Opinion
NNHCV176069859
01-15-2019
Michael THOMAS v. CITY OF NEW HAVEN
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL AND PROCEDURAL HISTORY
The parties in this action are the plaintiff, Michael Thomas and the defendant, City of New Haven. The initial complaint was filed by the plaintiff on April 17, 2017, and alleges the following. On May 2, 2015, the plaintiff pulled his motorcycle out of a parking lot at 68 Eastern Street in New Haven when he "struck an unpaved portion of the sidewalk" crossing the driveway which "was filled with loose, flat slabs of cement of varying sizes" and which created a hole approximately three inches deep and several feet wide. Initial Complaint, ¶ 5. "As the plaintiff accelerated his motorcycle to make a left-hand turn onto Eastern Street, he skidded over a patch of sand and dirt on the west shoulder of Eastern Street, which caused the motorcycle to fall onto its right side onto the pavement." Id., ¶ 6. "These dangerous, defective and unsafe conditions on the sidewalk and the shoulder of the road caused the plaintiff to lose control of his motorcycle, thereby causing him to sustain the injuries and losses hereinafter set forth." Id., ¶ 8. The plaintiff then alleges that the defendant, the City of New Haven, owed a statutory duty to maintain the condition of the sidewalk and the road, but failed to do so, and is therefore liable to the plaintiff for the injuries he sustained as a result of his fall. The plaintiff attached the statutorily required notice of injury, delivered to the defendant on May 11, 2015, to the initial complaint as Exhibit A.
On May 1, 2018, the defendant moved for summary judgment on the grounds that it was under no duty to maintain the sidewalk, that it had no actual or constructive notice of the allegedly defective condition of the road asserted by the complaint, and that the plaintiff cannot assert that the condition of the road was the sole proximate cause of his injuries based on the allegations of the complaint. The defendant attached several exhibits to its motion, including an affidavit from Jeff Pescosolido, the Director of Public Works for the City of New Haven, and the notice of injury filed by the plaintiff after his initial fall. On June 4, 2018, the plaintiff filed a request to amend the initial complaint, removing the portions of the complaint which concern the sidewalk and leaving only the allegations that the defendant failed to maintain Eastern Street in a safe condition.
On June 5, 2018, the plaintiff filed a memorandum in opposition to the defendant’s motion for summary judgment, asserting that the allegations of the amended complaint and affidavits attached to the objection were sufficient to support the defeat of the motion on the grounds that the condition of the road was the sole proximate cause of the plaintiff’s injury and that the defendant did have notice of the condition of the road. On September 14, 2018, the defendant filed a reply to the plaintiff’s objection, arguing that the court must not disregard the judicial admissions in the initial complaint, that the plaintiff’s allegations cannot establish the condition of the road as the sole proximate cause of his injury, that the condition of the road did not qualify as a highway defect, and that the city did not have actual or constructive notice of the condition of the road. Argument on the motion was heard at short calendar on October 22, 2018.
II.
DISCUSSION
The first issue for this court to resolve is whether the plaintiff’s amended complaint should be considered by this court. The plaintiff’s request for leave to amend the complaint was filed June 4, 2018. Practice Book § 10-60(a)(3) provides that an objection to such a request to amend must be filed within fifteen days, but the defendant did not do so. Lacking a timely objection to the request to amend, "the complaint as amended was deemed to have been filed with the consent of the adverse party by operation of [Practice Book § 10-60(a)(3) ] sixteen days after the filing of the request ..." Adler v. Rosenthal, 163 Conn.App. 663, 682, 134 A.3d 717 (2016). Even had the defendant objected, the Appellate Court has held that when a defendant’s motion for summary judgment rests on a failure of the operative complaint that could be remedied through proper amendment, notwithstanding "the concern that amendments could be used as tactical measures to avoid summary judgment," it is an abuse of discretion for the trial court to fail to grant an amendment that remedies a failure of the operative complaint. Miller v. Fishman, 102 Conn.App. 286, 292, 925 A.2d 441 (2007). Because the defendant did not submit an timely objection to the amended complaint, the amended complaint is operative and the motion for summary judgment will be considered against the allegations of the amended complaint.
Practice Book 10-60(a) provides, in relevant part: "[A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner ... (3) By filing a request for leave to file an amendment together with: (A) the amended pleading or other parts of the record or proceedings, and (B) an additional document showing the portion or portions of the original pleading or other parts of the record or proceedings with the added language underlined and the deleted language stricken through or bracketed ... If no party files an objection to the request within fifteen days from the date it is filed, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10-12 through 10-17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list."
A. Statute of Limitations
Having established that the amended complaint is operative, the court must next consider the question of whether it has subject matter jurisdiction over the allegations in the amended complaint inasmuch as the amendment was filed after the running of the statute of limitations. Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012). "Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised ... Because subject matter jurisdiction cannot be conferred by waiver or consent ... the court must address the question, suo motu if necessary, even in the absence of a motion." (Citations omitted.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014).
