Opinion
AANCV156019012S
06-27-2018
Deborah TREACY v. CITY OF SHELTON
UNPUBLISHED OPINION
STEVENS, J.
STATEMENT OF THE CASE
On October 18, 2016, the plaintiff, Deborah Treacy, filed her second revised complaint. This revised complaint alleged that on June 27, 2014, the plaintiff stepped onto the roadway near her residence, the roadway collapsed and caused her to suffer various injuries. The plaintiff claims that her injuries were caused by a defect in the roadway, which was created by a catch basin that the defendant, the city of Shelton, had a duty to maintain. The plaintiff further claims that the defendant knew or, in the exercise of reasonable care, should have known about the defect, but failed to adequately inspect, maintain, or repair it. Count one asserts a claim under the highway defect statute, General Statutes § 13a-149. Count two asserts a claim under General Statutes § 52-557n.
General Statutes § 13a-149 provides: "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."
General Statutes § 52-557n provides in relevant part: "(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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (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. (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 or impliedly granted by law."
On December 9, 2016, the defendant filed an amended answer denying the substantive allegations of the plaintiff’s second revised complaint. The answer also asserts two special defenses. The first special defense is directed at the second count of the plaintiff’s second revised complaint and alleges that the defendant is entitled to governmental immunity pursuant to § 52-557n. The second special defense is directed at both counts of the revised complaint and alleges that the defendant is entitled to a credit for certain payments received by the plaintiff for her injuries. On January 6, 2017, the plaintiff filed a reply denying the allegations of the defendant’s special defenses.
Pending before the court is the defendant’s motion for summary judgment filed on August 31, 2017. In support of the motion, the defendant filed a memorandum of law and supporting exhibits. The plaintiff filed a memorandum of law in opposition to the defendant’s motion for summary judgment and supporting exhibits. The defendant then filed a reply brief. Subsequently, the plaintiff filed supplemental exhibits, and the defendant filed a reply brief addressing the same. The court heard oral argument on the summary judgment motion on March 12, 2018. For the following reasons, the motion for summary judgment is denied as to the first count of the second revised complaint and granted as to the second count.
DISCUSSION
"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). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
I. GENERAL STATUTES § 13a-149
The defendant argues that it is entitled to judgment as a matter of law as to count one of the plaintiff’s second revised complaint, alleging liability pursuant to § 13a-149, on the ground that there is no genuine issue of material fact concerning whether the defendant had notice of the alleged defect, which is required in order to prove a claim under § 13a-149. It argues that it did not have actual notice of the defect’s existence because the road collapsed without warning, no complaint was ever made about the defect, there is no evidence that the defendant maintained the catch basin or that maintenance would have provided notice of the defect, and because the plaintiff offers only speculative evidence to support her conclusion that the defendant constructed the catch basin. The plaintiff counters that there is a genuine issue of material fact concerning whether the defendant constructed the allegedly defective catch basin that caused the plaintiff’s injuries, and therefore, there is a genuine issue of material fact as to whether the defendant had notice of the defect’s existence. The court agrees with the plaintiff.
The purpose of § 13a-149 is "to provide parties who are injured [because of a defective highway] the means to recover from the municipality." Brennan v. Fairfield, 255 Conn. 693, 704, 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 ..." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 813-14, 92 A.3d 1016 (2014). In order to establish liability pursuant to § 13a-149 a plaintiff must prove: "(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.) Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441 (2001). "Notice is simply an additional element required to show a breach of duty when negligence is alleged under a theory of premises liability ... Notice must be negated like any other element before the defendant may be entitled to summary judgment ... Fundamentally then, in order to succeed on a motion for summary judgment, it is the defendant, not the plaintiff, who must affirmatively establish that they did not have actual or constructive notice." (Internal quotation marks omitted.) Stevens v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV-16-6069156-S (March 5, 2018, Noble, J.).
In support of its argument that it did not have actual notice of the alleged defect, the defendant relies on the deposition testimony of the plaintiff and the affidavit of Robert Kulacz, an engineer employed by the defendant. In her deposition, the plaintiff testified that prior to stepping through the sinkhole, there was nothing about the road surface that caused her to be concerned. Treacy Dep. p. 36. In his affidavit, Kulacz states that no complaints were made to the defendant regarding the condition of the Glendale Terrace roadway or its catch basins within five years of the date of the plaintiff’s alleged injuries (although the plaintiff made several complaints regarding other issues prior to that same date). Kulacz Aff. ¶¶ 7-8. Kulacz further testified that, prior to the date of the plaintiff’s alleged injuries, the defendant’s engineering department was not aware of any defect in the roadway on Glendale Terrace. Kulacz Aff. ¶ 9.
