Opinion
No. CV-09-5010993S
February 7, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 178)
The State moves for summary judgment asserting a defense of sovereign immunity. This motion requires the court to review the exception to sovereign immunity created by statute, General Statutes § 13a-144, and the distinction between the state's obligations with regard to the highway and the sidewalk adjacent to the highway.
FACTS
The plaintiff, Barbara Plaza, brought this action against the defendants, JP Investments, LLC. Carissa Brown d/b/a Indigo Lily Company. Town of Colchester and State of Connecticut, seeking damages as a result of injuries sustained from a slip and fall on a sidewalk abutting 48 Main Street in Colchester, Connecticut. On October 14, 2010, the State of Connecticut (State) filed the present motion for summary judgment (#178) along with a supporting memorandum of law and evidentiary support. The State argues that it is entitled to summary judgment as a matter of law because there are no genuine issues that the location of the plaintiff's accident was not part of the State highway system and the State had no duty to maintain that area.
On November 12, 2010, the plaintiff filed an objection to the motion for summary judgment along with a supporting memorandum of law and evidentiary support. The plaintiff argues that genuine issues exist concerning whether the sidewalk where the plaintiff fell is within the State's highway system and whether the State exercises control over the sidewalk.
The matter was heard on the December 13, 2010 short calendar.
DISCUSSION
A Summary Judgment Standard
"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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Analysis
General Statutes § 13a-144 states in relevant part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court . . . The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway."
"It is well settled Connecticut law that a sovereign state is immune from suit, unless it consents to be sued." Reid v. Korta, Superior Court, judicial district of Hartford, Docket No. CV 06 5002709 (May 16, 2007, Elgo, J.) ( 43 Conn. L. Rptr. 415, 416). "The [state highway defect] statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state . . . [T]here was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory . . . The [state highway defect] statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02, 876 A.2d 1148 (2005).
The State argues that the plaintiff's claims are barred by sovereign immunity because the area where the plaintiff fell was not part of the State highway system and the State did not have a duty to maintain it. Therefore, according to the State, the plaintiff's claims do not fall within the purview of General Statutes § 13a-144 and are thus, barred by sovereign immunity. In support of its argument, the State submits the affidavit of Frederick L. Atwell, the Transportation Claims Investigator for District Two with the Department of Transportation. Atwell attests, in relevant part, that the "sidewalk, where the plaintiff's complaint and notice of claim alleges she fell, is not part of the State highway system, nor was it part of the State highway system in July of 2007. At all times relevant to the allegations in the plaintiff's complaint, the State of Connecticut/Department of Transportation had no duty to maintain and/or repair the sidewalk where the plaintiff allegedly fell." The State also submits the affidavit of John DeCastro, the Special Services Section Manager for the Department of Transportation. DeCastro attests in relevant part: "The `Route 16 and Route 85 Intersection Improvement' project did not involve the sidewalk abutting 48 Main Street in Colchester, Connecticut." Finally, the State submits co-defendant Town of Colchester's answers to the plaintiff's interrogatories, in which the Town of Colchester answers that, depending on the circumstances, the Town of Colchester, JP Investments, LLC and/or Carissa Brown d/b/a/ Indigo Lily Company have shared responsibility for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured.
The State also submits the deposition of Mark Decker, the Director of Public Works for the Town of Colchester, in which Decker testifies that the "Route 16 and Route 85 Intersection Improvement" project did not involve the area where the plaintiff claims to have fallen.
In contrast, the plaintiff argues that summary judgment is not proper because there is evidence that the sidewalk is within the State highway system because it is adjacent to a State highway, is within the State right of way, the public is invited to park on Main Street and the parking spaces are adjacent to the sidewalk where the plaintiff fell. Moreover, the plaintiff argues that there is evidence that the State exercises control over the sidewalk. The plaintiff submits co-defendant Town of Colchester's answer to the plaintiff's interrogatories, in which the Town of Colchester answers the following question:
Q. "Identify the person(s) who, at the time of the Plaintiff's alleged injury, owned the premises where the Plaintiff claims to have been injured."
A. "The State of Connecticut owned the property as the subject sidewalk was within its right-of-way."
The plaintiff also submits the deposition of Mark Decker, the Director of Public Works for the Town of Colchester, in which Decker testifies that the sidewalk where the plaintiff fell is within the State's right of way. Furthermore, Decker testified that the Town of Colchester must obtain permission from the State prior to performing any work on the sidewalk. Decker testified that the Town of Colchester performed work on the sidewalk in 2004 and was required to, and did, file an application with the State for permission to perform the work. Thereafter, the State issued a permit to the Town of Colchester. According to the plaintiff, the permit was necessary because the sidewalk is within the State's right of way.
