to bring it within the ambit of the defective highway statute." Chuka v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5002125-S (May 1, 2009, Cronan, J.) (47 Conn.L.Rptr. 635, 637, ); see also Mastriano v. North Branford, Superior Court, judicial district of New Haven, Docket No. CV-10-6015604-S, (February 4, 2014, Nazzaro, J.) (court considered three-factor test when determining whether football field constituted roadway for purposes of § 13a-149); Ferrigno v. Hamden Volunteer Fire Department et al., Superior Court, judicial district of New Haven, Docket No. CV-10-6011263S, (May 2, 2012, Wilson, J.) (court considered three-factor test when determining whether a hole in a pathway created by the defendants to access the parade grounds constituted roadway for purposes of § 13a-149).
In the present case, the plaintiff's revised complaint alleges that the plaintiff was walking towards the entrance of a public library. At oral argument, the plaintiff conceded that the relevant walkway was a public sidewalk, which went from the entrance of the library to another sidewalk that ran parallel to Circular Avenue. Given the nature of the walkway, it can be reasonably anticipated that the sidewalk was used in the ordinary course of travel whenever the public needed to gain access to the library. Moreover, there is no indication that the walkway was closed to the public at any point. The plaintiff argues that because the walkway was attached to another sidewalk, as opposed to a public road, it is removed from the purview of § 13a-149. A walkway, however, need not be directly connected to the public road; rather, the only requirement is that it " is proximate enough to a road or highway so as to bring it within the ambit of the defective highway statute." Chuka v. Derby, supra, 47 Conn.L.Rptr. 637, . In this case, the court finds that the sidewalk was open to public use, and that the proximity of the sidewalk to a road was sufficient to constitute a road within the purview of § 13a-149. Next, the court looks to whether the alleged defect constitutes a " highway defect."
In arguing that the walkway in question is not within the purview of § 13a-149, the plaintiff relies primarily on Engram v. McDermott, Superior Court, judicial district of New London, Docket No. CV-00-553569-S, (November 13, 2000, Hurley, J.). The present case is distinguishable from Engram . In that case, the plaintiff merely alleged that she stepped on a sidewalk adjacent to the New London High School parking lot. There was no indication or allegation regarding whether the sidewalk was in proximity to a public road. In this case, the plaintiff alleged in the complaint that the walkway ran from the library entrance to a sidewalk, which ran next to Circular Avenue, which is a public road.
III
Highway Defect
" [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." (Internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 37, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012). A sidewalk is defective " when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 813, 92 A.3d 1016 (2014). A sidewalk may be considered defective for purposes of the highway defect statute by reason of snow and ice. Id., 814.
The plaintiff alleges in her complaint that she slipped and fell on the walkway because the defendant failed to maintain its property in that it allowed snow and ice to accumulate on the walkway. Thus, in accordance with Escourse, the walkway is considered defective for purposes of § 13a-149. See Escourse v. 100 Taylor Avenue, LLC, supra, 150 Conn.App. 814. Therefore, the court finds that the sidewalk upon which the plaintiff fell is a road and defective within the meaning of the highway defect statute. The plaintiff is therefore barred from bringing a negligence claim against the defendant because § 13a-149 is her exclusive remedy. Since the court's determination that the plaintiff's exclusive remedy is pursuant to § 13a-149 is dispositive of the motion to strike, it is not necessary for the court to address the defendant's alternative argument regarding governmental immunity.
CONCLUSION
For the foregoing reasons, because the plaintiff's exclusive remedy is pursuant to General Statutes § 13a-149, the highway defect statute, the defendant's motion to strike the revised complaint is granted.