Opinion
LLICV156012466S
05-06-2016
Deborah Nugent v. Town of Salisbury
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#110)
John D. Moore, J.
INTRODUCTION
The defendant, Town of Salisbury (town), moved for summary judgment (#110) on December 23, 2015. The defendant filed, with the motion, a supporting memorandum of law and affidavits of town officials. The plaintiff, Deborah Nugent, filed an objection to this motion (#111) and a memorandum in opposition to the motion for summary judgment (#112) on January 19, 2016. The court heard argument on this motion at short calendar on January 25, 2016. The defendant argues that there is no genuine issue of material fact that the area where the plaintiff's injury allegedly occurred--the parking lot for the town transfer station--is not a public road within the meaning of General Statutes § 13a-149 and, therefore, the plaintiff's claim is barred by governmental immunity. The court agrees. For the reasons set forth below, the court grants the defendant's motion for summary judgment.
FACTUAL BACKGROUND
The present matter concerns a slip and fall that occurred in the parking area of a municipal transfer station. On July 20, 2015, the plaintiff commenced this action by service of process on the defendant.
In a one-count complaint, the plaintiff alleges the following facts. On or about December 12, 2013, the plaintiff was attempting to access the cardboard dumpster at the Town of Salisbury Transfer Station. After parking in the main parking area, while walking toward the sidewalk, the plaintiff was caused to fall due to a defective lip covered with ice and debris. As a result of the fall, the plaintiff sustained injuries and damages. The defendant owed her a statutory duty, pursuant to General Statutes § 13a-149, to keep and maintain the property, including sidewalks, crosswalks and roadways found within the town in a reasonably safe condition. The defendant's breach of its statutory duty under § 13a-149 caused the plaintiff's injuries. The plaintiff satisfied a threshold condition of § 13a-149 by providing notice to the town on January 24, 2014.
As mentioned above, the defendant submitted affidavits executed by town employees. These affidavits provide the following relevant facts, none of which are controverted by evidence submitted by the plaintiff. The transfer station in question is located off of a state highway, Route 41. The town does not maintain this state highway. The transfer station is available for use only by residents of Sharon and Salisbury, and only by such residents who have paid an annual fee and obtained a permit to use the station. The transfer station is open to the permitted Sharon and Salisbury residents during limited hours, from 8:00 a.m. to 4:00 p.m. on Mondays, Tuesdays, Thursdays, Fridays, and Saturdays and from 9:00 a.m. to 1:00 p.m. on Sundays. The transfer station is closed on Wednesdays. When the transfer station is closed, gates at the entrance to the facility are closed and locked to bar the entry of all, including the permitted residents. Town-owned land ends outside the gated entrance to the transfer station. The area where the plaintiff claims to have fallen is inside the gated entrance to the station. The approach from Route 41 to the transfer station ends inside the gated entrance of the transfer station and does not connect to any other state or municipal road in the town. The area where the plaintiff claims to have fallen is about 250 to 260 feet from the paved edge of the west side of state Route 41.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). Conversely, " [a]lthough the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). Therefore, " [t]o oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavit and documents." (Internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 579, 573 A.2d 699 (1990).
In its motion for summary judgment, the defendant argues that there is no genuine issue of material fact that the plaintiff's claim does not come within the purview of General Statutes § 13a-149. In particular, the defendant argues that the location where the plaintiff's injury occurred, the parking lot of the town transfer station, is not a public highway within the meaning of § 13a-149. Therefore, the action is barred by governmental immunity. In support of that argument, the defendant has submitted numerous affidavits from municipal officials and employees to demonstrate that the location where the plaintiff's injury occurred is not a public highway. In opposition, the plaintiff does not offer any factual evidence to contradict that of the defendant; rather, the plaintiff argues, from a strictly legal point of view, that there exists a genuine issue of material fact as to whether the location where the injury occurred is a public highway, and that, as a result, the court cannot determine, as a matter of law, that the claim falls outside of § 13a-149.
The plaintiff's complaint sounds in one count, alleging that the defendant is liable for failing to keep its " property, including the sidewalks, crosswalks and roadways . . . in a reasonably safe condition pursuant to Section 13a-149." Complaint, para. 3. This makes sense for the following reasons. Broadly speaking, " [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [Our Supreme Court has] also recognized, however, that governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). This rule applies not only generally, but also specifically to roads and highways. " Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control." Prato v. New Haven, 246 Conn. 638, 646, 717 A.2d 1216 (1998). " The highway defect statute, § 13a-149 is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, [it] must be strictly construed." Read v. Plymouth, 110 Conn.App. 657, 663, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). Section 13a-149 provides the exclusive remedy for a plaintiff injured by a defect on a public highway.
General Statutes § 52-557n states, 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: . . . (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."
Our Appellate and Supreme Courts have provided extensive guidance as to what constitutes a highway defect. " A highway defect is distinguishable from those objects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler but independent of the highway." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 813 n.9, 92 A.3d 1016 (2014). " [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 . . . [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001).
Generally, " [w]hether 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 . . ." Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972). However, whether the allegations, if proven, comprise a highway defect can be determined as a matter of law. " 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.) Read v. Plymouth, supra, 110 Conn.App. 664.
" The plain meaning of the word highway is [a] main road or thoroughfare; hence, a road or way open to the use of the public . . . [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . [T]he term highway is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass . . . Public highway is not a term of art . . . Thus, it is a way over which the public at large has a right to pass." (Citations omitted; internal quotation marks omitted.) Id., 665.
