Trout v. Town of Ledyard

Full title: Andrea Trout v. Town of Ledyard et al

Court: Superior Court of Connecticut

Date published: Jan 11, 2017

CV136018486S (Conn. Super. Ct. Jan. 11, 2017)

Opinion

CV136018486S

01-11-2017

Andrea Trout v. Town of Ledyard et al

Timothy D. Bates, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE RULINGS ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT PLEADINGS #142 and #145

Timothy D. Bates, J.

INTRODUCTION

Both defendants in this case have filed motions for summary judgment. The defendant, Commissioner of the Department of Transportation, claims he is entitled to judgment against the plaintiff on the ground that the plaintiff's claim is barred by the doctrine of sovereign immunity and there is no genuine issue of material fact regarding liability. The Town of Ledyard claims it is entitled to judgment against the plaintiff on the ground that there is no genuine issue of material fact regarding liability.

FACTS

The plaintiff, Andrea Trout, filed a revised complaint in this action on December 28, 2015. Count one alleges a highway defect claim pursuant to General Statutes § 13a-149 against the Town of Ledyard (town). Count four alleges a highway defect claim pursuant to § 13a-144 against the State of Connecticut Commissioner of the Department of Transportation (DOT).¹ In the complaint, the plaintiff alleges the following facts. On May 25, 2012, the plaintiff states she slipped and fell while she was walking off the sidewalk into the road at the crosswalk on Route 117 near Ledyard Town Center. The plaintiff claims she rolled her foot off the asphalt that extended from the sidewalk over the roadway as it was not a visible transition into the road. She asserts defendants, the town and the DOT, were duty bound to repair and maintain the sidewalk that extended into the road and the Route 117 roadway, respectively. The plaintiff reports she was injured as a result of the fall, and asserts the defendants are obligated to pay damages as the fall was caused by the negligence and carelessness of the defendants in failing to remedy the defect on the curb.

1 On January 22, 2016, the plaintiff withdrew counts two and three of the revised complaint.

On August 9, 2016, the DOT filed a motion for summary judgment on the grounds that the plaintiff's claim is barred by sovereign immunity, there is no genuine issue of material fact regarding liability, and the defendant is therefore entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law. In support of its motion, the defendant submits the following evidence: (1) plaintiff's notice of intent to bring suit against the DOT, (2) a photograph of the area where the plaintiff fell, (3) portions of the plaintiff's deposition, (4) portions of Steven Masalin's deposition, (5) an affidavit from James Wilson, and (6) portions of James Wilson's deposition.

On September 20, 2016, the town filed a motion for summary judgment on the ground that there is no genuine issue of material fact in dispute regarding its liability and the town is entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law. In support of its motion, the town submits the following evidence: (1) portions of James Wilson's deposition, (2) portions of the plaintiff's deposition, (3) photographs of the area where the plaintiff fell, and (4) an affidavit from Steven Masalin.

The plaintiff, on October 3, 2016, filed two memoranda of law (one for each defendant) in opposition to the motions for summary judgment. The plaintiff's memoranda were accompanied by the following evidence: (1) portions of James Wilson's deposition, (2) emails regarding the curb cuts in the area where the fall occurred, (3) portions of Steven Masalin's deposition, (4) a photograph of the area where the plaintiff fell, (5) the plaintiff's deposition, (6) an affidavit from James Wilson, and (7) an affidavit from Steven Masalin. The motions were argued before the court at short calendar on October 17, 2016.

ANALYSIS

" The judgment sought 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." Practice Book § 17-49. " 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.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).

In the DOT's memorandum in support of its motion for summary judgment, the defendant argues that the evidence submitted demonstrates that there is no genuine issue of material fact with respect to the DOT's liability, and that the defendant is entitled to judgment as a matter of law. Specifically, the defendant argues that count four of the plaintiff's revised complaint is barred by the doctrine of sovereign immunity as the plaintiff was not a traveler on a state roadway at the time of the alleged injury. Additionally, the DOT argues that the plaintiff's injury did not occur by means of a defective highway or sidewalk which is the duty of the Commissioner of Transportation to repair. The defendant further argues that, even if the plaintiff's injury occurred in an area where the Commission of Transportation had a duty to repair, the defect alleged by the plaintiff is a design defect, which does not fall within the highway defect statute. In response, the plaintiff contends that sovereign immunity is waived as the claim falls within the purview of the highway defect statute. The plaintiff further contends that there is a genuine issue of material fact as to the defect, possession and control of the area, as well as which party had a duty to repair the defect.