The plaintiff’s allegations arise under General Statutes § 13a-149, which also provides that "[n]o action for any such injury [caused by a highway defect] ... shall be brought except within two years from the date of such injury." Because the plaintiff’s cause of action is granted by statute, the running of the statute of limitations implicates the subject matter jurisdiction of the court. The amended complaint was filed on June 4, 2018, more than two years after the May 2, 2015 incident resulting in the plaintiff’s injury. Accordingly, the amended complaint can only be considered by the court if its allegations relate back to those of the initial complaint. "The relation back doctrine has been well established by [our Supreme Court] ... There is a well-settled body of case law holding that a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... If a new cause of action is alleged in an amended complaint ... it will [speak] as of the date when it was filed ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 207, 157 A.3d 70 (2017).
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 ... 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."
In evaluating which amendments can relate back, our Supreme Court in Briere rejected a bright line rule in favor of a two-stage, case-by-case inquiry. First, the court must determine whether the "new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant." Briere, supra, 325 Conn. 210. Second, where the new allegations do not contradict the original cause of action, "[t]he trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts." Id., 211.
In the present action, the allegations of the amended complaint do not contradict the allegations of the initial complaint, but are simply limited to those charges that can be leveled against the defendant, given that it did not control the sidewalk in question. The amended complaint’s allegations involve the same actors, events, time frame, location, and injury. They allege similar types of conduct on the part of the defendant and require it to present similar evidence in its defense. In short, the cause of action described in the amended complaint is nearly identical to the cause of action described in the initial complaint. It is submitted the allegations of the amended complaint relate back to the initial complaint and are properly before the court.
B. Summary Judgment
Having established the court’s jurisdiction to consider the allegations of the amended complaint, the court now turns to the grounds of the defendant’s motion for summary judgment. "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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
As noted previously, the allegations in the amended complaint derive from General Statutes § 13a-149. "To prove a breach of statutory duty 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 that defect; (3) that the defendant, 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." (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998).
To assert a claim under § 13a-149, therefore, the plaintiff must demonstrate that the highway defect in question was the sole proximate cause of his injuries. In its motion for summary judgment, the defendant asserts that because it did not control the sidewalk over which the plaintiff rode on his way to the road, the plaintiff cannot establish that the defendant was responsible for the sole proximate cause of the plaintiff’s injury. However, neither party asserts at this stage that the defendant exercised control over the sidewalk over which the plaintiff rode before falling in the street. The defendant argues that the allegations in the initial complaint and attached notice of injury nonetheless constitute judicial admissions, establishing that the condition of the sidewalk was a contributing factor to the plaintiff’s fall, and that the condition of the road could not, therefore, be the sole proximate cause of the plaintiff’s injury. In response, the plaintiff contends that the allegations of the amended complaint, supported by the affidavits he has attached to his objection to this motion for summary judgment, present a genuine issue of material fact as to the question of the sole proximate cause of his fall.
The defendant first contends that the statements in the initial complaint constitute a judicial admission that cannot be withdrawn. "Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings." LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 829-30, 798 A.2d 445 (2002). "[T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it ... [The] admission in a pleading or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission ... It is axiomatic that the parties are bound by their pleadings." (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn.App. 470, 476, 929 A.2d 362 (2007).
This court finds that the plaintiff’s initial complaint, as currently constituted, does not contain a judicial admission. "It is well settled that [f]actual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case ." (Emphasis added; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals of the City of Middletown, 106 Conn.App. 266, 271, 941 A.2d 966 (2008). The allegations in the initial complaint, however, have been superseded by allegations in the amended complaint. While "statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them"; Ferreira v. Pringle, 255 Conn. 330 345, 766 A.2d 400 (2001) (emphasis in original, internal quotation marks omitted); no such judicial admission remains in the text of the amended complaint.
Leaving the statements in the initial complaint aside, the defendant next argues that the plaintiff’s notice of injury, provided to the city pursuant to General Statutes § 13a-149 and attached to the initial complaint, establishes that the condition of the sidewalk was a contributor to his fall. "A complaint includes all exhibits attached thereto." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). The statements in the plaintiff’s notice of injury, therefore, must be considered an integral part of the plaintiff’s complaint and, furthermore, have not been superseded by the amended complaint, which does not address the exhibit. The notice of injury in the present action states that the plaintiff "began to lose control of his motorcycle upon making impact with the hole and cement pieces [in the sidewalk], as his motorcycle continued in its left-turn trajectory, at which point he hit and slid on a patch of sand and dirt on the west shoulder of Eastern Street." (Emphasis added.) Initial Complaint, Exhibit A.
