Opinion
No. MMX X04 CV-04-4002631 S
December 28, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#301
This matter is before the court concerning the defendants Town of Stonington, the Stonington Police Department, David Erskine, Eric Johnson, Mario Ritacco, and William Stewart's (collectively, the Town defendants or the movants) motion for summary judgment concerning the plaintiffs' claims against them in the revised third amended complaint, dated April 16, 2007 (#288) (complaint). The parties presented oral argument on December 18, 2007. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
In its recent memorandum of decision in this matter concerning the State of Connecticut's motion for summary judgment, Petner v. Electrical Contractors, Inc., Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown, Docket No. X04 CV 04 4002631 (June 20, 2007, Beach, J.), the court summarized the factual background. For ease of reference, that summary is repeated here.
"The plaintiff Edward Petner, Jr. (`plaintiff'), riding his bicycle southbound on Route 1 in the town of Stonington, approached the intersection of Route 1 and Flanders Road at about 7:15 a.m. on August 23, 2003, and prepared to make a right hand turn onto Flanders Road. At the same time, the defendant Stacy Moody was in the process of making a left hand turn in an automobile from Flanders Road onto Route 1. The two collided, and the plaintiff received serious injuries. The plaintiff has brought this action against a number of defendants, including the owner and operator of the car involved in the accident, the state of Connecticut, the town of Stonington and a variety of town personnel, and business organizations, including Electrical Contractors, Inc. (`ECI'). ECI had upgraded the traffic light at the intersection eleven days previously.
"The claims other than those brought against the driver and owner of the car concern the condition of the intersection at the time of the accident. On August 12, 2003, the overhead traffic signals had been updated. ECI did the work pursuant to a contract with the state, which in general had the responsibility to keep Route 1 in reasonable repair and reasonably safe for travel. The plaintiff's position is that at the time of the accident an orange highway warning cone was on the shoulder of the highway, which cone obstructed the plaintiff's travel into the intersection. He chose to make a wide turn in order to avoid the cone and to get a better view of what sort of danger there might be on Flanders Road. In the course of making the turn, the collision with the car occurred."
The Town defendants have moved for summary judgment as to the twenty-fourth, twenty-fifth, thirty-fifth, thirty-sixth, and thirty-eighth counts of the complaint. The individual defendants contend that it is undisputed that they did not act recklessly. The Town asserts that it is entitled to judgment because it did not have a duty to maintain and keep in repair Route 1, the road on which the plaintiff was traveling, and on which he claims the alleged defect was located. In addition, the Stonington Police Department seeks summary judgment on the ground that it is not a separate legal entity from the Town, and accordingly cannot separately incur liability, apart from the Town.
In support of their motion, the movants presented a memorandum of law, affidavits, a certified copy of the Stonington Police Department investigative report (with photographs), and excerpts from the transcript of the plaintiff's deposition testimony.
In opposition, the plaintiffs contend that there are genuine issues of material fact in dispute as to whether the defendants acted recklessly and as to whether the road in question was owned and/or maintained by the Town. The plaintiffs submitted a memorandum of law and excerpts from the transcripts of defendants Eric Johnson's and William Stewart's deposition testimony. For ease of reference, the court refers to the plaintiffs as the "plaintiff."
II STANDARD OF REVIEW
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[I]n 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[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . 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.) Id., 586.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).
Here, no objection was raised to any exhibit. Accordingly, the court deems such objections to have been waived. In the exercise of its discretion, the court has considered the exhibits which were presented.
III DISCUSSION A Individual Defendants 1. Erskine, Johnson, and Ritacco
Defendants Erskine, Johnson, and Ritacco move for summary judgment on the twenty-fourth (common-law recklessness) and twenty-fifth (loss of spousal consortium) counts. As to the twenty-fourth count, they assert that there is no genuine issue of material fact and no evidence to show that they acted maliciously, wantonly, and/or recklessly. They also move for summary judgment on the ground that the plaintiff's loss of spousal consortium claims against them are derivative claims, which are dependent upon the common-law recklessness claims, and since, as to those, they are entitled to summary judgment, the spousal consortium claims must fail as well.
