Opinion
No. LLI CV 09 5007030S
April 27, 2011
MEMORANDUM OF DECISION RE RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#137)
By motion dated January 25, 2011, defendants Town of Goshen, David T. Bonaguide, Ed Perry, and Bill Gelormino ("the town defendants"), moved for summary judgment (#137). A codefendant, Darlene Martin, objected, in part, to the motion on February 2, 2011 (#139). On April 13, 2011, the plaintiff filed his partial objection to the motion (#140). He does not object to the motion for summary judgment with regard to counts six and seven.
Defendant Martin does not object to the motion for summary judgment as to the fourth, fifth, sixth and seventh counts of the complaint.
The motion for summary judgment is denied as to counts one, two, and three. The motion for summary judgment is granted as to counts four, five, six and seven.
FACTUAL BACKGROUND
On October 23, 2009, the plaintiff filed an eight-count complaint against the town defendants and against co-defendant Darlene Martin. The plaintiff alleges that he was mowing the grass on September 18, 2007, at 18 Apley Road in Goshen. He claims that while he was mowing the grass he stepped in a catch basin. He alleges that a grate covering the basin collapsed, causing him to fracture his wrist and sprain his ankle.
Count one alleges that the Town of Goshen had erected the catch basin, that the catch basin was covered with a wooden grate, and that the town had a duty to maintain the catch basin and its cover. The plaintiff claims that the town breached its duty, and that it is liable pursuant to General Statutes § 13a-149. Count two alleges nuisance against the Town of Goshen pursuant to General Statutes § 52-577n. Count three alleges negligence against the Town of Goshen pursuant to General Statutes § 52-557n. Count four alleges that defendant David T. Bonaguide was in charge of the Town of Goshen Water Pollution Control Authority. Consequently, the plaintiff claims, defendant Bonaguide had a statutory duty to construct, maintain, and control the wooden grate that collapsed when the plaintiff stepped on it. The plaintiff relies on General Statutes §§ 7-247 and 7-465 in support of the fourth count. In Count five the plaintiff asserts that the Town of Goshen has a duty to indemnify defendant Bonaguide pursuant to General Statutes § 7-465. Count six claims that the plaintiff's injuries were due to the negligence of two other Town of Goshen employees, defendant Ed Perry, who is alleged to be the Town of Goshen Public Works Supervisor, and defendant Bill Gelormino, who is alleged to be the Working Road Foreman of the Town of Goshen Public Works Department. Count seven, like count five, asserts that the Town of Goshen is bound to indemnify employees Perry and Gelormino pursuant to General Statutes § 7-465.
The defendants claim that neither Perry nor Gelormino was employed by the Town of Goshen at the time that the plaintiff was allegedly injured. Neither Martin nor the plaintiff objects to the motion for summary judgment as to counts six and seven.
Count Eight of the complaint is not the subject of the motion for summary judgment. It asserts that defendant Darlene Martin owned 18 Apley Road in Goshen and that the plaintiff was injured due to her negligence. Defendant Martin moved for summary judgment on Count Eight on June 29, 2010. That motion was denied on November 2, 2010, by the Honorable Vincent E. Roche (#125.01). Judge Roche found that it was unclear as to who possessed the area where the injury occurred. He found, further, that defendant Martin's evidentiary submissions were unclear as to the nature of the Town of Goshen's duty, if any, to the plaintiff. Judge Roche ruled that Martin made a conclusory statement that the Town of Goshen owned the catch basin, and conclusory statements will not support a motion for summary judgment. The opinion summarizes the issues of fact that led to the denial of defendant Martin's motion for summary judgment as follows: "it is unclear whether Martin owned, controlled, or possessed the subject catch basin at the time of the alleged injury, whether Martin erected the allegedly defective catch basin, or whether Martin knew of the catch basin's condition." Id.
DISCUSSION
Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to 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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 595-96, 955 A.2d 646, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . ." Id., 596.
"The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 193-94, 878 A.2d 347 (2005). "A material fact is a fact which will make a difference in the result of the case . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055 (2009). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted). Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
The town defendants attack all seven of the counts alleged against them. With regard to the first count, the town defendants argue that the plaintiff cannot prove that the alleged defect in the catch basin was the sole proximate cause of his injuries and cannot prove that the Town of Goshen had actual or constructive notice of the alleged defect. Count one is based on General Statutes § 13a-149, which permits a cause of action against a municipality for injuries caused by defective roads and bridges.
In order to recover under General Statutes § 13a-149, the plaintiff must establish, by a preponderance of the evidence, that 1) the highway was defective as claimed; 2) that the municipality knew or should have known of the defect; 3) that the municipality, armed with actual or constructive knowledge of the defect, failed to remedy the defect within a reasonable time; and that 4) the defect was the sole proximate cause of the injuries that it caused. Lukas v. City of New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).
