Opinion
No. CV 06 5005010
April 5, 2011
MEMORANDUM OF DECISION
FACTS
This action is brought by the plaintiff, Maria Morales, against the defendant, city of New Haven. The plaintiff seeks damages for personal injuries allegedly sustained when, while crossing a public street on June 25, 2004 in downtown New Haven, she tripped on a hole and fell. The plaintiff served the defendant by hand with a summons and complaint on June 22, 2006, and filed this action with the court on July 12, 2006. The plaintiff subsequently filed an amended complaint on December 26, 2006. In the second count of the amended complaint, it is alleged that the plaintiff "was a pedestrian, lawfully on the street attempting to cross to the other side," but while walking "slipped and fell, due to the dangerous and defective condition of the hole in the street." The plaintiff further alleges that "the defendant's negligence and carelessness caused [the plaintiff's] injuries" and the present action is "brought in accordance with Connecticut General Statutes 13a-149." On January 6, 2011, the defendant filed an answer to the amended complaint.
The regional water authority was also named as a defendant in the complaint, but in an order dated December 30, 2007 (Corradino J.), summary judgment was granted in favor of the regional water authority on the ground it did not exercise control over the alleged defective area.
On February 3, 2011, the defendant filed a motion for summary judgment, with accompanying memorandum of law, on the grounds that there are no genuine issues of material fact because there was no highway defect, but even if found to be so, the defect was not the sole proximate cause of the plaintiff's fall and injury. In support of its motion for summary judgment, the defendant submits as evidence: (1) portions of a certified deposition taken of the plaintiff; (2) affidavit of Dominic Tamarro, public liability investigator for the city of New Haven, and; (3) various photographs of the street location and hole in which the plaintiff allegedly fell while walking. On February 14, 2011, the plaintiff filed an objection to the motion for summary judgment, and submitted a memorandum of law in opposition. The plaintiff did not submit an affidavit or any other counterevidence in support of its opposition to summary judgment. The court heard oral argument from the parties on February 22, 2011.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "When a motion for summary judgment is supported by affidavits and other documents, an adverse party . . . must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
The defendant claims that there are no genuine issues of material fact and they are entitled to judgment as a matter of law because the road condition which the plaintiff complains caused her injury is not a defect, and nonetheless, was not the sole proximate cause of her injury. Specifically, the defendant argues that the "hole the plaintiff alleges she fell in is not a defect pursuant to § 13a-149" because the alleged defect "is not likely to obstruct, or hinder the use of the roadway . . . Rather, the hole is located on a section of the street designed for motor vehicle use, not pedestrian travel." Further, the defendant claims that, even if the hole was found to be a defect under § 13a-149, summary judgment should be granted because "the plaintiff cannot prove that the alleged defect was the sole proximate cause of her injury, as her testimony supports that she was not in the exercise of due care, and was contributor[ily] negligent." The defendant claims this is so because the plaintiff was not in compliance with General Statutes § 14-300b as "there was a crosswalk in the vicinity of the plaintiff's fall . . . At the time of her fall, the plaintiff was not using the crosswalk, and was therefore negligent in crossing the street."
The plaintiff counters that the defendant has not met its burden to show that are no genuine issues of material fact for trial. Specifically, the plaintiff argues that "whether or not the highway is defective is a factual question based on the circumstances." Further, the plaintiff claims that the defendant is not entitled to judgment as a matter of law on the issue of sole proximate cause because "the plaintiff made reasonable use of her senses given her age and physical condition."
The plaintiff brings this action pursuant to § 13a-149, commonly known as the municipality highway defect statute. Section 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." In order to recover under § 13a-149, "a 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.) Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). In the present case, the defendant has sustained its burden to show there are no genuine issues of fact as to the plaintiff's contributory negligence, and thus, the defendant is entitled to summary judgment as a matter of law under § 13a-149.
Because the defendant has met its burden that it is entitled to judgment on the issue of the sole proximate cause of the plaintiff's injuries, the court does not address the defendant's separate claim that the hole in the road was not a defect, and will assume for the purposes of this memorandum that the hole in the road was a defect.
"Because a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence . . . To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill." (Citations omitted; internal quotation marks omitted.) Nicefaro v. New Haven, supra, 116 Conn.App. 62; see also Smith v. New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001) ("a municipality's liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party"). "An issue of proximate cause is ordinarily a question of fact for the trier . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier of fact." (Citations omitted; internal quotation marks omitted.) Ludington v. Sayers, 64 Conn.App. 768, 773-74, 778 A.2d 262 (2001).
