Opinion
CV156008387S
12-06-2016
Francisco Hernandez v. City of Meriden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #114
John F. Cronan, Judge.
I
SUMMARY JUDGMENT STANDARD
" 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 . . . [T]he 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).
The determination " 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, 290, 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 in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
II
APPLICATION OF GENERAL STATUTES § 13a-149
The highway defect statute imposes a statutory duty on municipalities to keep their highways in good repair, and thus, enables a plaintiff to recover damages from a municipality resulting from injuries due to a highway defect. In relevant part, 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 . . ." Connecticut " cases clearly hold that a cause of action under § 13a-149 is not based upon negligence. It is settled law in this state that the liability of the defendant under § 13a-149 is purely for breach of statutory duty and does not arise from negligence." (Internal quotation marks omitted.) Pellecchia (Estate of Pellecchia) v. Conn. Light & Power Co., 147 Conn.App. 650, 658, 83 A.3d 717 (2014). " Our Supreme Court has construed the word road or highway, as used in § 13a-149, to include the shoulders of the roadway as well as sidewalks." Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 814, 92 A.3d 1016 (2014). In order to trigger the application of § 13a-149, a plaintiff must meet the following two criteria: " (1) the plaintiff must have sustained an injury by means of a defective road or bridge, 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 marks omitted.) Cuozzo v. Orange, 147 Conn.App. 148, 158-59, 82 A.3d 647 (2013), aff'd, 315 Conn. 606, 109 A.3d 903 (2015).
After establishing that she has a valid claim under § 13a-149, a plaintiff must prove that the municipality breached its statutory duty required by that section. " To recover under § 13a-149. a plaintiff must prove, by a fair 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, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn.App. 563, 573-74, 12 A.3d 1032 (2011).
A
Establishing the Defect
First, " [w]hether 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.) Cuozzo v. Orange, supra, 147 Conn.App. 159. " [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.) Escourse v. 100 Taylor Avenue, LLC, supra, 150 Conn.App. 812-13. Further, " [a] highway is defective within the meaning of § 13a-149 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 . . . If in the use of the traveled portion of the highway . . . a condition exists which makes travel not reasonably safe for the public, the highway is defective." (Citation omitted; internal quotation marks omitted.) Read v. Plymouth, 110 Conn.App. 657, 664, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).
Courts have provided several examples of conditions that were considered highway defects. In Ferreira v. Pringle, 255 Conn. 330, 332, 766 A.2d 400 (2001), the defect was the remaining part of a severed steel signpost embedded in the ground on a grassy embankment that caused the plaintiff to trip and fall into the roadway. In Lombardi v. East Haven, supra, 126 Conn.App. 574, the relevant defect was a three inch raised concrete slab on the sidewalk that caused the plaintiff to trip and fall. In DeMatteo v. New Haven, 90 Conn.App. 305, 310, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005), the defect was a portion of a signpost rising approximately one and one-half inches upward from the sidewalk that caused the plaintiff to trip and fall. Finally, in Nicefaro v. New Haven, 116 Conn.App. 610, 616, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009), the defect was a decorative metal plate around a tree that had risen from the sidewalk caused by growth of the tree's roots.
B
Notice of the Defect at Issue
Second, the municipality must have actual or constructive notice of the defect at issue that breaches their statutory duty to keep the highways reasonably safe. Prato v. New Haven, 246 Conn. 638, 642-43, 717 A.2d 1216 (1998). Simply stated, " [t]he duty of the municipality is to maintain its streets in a reasonably safe condition for travelers thereon; the care required obviously being greater over the sidewalk than over the traveled way . . . [A] municipality fulfills its entire duty under the statute when it makes the highway reasonably safe in view of its proper use, and of those events which may naturally be expected to arise as incident to that use, by the traveling public." (Internal quotation marks omitted.) Frechette v. New Haven, 104 Conn. 83, 87-88, 132 A. 467 (1926). " The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001). " The existence of constructive notice is a question of fact . . . (Internal quotation marks omitted.) Lombardi v. East Haven, supra, 126 Conn.App. 574. " [T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." (Internal quotation marks omitted.) Id., 575. Ultimately, " the test for constructive notice is whether the defect . . . would have been discovered had the defendant exercised reasonable supervision over its streets and sidewalks as a whole . Therefore, the duty imposed on the defendant is to exercise reasonable supervision over its streets and sidewalks as a whole, and not to inspect any particular portion of the sidewalks or roads." (Emphasis in original.) DeMatteo v. New Haven, 90 Conn.App. 305, 310, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).
