Opinion
No. CV 04-4000862
May 13, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On September 28, 2002 at approximately 11:42 P.M., the plaintiff, Ryan Terrenzi, was struck and injured by an automobile driven by sixteen-year-old Marcie Jarzabek while he was walking along Route 17, a state-owned highway in the Town of Durham, following the closing of the annual Durham Fair. Jarzabek was not an original party to this action, although she was later brought into the case as an apportionment defendant. The plaintiff has instead sued the Durham Agriculture Fair Association, the Town of Durham and Durham's First Selectwoman, Mary Ann P. Boord. He claims that their negligence was a proximate cause of his injuries in allegations similar to those in another case, no longer pending, of another young man who was simultaneously struck and killed by the Jarzabek vehicle.
Ryan Terrenzi, the plaintiff, is a minor, and has brought this action by his parent, guardian and next friend, Terri Terrenzi.
The facts show that Jarzabek admitted that she could not see through her windshield because it had fogged up just prior to the collision.
Gelinas v. Durham Fair Association, et al, Superior Court, Docket No. CV 03 0102545, judicial district of Middlesex at Middletown.
Count three of the plaintiff's ten-count complaint alleges that Boord knew or should have known that the vehicular and pedestrian traffic in and around the Fair created an unsafe and dangerous condition and that she was negligent in one or more of the following ways: by failing to provide an adequate number of shuttle buses to patrons of the Fair; by not adequately planning for or managing pedestrian traffic in and around the Fair; by failing to warn of the dangerous and unsafe condition; by hiring an inadequate number of traffic control personnel; by failing to close portions of Route 17 to vehicular traffic; by failing to provide sufficient barricades to protect pedestrians from vehicular traffic; and by failing to remedy these unsafe and dangerous conditions. Count four alleges negligence against on the part of the Town of Durham, based on the claim that Boord was and is an employee of the Town of Durham. In the same count, the plaintiff also seems to be making a claim for nuisance based on the same allegedly negligent acts. In count five, the plaintiff again alleges negligence against the Town of Durham, claiming that the Durham Agricultural Fair acted as an agent for the Town. In counts eight, nine and ten, the plaintiff states claims for negligent infliction of emotional distress against Boord and the Town, in the tenth count claiming once again that at the time of the accident, the Fair acted as an agent of the Town.
The Town and Boord have now moved for summary judgment as to counts three, four, five, eight, nine and ten of the plaintiff's complaint. "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 moving for summary judgment has the burden of showing that absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004). "The 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." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "Summary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The defendants' grounds for summary judgment are that; 1) the plaintiffs have failed to invoke the highway defect statute, which provides his sole remedy for the allegations alleged in his complaint against the municipal defendants; 2) the defendants are entitled to governmental immunity for their discretionary acts; and 3) the First Selectwoman and the Town owe no duty to the plaintiff because they did not have possession or control over Route 17, the State-owned highway upon which the plaintiff was injured.
The defendants' first contention is that the plaintiff's allegations in counts three, four, five, eight, nine and ten, amount to a claim under the highway defect statute, and that General Statutes § 13a-149, which the plaintiff has not sought to invoke, would therefore be the exclusive remedy available to the plaintiff. They argue that the plaintiff's action instead sounds in negligence, rather than as a claim based on the highway defect statute, and that as a result the plaintiff has failed to state a viable cause of action.
The plaintiff's initial response is that a motion to strike, not a motion for summary judgment, is the appropriate vehicle by which the defendants may challenge the legal sufficiency of the plaintiff's claim. "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, 498, 815 A.2d 1188 (2003). "Pursuant to the Tort Reform Act of 1986, an action under the highway defect statute, 13a-149, is a plaintiff's exclusive remedy against a municipality . . . for damages resulting from injury to any person or property by means of a defective road . . ." (Internal quotation marks omitted.) Steele v. Stonington, 225 Conn. 217, 220, 622 A.2d 551 (1993). The plaintiff is therefore correct that in his claim that the defendants, whose argument is predicated on the legal sufficiency of the complaint and not on a claim that there are no genuine issues of material fact, should have moved to strike. Where, however, "the substance of the motion . . . demonstrate[s] that it more accurately describe[s] a motion to strike . . . [the court] shall address [the] motion for summary judgment as if it were properly presented as a motion to strike." Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 293, 596 A.2d 414 (1991).
The plaintiff's next response is that it is true that the facts, as alleged, do not invoke the highway defect statute, but that the facts are nonetheless sufficiently pled. "A town is not liable for highway defects unless made so by statute." Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949). Section 13a-149 creates a right of recovery against municipalities for injuries sustained as the result of a defective highway or road condition. "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." General Statutes § 13a-149. "[Section] 13a-149 is the exclusive remedy against a municipality for damages resulting from a defective road." Brennan v. Fairfield, 225 Conn. 693, 701-02, 768 A.2d 433 (2001). "The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . To fall within the statute, a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway . . . rather, [a] person must [simply] be on the highway for some legitimate purpose connected with travel thereon . . . Nor does the defect have to be on the actual traveled portion of the highway." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 342-43, 766 A.2d 400 (2001). A highway defect need not consist of a defect in the roadway itself as long as there is the necessary connection to the road. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991).
A highway defect is "[a]ny 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." Id. 202. Not every injury or loss suffered on or associated with a highway, however constitutes a highway defect claim. See Salzman v. New Haven, 81 Conn. 389, 71 A. 500 (1908). In Connecticut, courts have construed highway defects to include, inter alia; a malfunctioning traffic light, Sanzone v. Board of Police Commissioners, supra, 219 Conn. 203, a broken street sign, Ferreira v. Pringle, supra, 225 Conn. 330, unsanded ice and snow, Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), a public utility poles, Wenc v. New London, 44 Conn.Sup. 45 (1994), and potholes, Steele v. Stonington, supra, 225 Conn. 217.
The defendants argue that the plaintiff's allegations "satisfy the essential purpose of the statute, which is to address conditions that might expose a person to danger as a traveler upon the highway." The plaintiff is correct, however, in his assertion that while the highway defect statute contemplates defects such as traffic lighting, potholes, impediments on or near the road, and poor drainage, it "does not encompass the supervision or implementation of a traffic control and safety plan, or the supervision of pedestrians" on the road. The plaintiff instead bases his theory of liability on the defendants' alleged failure to plan and manage pedestrian and vehicular traffic and the failure to provide adequate shuttle bus transportation, not on the existence of an object or physical impediment to safe travel on or near the road. Although these allegations do relate to travelers on or near a road, the facts, as alleged, do not give rise to a claim under § 13a-149 because a highway defect requires the existence of some kind of an " object . . . 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 . . ." (Emphasis added; internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 342. In the present case, the plaintiff does not point to an object that may account for his injuries, and thus does not invoke § 13a-149.
For all of the above reasons, treating the first claim made in the defendants' motion for summary judgment as a motion to strike, that portion of the motion is denied.
The court next turns to the defendants' claim that they are entitled to judgment as a matter of law because the undisputed facts demonstrate that they are protected by the doctrine of governmental immunity. The common-law doctrine of governmental immunity was originally recognized as a means to protect the state from suit without its consent. Senter v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). "Alternatively, [a]t common-law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." Ryszkiewicz v. New Britain, 193 Corn. 589, 593, 479 A.2d 793 (1984). "Governmental immunity, however, is not a blanket protection for all official acts . . . [but . . . a] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts . . ." (Citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988). "Except as otherwise provided by law, 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." General Statutes § 52-577n.
Although "[a] municipality itself [is] generally immune from liability for its tortious acts at common law," in some instances, municipal employees remain liable for a negligent act or omission. Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). "The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees faced the same personal tort liability as private individuals." Spears v. Garcia, supra, 263 Conn. 35. The doctrine of qualified immunity, however, "has provided some exceptions to the general rule of tort liability for municipal employees." Violano v. Fernandez, 88 Conn.App. 1, 9, 868 A.2d 69 (2005). "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental [or discretionary] acts." Spears v. Garcia, supra, 263 Conn. 36.
"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." Heigl v. Board of Education of New Canaan, 218 Conn. 1,5, 587 A.2d 423 (1991).