Moreover, " [o]ur Supreme Court has indicated that there are two considerations in determining whether a defect [is a highway defect for purposes of applying § 13a-149]: (1) whether the defect was within the town right-of-way line; and (2) whether it was in a public area. Ferreira v. Pringle, [255 Conn. 330, 350-51, 766 A.2d 400 (2001)]; see also Baker v. Ives, [162 Conn. 295, 302, n.3, 294 A.2d 290 (1972) . . ." Scully v. TD Bank, N.A., Superior Court, judicial district of New Haven, Docket No. CV-10-6001583-S, (August 31, 2012, Markle, J.). " A number of decisions of the Superior Court have considered three factors to determine whether a defect was in a public area: '(1) whether it was open to the public at all times; (2) whether it was, like a sidewalk, used in the ordinary course of travel; and (3) whether the alleged defect . . . was proximate enough to a road or highway to bring it within the statute.' Ferrigno v. Hamden Volunteer Fire Department, Superior Court, judicial district of New Haven, Docket No. CV106011123, (May 2, 2012, Wilson, J.), see also Chuka v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5002125 (May 1, 2009, Cronan, J.) (47 Conn. L. Rptr. 635, 637, *18)." Scully v. T.D. Bank, N.A., supra .
Read v. Plymouth, supra, 110 Conn.App. 659, provides a detailed construction of what constitutes a public defect for purposes of § 13a-149. In that case, the plaintiff " sustained injuries when he fell into a moveable dumpster at the town waste transfer station while attempting to discard waste. The plaintiff alleged that he tripped and fell as a result of a broken or separated concrete block that formed a platform or wall above the dumpster." Id. The court was confronted with the question of " whether the situs of the plaintiff's fall was a public highway." Id., 664-65.
The Appellate Court held that the transfer station was not a public highway under § 13a-149 because " at the time of the alleged incident, the transfer station was a restricted access facility, the use of which was limited to permit holding town residents who had registered their vehicles with the town. Furthermore, the transfer station was open during limited hours and, when it was closed, was restricted by means of a locked gate." Id., 666. In reaching that conclusion, the court reasoned that " [t]he plain meaning of the word highway is [a] main road or thoroughfare; hence, a road or way open to the use of the public . . . [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . Thus, it is a way over which the public at large has a right to pass." (Internal quotation marks omitted.) Id., 665. " The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character." (Internal quotation marks omitted.) Id.
The undisputed facts in the present case, as set forth in the defendant's affidavits, and not controverted by the plaintiff, are substantially similar to those before the Appellate Court in Read v. Plymouth . As in Read, access to the parking area in which plaintiff allegedly fell is not open to the public, but is restricted, in several salient ways. Only Sharon and Salisbury residents who pay an annual fee and obtain a permit may use the transfer station. The transfer station is open limited hours on the days on which it is open; it is closed on Wednesdays. When the transfer station is closed, its gates are not only closed, but also locked. The area where the plaintiff allegedly fell is inside the gated entrance. The parking area where the plaintiff allegedly fell is, therefore, not " open to the indefinite public" and is, rather, " confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria." Moreover, because the parking area in which the plaintiff claims to have fallen is restricted as set forth above, it cannot be said to be used in the ordinary course of travel under Ferrigno v. Hamden Volunteer Fire Department, supra, Superior Court, Docket No. CV-10-6011123-S, and Chuka v. Derby, supra, Superior Court, Docket No. CV-06-5002125-S. This point is supported by another undisputed fact. The access way that leads from state-owned Route 41 to the transfer station dead-ends in the transfer station and does not connect to any other road or thoroughfare. Two other undisputed facts reinforce the conclusion that the area on which the plaintiff allegedly fell is not within the town's purview. Town-owned land ends outside the gated entrance to the transfer station's parking area. Further, the only road in proximity to the parking area in question is state Route 41, the closest edge of which is located approximately 250 to 260 feet from the purported accident site. Therefore, for all of these reasons, and under Read, Ferrigno and Chuka, the location where the plaintiff's injury allegedly occurred is not a public highway and the alleged defect is not a public highway defect.
The plaintiff attempts to defeat summary judgment by arguing that genuine issues of fact exist as to whether the locus of the fall was within the public highway and by attempting to distinguish Read, which admittedly concerned a fall within the transfer station, on its facts. The court is not persuaded. As mentioned above, the plaintiff has submitted no facts to counter those found in the defendant's affidavits. The facts sworn to in the defendant's affidavits are, therefore, undisputed. Additionally, the Read majority, in holding that the transfer station was not a public highway, did not base its decision solely on the specific location of the fall, e.g. inside the transfer station itself. Rather, the holding of Read is broad enough to contemplate that restrictions that are physical, temporal, or arise from privilege or predetermined criteria, such as the restrictions in this case, preclude an area from being categorized as a public highway for purposes of § 13a-149.
In sum, there is no genuine issue as to the material facts that the plaintiff did not fall on a public highway, and that the alleged defect was, therefore, not a public highway defect within the meaning of General Statutes § 13a-149. Because the plaintiff's claim does not fall within § 13a-149 and because the plaintiff has not alleged any other cause of action under which governmental immunity may be waived, the doctrine of governmental immunity insulates the defendant from liability in this case. Therefore, the court grants the defendant's motion for summary judgment.
So ordered.
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 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 . . ."