Opinion
CV166028273S
10-05-2017
Rigoberto Rivera-Lopez et al. v. Grasso Companies, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT CITY OF NORWALK'S MOTION TO STRIKE THE SECOND COUNT OF THE COMPLAINT [#127]
Irene P. Jacobs, J.
This case arises out of a motor vehicle incident alleged by the plaintiffs to have occurred on October 16, 2014 on Scribner Avenue in Norwalk. The four plaintiffs, the operator and passengers of a motor vehicle, allege that they sustained multiple injuries and that their vehicle was severely damaged when their vehicle struck a manhole or sewer or water pipe cover (cover) on the road, which was under construction.
The plaintiff, Rigoberto Rivera-Lopez (Rivera-Lopez) was the driver. The plaintiff, Elizabeth Canales (Canales) was the front seat passenger, and plaintiffs Gabriela Portillo (Gabriela) and Milton Portillo (Milton) were back seat passengers. For the purposes of this memorandum, all plaintiffs will simply be referred to as the " plaintiffs" unless it is necessary to use a particular plaintiff's individual name.
In count one of the two-count complaint, the plaintiffs allege that the collision and resulting injuries were caused by the negligence and carelessness of Grasso Companies, LLC, the company contracted to perform the construction.
Count two of the complaint is brought pursuant to General Statutes § 13a-149 as against the defendant city of Norwalk (" the city"). The plaintiffs allege that the city breached its duty to keep and maintain roads within its territorial limits in a reasonably safe condition, which breach caused the area of impact to be uneven, and which resulted in the incident in which the plaintiffs sustained injury. The plaintiffs allege that the city knew or should have known the area was unsafe, that it failed to remedy it, and that it failed to warn motorists of the unsafe condition in the area. The plaintiffs also allege that Rivera-Lopez was driving in the exercise of due care and that he was not contributorily negligent.
On April 25, 2017, the city filed the current motion to strike count two of the complaint and a supporting memorandum of law [#127]. The plaintiffs filed an opposing memorandum of law on May 8, 2017 [#128]. The matter was heard at short calendar on June 13, 2017. A jury trial is scheduled for November 22, 2017.
DISCUSSION
Norwalk bases its motion to strike count two of the complaint on the ground that the plaintiffs' cause of action is insufficient because the plaintiffs failed to allege that the road defect was the sole proximate cause of the injuries and damages claimed. The city argues that count two fails to state a claim under General Statutes § 13a-149. Specifically, the city argues that because the words " sole proximate cause" do not appear anywhere in count two of the plaintiffs' complaint, the plaintiffs have not clearly alleged that the city's negligence or carelessness was the sole proximate cause of the defect.
General Statutes § 13a-149 provides in relevant part: " 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."
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003). " [A] motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . ." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 119 A.3d 462 (2015). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 19 A.3d 640 (2011). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013).
General Statutes § 13a-149 is " the exclusive remedy against a municipality for damages resulting from injury to any person or property caused by a defective road or bridge." Kumah v. Brown, 307 Conn. 620, 58 A.3d 247 (2013). The Connecticut Appellate Court has stated, " To succeed on a claim under § 13a-149, the 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 the defect; (3) that the defendant, having actual or constructive knowledge of the 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 ." (Emphasis added.) Nikides v. Wethersfield, 148 Conn.App. 186, 84 A.3d 486, cert. denied, 311 Conn. 939, 89 A.3d 350 (2014).
" Our Supreme Court first identified sole proximate cause as the standard for determining municipal liability in Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899) . . ." Nicefaro v. New Haven, 116 Conn.App. 610, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). The court stated, " [i]t is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another's carelessness and the defect, and the two combined give no cause of action under the statute." Bartram v. Sharon, supra, 71 Conn. 690. Since Bartram, " [t]he Supreme Court . . . has rebuffed attempts to abandon the sole proximate cause standard." Nicefaro v. New Haven, supra, 116 Conn.App. 621; see also White v. Burns, 213 Conn. 307, 567 A.2d 1195 (1990); Smith v. New Haven, 258 Conn. 56, 779 A.2d 104 (2001) (discussing development of proximate cause standard in highway defect cases).
