Opinion
No. CV05-4006711S
May 2, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#136)
A. INTRODUCTION
Pursuant to Connecticut Practice Book § 10-39 et seq., the defendants, Town of Watertown and Curt Molnar, in the above entitled action, request that the court grant summary judgment as to Counts II, III and IV of the plaintiff's Amended Complaint dated December 2, 2005 against the Town of Watertown and Officer Curt Molnar. The second count of the complaint is against the Town of Watertown and is brought pursuant to Connecticut's Highway Defect Statute. The third count of the complaint, based on the same facts in Count II, is against Officer Curt Molnar, who is alleged to have been acting within the scope and duties of his employment as a Watertown police officer, and sounds in negligence for his actions in conducting traffic control at the general location of the plaintiff's accident. The fourth count of the complaint is brought against the Town of Watertown and seeks indemnity for the allegedly negligent conduct of Officer Curt Molnar.
Connecticut General Statutes § 13a-149 provides in pertinent part that: 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.
The motion seeks judgment as a matter of law with respect to the cause of action sounding in negligence brought against Officer Molnar on two alternating basis. For purposes of this opinion the court addresses the basis that, in light of developing case law and recent decisions addressing the exclusivity of remedy in highway defect cases within the jurisdiction of Connecticut, the defendants ask the court to revisit a prior ruling in the file permitting the plaintiff to plead against Officer Molnar in the alternative. Finally, the defendants move for judgment as to the highway defect claim on the basis that as a matter of law, the plaintiff will be unable to establish that the Town of Watertown's actions were the sole proximate cause of the plaintiff's alleged injuries.
Plaintiff objects to the motion. Both sides filed a memorandum of law in support of their position, and during and after oral argument on March 31, 2008, parties filed subsequent memoranda. It also should be noted that in addition to plaintiff receiving it's first requested Extension of Time to Respond (#137), at oral argument plaintiff's counsel also requested and was granted until April 4, 2008 for a Supplemental Memorandum in Opposition to the Motion for Summary Judgment. At oral argument both sides requested the court hear argument and rule on the summary judgment motion.
B. RELEVANT STATEMENT OF FACTS AND CLAIMS
This action pertains to an incident which allegedly occurred on July 17, 2003. On that date the plaintiff, John Ryan, was operating a motor vehicle on North Street in Watertown, Connecticut. The complaint alleges that on that date, defendant, Officer Curt Molnar, (hereinafter Officer Molnar), a police officer for the defendant, Town of Watertown, (hereinafter Town), was directing traffic on North Street where construction was being performed by co-defendant Birm I Construction Company, LLC, (hereinafter Birm Construction), and defendant Yankee Gas Services Company (hereinafter Yankee Gas).
Defendant Birm had been hired by defendant Yankee Gas to perform excavation work all along North Street in connection with gas lines running under the public right of way. As the plaintiff approached the area under construction, Officer Molnar stopped him at his location, waved him on when it was clear to pass, then witnessed the plaintiff approach the open excavation side and slow down his vehicle. Plaintiff subsequently drove into the excavation hole in the road. (Count III, Paragraph 2.) In his affidavit, Officer Molnar stated that forty (40) other vehicles successfully passed this site between 8:00 a.m. and 12:00 p.m. that morning without a problem.
The plaintiff brought suit against defendant Birm Construction (Count I), the Town of Watertown, Officer Molnar, and Yankee Gas. The plaintiff alleges that as a result of his car going into a hole in the road, he sustained injuries to his mouth, right arm, hand, neck, chest and abdomen. The plaintiff seeks recovery against the Town of Watertown pursuant to Connecticut General Statutes § 13a-149, the Highway Defect Statute. (Count II, Paragraph 10.) In Count III, the plaintiff alleges that his injuries and losses were caused by the negligence of Officer Molnar in waving the plaintiff into a dangerous hold in the road, and failing to block the northbound lane of the roadway. (Count III, Paragraph 4.) In Count IV, the plaintiff seeks indemnification from the defendant Town of Watertown for the action of Officer Molnar pursuant to Connecticut General Statutes § 7-465. (Count IV, Paragraph 9.)