In the town's memorandum in support of its motion for summary judgment, the defendant argues that the evidence submitted demonstrates that there is no genuine issue of material fact, and that the defendant is entitled to judgment as a matter of law because the defect alleged by the plaintiff is a design defect, which is not covered by the highway defect statute. Further, the town argues that the plaintiff cannot prove, as a matter of law, that the town of Ledyard was the sole proximate cause of the plaintiff's alleged injuries. In response, the plaintiff counters that there are genuine issues of material fact as to the defect and cause of her injury.

In order to prevail on a claim under § § 13a-144 or 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 . . . 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." ² (Internal quotation marks omitted.) DeMatteo v. New Haven, 90 Conn.App. 305, 308, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005); see also Stotler v. Department of Transportation, 313 Conn. 158, 96 A.3d 527 (2014). " [T]here is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149." (Citation omitted; international quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 741, 709 A.2d 2 (1998).

2 General Statutes § 13a-144 provides in relevant part that: " Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner . . ." General Statutes § 13a-149 provides in relevant 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 statutory provisions of § 13a-149 [and § 13a-144] have two components that must be established to trigger liability: (1) the plaintiff must have sustained an injury by means of a defective " road or bridge" [or highway] 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. (Internal quotation marks omitted.) Novicki v. New Haven, supra, 47 Conn.App. 739-40. " [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 . . ." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991). Moreover, " a highway is defective within the meaning of § 13a-149 [or § 13a-144] when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." Novicki v. New Haven, supra 47 Conn.App. 740. " Whether 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 . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001). Our Supreme Court has held that " a defect in the plan upon which the highway was constructed is not within the [defective highway] statute[s]." Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897). Liability may be imposed against the state or town, however, when " the highway would have been in such a defective condition as to have been out of repair from the beginning." Id., 351.

In determining which party is bound to maintain the location and keep it in repair, " [o]wnership of the property does not establish liability . . . Rather, it is the governmental entity charged with the duty . . . to keep [the property] in repair" that will assume liability under this statute. (Internal quotation marks omitted.) Novicki v. New Haven, supra, 47 Conn.App. 742. Furthermore, " the manner in which a defect is created in and of itself has no bearing on . . . liability under the statute. Rather, it is the existence of the defect and the . . . actual or constructive knowledge of and failure to remedy that defect that are of primary importance in making out a prima facie case of . . . liability . . ." (Emphasis in original; internal quotation marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 314, 39 A.3d 1065 (2012).

In the present case, the DOT and the town have the burden of demonstrating that no genuine issue of material fact exists as to its liability under § 13a-144 and 13a-149, respectively. Based on the two components that must be met in order to induce liability pursuant to these statutes, the defendants must demonstrate that, either there is no genuine issue of material fact that the roadway was not defective or there is no genuine issue of material fact that it was not the party bound to keep the roadway free of the alleged defects where the injury occurred.

A.

General Statutes § 13a-144

General Statutes § 13a-144 provides in relevant part that: " Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court."

The DOT first claims that, as a matter of law, the plaintiff was not a traveler on Route 117 because she was, instead, a pedestrian on a town sidewalk. In response, the plaintiff argues that she was in the process of crossing the state highway at the crosswalk, her travel over the crosswalk was incidental to her travel over the roadway, and she was crossing for a purpose connected to travel over the roadway.

" A person may, under some circumstances, traverse areas adjacent to the conventionally traveled highway while maintaining [her] status as a traveler entitled to bring an action under § 13a-144." Giannoni v. Commissioner of Transportation, 322 Conn. 344, 353, 141 A.3d 784 (2016). Travel over certain areas may induce liability under § 13a-144 when it is " incidental" to travel over the highway . . . and for a " purpose connected with travel thereon . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 342-43. Specifically, our Supreme Court has held that a traveler on the highway may include a person traveling on the shoulder of the road. Griffith v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943). Conversely, " when a person voluntarily depart[s] from the traveled way, and turn[s] aside from [their] journey for a purpose in no way connected with [their] passage over the highway, that person loses [their] status as a traveler over the highway." (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, supra, 322 Conn. 353.

Based on the evidence presented, the DOT has failed to meet its burden of establishing the absence of a genuine issue of material fact as to whether the plaintiff was a traveler over Route 117. For example, in the plaintiff's deposition provided by the DOT in support of its motion, the plaintiff testified that she " believed to have been stepping into the crosswalk" and she rolled her ankle after stepping down to proceed into the crosswalk. (Dft. DOT Exhibit 1, 76.) As the " duty of reasonable care extends to pedestrian travel as well as to vehicular traffic . . ." this court cannot conclude, as a matter of law, that the plaintiff was not a traveler pursuant to 13a-144. See Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972). Rather, the evidence presented suggests that the plaintiff was walking in an area incidental to and " for a purpose connected with her travel" over Route 117. See Ferreira v. Pringle, supra, 255 Conn. 342-43. Accordingly, the DOT's motion for summary judgment, on the ground that the plaintiff was a pedestrian, is denied.

