Opinion
WWMCV166010934S
05-07-2018
Jane Howeson v. Housing Authority of the City of Willimantic
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Cole-Chu, Leeland J., J.
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#129)
Cole-Chu, J.
The complaint of the plaintiff Jane Howeson against her landlord, the defendant Housing Authority of the City of Willimantic, is pursuant to General Statutes § 8-67. The complaint is in two counts arising from an alleged " slip and/or fall on a patch of ice and/or snow" in the " courtyard behind [her] apartment building," the first count being for negligence and the second for private nuisance. The defendant pleaded, as its second special defense to both counts, that the plaintiff’s alleged injuries were caused at least in part by her own negligence and, therefore, General Statutes § 13a-149 bars her claim.
General Statutes § 8-67 permits timely actions by persons " injured ... within boundaries of property owned or controlled by [a housing] authority, for which injury such authority is or may be liable ... provided written notice of the intention to commence such action ... has been filed with the chairman or the secretary of the authority ..." The plaintiff’s notice required by § 8-67 is attached to the complaint.
On November 16, 2017, the plaintiff moved for summary judgment on the second special defense, with evidence. The defendant filed an opposing brief, also with evidence. The motion was argued and submitted on January 29, 2018.
Section 13a-149 provides, in pertinent part, that " [a]ny person injured ... by means of a defective road or bridge may recover damages from the party bound to keep it in repair."
The essence of the present motion is that, as a matter of law, § 13a-149 does not bar either count of the complaint because neither alleges, or can reasonably be characterized as alleging, that the plaintiff’s claimed injury was by means of a defective road or bridge. The essence of the defendant’s opposition is that whether the defect claimed by the plaintiff was a defect in a road, for purposes of § 13a-149, is a material question of fact preventing the conclusion that the plaintiff is entitled to judgment on the second special defense as a matter of law.
To recover under § 13a-149, the sole proximate cause of the plaintiff’s injuries must be a road (or bridge) defect. Smith v. New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001). Neither of the plaintiff’s counts claims to be under § 13a-149. " To fall within [§ 13a-149, it would be enough if a] person [is] on the highway for some legitimate purpose connected with travel thereon." (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 342-43, 766 A.2d 400 (2001). See Pellecchia v. Connecticut Light & Power Co., 147 Conn.App. 650, 657, 83 A.3d 717 (2014) (absence of reference to § 13a-149 in a complaint does not preclude court from construing complaint to be under § 13a-149).
In this case, neither count mentions any road or any sidewalk along, or serving, any road. The unchallenged evidence is that one cannot get a snowblower to the subject courtyard unless one brings it through the apartment building owned by the defendant and in which the plaintiff was a tenant. Whether the plaintiff’s allegations, taken as true, constitute a defect in a road within the meaning of § 13a-149 is a question of law. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991). The defendant implicitly admits that neither count of the complaint is, despite its label, under § 13a-149 because the defendant has not pleaded the certain bar of the plaintiff’s claims based on failure of the plaintiff to give the defendant the written notice of claim required by the statute. See Ferreira v. Pringle, supra, 255 Conn. 340. The court concludes from examination of the complaint that neither count is, in effect, a claim under § 13a-149. The interpretation of pleadings is always a question of law for the court. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). " [W]hat constitutes a ‘road ...’ under ... § 13a-149 has expanded over the years such that clarity is now somewhat lacking." Pramulka v. Cromwell, 160 Conn.App. 863, 878 n.10, 127 A.3d 320, cert. denied, 320 Conn. 908, 128 A.3d 952 (2015). That lack of clarity as to what a road is for purposes of § 13a-149 is not such that this court can conclude that there is a triable issue of fact in this case as to whether a walkway separated from any road or highway by an apartment building is a road, or part of a road, for purposes of § 13a-149 and its sole proximate cause standard.
Section 13a-149 provides in relevant part that " [n]o action ... shall be maintained against any ... corporation ... 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 the secretary or treasurer of such corporation." The plaintiff does not claim she gave such notice.
In addition, and more fundamentally, the defense of the bar of contributory negligence based on the sole proximate cause requirement of § 13a-149 only applies to claims based on § 13a-149. See, e.g., Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 502, 876 A.2d 1148 (2005) (party seeking to invoke § 13a-149 " must bring himself within the ambit of the state highway defect statute" ). Just as a plaintiff cannot bring what is really a road or highway defect claim under a different label to avoid the sole proximate cause requirement; Pellecchia v. Connecticut Light & Power Co., supra, 147 Conn.App. 657; a defendant cannot impose the sole proximate cause requirement on a claim which is not under § 13a-149. If the subject defense were allowed in this case, the imagination strains to perceive any outdoor place where people walk which is owned or controlled by a public entity to which the defense here challenged could not be pleaded. The result would be unjustified complication of cases, and confusion and distraction of juries.
For the foregoing reasons, the plaintiff’s motion for summary judgment on the defendant’s second special defense is granted.