C. LEGAL STANDARD CT Page 7485
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § 17-49 requires that 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. A material fact is a fact that will make a difference in the result of the case. The facts at issue are those alleged in the pleadings. 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 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.
"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 785-86, 919 A.2d 525, cert. denied, 283 Conn. 904 (, A.2d (2007)
D. COUNT III
The defendants assert the Highway Defect Statute is plaintiff's exclusive remedy against the municipality, which precludes joint action against a municipality and its officers for damages resulting from a highway defect through § 52-447n, thereby eliminating the cause of action against Officer Molnar. The plaintiff responds that the court is being asked to decide an issue that has already been heard and decided in the plaintiff's favor by the Hon. Judge Gallagher. As stated in the plaintiff's prior brief, the plaintiff submits that the defendants' argument must fail in that it fails to take into account the fact that the plaintiff's allegations under the defective highway statute, Connecticut General Statutes § 13a-149, are entirely separate and distinct from the allegations made against Officer Molnar. According to the plaintiff, Counts Three and Four are alternative pleadings which address the possibility of the jury finding that it was the actions of the defendant Molnar which caused the plaintiff's injury, as opposed to a defect under the highway statute.
Connecticut General Statutes § 52-557n provides in pertinent part that: (a)(1) 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; . . . provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly granted by law.
The plaintiff is correct, [A] motion to reargue . . . is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001). However, this court should consider any additional facts or authority which would have a controlling effect, and which has been overlooked. Jeanette Chartouni v. James DeJesus, AC27972, April 15, 2008. The decision of U.S. District Court Judge for the District of Connecticut, February 1, 2007, is precisely that additional and highly persuasive authority. Relying on Connecticut law, and applying that law to a set of facts strikingly similar to the facts at issue here, Federal Judge Janet Bond Arterton granted defendants' motion to dismiss all claims against the town defendants relating to a highway defect in Estate of Metzermacher v. Amtrak, 472 F.Sup.2d 230, 237 (D.Conn. 2007). In Metzermacher, the plaintiffs brought an action against the Town of Waterford, and current and former Town officials, among others, alleging negligence, public nuisance, and indemnity (against the Town). These claims arose out of the injury and eventual death of Patricia, Zachary, and Courtney Metzermacher, following a September 28, 2005 accident at a train crossing in Waterford, Connecticut. The Town defendants moved "to dismiss the claims against them as barred by the exclusivity provision in the Connecticut Highway Defect Statute, Connecticut General Statutes § 13a-149." Estate of Metzermacher v. Amtrak, 472 F.Sup.2d 230, 232-33 (D.Conn. 2007). In reference to the claims against the town officials, the court determined that the "plaintiffs' claims against the Town defendants are barred by Connecticut General Statutes § 52-557n, which renders the highway defect statute their only recourse against the Town defendants for such claims . . . this includes the indemnity claim brought against the Town pursuant to both § 7-465(a) and § 7-101a." (Emphasis added.) Further, the court recognized the decision in Robishaw v. Murphy, 2001 Conn.Super.LEXIS 2800, (Conn.Super.Ct. Sept. 21, 2001), "and found `as in Ferreira, it is clear that the allegations against the defendant in this case are being asserted as a basis for imposing liability on the town. Therefore, the plaintiffs' exclusive remedy against either the municipality or its employees is an action pursuant to the highway defect statute.'" Estate of Metzermacher v. Amtrak at 237.
The recent Metzermacher opinion discusses Connecticut law at length. Therein, Judge Arterton observes that the United States Court of Appeals for the Second Circuit has stated that "[t]he construction and maintenance of roads is a `governmental function' and a municipality is not liable for common law negligence in carrying out this duty." Murray v. Milford, 380 F.2d 468, 470 (2d Cir. 1967). [W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . a highway defect is any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . ." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201-02 (1991). A highway is defective "within the meaning of § 13a-149 when it is not reasonably safe for . . . the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." Novicki v. New Haven, 47 Conn.App. 734, 740 (1998). Metzermacher at 232.
