Opinion
No. CV03 0349612 S
September 14, 2004
MEMORANDUM OF DECISION
This action comes before the court on the defendant's motion to strike the complaint. The plaintiff, Timothy Halloran, brought this action against the defendant, the town of Ridgefield, for injuries he allegedly sustained after falling due to a defective, dangerous and uneven surface condition in a municipal parking lot. According to the complaint on July 19, 2001, Halloran parked his vehicle in the municipal lot located adjacent to Bailey Avenue in Ridgefield, Connecticut. After he exited the vehicle and was walking across the lot he tripped on the uneven pavement and was injured.
Halloran filed a two-count complaint against Ridgefield claiming his injuries were the direct and proximate result of the negligence and/or carelessness of Ridgefield, its agents, servants and/or employees. The first count was brought under General Statutes § 7-465 and the second count was brought under General Statutes § 13a-149, the defective highway statute. Proper notice of the accident, the plaintiff's injuries and plaintiff's intention to bring this action was served on the Town Clerk of Ridgefield as required under both statutes. Ridgefield now moves to strike the complaint claiming Halloran has failed to state a claim upon which relief can be granted. More specifically, the defendant claims, as to count one, that General Statutes § 7-465 is derivative in nature and does not create a right of action against the city and, as to count two, that General Statutes § 13a-149 does not apply to municipal parking lots.
General Statutes § 7-465 provides in 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 . . . 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 . . . Any employee of such municipality, although excused from official duty at the time, for the purposes of this section shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such employee. No mention of any kind shall be made of such statement by any counsel during the trial of such action . . . Nothing in this section shall be construed to abrogate the right of any person, board or commission which may accrue under section 10-235.
General Statutes § 13a-149 provides,
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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"[I]t is the settled law of this state that a municipal corporation is not liable for negligence in the performance of a governmental function . . . This court has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . We have also recognized, however, that governmental immunity may be abrogated by statute . . . Thus, The general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Citations omitted; internal quotation marks omitted.) Williams v. New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1993).
In the first count, Halloran relies on General Statutes § 7-465 as the basis for abrogating governmental immunity and imposing liability on Ridgefield. "Our Supreme Court in . . . [deciding] a claim under General Statutes § 7-465 . . . held that any municipal liability must be predicated upon prior findings of individual negligence on the part of the municipal employee." (Citations omitted; internal quotation marks omitted.) Tryon v. North Branford, 58 Conn.App. 702, 718, 755 A.2d 317 (2000). "Whatever may be the full scope and effect of the statute, in no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [him] by law for physical damages to person or property." (Internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 (1972). When asserting a claim under General Statutes § 7-465, "[t]he complaint should be in two counts: the first, alleging the facts essential to the legal liability of the employee, and the second, the facts essential to the legal liability of the municipality under the statute." Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856 (1961).
It is clear under Connecticut case law that General Statutes § 7-465 does not impose liability on a municipality and, therefore, does not abrogate the doctrine of governmental immunity. Since Halloran has failed to name an employee of the town as a defendant, he has not stated a cause of action upon which relief may be granted against Ridgefield under § 7-465. Therefore, the defendant's motion to strike must be granted as to count one.
In the second count, Halloran relies on General Statutes § 13a-149 as the basis for abrogating governmental immunity and imposing liability on Ridgefield. "A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, [a]ny 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." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
"[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.) Id. at 342. A municipality's duty under the statute "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 . . . Nor does the defect have to be on the actual traveled portion of the highway." (Citations omitted; internal quotation marks omitted.) Id. at 342-43. "[The] court must look to the facts alleged and determine if a highway defect is being alleged . . ." (Internal quotation marks omitted.) Whitfield, PPA v. Enfield, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV97 0572428 (March 10, 1998, Teller, J.).
Looking to the complaint, it is noted that the plaintiff alleges that he parked his car in a municipal lot, exited the car and proceeded to trip over an uneven surface in the pavement, falling and severely injuring himself. Ridgefield, in its motion to strike, cites several Superior Court cases which stand for the proposition that General Statutes § 13a-149 does not apply to municipal parking lots. See, Gaylor v. West Hartford, Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. CV 391374 (May 9, 1994, Sheldon, J.) ( 11 Conn. L. Rptr. 508); Gough v. Fairfield, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV88 252475 (July 9, 1992, Lewis, J.) ( 7 Conn. L. Rptr. 50); Alfano v. Litchfield, Superior Court, Judicial District of Litchfield, Docket No. CV 0057686 (April 13, 1992, Pickett, J.) ( 6 Conn. L. Rptr. 303); Appleton v. Kendra, Superior Court, Judicial District of Hanford/New Britain at Hartford, Docket No. CV 362337 (October 22, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 158); Rotella v. Waterbury, Superior Court, Judicial District of Waterbury, Docket No. CV 83537 (May 31, 1989, Langenbach, J.).
While these cases are convincing, the Supreme Court has stated in several instances that when interpreting the scope of General Statutes § 13a-149, we may look to the manner in which the courts have construed § 13a-144 which is the analogous state defective highway statute. "To the extent that their language and purpose overlap . . . §§ 13a-144 and 13a-149 have always been read in concert." Smith v. New Haven, 252 Conn. 56, 64 n. 6, 779 A.2d 104 (2001). "[T]here is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by . . . § 13a-149." Prato v. New Haven, 246 Conn. 638, 650 n. 1, 717 A.2d 1216 (1998).
As such, a review of case law under General Statutes § 13a-144 concerning claims rising out of parking lot defects is merited. In Baker v. Ives, the plaintiff fell on an area generally used for parking between the paved highway and sidewalk. The court said, "[n]or does the defect have to be on the actual traveled portion of the highway." Baker v. Ives, 162 Conn. 295, 299, 294 A.2d 290 (1972). The Baker court went further stating, "[w]hether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis . . . and is generally a question of fact for the jury . . ." Id. at 300. The court further added, "[t]he fact that the defective condition was in an area which an occupant of an automobile was likely, and in fact encouraged, to use is an important consideration." Id. at 301-02. In Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999), the court again reviewed § 13a-144 and whether it applied to a fall at a state-maintained rest area. The Serrano court followed the Baker court, holding that the issue of an alleged defect in a rest area parking lot and whether it was a defect under General Statutes § 13a-144 was one for the finder of fact. Id. at 429. "In Baker, although we did not specifically conclude that parking lots were covered by § 13a-144, neither did we conclude that as a matter of law, parking lots were excluded from coverage under § 13a-144. Rather, we set out a fact-based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway as provided by § 13a-144." Id. at 427. The Serrano court held that § 13a-144 applies to "defect[s] in such proximity to the highway so as to be considered in, upon, or near the traveled path." Id. at 429.
Therefore, parking lots are not necessarily excluded from the purview of General Statutes § 13a-149 and the motion to strike count two of the complaint should be denied.
For the foregoing reasons, the defendant's motion to strike the complaint is granted as to count one and denied as to count two.
Richards, J.