Opinion
No. CV 03 0564377
November 1, 2005
MEMORANDUM OF DECISION RE INTER ALIA, WHETHER CITY LIABLE, BECAUSE OF POSITIVE ACT, FOR INJURY TO PATRON OF CITY-RUN PARKING GARAGE
On April 10, 2003, the plaintiff, Kerry Krassner (formerly Lisinski), filed a four-count amended complaint against the defendant, the City of New London (City). In count one, the plaintiff alleges that on February 11, 2002, due to a defective and dangerous condition, she fell and injured herself at a municipal parking garage owned and operated by the City defendant. The garage is located at 60 Water Street in the City of New London. The defective and dangerous condition is alleged to have been a one-foot and eight and one-half inch long hole in the concrete floor of the garage. In this count the plaintiff asserts a claim of negligence pursuant to General Statutes § 52-557n(a)(1)(A) in that she alleges, inter alia, that through its agents, servants, officers or employees, the City permitted public access to the defective parking garage, even though it knew or reasonably should have known of the dangerous condition; failed to regularly inspect the parking garage to determine whether it was safe for passage; failed to repair the defect; failed to warn the plaintiff of the hazardous condition existing in the garage; and permitted the garage to remain in a dangerous condition despite actual knowledge that the condition existed. In count two, the plaintiff asserts a claim of negligence pursuant to General Statutes § 52-557n(a)(1)(B) and reiterates the facts alleged in count one.
In the plaintiff's memorandum of law in support of her objection to the motion for summary judgment, it is revealed that the plaintiff is now known as Kerry Krassner.
In count three, the plaintiff asserts a claim of public nuisance pursuant to General Statutes § 52-557n(a)(1)(C). The plaintiff, incorporating the same facts of counts one and two, alleges, inter alia, that "[t]he defective condition of said parking garage . . . was a public nuisance, or in the nature of a public nuisance, which [d]efendant created, permitted, continued, and/or maintained, all of which the City knew, or in the exercise of due care should have known, or foreseen, or guarded against, and the [d]efendant failed to abate, remedy, or guard against entry from the same to the plaintiff and others lawfully using said public parking garage."
In count four, the plaintiff claims a cause of action under General Statutes § 13a-149 which allows for damages for injuries caused by means of defective roads and bridges. The plaintiff alleges that "there had existed on . . . level 1A of said parking garage approximately twenty-five (25) feet south of the exit ramp to the lower level, and in a location proximate to the public highway, a defective and dangerous condition . . . in that the concrete had become broken and misplaced so as to leave a hole in said concrete floor about one (1) foot and eight and one half (8 1/2) inches in length."
The City has filed a motion for summary judgment, with an accompanying memorandum of law, on the grounds that counts one, two and three, which are brought pursuant to § 52-557n, are all barred by the doctrine of governmental immunity and should be dismissed as a matter of law; and that count four, brought pursuant to § 13a-149 should also fail as a matter of law because the plaintiff was allegedly not injured on a highway or an area incidental to travel on the highway. The City submits as evidence the signed and sworn affidavit of the director of the office of development and planning for the defendant, the certified deposition testimony of the plaintiff and case law.
The plaintiff has filed a memorandum of law in opposition to the motion for summary judgment on the asserted ground that genuine issues of material fact exist as to the three exceptions that bar governmental immunity, as set forth in § 57-557a(1)(A) through (C), and that there are genuine issues of fact supporting the plaintiff's claims under § 13a-149. As evidence, the plaintiff submits her own signed and sworn affidavit, a parking management agreement between the City and ProPark, Inc. (a facilities management company), a condition appraisal of the Water Street parking garage, a revenue and expense sheet by ProPark, Inc., indicating net profits generated by the parking facility, and case law.
Because there is no objection to the plaintiff's use of uncertified documentary evidence, the court will consider such documents in ruling on the motion for summary judgment. See Farina v. Modzelewski, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 0075133 (November 10, 2004, Curran, J.T.R.) ( 38 Conn. L. Rptr. 261, 262 n. 1).
The motion for summary judgment is now before the court.
Standard re Motion for Summary Judgment
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
In count one, the plaintiff brings a negligence claim pursuant to § 52-557n(a)(1)(A). Section 52-557n(a)(1) provides in 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 . . ." However, as the City argues, General Statutes § 52-557n(a)(2) creates exceptions where liability for negligent conduct will not lie against a political subdivision of the state. Section 52-557n(a)(2) states in relevant part that: "a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
"[A]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." (Emphasis in original; internal quotation marks omitted.) Heigl v. Board of Education. 218 Conn. 1, 4, 587 A.2d 423 (1991). "Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit, and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n(a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute . . . negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n(a). The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n(b)." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert denied, 261 Conn. 941, 808 A.2d 1132 (2002).