As stated in the Plaintiff's Amended Complaint, dated December 2, 2005, the alleged accident occurred at a "construction site in the travel portion of North Street in Watertown, Connecticut . . . and [plaintiff's] car went into a deep excavated hole in said roadway which was undetectable by an approaching motorist." The Amended Complaint specifically refers to the area as "the defective roadway," "the defect in said roadway" and "the defective and dangerous condition of the highway." Taking these allegations as true, it is clear that the alleged incident falls within the remedy of the Highway Defect Statute.
Finally, in a recent and persuasive Superior Court case, Judge Arnold reiterated the Appellate Court's test that sets out the two elements that must be met in order to trigger the application of the Highway Defect Statute. The test is: "(1) the plaintiff must have sustained an injury by means of a defective road or bridge; and (2) the party whom the plaintiff is suing must be the party bound to keep the location where the injury was sustained, in repair." Caruso v. Town of Westport, 2006 Conn.Super.LEXIS 3023, 12-13 (Conn.Super.Ct. 2006). As alleged in his complaint, the plaintiff claims that his injuries were caused when his car went into the defective road on North Street and that the municipality, the Town of Watertown, is the party bound to keep this location in repair. Both prongs of this test are met by referencing the allegations of the plaintiff's complaint. The defendant's Motion for Summary Judgment is granted with respect to Count III because the highway defect statute is the plaintiff's exclusive remedy and precludes a cause of action against a municipality's officers.
E. COUNT IV
Count IV of plaintiff's Amended Complaint is brought against defendant Town of Watertown through its obligation to indemnify defendant Officer Molnar via Connecticut General Statutes § 7-465. Section 7-465 provides in pertinent part that "[a]ny town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty . . ." Herein, this court found that Count III could not stand based on the Highway Defect Statute being the plaintiff's exclusive remedy, therefore Count IV also fails as a matter of law.
F. COUNT II
In the present matter, the plaintiff has asserted a cause of action in Count II based on Connecticut General Statutes § 13a-149, the Highway Defect Statute, against the Town of Watertown. The Supreme Court, in Ormsby v. Frankel, 255 Conn. 670 (2001), set out the elements of the test that must be met in order to prevail under the Highway Defect Statute. "To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence.
(1) that the highway was defective as claimed;
(2) that the [municipality] actually knew . . . or . . . should have known of that defect;
(3) that the [municipality], having actual or constructive knowledge of this 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."
Ormsby v. Frankel, 255 Conn. 670, 675-76 (2001).
Based on the fact that this site was under construction, which was controlled by co-defendants Birm I Construction Company, LLC, and Yankee Gas Service Company, it would be impossible for the plaintiff to fulfill all of the elements of the § 13a-149 test and demonstrate that the municipality knew of the defect, did not remedy the situation within a reasonable time, and that the condition of the highway was the sole proximate cause of plaintiff's injuries and losses.
The Supreme Court has pointed out that "the focus with respect to the element of sole proximate cause is whether any factors other than the municipality's breach of its statutory duty caused the plaintiff's injuries." Bovat v. City of Waterbury, 258 Conn. 574, 587 (Conn. 2001). In the present case, in order to prevail in a claim under the Highway Defect Statute, the plaintiff would not only have to prove that he himself did not contribute in the slightest to the cause of his accident through his own negligence or carelessness, but that neither defendant Birm nor defendant Yankee Gas had any contribution either. In view of the Supreme Court's decision in White v. Burns, 213 Conn. 307 (1990), the Appellate Court in Mazzuca v. Sullivan, 94 Conn.App. 97, 102 (Conn.App.Ct. 2006), stated that "the sole proximate cause doctrine is applicable to the highway defect statute and that the plaintiff's inability to prove his own exercise of due care [prevents] him from prevailing on his claim against [a] defendant." Because the work on North Street was being performed by defendant Birm, which was controlled by defendant Yankee Gas, there is at most shared responsibility between defendant Birm, defendant Yankee Gas, the Town of Watertown, and the plaintiff himself. Thus, plaintiff lacks the final element of the test for the highway defect test. "Where possession and control are shared, the element of sole proximate cause is lacking." Petner v. Elec. Contrs., Inc., 2007 Conn.Super.LEXIS 1633 (Conn.Super.Ct. 2007). Thus, based on the above mentioned case law, Count II against the Town of Watertown fails as a matter of law.
Summary judgment as to Counts II, III and IV is granted.