However, several trial court decisions have found that the sole proximate cause element of proof set forth in Bartram and as applied to claims brought pursuant to General Statutes § 13a-149 does not necessarily mean that the words " sole proximate cause" must be pled. In Clemente v. Waterbury, Superior Court, J.D. of Waterbury, No. CV-15-5017246-S, (4/18/16, Roraback, J.), the court stated that the sole proximate cause element of proof " must be raised in the pleadings by either alleging that the plaintiff exercised due care, or by alleging that the highway defect was the sole proximate cause of the plaintiff's injuries." (Emphasis added; internal quotation marks mitted.) In Alvarez v. Stamford, Superior Court, J.D. of Stamford-Norwalk, No. CV-14-6022055-S (12/5/14, Karazin, J.T.R.), the court found that " alleging due care is interchangeable with an allegation that one is free from contributory negligence or an allegation that the defect was the sole proximate cause of a plaintiff's injuries." (Emphasis added.)
Thus, motions to strike have been denied by trial courts when the plaintiffs did not specifically use the words " sole proximate cause, " but did allege that the plaintiff exercised due and reasonable care. See, e.g., Carangelo v. U-Save Auto Rental, Superior Court, J.D. of Waterbury, No. CV-01-0164183-S, (9/20/01, Doherty, J.); Sandoval v. Rafferty, Superior Court, J.D. of Stamford-Norwalk, No. CV-97-0159400-S (8/16/99, D'Andrea, J.). In regards to leading due care, our trial courts have stated that " [a]llegations of due care must be specially pleaded in a defective highway claim brought against a municipality and cannot be presumed." Adams v. Blake Street Center Associates, Superior Court, J.D. of New Haven, No. CV-15-6055017-S, (2/23/16, Alander, J.); see also Mastrolillo v. Danbury, 61 Conn.App. 693, 767 A.2d 1232 (2001).
The court is aware that some trial courts have granted motions to strike claims brought under General Statutes § 13a-149 when the plaintiff did not specifically allege " sole proximate cause." See, e.g., Ruiz v. Bridgeport, Superior Court, J.D. of Fairfield, No. CV-15-6051717-S, (7/27/16, Kamp, J.) (granting motion to strike when plaintiff did not allege defect was sole proximate cause); Zablocki v. Winchester, Superior Court, J.D. of Litchfield, No. CV-05-5000105-S, (4/26/06, Bozzuto, J.) (granting motion to strike when plaintiff did not allege town as sole proximate cause); Roebuck v. Stamford, Superior Court, J.D. of Stamford-Norwalk, No. CV-00-0176850-S, (1/24/01, D'Andrea, J.) (claim insufficient when plaintiff did not allege sole proximate cause). However, this court adopts the analyses and conclusions of the trial court decisions which hold that an allegation of due care is interchangeable with the allegation of sole proximate cause.
Although the plaintiffs in the instant case do not use the exact words " sole proximate cause" in Count Two, they assert that Rivera-Lopez was driving in the exercise of due care. " Because 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." Nicefaro v. New Haven, supra, 116 Conn.App. 621. " To do so, a plaintiff must have suffered injury while using the defective highway 'with due care and skill.'" Id. As has been noted by this court, " due care is a subset . . . of sole proximate cause; in the absence of any question about third-party conduct or independent causes, they become alternate names for the same issue." Silonova v. Greenwich, Superior Court, J.D. of Stamford-Norwalk, Docket No. CV-11-6008082-S (9/23/13, Povodator, J.) [56 Conn. L. Rptr. 856, ] (footnote one).
In count two of their complaint in the instant case, the plaintiffs allege that Rivera-Lopez was driving with due care and was not contributorily negligent. As such, count two sufficiently pleads an adequate and acceptable alternate name for sole proximate cause and thus sufficiently pleads an action pursuant to General Statutes § 13a-149.
CONCLUSION
For the foregoing reasons, the court denies the defendant city of Norwalk's motion to strike count two of the complaint.