In the present case, it is undisputed that the plaintiff crossed the roadway at a mid-point of the street, and did not use a nearby cross-walk on the day of her accident. The plaintiff's own deposition testimony indicates she was aware of the crosswalk and pedestrian signals at nearby intersections, and had seen them in operation, but did not use them on the day of the accident because they are "[not] in the front of the building" in which she resides. The General Assembly has enacted a pedestrian control statute, § 14-300b(b), which states in relevant part: "No pedestrian shall cross a roadway between adjacent intersections at which traffic or pedestrian-control signals are in operation except within a marked crosswalk." The defendant has submitted evidence through the plaintiff's deposition testimony and a duly sworn affidavit demonstrating that there were traffic and pedestrian-control signals at adjacent intersections to her slip and fall. Specifically, according to the affidavit from the public liability investigator for the city of New Haven, "The location of the plaintiff's alleged fall is a roadway between adjacent intersections at which both traffic and pedestrian-control signals [are] located at marked crosswalks." The court can reasonably infer that these signals were still in operation at the time of the accident. Thus, the defendant has submitted uncontested evidence showing there to be no material question of fact of the plaintiff's noncompliance with the mandate of a pedestrian statute.
The court may consider not only the facts presented by the parties' affidavits and documentary evidence, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969). The plaintiff testified in her deposition that she had seen the "sign with a red hand" prior to her accident, referring to the operation of the pedestrian-control signals.
In Nikiel v. Turner, 119 Conn.App. 724, 989 A.2d 1088 (2010), the court addressed the intersection of noncompliance with the mandate of a pedestrian statute and a municipality's liability under the highway defect statute. Similarly, the case concerned a trip and fall personal injury suit brought pursuant to the municipal highway defect statute § 13a-149, and a pedestrian statute correspondent to the pedestrian statute at issue in the present case. In the statute at issue in that case, General Statutes § 14-300c(a) provided, in relevant part: "No pedestrian shall walk along and upon a roadway where a sidewalk adjacent to such roadway is provided and the use thereof is practicable." While the precise pedestrian statute at issue in Nikiel was a different one than in the present case both contain equivalent subsections in which the General Assembly has explicitly mandated that noncompliance with the statute "shall be an infraction." See §§ 14-300b(d); 14-300c(e).
Section 14-300b(d) provides: "A violation of any provision of this section shall be an infraction."
Section 14-300c(e) provides: "A violation of any provision of this section shall be an infraction."
The court in Nikiel upheld a jury instruction as a correct statement of the law which charged that if the plaintiff was found to be in noncompliance with the pedestrian statute, then the plaintiff "is negligent per se and cannot prove that the alleged defect in the roadway was the sole proximate cause of her injuries." Nikiel v. Turner, supra, 119 Conn.App. 726. The court held that "because recovery under § 13a-149 requires, inter alia, proof of freedom from contributory negligence . . . a finding of noncompliance with § 14-300c(a) precludes recovery under the municipal highway defect statute." (Internal quotations marks omitted.) Id., 729. The court reasoned that a "finding that the plaintiff failed to comply with the mandate of § 14-300c(a) cannot be reconciled with a determination that she is free from contributory negligence." Id., 728.
The same analysis applies in the present case. The defendant's undisputed summary judgment evidence sets forth facts showing the plaintiff crossed the roadway, between adjacent intersections at which traffic and pedestrian control signals are located at marked crosswalks. These facts demonstrate noncompliance with the plain statutory language and mandate of § 14-300b(b). The plaintiff, in response, has submitted no evidence to refute this factual demonstration by the defendant, or provide any other evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to the plaintiff's negligence, or lack thereof. See Bednardz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008) (once movant has satisfied its burden, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact"). The plaintiff simply relies on its initial allegation that the plaintiff was "lawfully on the street" and one sentence in its memorandum in opposition in which it states the plaintiff "made reasonable use of her senses given her age and physical condition." This is not evidence which the court can consider to raise an issue of material fact, and the defendant has met its burden to show there are no issues of material fact, specifically related to the plaintiff's negligence.
In rendering summary judgment for the defendant, the court makes no factual finding, but simply determines that there is no factual dispute as to the plaintiff's noncompliance with 14-300b(b), which is an infraction, and precludes recovery under the municipal highway defect statute 13a-149 as a matter of law. Nikiel v. Turner, supra, 119 Conn.App. 729 ("it suffices to say that failure to comply with 14-300c(a) demonstrates negligence on the part of the plaintiff").
Therefore, the defendant has sustained its burden to show there is no genuine issue of material fact concerning the issue of whether the defect was the proximate cause. The plaintiff has presented no evidence contradicting the defendant's summary judgment evidence, or provided any evidentiary foundation in order to demonstrate the existence of some disputed factual issue as to negligence so that a fair and reasonable person could reach any other conclusion. Thus, the defendant is entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment.