Opinion
No. CV08 5016936S
April 17, 2009
MEMORANDUM OF DECISION RE UNITED ILLUMINATING COMPANY'S MOTION FOR SUMMARY JUDGMENT
This case arises out of an accident between a car and a pedestrian that occurred in September of 2007. The minor plaintiff was struck by a car while walking across Winchester Avenue in New Haven. He and his mother, who also claims to have been injured, have brought a sixteen-count suit against the driver and owner of the car, the City of New Haven and several employees of the City, Republic Intelligent Transportation Services, Inc. and United Illuminating Company (UI).
UI has now filed a motion for summary judgment. The standards governing whether such a motion should be granted are well known. It should not be granted if there is a genuine issue of material fact because a party has a constitutional right to a jury trial. If no genuine fact exists, however, the motion should be granted in order to avoid the expense and burden of further litigation.
1.
The brief submitted by UI fairly lays out the allegations of the plaintiff's revised complaint and the court will quote that portion of the UI brief:
The claim against UI is based on the allegation that UI "was responsible at all relevant times to trim tree branches and limbs within the City of New Haven which may fall on electric power lines which it owned, operated and maintained with the City of New Haven," and the further claim that UI "owned, operated and maintained overhead transmission lines, which served customers on Winchester Avenue near its intersection with Hazel Street within the City of New Haven." Revised complaint, count sixteen at p. 14, 15. Specifically, plaintiff's claim that UI was negligent in that it purportedly "permit[ed] trees within the Winchester Avenue right of way to grow to such a height and density of foliage that the trees obstructed or obscured light from the pole mounted street lights from reaching the street level and property illuminating the area"; "failed to inspect the street light system which it owned or controlled . . . when it knew or should have known that pedestrians crossing Winchester Avenue in that area after dark were not reasonably visible to automobile operators and were at risk of being struck thereby"; "failed to warn the public . . . of the lack of street lighting . . ."; "created the lack of reasonable street lighting by . . . planting and/or maintaining a tree within the street right-of-way so close to the street light so as to obscure and obstruct the light from the street light from illuminating the street, or . . . permitting the street lights to be positioned within or too close to the existing street trees that the street lights were ineffective in reasonably illuminating the street"; and failing "to reasonably inspect or maintain the electric transmission lines . . . by allowing the street trees in the area to grow to such a height that the obscured or obstructed the street lights from reasonably illuminating Winchester Avenue near Hazel Street." Id., at p. 27a-e.
UI contends that as a matter of law there is "no basis in fact" for these contentions.
Count twelve sets forth the claim against UI and it lies in negligence. In Coburn v. Lenox Homes, Inc. 186 Conn. 370, 375 (1982) the court said that: "The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract . . . or from circumstances under which a reasonable person (or entity), knowing what (it) knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from (its) act or failure to act."
In other words, "negligence cannot be predicated upon the failure to perform an act which the actor was under no duty to perform," Sherman v. Lafayette Bank Trust Company, 4 Conn.App. 39, 44, 45 (1985). And as said in Petriello v. Kalman, 215 Conn. 377, 382-83 (1990): "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.'"
(I)
The question presented is whether in this case, a duty of care can be found which would impose liability on UI. In Connecticut Law of Torts, Wright, Ankerman, Fitzgerald, 3 ed. at Section 50, it states: "A traveler on the public way who is injured by some defect arising out of the abutting land or buildings finds himself in a very favorable category. The possessor of land is under the duty to take all reasonable precautions to protect those outside the premises." An affidavit was submitted by the account manager of UI, Lawrence Mai, which states that on the date of the accident, New Haven, not UI, owned the trees, street lights and appended electric lines which connected into UI's electric distribution system. UI, according to the affidavit, was also not in possession or control of the trees, lights and appended electrical lines. No counter-affidavits or documents have been submitted by the plaintiff to counter this assertion by the defendant's account manager.
No duty can be found on the basis of ownership by UI of the trees, street lights, or appended lines.
(ii)
As discussed, however, duty can be based on assumed contractual responsibilities, or from another perspective duty can be found where a contractual relationship between the owner, here New Haven, gives another entity, here UI, effective possession or control over the injury-causing agents. In this case these factors amount to the same thing. It is necessary to look at the contracts. The first contract entered into in March 1985 is a sales contract in which UI sold to New Haven the various components of a street lighting system from actual utility poles to which it had title and all brackets, hangers, lamps, reflectors, etc.
As part of the agreement, UI agreed to serve as the City's agent to perform all "emergency repairs" which are defined as work necessary in the opinion of the UI employees to correct a hazardous condition and make safe and maintain the integrity of UI's distribution system. A hazardous condition is defined as any condition "which poses an immediate threat of personal injury or property damage."