In response, the plaintiff submitted, inter alia, the affidavit of Charles Elias, a professional engineer, who testified that, in his opinion, the defendant either constructed the allegedly defective catch basin or approved an independent contractor’s defective catch basin design. Elias Aff. ¶ 38. As support for his opinion, he relies on, inter alia, the lack of any records regarding a building permit pertaining to the subject catch basin, a 1954 "tap card" depicting several water service lines on Glendale Terrace, and testimony indicating that the subject catch basin was forty years old. Elias Aff. ¶¶ 33, 35, 38. The court rejects the defendant’s argument that Elias’ opinion is flawed or too speculative to be considered. Elias’s opinions are sufficiently fact-based such that it cannot be characterized as conclusory or conjectural.
Moreover, Elias’s opinions find some support by Kulacz’s testimony. At his deposition, Kulacz testified that if a catch basin were to be installed in Shelton, either (1) the defendant would install the catch basin itself, without needing a permit, or (2) a developer would install the catch basin in accordance with a permit issued by the defendant. Kulacz Dep. pp. 22-24. Kulacz further testified that the defendant does not possess any records concerning the construction of the allegedly defective catch basin. Kulacz Dep. p. 24. Kulacz also admitted in his supplemental affidavit that "it is unknown whether the [defendant] or a third-party contractor, constructed and/or installed the storm sewer system and catch basins on Glendale Terrace." Kulacz Sup. Aff. ¶ 10. Based on this information from Elias and Kulacz, a reasonable trier of fact could infer that, because there are no records of a permit to build the subject catch basin, the defendant itself constructed it. The law is established that notice of a defective condition may be inferred by a defendant’s creation of the defect. DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 124, 45 A.3d 951 (2012). On the present record, the court cannot conclude, as a matter of law, that there is insufficient information for the trier of fact to find that the defendant created the defect at issue, and in turn, to make an inference of notice based on this finding.
The defendant also relies on Stotler v. Dept. of Transportation, 142 Conn.App. 826, 70 A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014), to argue that the plaintiff’s complaint should fail under the general rule precluding municipal liability for design defects. This reliance is misplaced. In Stotler, the plaintiff’s decedent "brought [an] action pursuant to § 13a-144 against ... the Department of Transportation, to recover damages sustained when a truck descending Avon Mountain along Route 44 experienced brake failure and collided with multiple vehicles." Stotler v. Dept. of Transportation, supra, 313 Conn. 160. The plaintiff alleged that the defendant "utilized a plan of design, construction and/or repair ... which was totally inadmissible, in that it created an unsafe condition ... Specifically, the plaintiff allege[d] that the absence of tangible safety measures, including a runaway truck ramp and adequate signage warning of the steep downhill grade, as well as the failure to prohibit trucks on the roadway in the absence of these and other safeguards, rendered the roadway defective." (Internal quotation marks omitted.) Id., 168-69. The Supreme Court rejected the plaintiff’s claim, explaining that when viewed accurately, the plaintiff’s complaint was not actually based on a "highway defect" within the meaning of § 13a-144 because the claim was not premised on any poor condition of the road, but was premised on the absence of certain safety measures in the highway design itself: "[T]he plan of design providing for the steep downhill grade, together with the absence of tangible safety measures, as implemented, did not create an otherwise actionable highway defect as defined by our case law ... [A] highway defect is [a]ny object [or condition] 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 ... A properly constructed road on a 10 percent downhill grade, together with the absence of certain tangible safety measures, does not constitute a condition or object in the traveled path that would necessarily obstruct travel thereon. Indeed, the plaintiff does not claim that the road itself was in poor condition, either in material or manner of construction ..." (Citations omitted; internal quotation marks omitted.) Id., 182.
The court agrees with the plaintiff that the Supreme Court’s decision in Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), provides the more appropriate analytical framework for the present case. In Perrotti, the plaintiff alleged that the defendant’s negligent construction and maintenance of a highway drain caused injury to the plaintiff’s truck and its contents. Id., 534-35. The plaintiff alleged that, upon pulling his truck to the side of the road in order to avoid a trolley-car, the drain in the road was crushed, causing his truck and its contents to be damaged. Id., 535. The court held that, because "[t]he highway commissioner ... knew the manner of the construction of the highway and the materials used in the construction of the drain pipes at the place in question, and maps, plans and specifications showing same were in the possession of the highway commissioner ... on and before the time of the accident ... [t]he highway commissioner ... had ample notice of the existence of the drain, its character and the covering above it." (Internal quotation marks omitted.) Id., 542. "In Perrotti, unlike in [Stotler ] the plaintiff alleged an otherwise actionable highway defect, namely, the poorly constructed drain under the surface of the highway that collapsed under the weight of a vehicle traveling thereon ... The poorly constructed drain constituted a condition in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon ..." (Citation omitted; internal quotation marks omitted.) Stotler v. Dept. of Transportation, supra, 313 Conn. 181.
