Opinion
No. CV 04 0093313-S
July 14, 2005
MEMORANDUM RE DEFENDANT'S MOTION TO STRJKE ( #102)
I. NATURE OF PROCEEDINGS
This is a personal injury action arising out of a fall and injuries resulting therefrom, which the plaintiff sustained on May 25, 2002, when she stepped into a hole in a "public parking lot or area" located in New Milford. Specifically the plaintiff alleges that the fall took place along the "traveled path in the public parking lot or area between Railroad Street and the adjacent sidewalk," an area which the plaintiff alleges the town has a duty to maintain in a reasonably safe condition.
The first count of the plaintiff's complaint is based upon an alleged violation of the statutory duty imposed by General Statutes Sec. 13a-149, the defective highway statute applicable to municipalities. In the second count of the plaintiff's complaint the plaintiff alleges that the parking lot or area in which the plaintiff fell was the responsibility of "the agents, employees and officials" of the town. The plaintiff further alleges that those persons violated a statutory duty owed to her to keep the premises in reasonably safe condition which, she alleges they did not do, resulting in her fall and injuries. She brings the second count pursuant to General Statutes Sec. 52-557n.
Sec. 13a-149. Damages for injuries by means of defective roads and bridges.
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 therefore. 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.
Sub-section(a)(1) of said statute provides:
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. Emphasis added.
On May 3, 2005, the defendant filed a motion to strike the second count of the plaintiff's complaint based upon the language in 52-557n that provides that 13a-149 is the sole remedy for injuries sustained as a result of a defective highway or bridge. For reasons hereinafter stated, the defendant's motion is DENIED.
II. APPLICABLE LAW A. Motion To Strike CT Page 11233
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates, Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771 (2002). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted. Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580.B. Trial Court Decisions
In no uncertain terms, several courts, including a court in this judicial district, have held that a public parking lot is not a road or bridge within the meaning of Sec. 13a-149. The first opinion was authored by Judge Lagenbach in Rotella v. City of Waterbury, 4 CSCR 544, on May 31, 1989. The court reasoned that a parking lot was not within the purview of the cited statute and that, therefore, a suit for damages pursuant thereto was not a legally sufficient cause of action. Relying on statutory construction, Judge Lagenbach cited General Statutes Sec. 14-212(5), now (6), which defines a "parking area" as "lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge." Other cases that have followed and cited the holding in Rotella include Alfano v. Town of Litchfield, 1992 Ct.Sup. 3494, (#0057686), Judicial District of Litchfield, Pickett, J., April 13, 1992 ( 6 Conn. L. Rptr. 303). Also see Appleton v. Kendra, 1991 Ct. 8283, (#362337) Judicial District of Hartford/New Britain, Hennessy, J., October 22, 1991 ( 5 Conn. L. Rptr. 158) and Paternoster v. Town of Stratford, 1992 Ct. 10718, (CV-91-0286761), Judicial District of Fairfield, Leheny, J., November 24, 1992 ( 8 Conn. L. Rptr. 24).
In Appleton, the defendants argued, in a motion for summary judgment, that the plaintiff's action, which arose out of a fall in a municipal parking lot in Manchester, was covered by 13a-149, and was, therefore, the only remedy available to the plaintiff. The plaintiff in that case had not met the notice requirements of said statute. The court pointed out that "[n]o supreme court case or appellate court case has extended 13a-149 to cover parking lots." The court specifically rejected the defendants' argument that our supreme court, in Baker v. Ives, 162 Conn. 295 (1972), extended said statute to apply to defects in parking lots.
C. Connecticut Supreme Court Decisions
In this case, the defendant argues in its brief, at page 4, that Baker supports its claim that a fall caused by a defective area in a public parking lot is exclusively covered by General Statutes Sec. 13a-144, the state defective highway statute. The defendant correctly points out that Baker also held that the case law applicable to the state defective highway statute is equally applicable to the municipal defective road and bridge statute, i.e., 13a-149. Baker v. Ives, supra 162 Conn. 298-99.
In the case of Serrano v. Burns, 248 Conn. 419 (1999), which concerned a fall in the parking lot of a public rest area, Justice Norcott, writing for the court, explained the court's holding in Baker as follows, at page 425-27:
Our prior decision in Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), is instructive on this issue. In Baker, we held that recovery of damages for injuries sustained by travelers on state highways pursuant to § 13a-144 was not limited to injuries caused by defects in the "traveled portion" of highways. Id., 302. In that case, the plaintiff had been injured after slipping and falling on an icy area that was not a traveled path on a state highway, but was within the state right-of-way line. Id., 297. The plaintiff brought an action against the state highway commissioner pursuant to § 13a-144 and, after a jury trial, the jury returned a verdict in favor of the plaintiff. Id., 296. The commissioner then moved to set aside the verdict and the trial court denied the commissioner's motion. Id. On appeal, we affirmed the trial court's ruling. Id., 307.