In its reply to the plaintiff’s objection, the defendant includes additional quoted material to establish its point, but that language is not contained in the notice of injury as cited and will not be considered by the court.
"[E]xhibits attached to a complaint can be considered by the factfinder if the defendant, through his answer or other responsive pleading, admits to the factual allegations contained therein so that the pleading constitutes a judicial admission." Altama, LLC v. Napoli Motors, Inc., 181 Conn.App. 151, 156-57, 186 A.3d 78 (2018). The defendant has not yet submitted an answer to the amended complaint, and has, therefore, not admitted to the factual statements in the notice of injury. The authorities relied upon by the defendant to establish the notice of injury as a judicial admission are distinguishable from the facts in the present action, as each case was resolved on the basis of the respective defendants’ responsive pleadings. See, e.g., Hirsch v. Thrall, 148 Conn. 202, 206-07, 169 A.2d 271 (1961) (answer filed by party in response to interrogatory has same effect as judicial admission in pleading). It is, accordingly, premature for the court to consider the factual statements in the notice of injury as a judicial admission.
Although the amended complaint is operative, the defendant did not admit to the factual statements in the notice of injury even in its answer to the initial complaint, responding to the notice as follows: "Admitted that notice was given and attached as Exhibit A. The sufficiency of said notice is denied." Answer, ¶ 14.
Although the notice of injury does not constitute a judicial admission, it does serve as evidence that the condition of the road was not the sole proximate cause of the plaintiff’s injury. In response, the plaintiff argues to the contrary that the amended complaint and the affidavits attached to his objection are sufficient evidentiary foundation for a jury to find that the condition of the road was the sole proximate cause of the plaintiff’s fall. The amended complaint alleges that the condition of the road was the sole proximate cause of the plaintiff’s fall, omitting any mention of the condition of the sidewalk as a contributing factor. The affidavits submitted with the plaintiff’s objection support that conclusion by presenting testimony that the plaintiff did not lose control of his motorcycle until he slipped in the roadway. The first affidavit, as attested by witness Jose Miranda, asserts that the plaintiff "drove through some rocks on the sidewalk, which caused him to weave a little ... He was still upright, on his motorcycle, and continuing to turn left, until he reached the street, where he hit a patch of dirt and sand and lost control of his motorcycle." Objection, Exhibit A. The second affidavit, as attested by witness Juanita Achedarria, asserts that the plaintiff "turned onto the street, and as he was turning, his motorcycle hit the sandy, salty patch. Before he hit the sandy, salty patch, his motorcycle was upright and he was still on it. When he hit the sand and salt, his motorcycle slid and that is when his motorcycle fell to the road ..." Objection, Exhibit B.
Taken in the light most favorable to the nonmovant, and read in context of the amended complaint, these affidavits could be read to establish that the plaintiff had control of his motorcycle until he encountered the alleged defect on Eastern Street and that, therefore, the notice of injury inaccurately stated the course of events leading up to the plaintiff’s fall.
Based on the foregoing, the defendant City of New Haven’s motion for summary judgment is denied on the ground of sole proximate cause.
C. Constructive/Actual Notice
The defendant City of New Haven next contends in its motion that the condition on Eastern Street did not constitute a highway defect and that, even if it did, the defendant received no actual or constructive notice of the alleged defect and summary judgment should be granted in its favor on this ground.
Notice, whether actual or constructive, is an essential element of the plaintiff’s highway defect claim. Prato, supra, 246 Conn. 642. Neither party has presented evidence that the city received actual notice of the alleged highway defect causing the plaintiff’s fall, leaving only the possibility of constructive notice. "[T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it ... The test is, not would the defect have been discovered had the particular portion of the street in question been examined, but would it have been discovered had the municipality exercised reasonable supervision over its streets as a whole." DeMatteo v. New Haven, 90 Conn.App. 305, 308, 876 A.2d 1246 (2005).
The defendant contends that the plaintiff has not established that the defendant failed to exercise such reasonable supervision over its roadways. In support, the defendant presents the affidavit of Jeff Pescosolido, which asserts that the defendant began its regularly-scheduled street sweeping only on May 5, 2015, several days after the plaintiff’s fall. In response, the plaintiff has presented in the affidavit of Juanita Achedarria that "[i]n the street there was a lot of sand and salt. I had noticed that the sand and salt had been there since the city had spread it in the street when it was snowy, which was a few weeks before this incident." Objection, Exhibit B.
This court finds that there is a genuine issue of material fact as to whether the defendant City of New Haven had constructive notice of the defective condition that caused plaintiff’s accident. Accordingly, defendant City of New Haven’s motion for summary judgment on this ground is denied.
III.
CONCLUSION
Based on the foregoing, defendant City of New Haven’s motion for summary judgment is denied.