But under the contract language hazardous condition relates to any condition of the property described in Section 301(A)(B) and (C) of the contract. If we look at those subsections of Section 301 they talk of the various components of the street lighting system itself, bracket, hangers, etc., or the "equipment" of the street lighting system.
It is true that "where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge." Coburn v. Lenox Homes, supra, 186 Conn. at p. 375. There is nothing in the contract or attached service agreement that could be construed as imposing tree trimming responsibilities on UI or requiring UI to make inspections for that purpose.
Other documents operative at the time of contract formation must also be considered.
In another section it states at the City's request for a one-year period, UI shall perform all necessary and routine maintenance on the street lighting system. A separate paragraph states UI shall respond to a call for repair within 48 hours to a lighting fixture which remains lit during daylight and has 72 hours to respond to a call to repair a light not lit during the night time.
Mr. Mai's affidavit refers to a document entitled "Unmetered Municipal Street Lighting Electric Service Rate U", which is referred to in a service agreement signed by UI and the City at the time of contract formation. This document was made applicable to the relationship between the City and UI. This document states certain maintenance can be performed by qualified employees of the customer; i.e., the City, except when UI poles had to be climbed. The following language then appears: "All other maintenance and the trimming necessary for proper distribution of light shall be performed at the expense of the customer, either by the company (UI) under the terms of a separate maintenance agreement with the customer (the City), or by a contractor approved by the company (UI) . . ."
This language did not require UI to provide tree trimming services and whether it did or not was at the City's option. The language of this document goes on to say, ". . . provided that the company (UI) reserves the right to make emergency repairs to preserve the public safety or the integrity of the company's distribution system . . ." "Repairs" do not envisage tree trimming and a "distribution system's" integrity does not contemplate light patterns on a roadway.
Mr. Mai also refers to a "Line Clearance and Vegetation Management Specification" which UI had in force with its customers. It lays out in some detail clearance requirements as to vegetation and trees in relation to the operation of the UI lighting system. This document seems chiefly concerned with the location of trees or vegetation that are in close proximity to electric components of the system; safe operation and maintenance of the line is the major concern. But Section A III of the document specifically states:
Street lights — The local municipality is responsible to perform routine maintenance trimming to maintain street light patterns on sidewalks and roadways. Conflicts with energized lines shall be referred to UI.
The foregoing makes sense since one does not have to be trained as an electric engineer to observe that a tree may be blocking or reducing the lighting afforded to a roadway by a lighting system.
The gravamen of the plaintiff's complaint is that inadequate tree trimming or failure to do so led to poor illumination on Winchester Avenue where the unfortunate child was struck by a car. Since UI did not have possession or control of the lighting equipment or trees, liability cannot be based on such a claim. The plaintiff's claim fails unless UI did assume the responsibility to trim the trees contractually or even as a matter of practice. The foregoing would indicate the answer to this is in the negative.
But in opposition to the defendant UI's motion, the plaintiff points to the last sentence of Line Clearance document which states "Conflicts with energized lines shall be referred to UI." It is then argued that "a question of fact exists as to whether the United Illuminating Company, had it maintained the `general recommended clearances . . . the illumination reaching Winchester Avenue would have been adequate to reasonably protect the minor plaintiff, Joshua Martinez, from the collision and injuries specified in the complaint." The plaintiff argues this sets forth a contractual responsibility on which a negligence claim can be based.
This is the response made to UI's motion and underlines the fact that the basis of the claim relates to tree trimming or the lack thereof causing reduced lighting which caused the accident. Also see first 26 paragraphs of count sixteen.
This position, at least to the court, has two problems. It leaves out the sentence before the sentence quoted which refers to tree trimming to maintain light patterns on the roadway as being the City's responsibility. In other words tree encroachment only falls within UI's sphere of responsibility if a hazard to the electric line is presented, as is made clear by pages of the Line Clearance document. The fact that if vegetation is cleared to protect electrically charged lines has no relationship to lighting patterns, it is quite possible that only some trimming would be enough to prevent contact with the lines and this would have no appreciably positive effect on lighting patterns. The point is no responsibility was assumed by UI to trim trees so as to ensure safe lighting patterns in the roadway. This is even further confirmed by the fact that "conflicts with energized lines" require that this problem be "referred" to UI — but the City is the referrer, even in such a situation. UI does not appear to assume a duty of inspection even as to such hazards.
The court concludes the contract documents did not impose a duty on UI to inspect the street lighting system on Winchester Avenue to determine whether tree trimming was necessary to preserve lighting patterns on Winchester Avenue. Also, no evidence has been presented by the plaintiff to indicate UI had assumed this responsibility over the life of the contract. For all the court can surmise, no entity assumed this responsibility which may have led to the problem in the first place.
The motion is granted.