In response, the plaintiff argues that genuine issues of fact are in dispute as to whether these defendants "intentionally failed to increase inspections of the subject intersection and failed to warn the public of the potential danger." See plaintiff's memorandum in opposition, p. 4.
In addition, the Stonington Police Department has moved for summary judgment. The plaintiffs also allege common-law recklessness (twenty-fourth count) and loss of spousal consortium (twenty-fifth count) against the Stonington Police Department. "[M]unicipal police departments do not constitute an independent entity amenable to suit." Himmelstein v. Windsor, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 05 4013928 (May 16, 2006, Keller, J.); see Levine v. Fairfield Fire Dept., Superior Court, judicial district of Waterbury, Docket No. X01 CV 89 0146670 (April 9, 1999, Hodgson, J.) (suit may not be brought against administrative subdivision). The plaintiff does not oppose the motion as to the Stonington Police Department. The Stonington Police Department has shown that it is entitled to summary judgment as a matter of law.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003).
At the time of the alleged accident Erskine was the Stonington chief of police and Johnson and Ritacco were Stonington police officers. In the twenty-fourth count, the plaintiff alleges that these defendants engaged in reckless and wanton misconduct, in that they:
a. Recklessly abandoned their statutory and contractual duties to provide adequate police and/or traffic supervision at said intersection even though they knew, or should have known, that said intersection was undergoing traffic control modification and was in its work test period;
b. Recklessly and wantonly ignored whether the contractors undertaking traffic control modifications at said intersection removed all debris, including traffic cones from the area which would serve as a distraction or interfere with motor vehicle and bicycle operation;
c. Wantonly disregarded the safety of motorists, bicyclists and pedestrians by refusing to inspect the intersection area upon conclusion of construction traffic control duty to insure that orange construction cones had been properly and safely placed;
d. Recklessly and wantonly allowed orange construction cones to remain at said intersection for several days, exposing the traveling public, including the plaintiff, to a confusing and dangerous area;
e. Did nothing to direct, instruct, and supervise the construction personnel on the safe and proper placement and removal of orange construction cones;
f. Recklessly disregarded the need to provide additional police supervision in said intersection even though they knew, or should have known, that said intersection was heavily traveled by pedestrians and bicyclists, especially during the weekends in the summer month of August;
g. Wantonly disregarded the need to train police officers to remove or require removal of devices, including orange construction cones, that would serve as a distraction or interfere with motor vehicle or bicycle operation;
h. Recklessly disregarded their contractual duty to provide sufficient traffic control and safety services at said intersection when they were contractually obligated to do so during the traffic control work test period; and
i. Recklessly abandoned the necessity of instituting and/or implementing police procedures regarding safety practices of police officers and construction personnel at said intersection when they knew, or should have known, of their contractual obligation to do so for the protection of motorists, bicyclists and pedestrians passing though a construction area, especially during the weekends in the summer months.
The core of the plaintiff's allegations against Erskine, Johnson, and Ritacco in the twenty-fourth count is that they allegedly permitted an orange construction cone to remain in the roadway, thereby creating a serious danger to the traveling public, including the plaintiff. See complaint, twenty-fourth count, ¶ 5 (plaintiff alleges that "he attempted to avoid an orange construction cone which had been placed in the roadway . . .").
The following summary of undisputed facts is drawn from Erskine's, Johnson's, and Ritacco's affidavits, which state that they are familiar with the intersection in question, where Route 1, Route 1A and Flanders Road intersect (the intersection) Johnson did not do any extra duty for co-defendant Electrical Contractors, Inc. (ECI) on Route 1 at or near the intersection after August 11, 2003, twelve days before the date of the alleged accident. Johnson did not perform any extra duty work for ECI on Route 1 at or near the intersection on August 23, 2003. He had no continuing responsibilities associated with the extra duty work he performed for ECI on Route 1, at or near the intersection, after August 11, 2003. Ritacco did not do any extra duty work for ECI on Route 1 at or near the intersection prior to August 23, 2003. There were no Stonington police officers performing private duty work at the intersection on August 23, 2003.
According to his deposition, page 15, records indicate that he was at the intersection on August 12, 2003, eleven days before the alleged accident. See Exhibit A to plaintiff's memorandum in opposition.
The area where the plaintiff alleges an orange construction cone was located is in the bounds of Route 1, which is a state highway in Stonington. The traffic control signal at the intersection is owned by the State of Connecticut. The construction activity associated with changing over the traffic signal rested solely with the State. The State of Connecticut is wholly responsible for maintaining Route 1 in Stonington.
Neither Erskine, Johnson or Ritacco has knowledge that an orange construction cone was in the traveled portion of Route 1 on August 23, 2003 or at any time prior thereto. None of them placed such a cone there on August 23, 2003, or at any time prior thereto, nor do they have knowledge that someone else did so. Erskine had no notice that an orange construction cone was in the traveled portion of Route 1 on August 23, 2003, or at any time prior thereto. The Stonington Police Department did not receive any reports that such a cone was in the traveled portion of Route 1 on August 23, 2003, or at any time prior thereto.
It is not the custom and practice of Stonington police officers to carry orange construction cones in their police cruisers. Stonington police officers are trained not to ignore obstructions in the road that impede safe travel, even if the obstruction was on a state road in Stonington; the State Department of Transportation would be notified of such a hazard. As Stonington police officers, neither Johnson nor Ritacco would ignore such a cone in the traveled portion of Route 1. If there was a hazard in the traveled portion of Route 1, the State Department of Transportation would be notified. Neither officer carried orange construction cones in his police cruiser. Johnson never brought such cones to the construction site on Route 1 at or near the intersection.
In support of his argument, the plaintiff makes the unfounded assertion that "any construction debris that was at the intersection on August 23, 2003 would have been there since the previous date on which the contractor worked at the intersection, August 12, 2003. That eleven day period alone is sufficient to constitute constructive notice of the presence of a hazardous condition on the roadway." See plaintiff's memorandum in opposition, p. 6. This court agrees with Judge Beach's statement concerning the same issue: "The only `facts' supporting the desired inference are that a cone reportedly was in the shoulder on August 23 and there was an opportunity to put a cone on the shoulder on August 12. Assuming for the moment that the cone in the shoulder actually was one left at the scene eleven days before, there were countless opportunities for anyone to put the cone on the shoulder at any time . . . There is no evidence of the length of time the cone was in the shoulder sufficient to avoid summary judgment." (Emphasis in original; footnote omitted.) Petner v. Electrical Contractors, Inc., Superior Court, supra, Docket No. X04 CV 04 4002631. "Without more . . . the connection is too speculative to create a genuine issue of fact." Id.
Under these circumstances, the plaintiff's references to Tirendi v. Waterbury, 128 Conn. 464, 468-70, 23 A.2d 919 (1942) and Leverone v. New London, 118 Conn. 463, 465-67, 173 A. 108 (1934) are unpersuasive. Each of those cases involved municipal highway defect claims, see General Statutes § 13a-149, not claims of recklessness against individuals. Moreover, Tirendi states that evidence sufficient to charge a defendant with constructive notice of the specific defect must show that "the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." Tirendi v. Waterbury, supra, 128 Conn. 468. As discussed above, the evidence here lacks a basis on which to draw such an inference. In contrast, in Leverone, there was evidence to support an inference, deducible from the nature of the claimed defect, a depression where the sidewalk had been cut, see id., 118 Conn. 464, "that it would not have been created immediately before the accident . . ." Leverone v. New London, supra, 118 Conn. 467. As discussed, here, such an inference would be based on impermissible speculation.
Neither Erskine, Johnson or Ritacco placed an orange construction cone in the roadway. They did not have knowledge that such a cone was in the roadway. Neither Erskine nor Ritacco had responsibility associated with the construction activity at the intersection. Johnson last performed extra duty there on August 11, 2003 and had no continuing responsibilities associated with that work after that date.
Thus, there is no evidence to show that any of these defendants adopted a reckless course of action in the face of an apparent high degree of danger. In response to the movants' presentation, the plaintiff has not presented evidence which creates a material factual dispute as to whether Johnson, Ritacco or Erskine, engaged in "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Frillici v. Westport, supra, 264 Conn. 277-78. The plaintiff has not presented evidence to show that any of them knew or should have known of the presence of the orange construction cone in the roadway.
There is no evidence to show that defendants adopted "a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Citations omitted.) Matthiessen v. Vanech, supra, 266 Conn. 832.
Erskine, Johnson or Ritacco have met their burden to show that they did not act recklessly or wantonly, as alleged by the plaintiff in the twenty-fourth count. In such circumstances, the Supreme Court has approved the granting of summary judgment. See Dubay v. Irish, 207 Conn. 518, 534-35, 542 A.2d 711 (1988). Accordingly, Erskine, Ritacco and Johnson are entitled to summary judgment as to the twenty-fourth count.
Likewise, they are entitled to summary judgment as to the loss of spousal consortium claims in the twenty-fifth count, which are based on the common-law recklessness claims brought against them in the twenty-fourth count. See Mazurek v. Great American Insurance Co., 284 Conn. 16, 32 n. 13, 930 A.2d 682 (2007) (derivative cause of action is barred since it is dependent on the predicate action).
2. Stewart
Defendant Stewart, the Town of Stonington Superintendent of Highways, moves for summary judgment on the thirty-fifth (common-law recklessness) and thirty-sixth (loss of spousal consortium) counts. As to the thirty-fifth count, he asserts that there is no genuine issue of material fact and no evidence to show that he acted maliciously, wantonly, and/or recklessly. He also moves for summary judgment on the ground that the plaintiff's loss of spousal consortium claim against him is a derivative claim, which is dependent upon the common-law recklessness claims, and since, as to those, he is entitled to summary judgment, the spousal consortium claim must fail as well.
In response, the plaintiff argues that genuine issues of fact are in dispute as to whether Stewart acted with reckless disregard for the safety of the public. Again relying on the concept of constructive notice, the plaintiff argues that since Stewart had knowledge that construction had taken place at the intersection, he should have reasonably realized the potential for there to be defects and debris remaining at the intersection. See plaintiff's memorandum in opposition, p. 8. In the thirty-fifth count, the plaintiff alleges that Stewart, his agents, servants and/or employees, engaged in reckless and wanton misconduct, in that they:
a. Recklessly abandoned their statutory and contractual duties to provide adequate traffic controls and/or supervision at said intersection even though they knew, or should have known, that said intersection was undergoing traffic control modification and was in its work test period;
b. Recklessly and wantonly ignored whether the contractors undertaking traffic control modifications at said intersection removed all debris, including traffic cones from the area which would serve as a distraction or interfere with motor vehicle and bicycle operation;
c. Wantonly disregarded the safety of motorists, bicyclists and pedestrians by refusing to inspect the intersection area upon conclusion of construction traffic control duty to insure that orange construction cones had been properly and safely placed;
d. Recklessly and wantonly allowed orange construction cones to remain at said intersection for several days, exposing the traveling public, including the plaintiff, to a confusing and dangerous area;
e. Did nothing to direct, instruct, and supervise the construction personnel on the safe and proper placement and removal of orange construction cones;
f. Recklessly disregarded the need to provide additional traffic controls and supervision in said intersection even though they knew, or should have known, that said intersection was heavily traveled by pedestrians and bicyclists, especially during the weekends in the summer month of August;
g. Wantonly disregarded the need to train the employees of the Highway Department to remove or require removal of devices, including orange construction cones, that would serve as a distraction or interfere with motor vehicle or bicycle operation;
h. Recklessly disregarded their contractual duty to provide sufficient traffic control and safety services at said intersection when they were contractually obligated to do so during the traffic control work test period;
i. Recklessly abandoned the necessity of instituting and/or implementing traffic control procedures regarding safety practices of the employees of the Highway Department and construction personnel at said intersection when they knew, or should have known, of their contractual obligation to do so for the protection of motorists, bicyclists and pedestrians passing through a construction area, especially during the weekends in the summer months;
j. Wantonly disregarded the existence of the orange construction cones in the area of said intersection which confused bicyclists, including the plaintiff; and
k. Recklessly ignored the necessity for adequate warnings so that bicyclists would know of the presence of orange construction cones.