We affirmed the trial court in Baker because, in addition to the fact that the plaintiff had fallen in an area within the "state right-of-way line"; id., 297; "the proximity of the defect to the paved portion of the highway in conjunction with the fact that the locus of the fall was in an area where occupants of vehicles were invited by the state to park their cars for the purpose of walking from their cars to the stores in the vicinity warrant[ed] the conclusion that [the] defect was `in, upon, or near the traveled path' so as to `obstruct or hinder one in the use of the road for the purpose of traveling thereon' thereby allowing recovery under § 13a-144." (Citation omitted.) Id., 302 n. 3. The facts in Baker were such that the commissioner was not entitled to a directed verdict as a matter of law.
In Baker, moreover, we determined that "[s]ection 13a-144 authorizes civil suits against the sovereign for injuries caused by `the neglect or default of the state . . . by means of any defective highway . . . in the state highway system.' This statute affords a right of recovery similar to that against the municipalities under § 13a-149 and is subject to the same limitations." Id., 298. "The state is not [however] an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel . . . Rather, the test is whether or not the state has exercised `reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler' . . . This duty of reasonable care extends to pedestrian travel as well as to vehicular traffic . . . `A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute. To qualify, a plaintiff is not obliged to remain seated in a vehicle proceeding on the highway . . . Reasonable latitude is allowed to meet the exigencies of travel' . . . Nor does the defect have to be on the actual traveled portion of the highway." (Citations omitted.) Id., 299.
Whether there is a defect in such proximity to the highway so as to be considered `in, upon, or near the traveled path' of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier . . . It is also recognized that for purposes of recovery under § 13a-149 and § 13a-144, a highway can be considered defective, as claimed in the case at bar, by reason of ice or snow, depending, of course, on the circumstances and conditions. (Citations omitted.) Id., 300.
Emphasis added.
The supreme court held that, in light of Baker, the question as to whether the plaintiff had a cause of action under the state defective highway statute, as a consequence of her fall in the rest area, was a question of fact and not a question of law. The trial court, in the opinion of the supreme court, had improperly granted the transportation commissioner's motion for summary judgment by holding that the area where the plaintiff fell was not, as a matter of law, covered by the state defective highway statute. The supreme court remanded the case to the trial court so that the necessary factual findings could be made.
See Serrano v. Burns, 70 Conn.App. 21; cert den'd., 261 Conn. 932 (2002), for the appellate court's reversal of a summary judgment on other grounds. (Alleged inadequate notice was a question for the jury.)
In Baker, although we did not specifically conclude that parking lots were covered by § 13a-144, neither did we conclude that, as a matter of law, parking lots were excluded from coverage under § 13a-144. Rather, we set out a fact based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway as provided by § 13a-144. Id., 302 n. 3. Our decision in Baker was, therefore, based on our conclusion that the jury reasonably could have found that the plaintiff's injury had occurred in an area within the state right-of-way line,[fn 7] and that the jury also could have found that the "defect was `in, upon, or near the traveled path' so as to `obstruct or hinder one in the use of the road for the purpose of traveling thereon' . . ." Id.
Serrano v. Burns, supra, 248 Conn. 427 Emphasis added.
III. ANALYSIS
In summary, although several trial courts have held that a "public parking lot or area" is not covered by 13a-149, our supreme court, via its decision on the issue relative to 13a-144, has not definitively ruled, as a matter of law, that a fall in a municipal parking lot is or is not covered by the defective road and bridge statute. Our supreme court has directed that a fact-based test be applied by the judge or jury, who will find the facts.
Thus, whether the facts in this case would establish that the plaintiff's fall was in an area in the parking lot that was so close or so related to the municipal road (Railroad Street), as to be considered "in, upon or near the traveled path" of said road, is a question of fact and an issue yet to be determined; it should not be disposed of by way of a motion to strike.
In this case, the plaintiff is correct in her assertion that she should be permitted to plead alternative causes of action, based on the facts alleged, so that she is not, at this juncture of the case, precluded from pursuing whichever statutory remedy that ultimately will apply. The motion to strike is therefore denied.
Wilson J. Trombley, Judge,