The DOT next argues that the plaintiff's alleged injury did not occur by means of a defective highway, bridge, or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair. In support of its position that the DOT is not the party duty bound to keep the subject roadway free of defect, the DOT provided an affidavit of James Wilson, Planner for the DOT, stating that the area of the sidewalk in which the incident took place is " not part of the State highway system . . . [and] the State of Connecticut/Department of Transportation was not the party responsible to maintain and/or repair the sidewalk at the location where the plaintiff alleges she tripped and fell." In addition, the DOT provided excerpts from Steven Masalin's deposition testimony. Masalin, the town's Public Works Director, testified that the " [Ledyard] Board of Ed. maintains this sidewalk after snow events." (Dft. DOT's Exhibit, Masalin's Deposition, 102.) Given this evidence, the DOT has sustained its burden in showing that it is not the party that has the duty to maintain and repair the area at issue.

Because the DOT has met its burden with respect to the party duty bound to keep the area in repair, the burden shifts to the plaintiff to present evidence that contradicts the DOT's evidence, thereby creating a genuine issue of material fact. Similar to the documents submitted in opposition to the town's evidence, the plaintiff, in support of her opposition to the DOT's motion, provided the affidavits and deposition testimony of Steven Masalin and James Wilson, photographs of the subject area, and email correspondence between a Ledyard resident and Steven Masalin regarding the area at issue. Steven Masalin avers in his affidavit that the State of Connecticut Department of Transportation is responsible for maintaining the curbing and the " Town of Ledyard has no duty to maintain and repair any portion of Route 117 or the curbing along the roadway." (Pltf.'s Exhibit G.) Although the DOT contends that there exists no genuine issue of material fact and it is therefore entitled to judgment as a matter of law, the evidence, rather, presents an issue of material fact as to whether the town or the DOT had a duty to maintain the subject area. Accordingly, the DOT's motion for summary judgment on the basis of no duty to maintain is denied.

Lastly, the DOT argues that it is entitled to summary judgment on the ground that, even if the plaintiff's injury occurred in an area that the Commissioner of Transportation is duty bound to keep in repair, the defect alleged by the plaintiff is a design defect, which does not fall under the highway defect statute. Furthermore, the DOT asserts that the alleged defect is a step, which is an acceptable means of addressing a change in elevation. The plaintiff contends that there is no evidence that the asphalt overlay extension onto the sidewalk was part of the general highway overlay. Further, plaintiff counters that even if this is considered a design defect, the subject area falls within the Hoyt exception to design defects, which precludes sovereign immunity as a defense when the plan of design as implemented creates a hazard. See Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897).

" The defective condition must . . . exist in an area intended for public travel, or in an area that the public is invited or reasonably expected to traverse . . . [If] the state either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the statute . . . The fact that the defective condition is in an area where members of the public are likely, and in fact encouraged, to use is an important consideration." (Citations omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, supra, 322 Conn. 359-60. " Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances. Generally, the question of whether a highway is defective is one of fact, depending on a great variety of circumstances." (Internal quotation marks omitted.) Id. 360.

In support of its position that the defect alleged by the plaintiff is in fact a design defect and thus not within the purview of 13a-144, the DOT provided the plaintiff's deposition testimony in which the plaintiff stated that the asphalt curbing was " not broken, or decayed, or cracked." (Dft. DOT's Exhibit, Plaintiff's Deposition, 72-73.) The plaintiff further testified that she believed to have been stepping into the " crosswalk at that point" prior to the fall and " believed [the area] to be lower optically." (Dft. DOT's Exhibit, Plaintiff's Deposition, 73.) The defendant also submitted a photograph of the area where the plaintiff fell. The photograph depicts a lip or curb of asphalt between the road and the sidewalk. In support of its opposition to defendant's motion, the plaintiff provided the deposition of James Wilson in which he testified that the DOT " [does not] have specifications, per se" for the asphalt overlay project and the overlay is typically done with a hand shovel. (Pltf.'s Exhibit D, 30, 34.) Although the DOT contends that discovery in this case does not raise any genuine issues of material fact and it is therefore entitled to judgment as a matter of law, the evidence, instead, presents an issue of material fact as to whether the alleged defect was an actionable hazard in the road and an area in which the plaintiff was likely and encouraged to traverse. Accordingly, the DOT's motion for summary judgment is denied.