A highway defect is any 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.) Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001). In Ferreira, the plaintiff "disembarked [from a] bus onto a grassy embankment at the shoulder of [a] road [and] tripped on the remnant of a severed steel signpost embedded in the ground and fell backward into the road where he was run over by the bus." Id., 332. In Ferreira, "the location of the alleged defect was within the highway right-of-way line and that the town's highway department maintained the highway shoulder in which the alleged defect was located; and the lease agreement between the state and the town indicat[ed] that the town had a duty, through its employees, officers, or agents, to maintain the area where the plaintiff had fallen." Id., 336. "The duty of a municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . To fall within the statute, a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway . . . rather, a person must simply be on the highway for some legitimate purpose connected with travel thereon . . . Nor does the defect have to be on the actual traveled portion of the highway . . . Reasonable latitude is allowed to meet the exigencies of travel." (Citations omitted; internal quotation marks omitted.) Id., 342-43.
In Ferreira, the Supreme Court concluded that "defects located in a road shoulder constitute a highway defect pursuant to § 13a-149." Id., 347. A defect can exist in a road shoulder "eight to ten feet from the road." (Citation omitted.) Id. General Statutes § 13a-149 is the plaintiff's exclusive remedy for his negligence claim. Id., 341.
A statute similar to General Statutes § 13a-149, General Statutes § 13a-144, permits recovery against the state when one is injured, not only within the traveled path of a state highway, but also within the state right-of-way line. See Baker v. Ives, 162 Conn. 295, 297, 294 A.2d 290 (1972). Due to the similarity between the two statutes, cases brought under General Statutes § 13a-144 can be instructive in analyzing cases, such as this one, brought under General Statutes § 13a-149. Ferreira v. Pringle, supra, 255 Conn. 348, n. 12.
The primary question presented is whether, for purposes of determining whether summary judgment can be considered, the plaintiff's injury occurred within the town's right-of-way line. Id., 350. Our Supreme Court has held that if 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." Comba v. Ridgefield, 177 Conn. 268, 271, 413 A.2d 859 (1979). The "state is not 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 . . ." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 503, 876 A.2d 1148 (2005).
In Kozlowski, as in this case, the plaintiff claimed to have been injured when he stepped on a defective catch basin cover. Id., 499. In that case, even though the catch basin was near the roadway, it was in an area unintended for automobile or pedestrian travel. Id., 503-04. The court concluded that the public was neither invited nor expected to traverse the catch basin area. Id., 505. Consequently, the court decided that the defective catch basin cover could not, as a matter of law, constitute a highway defect. Id., 506-07.
In this case the plaintiff alleges that defendant Martin owned the property where the catch basin was located, and that the catch basin was located on that property "adjacent to the roadway." Complaint at count one, paragraph 3; count eight, paragraphs 1-2. The plaintiff asserts that it is undisputed that the catch basin was only six inches to three feet from the roadway. The plaintiff claims, further, that the catch basin was not located in a place where the public would not be expected to travel. The issue of whether the public would be "expected" to travel where the grate was located remains as a genuine issue of material fact.
The town defendants also argue that the plaintiff's exclusive remedy lies with General Statutes § 13a-149, and so even if he can recover on count one, he cannot recover under the theories of nuisance (count two) or negligence (counts three and four). The town defendants argue that count five must fail because it is an indemnification claim that is derivative of count four. They argue that since count four must fail, then count five must fail as well. This argument will be addressed, infra.
Defendant Martin objects to the defendants' motion for summary judgment, claiming that there are issues of fact as to whether the town's negligence was the sole proximate cause of the plaintiff's injuries. Martin argues that the defendant town could be found to have created a nuisance in the manner in which it constructed the catch basin, which is an issue of fact. She argues, alternatively, that a jury could conclude that the decision to use a wooden grate, rather than a metal one, is a discretionary act. The question of whether a town's actions are discretionary, rather than ministerial, turns upon evidence that has not been presented by any party. Consequently, she claims, there are questions of fact with regard to whether the town could be found liable on a theory of negligence under General Statutes § 52-577n.
Martin, a co-defendant, has standing to object to the town's motion for summary judgment because her interests are adverse to those of the movant. Guercia v. Connecticut Post, judicial district of New Haven, Docket No. 030474056 (December 6, 1984, Zoarski, J.). Martin made clear in her motion for summary judgment, filed on June 29, 2010, that her theory of the case, in part, is that the Town of Goshen is the party responsible for the plaintiff's injuries.
The plaintiff objects to the motion for summary judgment. He argues, correctly, that even though General Statutes § 13a-149 provides an exclusive remedy to a plaintiff for a highway defect, a plaintiff is nonetheless allowed to proceed with alternative theories of recovery. If a jury were to conclude, for example, that the plaintiff cannot prove facts that bring him within General Statutes § 13a-149, then by alleging alternative theories of recovery, he has preserved his opportunity to prevail under, for example, nuisance or negligence theories. See Himmelstein v. Windsor, 116 Conn.App. 28, 40 n. 9, 974 A.2d 820 (2009).
