Opinion
UWYCV096001786S
03-28-2017
Robert P. Hanahan v. David Oakes et al
UNPUBLISHED OPINION
Filed March 29, 2017
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #169
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff, Robert P. Hanahan, as administrator of the estate of Christopher J. Sacco, initiated this action by way of writ, summons, and complaint dated August 13, 2009. The plaintiff named as defendants David Oakes, Coil Plus, Inc., Coil Plus-Connecticut, Inc., James Baiardi, Joseph Budris, the Commissioner of the Department of Transportation, Joseph F. Marie, and the town of Bethlehem. Count five of the plaintiff's complaint alleges a violation of Connecticut General Statues § 13a-149 against the defendant town of Bethlehem (hereafter the defendant). On August 19, 2016, the defendant filed a motion for summary judgment. The motion included a memorandum of law and exhibits in support to the motion. On December 19, 2016, the defendant filed a reply to the plaintiff's objection to the motion for summary judgment. The matter was heard at short calendar on December 19, 2016.
The action has been withdrawn as to all individual defendants except the town of Bethlehem and Joseph F. Marie, Commissioner of the Department of Transportation.
II. FACTUAL BACKGROUND
The following facts were alleged against the defendant in count five of the plaintiff's complaint. On August 18, 2007, Sacco, the plaintiff's decedent, was operating a 2006 Suzuki motorcycle and traveling in a northeasterly direction on Route 132 in Bethlehem, Connecticut. At the same time, Oakes was operating a 2003 Ford truck with an attached trailer and traveling in a southwesterly direction on Route 132 in Bethlehem. As Oakes attempted to turn left across the eastbound lane of Route 132 onto Nonnewaug Road, the decedent's motorcycle collided with Oakes's trailer. The collision caused the decedent to sustain injuries, eventually leading to his death. The plaintiff alleges that the injuries and losses the decedent sustained were due to a defect affecting the area of Nonnewaug Road and Route 132. Specifically, the plaintiff alleges that the decedent sustained his injuries because the defendant, Town of Bethlehem, (" Town") knowingly allowed left turns at a hazardous and sharp angle of the road while failing to maintain a clear sight line and failing to provide sufficient traffic controls and signs. The plaintiff alleged the same negligent acts on the part of the State of Connecticut, Department of Transportation. The plaintiff alleged more specifically as to the Town that it permitted the overgrowth of shrubs, bushes and vegetation which caused a sight line defect in the area where Nonnewaug Road is located perpendicular to Route 132.
III. 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . 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; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " The party, seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, Id. " To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and therefore, cannot refute evidence properly presented to the court under Practice Book § 17-45." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty to the particular situations at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
As a threshold question, the court must determine the admissibility of the existence provided by the defendant. In support of the motion for summary judgment, the defendant submitted the following evidence: (1) the plaintiff's disclosure of expert witness and curriculum vitae of Michael Cei, an accident reconstructions specialist and mechanical engineer; (2) Cei's report of findings on the decedent's accident; (3) the signed and sworn affidavit of Leonard Assard, the defendant's first selectman; and (4) a certified copy of the defendant's 2014 TRU Map.
" [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert denied, 310 Conn. 915, 76 A.3d 628 (2013). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that he offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Conn., Inc., 116 Conn.App. 459, 467, 976 A.2d 23 (2009). However, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present matter, inasmuch as the affidavit of Assard is based on his personal knowledge and the defendant's 2014 TRU Map is certified, the documents meet the requirements of admissibility of evidence. In addition, neither party has objected to the submission of any evidence. In its memorandum of law in support of the motion for summary judgment, the defendant argues that there is no genuine issue of material fact as to whether it is liable to the plaintiff in this defective highway suit, and thus it is entitled to summary judgment. Specifically the defendant argues the following: (1) the evidence establishes that the defendant is not the party that owned, controlled, or maintained the area where the accident occurred, but rather, the defective highway is owned, controlled, and maintained by the state of Connecticut; (2) the allegations of negligence as against the defendant are based upon a theory of design defect and thus are not actionable under § 13a-149; and (3) the plaintiff cannot establish that any alleged defect existed on the defendant's Nonnewaug Road that was the sole proximate cause of the plaintiff's injuries. In response, the plaintiff argues that there are genuine issues of material fact that preclude summary judgment. Specifically, the plaintiff argues the following: (1) the accident occurred at an intersection which was partially owned, controlled, and maintained by the defendant, and the accident would not have occurred if it were not for the fact that Oakes was turning onto the road which was owned, controlled, and maintained by the defendant; (2) the plaintiff's evidence shows that the sole proximate cause of the accident is the restricted sight line applicable only for left turning vehicles onto Nonnewaug Road; and (3) the defendant maintained a hazardous condition for an extended period of time at the subject intersection when it could have remedied the condition by either eliminating or controlling the left turn. In its reply to the plaintiff's objection, the defendant counters with the following arguments: (1) according to the investigation conducted by the plaintiff's expert, the vegetation defect alongside Route 132 impeded the sight line of both operators, and it is the state of Connecticut, acting through its Department of Transportation, that Is bound to keep Route 132 in proper repair; (2) there is no evidence that Nonnewaug Road was defective in any way, but rather the plaintiff attempts to connect the road's proximity or connection to the defect on Route 132 as making Nonnewaug in some manner defective and in need of repair, and § 13a-149 does not make a party liable for such defective design, and (3) a failure to post signs or restrict left hand turns does not constitute an obstruction or condition near the highway to support a claim pursuant to 13a-149.
The remaining allegations in the complaint provide only one allegation in Paragraph 7 as to the Town. It alleges that Bethlehem created and/or maintained a hazardous intersection in that sight line obstructions by trees, brush, shrubs . . . other matter caused the alleged sight line defects.