B.

General Statutes § 13a-149

In support of its position that the defect alleged is a design defect and therefore not within the scope of § 13a-149, the town provided the deposition testimony of James Wilson, stating that the area in which the injury occurred was recently replaced as part of a repaving project where the DOT installed a curb and, as part of the paving process, installed " backfill . . . to support the face of the curbing . . . [and] in this case, they ended up with bituminous asphalt." (Dft. Town's Exhibit A, 38.) Wilson's deposition testimony further provides that the " [DOT does not] have specifications per se" for this project. (Dft. Town's Exhibit A, 30.) In addition, the town provided the plaintiff's testimony, indicating that the plaintiff did not believe the asphalt area was cracked, broken or in a state of disrepair. (Dft. Town's Exhibit B, 73, 75.) The plaintiff later testified, however, that the " slight slope . . . helped her perceive the optical illusion of a slight sloping going into the crosswalk." (Dft. Town's Exhibit B, 132.) Rather than dispel all genuine issues of material fact, the evidence provided raises questions as to whether the defect was a hazard in the roadway.

In support of its position that the town is not the party bound to keep the subject area free of any defect and that the plaintiff cannot prove that the town was the sole proximate cause of her injuries, the town cited the deposition testimony of James Wilson. Wilson testified that the State of Connecticut removed and replaced the curbing at issue and such projects usually include the roadway and curb-to-curb repairs. (Dft. Town's Exhibit A, 38.) The town also provided the affidavit of Steven Masalin in which he averred " the State of Connecticut was wholly responsible for maintaining the curbing along the state roadway" and " the State of Connecticut created the asphalt curbing and asphalt extension to the sidewalk." Masalin avers further that " the defective asphalt curbing was within the bounds of the area created by the State of Connecticut during the resurfacing overlay project in the fall season of 2011 . . . and the town has no duty to maintain and repair any portion of Route 117 or the curbing." Given this evidence, the town has sustained its burden in showing that it is not the party that has a duty to maintain and repair the roadway at issue. Rather, the evidence suggests that the DOT is bound to keep the area at issue in repair.

As the town has sustained its burden with respect to the party duty bound to keep the area in repair, the burden shifts to the plaintiff to present evidence that contradicts the town's evidence thereby creating a genuine issue of material fact. In support of the plaintiff's opposition to the town's motion, the plaintiff provided the affidavit of James Wilson. Wilson avers that the " State of Connecticut/Department of Transportation was not the party responsible to maintain and/or repair the sidewalk" at issue. (Pltf.'s Exhibit G.) The plaintiff also provided the affidavit and deposition testimony of Steven Masalin, photographs of the subject area, and an email correspondence between a Ledyard resident and Steven Masalin regarding the area at issue. In the email correspondence, Steve Masalin avers it is the responsibility of the town to maintain curbs on the sides of the crosswalk. (Pltf.'s Exhibit B.) The plaintiff's evidence in opposition is sufficient to establish the existence of a genuine issue of material fact as to whether the town or the DOT was duty bound to maintain the subject area in repair, and therefore the Motion to dismiss based on these grounds is denied.

Lastly, the town argues that the plaintiff was contributorily negligent for her own injuries, therefore, the town is relieved of any liability under § 13a-149 because the plaintiff cannot as a matter of law prove that the town was the sole proximate cause of her injuries. In support of its motion, the town provided the plaintiff's testimony in which the plaintiff averred that the subject area was not cracked or in disrepair. The plaintiff testified further, however, that on the day of the incident, the weather and visibility were good, she was wearing her glasses, she " didn't have a cell phone to distract [her], and she was " not fumbling with [her] keys." (Pltf.'s Exhibit E, Plaintiff's Deposition, 63.) " A determination as to whether the plaintiff was in the exercise of due care is a question to be answered by the trier of fact." Nikides v. Town of Wethersfield, 148 Conn.App. 186, 193, 84 A.3d 486, cert. denied, 311 Conn. 939, 89 A.3d 350 (2014). Given the evidence provided by the town, there remains a genuine issue of material fact as to whether the plaintiff was in fact contributorily negligent. Accordingly, the Town's motion for summary judgment is denied.

CONCLUSION

The parties' conflicting evidence claims reveal genuine issues of material fact as to the party duty bound to repair the subject area and whether the defect was a hazard. Therefore, the defendants' motions for summary judgment are denied.