"[A] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts . . ." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Heigl v. Board of Education, supra, 218 Conn. 5.
"[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937 (1998). "[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . ." (Citations omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "It becomes a question of law if the nature of the acts complained of is apparent from the complaint . . . that is, if the complaint leaves no room for reasonable disagreement as to the nature of the acts complained of." (Citations omitted; internal quotation marks omitted.) Bentley v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0403487 (September 4, 2001, Zoarski, J.).
In the present case, the City presents the affidavit of Bruce Hyde, who is the director of the office of development and planning, and the director of real estate, and staff to the parking commission for the City. Bruce Hyde avers that the City entered into an agreement with ProPark, Inc. in which ProPark agreed to manage and operate the parking garage for the City. This agreement provided for repairs, alterations, and maintenance in the parking garage. Additionally, Bruce Hyde avers that the City has not had any mandatory procedures or directives concerning the maintenance of the parking garage and that the manner of maintenance has been through discretionary acts.
To counter the foregoing evidence, the plaintiff has submitted a management agreement between ProPark, Inc. and the City. The agreement states that ProPark, Inc. agrees to "perform all services necessary for the care, protection, maintenance and operation of the facilities including but not limited to: . . . (b) manage and operate the FACILITIES in accordance with the parking industry standards for a first class parking facility . . . (q) notify[ing] the OWNER . . . of any unusual conditions which may develop in the operation of the FACILITIES or to the FACILITIES such as . . . fire, flood, breakage, or casualty damage to the facilities, or to any person or the property of any person alleged to be caused by the use or operation of the FACILITIES . . . (w) the operator agrees to keep the facilities, floors, walls, roadways, driveways, aisles, parking spaces, walkways, stairways, elevators, bathrooms, and offices free of dirt, dust and debris." The plaintiff argues that "ProPark was required, without the exercise of discretion, to perform the inspection, maintenance, and repair of damage to the garage of the nature that caused the plaintiff's injuries, and was specifically required, without the exercise of discretion, to keep the facilities, including its floors, driveways, parking spaces and walkways, free of dirt, dust and debris."
In Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), the plaintiff student was walking down a walkway on the campus of Central High School in Bridgeport when she slipped and fell on an accumulation of snow and ice on the walkway. The defendants argued on appeal that the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkway was a discretionary function, and that, at trial, the jury should have decided whether the doctrine of governmental immunity should apply. The court stated that "[a] determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor." The court held that the issuance of a bulletin by the board of education to all maintenance personnel to inspect and keep clean the walkways of snow and ice created a ministerial act to be performed by the personnel. The court held further that "[w]e will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." Id., 281.
In Videll v. New London, Superior Court, judicial district of New London, Docket No. CV 03 0565386 (May 17, 2005, Hurley, J.), the plaintiff claimed, inter alia, negligence against the City, pursuant to § 52-557n(a), for injuries sustained when a window fell out of its casing onto the plaintiff. The plaintiff alleged that the City was negligent in its inspection, maintenance and repair of the window, and that the City's maintenance of the window did not conform with a maintenance code. The City moved for summary judgment arguing that the plaintiff's claim was barred by governmental immunity. The parties conceded that the City had adopted a maintenance code prior to the accident. The City argued, however, that the maintenance code did not make the acts of inspection, maintenance and repair ministerial because it did not dictate the manner in which the inspection was to be performed. The court found that "[a]n issue of fact remains regarding whether the City of New London's failure to adequately inspect and repair the window was ministerial or discretionary in nature . . . The City has a maintenance code that would have prevented the accident if it had been followed, but the code does not dictate how or when to fix the problem with the window. There are no Connecticut cases that have decided such an issue by law. Therefore, the defendant's motion for summary judgment is denied because an issue of fact remains as to whether the City's actions were ministerial or discretionary." Id. See also Bentley v. New Haven, supra, Superior Court, Docket No. CV 97 0403487 (where the plaintiff sued the defendant municipality for, inter alia, negligence in its failure to inspect a park monument alleged to be in a dangerous condition; the court could not decide as a matter of law whether alleged acts were discretionary. The failure to inspect could be ministerial because the defendant could be required to conduct periodic inspection of the park in a prescribed manner.