The defendants argue that the acts of the Town and Boord were discretionary in nature and therefore subject to governmental immunity. The plaintiff counters that Boord, as First Selectwoman, was required to submit a traffic control and safety plan in order to secure a permit to utilize Route 17 in the Town of Durham. He argues that since Boord allegedly submitted the exact same traffic plan that had been submitted for the past 15 years, her actions were simply "a rubber-stamp," and therefore were not discretionary acts in which Boord used her judgment, hut rather, "amounted to a complete and total derogation of her ministerial duty to implement a traffic and control safety plan." It is undisputed that this was the first serious motor vehicle accident in the Fair's history; under those circumstances, the court can not accept the plaintiff's contention that submitting the same, apparently successful, traffic plan was "a complete and total derogation of her ministerial duty."
"The promotion of the comfort, safety and the overall welfare of the general public constitutes a recognized public service . . . and such public service indisputably involves the exercise of police power which is the supreme power of the government." Brown v. Branford, 12 Conn.App. 106, 111, 529 A.2d 743 (1987). In the present case, the actions of Boord and the Town of Durham were performed for the purpose of promoting the comfort, safety and overall welfare of the general public, in this case fair-goers, and therefore constituted an exercise of police power. The plaintiff bases his negligence claim on the alleged failure of the Town and Boord to provide an adequate number of shuffle buses, to adequately plan and manage pedestrian traffic, to warn of the dangerous and unsafe condition, to hire an adequate number of traffic control personnel, to close portions of Route 17 to vehicular traffic, to provide sufficient barricades to protect pedestrians from vehicular traffic, and to remedy unsafe and dangerous conditions. All of these actions were taken in order to insure the safety and welfare of the general public and, therefore, qualify for governmental immunity. Additionally, it is important to note that the plaintiff does not actually allege a failure of the defendants to take action in order to protect patrons of the fair, but rather that they did not do enough to protect pedestrian traffic leaving the fair. Such allegations imply that the defendants used their discretion to determine the adequacy of certain safety measures. The plaintiff's allegations amount to a question of degree, implying a discretionary act and not a negligent failure to perform a ministerial act.
Finally, public policy dictates that actions such as those performed by the Town and Boord remain protected by the common-law doctrine of governmental immunity. "The doctrine of governmental immunity implicitly recognizes that municipalities provide for a virtually limitless array of services, each of which involves discretionary decision making. Governmental immunity allows decisions to be made by public officials without the debilitating concern that an honest mistake, made despite the exercise of good faith, will subject the municipality or the official to liability." Purzycki v. Fairfield, 244 Conn. 101, 124, 708 A.2d 937 (1998). To hold the Town and Boord liable for their exercise of good faith discretionary judgment, even assuming for these purposes that their judgment was poor on this occasion, would place an undue burden on the Town and its employees, and would hinder their ability to make judgments that they believe to be in the best interests of the communities which they serve.
"A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions [including, inter alia.] where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." Spears v. Garcia, supra, 263 Conn. 36. This exception has been expanded to include not only identifiable individuals, but also to narrowly defined identified classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646-48, 638 A.2d 1 (1994).
While an employee might be subject to liability under an identifiable person or class of person/imminent harm exception, it is doubtful that this exception exists with respect to direct liability of the municipality itself under § 52-557n. See Guardino v. East Hartford, Superior Court, Docket No. X07-CV010081310, judicial district of Tolland (September 10, 2003, Sferrazza, J.), aff'd, 87 Conn.App. 353, 865 A.2d 470 (2005).
The defendants argue that the plaintiff was not an identifiable individual or part of an identifiable class in risk of imminent harm, but that he was merely a member of the public walking upon public streets by his own free will. The plaintiff counters that he was an identifiable victim within an identifiable class, fair-goers. In addition, he claims that it should have been foreseeable to Boord that a large number of fair-goers leaving the fair and walking along a public highway would lead to harm to an individual within the foreseeable class. The plaintiff asserts that the risk of imminent harm was limited in duration to the time during and immediately following the fair.