As in Perrotti, the plaintiff in the present matter contends that the defendant constructed the subject catch basin over and around a water service line up against the trench of a second service line, maintained and serviced the same for more many years, and thus, had either actual or constructive notice of the existence of the defect. "The municipality [cannot] escape liability merely because the drain was constructed pursuant to a plan of design that the municipality adopted in its quasi-judicial or legislative capacity ... because the plan, as implemented, created a defect for which the government otherwise would be liable had the dangerous condition originated through means other than the plan of design ... The municipality was therefore liable for injuries caused by the defective plan of design after it had reasonable notice of the defect and of the imminence of the injury." (Citations omitted; internal quotation marks omitted.) Id., 181-82.
In summary, unlike Stotler, the plaintiff here claims that the road itself was in poor condition because the manner in which the defendant constructed or maintained the subject catch basin created a defective condition in the area of the road where she fell. Similar to Perrotti, the condition about which the plaintiff complains- an allegedly defective catch basin that caused the formation of a sinkhole- constitutes a condition in the road that obstructs or hinders one in the use of the road. Accordingly, the defendant’s motion for summary judgment on count one of the plaintiff’s second revised complaint, alleging liability pursuant to § 13a-149, is denied because material issues of disputed fact exist precluding summary disposition.
II. GENERAL STATUTES § 52-557n
The defendant argues that it is entitled to summary judgment as to count two of the plaintiff’s second revised complaint, alleging negligence pursuant to § 52-557n, on the ground that § 13a-149 is the plaintiff’s exclusive remedy. The court agrees.
General Statutes § 52-557n(a)(1)(C) provides that "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." See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 203, 592 A.2d 912 (1991) (holding that plaintiffs’ claim that accident was caused by a defective traffic light is, as a matter of law, a claim based upon a defective road). When it is unclear whether an alleged defect comes within the purview of the highway defect statute, however, a plaintiff may plead a claim pursuant to § 13a-149 as well as alternative theories of relief. See Read v. Plymouth, 110 Conn.App. 657, 661-62, 955 A.2d 1255 (holding that plaintiff’s complaint properly contained alternative theories of recovery because it was unclear whether plaintiff’s claims fell under § 13a-149), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).
There can be no bona fide dispute that the plaintiff’s claims are based on an alleged highway defect. Throughout the plaintiff’s second revised complaint, she describes the "subject roadway," which she defines as "the highway located at Glendale Terrace in Shelton, CT." Rev. Compl. Ct. 1 ¶ 2, Ct. 2 ¶ 2. The plaintiff alleges that the defendant was responsible for the care and maintenance of the subject roadway at Glendale Terrace. Rev. Compl. Ct. 1 ¶¶ 2-3, Ct. 2 ¶¶ 2-3. She further alleges that there was a "sewer drain, catch basin and/or other drainage modality located in the subject roadway," which was in an area that pedestrians were likely to traverse, and that she "stepped onto the subject roadway at/near the curb at 6 Glendale Terrace in Shelton, Connecticut when the road suddenly and without warning collapsed under [her] left foot ..." Rev. Compl. Ct. 1 ¶¶ 4-5, 7, Ct. 2 ¶¶ 4-5, 7.
On the basis of these allegations of the revised complaint, the plaintiff’s exclusive remedy is pursuant to § 13a-149. The plaintiff does not seriously contend to the contrary. The plaintiff concedes that "there does not appear to be any material dispute as to whether the catch basin is part of the highway." Pl.’s Mem. in Opp. to Summ. Judg., p. 3. In support of this assertion, the plaintiff cites to an affidavit of Elias and deposition testimony of Kulacz. In Elias’s affidavit, he testified that "[t]he subject catch basin was, and remains, an intrinsic part of Glendale Terrace. It is constructed in the traveled way of the street, and upon the road surface." Elias Aff. ¶ 25. At Kulacz’s deposition, when asked if the subject catch basin is part of the street or highway, he answered in the affirmative, and when asked if the catch basin is an integral part of Glendale Terrace, he answered, "[i]t’s part of the infrastructure for the roadway." Kulacz Dep. pp. 21-22.
In summary, the allegations of the revised complaint, as well as the facts of the parties’ submissions, establish that there is no genuine issue of material fact that the injuries being claimed by the plaintiff are based on an alleged highway defect, making § 13a-149 the plaintiff’s exclusive remedy. Accordingly, the defendant is entitled to judgment as a matter of law as to count two of the plaintiff’s second revised complaint based on § 52-557n.
Because the court concludes that the defendant is entitled to summary judgment on the second count of the revised complaint on the ground that § 13a-149 provides the plaintiff with her exclusive remedy, the court does not reach the defendant’s alternative argument that it is entitled to summary judgment on the basis of governmental immunity pursuant to § 52-557n(a)(2)(B).
CONCLUSION
On the basis of the foregoing, the defendant’s motion for summary judgment is denied as to count one of the plaintiff’s second revised complaint and is granted as to count two.
So ordered this 27th day of June 2018.