The plaintiff also submits an unauthenticated copy of the Town of Colchester's permit application to the State and an unauthenticated copy of the permit issued by the State to the Town of Colchester.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Accordingly, a cause of action is subject to an entry of summary judgment if there are no genuine issues "that the area where the injury occurred is not an area for which the state has a statutory duty to maintain and repair." Tyson v. Sullivan, 77 Conn.App. 597, 602, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003).
To determine the State's liability, "the court must examine the law applicable to defective sidewalks. It is important to note that our Supreme Court has recognized a distinction between the state's duty as it pertains to state highways and its duty regarding sidewalks. In Moleske v. MacDonald, 109 Conn. 336, 341, 146 A. 820 (1929), the court held that the highway commissioner has no duty to maintain sidewalks lying along trunk line highways because they serve local convenience almost wholly and have no relation to, nor do they contribute to, the facilitating of that public travel which the state aims to serve by the establishment of [state highways]. Therefore, the statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely. This is true even . . . [if] the sidewalk is within the limits of a trunk-line highway, the claimed defective condition existed within those limits, and the condition arose because of the neglect of the highway commissioner. The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk which it is the duty of the highway commissioner to keep in repair. Ordinarily, this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies within the limits of a trunk-line highway . . . Moleske [ v. MacDonald] remains the law today. Significantly, the legislature has underlined the correctness of this approach by specifically designating a limited number of sidewalks that are to be maintained by the commissioner . . . Statutes imposing a duty on the commissioner to maintain sidewalks include General Statutes § 13a-91, General Statutes § 13a-92 and General Statutes § 13a-258 . . ." (Citations omitted; internal quotation marks omitted.) Hyde v. Metro-North R.R., Superior Court, judicial district of New Haven, Docket No. CV 07 5008745S (August 3, 2009, Zoarski, J.); see Tuckel v. Argraves, 148 Conn. 355, 170 A.2d 895 (1961); Reid v. Korta, supra, 43 Conn. L. Rptr. 415.
General Statutes § 13a-91 provides in relevant part: "Sidewalks on bridges. The commissioner may cause to be constructed or reconstructed a sidewalk on any bridge or approaches to any bridge on any state highway when in his opinion public safety so requires . . . All sidewalks on bridges or approaches to bridges maintained by the commissioner shall be maintained by said commissioner, and such maintenance shall include responsibility for the removal of snow and ice from such sidewalk."
General Statutes § 13a-92 provides: "Sidewalks on bridges at Thompsonville and Warehouse Point. The sidewalks on the bridges across the Connecticut river at Thompsonville and Warehouse Point shall be maintained by the commissioner."
General Statutes § 13a-258 provides in relevant part: "Maintenance of sidewalks pending completion of highway project. The Commissioner of Transportation shall maintain any sidewalk, including the removal of snow and ice, abutting property acquired for highway purposes, from the date of acquisition until the section of highway for which the property was acquired is completed."
"Indeed . . . the law involving the state's duty of care with respect to sidewalks associated with its highways is somewhat distinctive and is by now well established . . . [O]ther than sidewalks which the legislature has specifically designated to be maintained by the state, the maintenance of sidewalks primarily remains the responsibility of local municipalities . . . The degree of control or ownership evidenced by a right-of-way does not establish that the state had any duty to maintain that area . . . [T]he retention of the power to require encroachment permits from persons wishing to perform work within a right-of-way alongside a state highway cannot reasonably be understood as an assumption of plenary control over all sidewalks within that right-of-way. Instead, it is properly . . . understood as incidental to [the state's] fundamental responsibility to take care of the highways themselves, not as an independent assertion of control over all land adjacent thereto and all improvements, including sidewalks, thereon . . . As such, and in the absence of the state's explicit consent to be sued, as manifested by those statutes which impose upon the state an express duty to maintain specific sidewalks . . . [an] action against the state is barred by the doctrine of sovereign immunity." (Citations omitted; internal quotation marks omitted.) Reid v. Korta, supra, 43 Conn. L. Rptr. 416-17; see MacArthur v. Suffield, Superior Court, judicial district of Hartford, Docket No. CV 93 0522353 (July 29, 1994, Sheldon, J.) ( 12 Conn. L. Rptr. 280).
In the present case, there is no genuine issue of material fact as to the lack of any duty on behalf of the State to keep the sidewalk in repair. First, none of the statutes imposing a duty on the commissioner to maintain sidewalks appear to apply to the area where the plaintiff allegedly fell. Second, the permit requirements are insufficient evidence of control.
Accordingly, the State's motion for summary judgment is granted.