"Our Supreme Court [has] emphasized the limited nature of the concept of imminent harm," in the context of law enforcement officials and schoolchildren. Doe v. Board of Education, 76 Conn.App. 296, 303 819 A.2d 289 (2003). The Court has allowed this exception to prevail in instances where the risk of imminent harm was limited in both geography and duration, Id. 304, and where the public officials would have reason to know that their failure to act would subject an identifiable person or class to imminent harm. See Shore v. Stonington, 187 Conn. 147, 156-57, 444 A.2d 1379 (1982); Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989). The Shore court declined to recognize a motorist on a public highway as an identifiable person in imminent risk of harm. In Shore, a police officer stopped an intoxicated driver for speeding and crossing the center line of the highway. Id. 150-51. The officer gave the driver a warning and allowed him to proceed on his way. Id. 150. Later that night the drunk driver struck and, killed another motorist on the highway. Id. 151. The Supreme Court affirmed the summary judgment finding that as a matter of law the officer had no reason to know that the driver would subject an identifiable person to an imminent risk of harm. Id. 156-57. Although, in the present case, it is true that the risk of imminent harm, if it existed, could have been limited in duration to the fair and the time shortly thereafter, and in geography to the area immediately surrounding the fair, it is hardly clear that Boord should have foreseen that plaintiff was at risk of imminent harm from a young driver whose windshield fogged up, causing her to veer to the right and strike plaintiff and others in his group. The plaintiff was one of thousands of fair-goers leaving the fair and was walking on the shoulder of a public highway of his own free will. Acting as an ordinary member of the public, much like the motorist in Shore. In addition, Boord, in the affidavit submitted with the motion for summary judgment, testified that she did not know the plaintiff, did not know that he would be walking on Route 17 at the time of the accident, and did not foresee that her proposed traffic plan, combined with the thousands of fair-goers leaving the fair, would result in harm to the plaintiff or any one else in his purported identifiable class. "This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot." Evon v. Andrews, supra, 211 Conn. 507-08.
"Because the facts alleged by the plaintiff are insufficient to establish that it was apparent to the defendant[s] that [their] failure to act would be likely to subject [pedestrians] to imminent harm, the defendant[s are] immune from liability for [their] discretionary acts." Doe v. Board of Education, supra, 76 Conn.App. 305-06. "The adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." Id. 302. The identifiable person-imminent harm exception does not abrogate the defendants' governmental immunity.
The plaintiff, in an effort to salvage count four of the complaint, which sounds in negligence, has inserted within that count the claim that the Town and Boord created a public nuisance in that Boord failed to provide an adequate number of shuttle buses, failed to adequately plan for or manage pedestrian traffic in and around the fair, knew or should have known that the vehicular and pedestrian traffic in and around the fair created an unsafe condition, failed to warn of the unsafe condition, hired an inadequate number of traffic control personnel, failed to close portions of Route 17 to vehicular traffic, failed to provide sufficient barricades to protect pedestrians from vehicular traffic, and failed to remedy the unsafe and dangerous conditions.
General Statutes § 52-577n permits nuisance claims against municipalities under certain circumstances. "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; 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." General Statutes § 52-577n(a)(1). "A common-law nuisance claim consists of four core elements: (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 plaintiff's injuries and damages." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 420, 715 A.2d 27 (1998). Because the plaintiff's injury was not related to a right that the plaintiff enjoys by reason of owning an interest in land, the claim can not be pursued as a private nuisance, and "the plaintiff has the additional burden associated with establishing a public nuisance, namely, proving that the nuisance interferes with a right common to the general public." Id. "Finally, in 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 [as] liability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality." (Citations omitted; internal quotation marks omitted.) Id. 421.
In the present case, the plaintiff fails to allege facts sufficient to make a claim for public nuisance. Leaving aside those elements on which there is an arguable claim that the material facts are not beyond dispute, such as whether the defendants' alleged failure to manage increased traffic created a natural tendency to create danger or inflict injury upon person or property, or whether the danger was continuous, the use of the land was not illegal or unreasonable in that permits had been granted for the use of the property, and Route 17 is a public highway open to all members of the public including pedestrian and vehicular traffic of the sort experienced in the present case. Additionally, considering the fact that Jarzabek admitted that she could not see through her windshield because it was fogging up just prior to the collision, and the fact that the plaintiff was walking on the main roadway, the condition alleged to have been a nuisance could not have been not the proximate cause of the plaintiff's injuries.
Perhaps most important, the plaintiff has failed to allege that Boord or the Town committed a positive intentional act that created the conditions alleged to constitute the nuisance. Rather, the plaintiff's allegations at best imply an omission, and not a positive act, and therefore fail to subject the defendants to liability for nuisance.
For all of the above reasons, the motion for summary judgment is granted.
Jonathan E. Silbert, Judge