The plaintiff claims that the defect inherent in the grate at issue is that it was made of wood and should have been made of metal. Count one, paragraph 5(a). The defendants have acknowledged that "The Town of Goshen was responsible for the maintenance and inspection of the catch basin identified in the plaintiff's complaint." Plaintiff's Memorandum at Exhibit A. Therefore, the plaintiff argues, the defendant town had to have either actual or constructive knowledge of the alleged defect, since the grate was allegedly wooden from the date it was installed. See Niceforo v. City of New Haven, 116 Conn.App. 610, 614, 976 A.2d 75 (2009). The town's constructive or actual knowledge, or lack thereof, remain as genuine issues of material fact.
For the plaintiff to succeed with his nuisance theory, as set forth in count two, he must establish, inter alia, that the town defendants engaged in some positive act that intentionally created the conditions that constitute a nuisance. General Statutes § 52-557n; Grady v. Somers, 294 Conn. 324, 337 (2009). The town defendants argue that there is no evidence that they knew that the grate was rotting. The town defendants' argument, however, does not focus on the theory reflected in the nuisance count. The plaintiff alleges, at count two, paragraph 4(a), that the defendants "erected" a catch basin that contained a "wood grate as opposed to a metal grate and covering." Thus, there is an issue of fact as to whether the defendants did choose to erect the grate that is at issue.
The defendants claim that the third count, which sounds in negligence pursuant to General Statutes § 52-557n, must fail due to the doctrine of governmental immunity. The defendants argue that the plaintiff's injuries, viewed in the light most favorable to him, can only have been caused by an employee's negligent act or omission that required the exercise of judgment or discretion. Under such circumstances, the negligence claim must fail. General Statutes §§ 52-557n(a)(1)(A) and 52-557n(a)(2)(B). The plaintiff relies primarily on the argument of defendant Martin for the proposition that the defendants have not offered evidence or argument that the issue of the erection or inspection of the grate was necessarily discretionary, since actions in response to policy directives are considered ministerial. Kolaniak v. Board of Education, CT Page 10183 28 Conn.App. 277, 280-81, 610 A.2d 193 (1992).
"Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (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."
The plaintiff points out that the defendants "have not established the absence of any directives relative to the inspection of these types of storm drains." The town defendants, on the other hand, argue that the plaintiff has not alleged, nor has evidence been produced, that there are municipal policies or directives that would serve to make any town actions, relative to the catch basin, the subject of ministerial actions. The town defendants fail to note that it is not the plaintiff's responsibility to prove that governmental immunity does not apply. Instead, the town defendants raised governmental immunity as a special defense to counts two through seven. They correctly assumed the burden of proving governmental immunity. "[G]overnmental immunity must be raised as a special defense in the defendant's pleadings . . ." (citation omitted; internal quotation marks omitted.) Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995). See also Kolaniak v. Board of Education, supra, 28 Conn.App. 278. Having raised governmental immunity as a special defense, it is the town defendants' responsibility to provide the court with evidence permitting a finding, as a matter of law, that governmental immunity applies in this case; they have not done so.
The court recognizes that in some cases it may be "apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts or omissions complained of by the plaintiff, [and so] the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). None of the parties suggest that this is such a case.
The town defendants seek summary judgment on the fourth count on the basis that defendant Bonaguide had no official duties relative to catch basins in the Town of Goshen. Bonguide's affidavit acknowledges that he is the Chairman of the Water Pollution Control Authority for the Town of Goshen. However, he states that the catch basin that was involved in the plaintiff's injury had no connection to a town sewer system or to any septic tank lines or septic tank system. Further, he claims that he had no notice as to the condition of the catch basin. Bonaguide asserts that the catch basin at issue serves the function of collecting drainage water. Bonaguide claims that he has no responsibilities regarding any catch basins or related covers because they have no connection to, or effect upon, a town sewer system or any septic system, fields, or lines.
The plaintiff replies that Bonaguide's claim that he has no duties relating to catch basins " appears to be contrary" (emphasis added) to General Statutes § 7-247, which provides that a municipality " may establish and revise rules and regulations for the supervision, management, control, operation and use of a sewerage system, including rules and regulations prohibit or regulating the discharge into a sewerage system of any sewage or any stormwater runoff which in the opinion of the water pollution control authority will adversely affect any part of any process of the sewerage system . . ." (Emphasis added.) The plaintiff has failed to show that the Town of Goshen did establish such rules and regulations. The plaintiff has thus failed to proffer evidence that rebuts the town defendants' showing that there is no genuine issue of material fact with regard to the claims against defendant Bonaguide. Therefore, the motion for summary judgment as to count four is granted.
Count five calls upon the Town of Goshen to indemnify Bonaguide. Since count five is derivative of count four, and since summary judgment has been granted as to count four, summary judgment must also be granted as to count five.
For all of the foregoing reasons, the town defendants' motion for summary judgment is denied as to counts one, two and three. It is granted as to counts four, five, six and seven.