General Statutes § 13a-149 provides in relevant part: " Any person injured in person or property by means of defective road or bridge may recover damages from the party bound to keep it in repair."
" [O]ur legislature has established general principles of municipal liability and immunity, providing that political subdivisions of the state may be sued for creating or participating in the creation of a nuisance . . . The municipal liability statute also specifically provides, however, that no cause of action (in nuisance] shall be maintained [against a municipality] for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149 . . . Therefore, although [l]iability in nuisance can be imposed on a municipality . . . if the injury complained of was caused by a highway defect on a town road, the plaintiff's only recourse against the town is to pursue a claim under § 13a-149 . . . Additionally, because [t]he highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law . . . [it] must be strictly construed." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 811-12, 92 A.3d 1016 (2014).
" The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road . . . and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation mark omitted.) Himmelstein v. Town of Windsor, 116 Conn.App. 28, 42 n.12, 974 A.2d 820 (2009) aff'd. 304 Conn. 298, 39 A.3d 1065 (2012). General Statutes § 13a-99 provides in relevant part that " [t]owns shall, within their respective limits, build and repair all necessary highways and bridges . . . except when such duty belongs to some particular person . . ." General Statutes § 13a-140 further provides in relevant part: " No person, firm or corporation, and, no officer, agent or employee of any municipal or other corporation shall cut, remove, or prune any tree, shrub or vegetation situated partially or wholly within the limits of any [state] highway without first obtaining from [the commissioner of the Department of Transportation] a written permit therefor . . ."
In the present case, the defendant adopts the findings of the plaintiff's expert accident reconstruction specialist and engineer witness, Michael Cei. In his report of findings, Cei concluded that the sole proximate cause of the subject accident was the restricted sight line at the intersection of Route 132 and Nonnewaug Road, caused by the heavy off-road vegetation and trees on the north side of Route 132. The defendant's first selectman, Leonard Assard, testified that Route 132 is owned, controlled and maintained by the state of Connecticut and that the defendant does not own, control, or maintain any part of Route 132 nor is it responsible for any trimming vegetation along the roadway. There is uncontroverted evidence that the accident which involved the plaintiff's decedent occurred entirely on Route 132 and there was no part of the accident occurring on Nonnewaug Road. Nevertheless, the plaintiff argues that the defendant had a statutory duty to ensure that the subject intersection was safe in its entirety by virtue of owning what he terms an " integral portion" of the intersection, Nonnewaug Road. In making this assertion, the plaintiff fails to state any statutes which suggest that the defendant is responsible to maintain vegetation along a state-owned highway, and further ignores § 13a-140, which prohibits any municipal agent from maintaining vegetation along a state highway unless given express permission by the commissioner of the Department of Transportation. The plaintiff's attempts to bootstrap the responsibility for Nonnewaug Road to the main highway road which intersects this municipal road. The fact that Nonnewaug Road feeds into Route 132 does not create any duty upon the municipality. Additionally, the plaintiff has failed to support its claim that the overgrowth on Route 132 has any factual or legal basis. The plaintiff further argues that where the design defect of the intersection provides for the entrance of a town road onto a state highway at a sharp curve and angle, the defendant is responsible to do what is necessary to eliminate the hazard. " 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.) Stotler v. Department of Transportation, 313 Conn. 158, 167, 96 A.3d 527 (2014). " [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 . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for pubic travel . . ." (Citations omitted; internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, supra, 150 Conn.App. 812-13. " [A] defect in the plan upon which [a] highway [is] constructed . . . [does] not [come] within the [defective highway] statue . . . [Thus] injuries which it may occasion to travelers cannot be made the subject of any action in their favor." Stotler v. DOT, 313 Conn. 158, 171, 96 A.3d 527. If, however, " a defect in the plan of construction should be so great as soon to require repairs in order to make the highway safe for travel, a neglect to make these repairs might [support] an action, but the plaintiff's case would be no stronger than if the road had been originally built in the best manner." (Internal quotation marks omitted.) Id., 172.
There is not a scintilla of evidence that the town of Bethlehem was in any way involved in the ownership, design, maintenance or the repair of Route 132.
" In Stolter, citing McIntosh v. Sullivan, 274 Conn. 262, 875 A.2d 459 (2005), the Supreme Court explained that, there, the court determined that the plan of design providing for the location of the highway next to a rocky cliff in combination with the absence of adequate warning signs and a barrier to prevent falling rocks from entering the highway, did not render the highway defective within the meaning of the defective highway statute . . . The absence of adequate warning signs and tangible safety measures is not a cognizable highway defect because it does not constitute an object or condition in . . . the travelled path which would necessarily obstruct or hinder one in the use of the road for the purpose of travel thereon." (Citation omitted; internal quotation marks omitted.) Hanahan v. Oakes, Superior Court, judicial district of Waterbury, Docket No. CV-09-6001786, (September 4, 2015, Shapiro, J.).
In the present case, neither the sharp curve and angle nor the alleged failure to eliminate or otherwise control the left turn at the intersection of Route 132 and Nonnewaug Road amount to an object in, upon or near the highway which would necessarily obstruct travel. Since they do not constitute an obstruction or condition in, upon, or near Nonnewaug Road, the plaintiff's allegations are not actionable under the defective highway statute.
CONCLUSION
The plaintiff has not introduced any credible evidence that Nonnewaug Road is a defective highway pursuant to C.G.S. § 13a-149. Additionally, the plaintiff has not introduced any factual or legal basis that would create a duty for the town of Bethlehem to trim, cut or remove any off-road vegetation on the State-owned, -controlled and -maintained highway, Route 132. The motion for summary judgment is granted as to Count five as to the town of Bethlehem.