The defendant argues that common-law negligence cases such as Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), and Cruz v. Drezek, 175 Conn. 230, 397 A.2d 1335 (1978), apply for the notice requirement. These cases apply to actual and constructive notice in the context of traditional premises liability cases, specifically the duty of an owner to an invitee. In those cases, a plaintiff must point to the specific defective condition that caused his injuries and prove that the defendant failed to remedy that condition after receiving adequate notice. As explained in Pellecchia (Estate of Pellecchia) v. Conn. Light & Power Co., supra, 147 Conn.App. at 658, recovery against a municipality in a highway defect case occurs exclusively through § 13a-149 and not through a traditional negligence theory. Once the court has determined that the defect complained of is a defect for the purposes of a § 13a-149 action, it is a question of fact whether the defendant had notice of the defect, whether the defendant failed to remedy the defect, and whether the defect was the sole proximate cause of the plaintiff's injury. See sections C and D, infra, for discussions of the last two elements. In addition, the defendant argues that the plaintiff cannot fulfill the notice requirement because he misidentified the concrete structure that allegedly caused his fall, and that the plaintiff's account of the incident is not consistent with the location of the concrete structure he alleges is the defective condition. The determination of the truthfulness or accuracy of the plaintiff's recollections are questions of fact. Nicefaro v. New Haven, 116 Conn.App. 610, 619, 976 A.2d 75 (2009). Further, the trier of fact is " free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Id. For this case, the location of the alleged defect and whether it was the sole proximate cause of the plaintiff's injuries would be a material fact because it would make a difference in the outcome of the case. See Stuart v. Freiberg, supra, 316 Conn. 821. Thus, summary judgment is inappropriate at this time due to a dispute of material facts.
C
Failure to Remedy the Defect at Issue
Third, if the facts indicate that the defendant had notice of the defect, the plaintiff must show that the defendant failed to remedy the defect despite having knowledge of it. " [L]iability under the highway defect statutes is premised on the existence of and the failure to remedy a defect, rather than on negligence in creating or allowing a nuisance or other obstruction to present a danger to travelers." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, supra, 150 Conn.App. 815. " The accepted general rule looks constantly to the ever changing circumstances of situations, and its keynote throughout is reasonableness in view of the circumstances as they appear upon each occasion." (Internal quotation marks omitted.) Nicefaro v. New Haven, supra, 116 Conn.App. 615-16.
D
Defect at Issue Must be Sole Proximate Cause of Injury
Finally, " [b]ecause a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence . . . To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill." (Citations omitted; internal quotation marks omitted.) Id., 621. " Whether the plaintiff was contributorily negligent is a question of fact . . ." Lombardi v. East Haven, supra, 126 Conn.App. 577. The plaintiff in Lombardi testified that " she was wearing sneakers, she was looking around and ahead, she was not distracted with a cell phone or a music device and she was not running. As the sole arbiter of credibility, the jury was free to credit that testimony and to find that the plaintiff exercised due care." Id., 578. Given the focus on the facts and circumstances surrounding the actions of the plaintiff in § 13a-149 cases, the determination of sole proximate cause is an issue of fact.
CONCLUSION
The court finds that there are outstanding issues of fact. The Motion for Summary Judgment is Denied.