In the present case, the plaintiff supplies, in her opposition to the motion for summary judgment, rebuttal evidence that ProPark was bound by an agreement to inspect, maintain and repair damages to the garage of the nature that caused the plaintiff's injuries. The agreement does state that ProPark is to notify the City of conditions such as breakage and casualty and ProPark is to keep the facility's floors, walls, roadways, driveways, aisles, parking spaces, walkways and stairways free of dirt, dust, and debris. Moreover, the agreement states that ProPark is to manage and operate the facilities in accordance with the parking industry standards for a first class parking facility. Here, as in Kolaniak, Videll and Bentley, the plaintiff alleges a failure to inspect, and produces evidence that demonstrates that ProPark was bound by an agreement with the City to manage and maintain the garage under standards for a first class parking facility.
In footnote 4 of Kolaniak, the Supreme Court acknowledges that "whether the act complained of . . . [are] governmental or ministerial is a factual question which depends upon the nature of the act complained of . . ." (citation omitted). Id. at 280. This court finds that there are genuine issues of fact as to whether the City's alleged failure to inspect and repair are ministerial or discretionary in nature. Accordingly, the defendant's motion for summary judgment as to count one is denied.
In count two, the plaintiff, pursuant to § 52-557n(a)(1)(B), alleges negligence based upon the facts articulated in count one. Moreover, the plaintiff alleges that the City operated and maintained the parking garage for purposes of corporate or pecuniary profit. Section 52-577n(a)(1) provides that a political subdivision of the state shall be liable for damages caused by: "(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . ."
The City argues that § 52-557n(a)(1)(B) "only abrogates governmental immunity for the negligent performance of ministerial functions from which it derives a corporate profit or pecuniary benefit." The plaintiff argues that no legal authority stands for the proposition proffered by the City. The plaintiff simply argues that "governmental immunity is abrogated under § 52-557n(a)(1)(B) if the plaintiff proves negligence in the performance of functions of any nature from which the defendant derived a pecuniary benefit."
"It is well established that a proprietary function is an act done in the management of [a municipality's] property or rights for its own corporate benefit or profit and that of its inhabitants . . . The municipal operation of a water utility for corporate profit is a proprietary function . . . A municipal entity is subject to liability pursuant to § 52-557n(a)(1)(B), however, only if its allegedly tortious conduct was inextricably linked to a proprietary function." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 53, 881 A.2d 194 (2005).
"The determination of whether certain municipal operations are governmental or proprietary is a question of fact. See Doran v. Waterbury Parking Authority, 35 Conn.Sup. 280, 281, 408 A.2d 277 (1979) (operation of municipal ramp garage found to be proprietary); Bruder v. New Haven Memorial Veterans Coliseum Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 367859 (June 24, 1998, Hartmere, J.) (whether operation of municipal coliseum is proprietary is a question of fact)." Daniels v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0258721 (May 5, 2000, Robinson, J.).
"Municipal conduct is proprietary, where the allegedly tortious conduct is `inextricably linked to corporate gain' rather than to the administration of government. Elliott v. Waterbury, 245 Conn. 385, 412-13, 715 A.2d 27 (1998)." Daniels v. Meriden, supra, Superior Court, Docket No. CV 98 0258721. "Connecticut courts recognize that if the act engaged in is operated for the corporate benefit or pecuniary profit of the municipality, governmental immunity is not applicable . . . [T]he fact that a small fee is charged does not necessarily deprive the municipality of governmental immunity . . . As long as a small or nominal fee is charged as a mere incident of the public service rendered and not as a means to derive a profit from the activity, the benefit of the principle should not be removed." (Citations omitted.) Doran v. Waterbury Parking Authority, supra, 35 Conn.Sup. 282. "Where, however, the court finds that the fee charged indicates a commercial enterprise entered into for the corporate benefit of the municipality, [such a fee] goes beyond the mere incident of the public service rendered." (Internal quotation omitted.) Daniels v. Meriden, supra, Superior Court, Docket No. CV 98 0258721.
In the present case, the City offers little evidence to show that there is no genuine issue of material fact as to whether the operation of the parking garage was wholly governmental and not proprietary. However, the plaintiff has submitted evidence in the form of a balance sheet stating the revenue and expenses of the parking garage. (See plaintiff's exhibit C.) The balance sheet demonstrates that the City had a net profit of $82,483.08. Therefore, there are genuine issues of material fact as to whether the parking garage was a proprietary undertaking by the City. Consequently, the City's motion for summary judgment as to count two is denied.
In count three, the plaintiff, reciting the facts of count two, alleges public nuisance pursuant to § 52-557n(a)(1)(C). Section 52-557n(a)(1) states in relevant part that a: "political subdivision of the state shall be liable for damages to person or property caused by: . . . (C) acts of the political subdivision which constitutes the creation or the participation in the creation of a nuisance . . ." The City argues that the plaintiff has failed to demonstrate that the condition which caused the plaintiff's injuries was created by some positive act of the City. The plaintiff argues that the City intentionally created the public nuisance because it knew of the specific condition that caused the plaintiff's injuries and failed to take any steps to remedy the condition. Furthermore, the plaintiff argues that it has evidence that demonstrates the existence of genuine issues of material fact to support the plaintiff's nuisance claim, i.e., the condition appraisal submitted to the City by Desman Associates describing defects, deterioration and tripping hazards on the parking deck within the garage. (See plaintiff's exhibit D.)
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).
"Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001). "[L]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996). "[I]n order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliott v. Waterbury, supra, 245 Conn. 421.
In Keeney v. Old Saybrook, supra, 237 Conn. 135, our Supreme Court stated that it has previously concluded "that a municipality may be liable for a nuisance it creates through its negligent misfeasance or nonfeasance even if that misfeasance or nonfeasance also constitutes negligence from which the municipality would be immune . . . [L]ater cases . . . have stated the rule more broadly to preclude liability for any nuisance created through mere nonfeasance." Id., 165. "Despite this sweeping language, we have never held that a municipality is not liable for an intentional nuisance created through its failure to abate pollution." Id. The court therefore held that, "[w]ithout deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes, we conclude that a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." Id., 166.
The court also held that "an interference with the public right, is intentional if the [municipality] . . . knows that it is resulting or is substantially certain to result from [its] conduct . . . If the invasion results from continuing or recurrent conduct, the first invasion resulting from the actor's conduct may be either intentional or unintentional; but [if] the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional." (Citations omitted; internal quotation marks omitted.) Id., 163-64.
In the present case, the plaintiff alleges that the City had, for a considerable length of time, notice and knowledge of the defective conditions of the parking garage, and yet neglected to remedy said conditions. Moreover, the plaintiff submits as evidence the condition appraisal to support her position that the City had knowledge of the defect for approximately four months prior to her injuries. Inasmuch as the plaintiff alleges that her injuries were due to the defective conditions of the parking garage, the court finds that such an allegation, sufficiently supported by the condition appraisal, creates a genuine issue of material fact as to whether the City created or participated in creating the nuisance alleged.
Accordingly, the City's motion for summary judgment on the third count is denied.
In court four the plaintiff alleges, pursuant to 13a-149, the defective highway statute applicable to municipalities, that she was injured by a dangerous defect in a location proximate to the public highway. In response, the City maintains that § 13a-149 is inapplicable to the present case because "it is ludicrous to suggest that the [h]ighway [d]efect [s]tatute extends to a municipal parking garage." The plaintiff argues that whether a violation of § 13a-149 has occurred must be determined on a case-by-case basis and is generally a question of fact for the jury.
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."
"Whether 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 after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999).
In Serrano, the court, in its discussion of § 13a-144, stated that § 13a-144 was similar to § 13a-149 and was subject to the same limitations. Id. The court further stated, in its discussion of its previous precedent, that "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., 427.
In Norlander v. Milford, Superior Court, judicial district of Litchfield, Docket No. CV 04 0093313 (July 14, 2005, Trombley, J.) ( CT Page 14143 39 Conn. L. Rptr. 689), the court made a detailed analysis, in the context of a motion to strike, as to whether § 13a-149 contemplated public parking lots. The court found that although there were a number of Superior Court cases that have held that public parking lots are not within the meaning of the § 13a-149, no appellate court in Connecticut has held such a conclusion. The court held that "the [S]upreme [C]ourt via its [ Serrano] decision on the issue relative to 13a-144, has not definitively ruled, as a matter of law, that a fall in a municipal parking lot is or is not covered by the defective road and bridge statute. Our Supreme Court has directed that a fact-based test be applied by the judge or jury, who will find the facts." (Emphasis in original.) Id. 691. The court, therefore, denied the motion. See also Fox v. Metro-North, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0133933 (October 4, 1994, Lewis, J.) (Court found genuine issues of material fact where there was a dispute as to whether the location where the plaintiff was injured was covered by 13a-149; the court could not decide as a matter of law).
Moreover, in the present case, the court, Hurley J., has previously held, in the City's motion to strike count four, that the plaintiff has alleged a legally sufficient claim under § 13a-149. Because it is found that, in accordance with Serrano and Norlander, no appellate court has ruled definitively whether a municipal parking lot is excluded from the purview of § 13a-149, to determine whether a municipal parking garage or defective condition in proximity of a highway falls within the ambit of § 13a-149 should be considered on a case-by-case basis with the application of a fact-based test by the judge or jury. Therefore, the motion for summary judgment as to count four is denied.
CONCLUSION
For all the foregoing reasons, the Motion for Summary Judgment of the City of New London is denied in its entirety.