In paragraph 5 of the thirty-fifth count, the plaintiff alleges that "he attempted to avoid an orange construction cone which had been placed in the roadway . . ." Thus, the core of the plaintiff's allegations against Stewart, is that he, too, allegedly permitted an orange construction cone to remain in the traveled portion of the roadway, thereby creating a serious danger to the traveling public, including the plaintiff.
In support of his motion, Stewart has submitted his affidavit, which states the following undisputed facts. Stewart is familiar with the intersection. Route 1 in Stonington is a state road, and is not within the jurisdiction of the Stonington Highway Department. The traffic control signal at the intersection is owned by the State of Connecticut. The construction activity associated with changing over traffic control signals at the intersection rests solely with the State. ECI, the contractor responsible for the changing over of traffic control signals at the intersection was hired by the State. The construction activity at the intersection was controlled by the State. The Town did not do any repair work at the intersection on August 23, 2003, or at any time prior thereto because the area is state property.
Stewart has no knowledge of the existence of an orange construction cone in the traveled portion of Route 1 on August 23, 2003, or at any time prior thereto. He did not place an orange construction cone there on that date, or at any time prior thereto, and he has no knowledge that someone else did so. Likewise, neither he or the Stonington Highway Department received any reports that an orange construction cone was there on August 23, 2003, or at any time prior thereto. Stewart had no notice of the presence of such a cone in that location on August 23, 2003 or at any time prior thereto. Employees of the Stonington Highway Department are trained not to ignore road obstructions that impede the safe passage of travelers, even if the obstruction is on a state road in the Town. The State Department of Transportation would be notified if there was a hazard.
In opposition, the plaintiff again relies on its constructive notice argument, which the court addressed above. As discussed, the inference which the plaintiff seeks to draw, that the orange construction cone would have been in the roadway on Route 1, in the place where the plaintiff allegedly encountered it on August 23, 2003, since the previous date on which the contractor worked at the intersection, August 12, 2003, is too speculative to amount to evidence of a genuine issue of fact. The fact that the cone which was allegedly there on August 23, 2003 may have been near to where Flanders Road intersects with Route 1 does not provide evidence to support the inference. See Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001).
In addition, review of Stewart's deposition testimony, which the plaintiff cites in his memorandum in opposition, does not support the plaintiff's contention that the "area" is jointly maintained by the State and the Town. Stewart and the Stonington Highway Department had no duty to maintain and repair any portion of Route 1 in Stonington, which is where the plaintiff asserts the alleged orange construction cone was located, because Route 1 is not within the Stonington Highway Department's jurisdiction. In Stewart's cited deposition testimony, he did not state that the intersection is jointly maintained by the State and the Town. See Transcript of Stewart's deposition, Exhibit B to plaintiff's memorandum in opposition.
See discussion below concerning the plaintiff's defective highway claim, based on General Statutes § 13a-149.
It is undisputed that the plaintiff was traveling on Route 1 prior to the collision and that he claims that the alleged construction cone was on Route 1, a State road, and not on Flanders Road. In his deposition testimony, the plaintiff testified that on the date of the collision, he did not travel on Flanders Road. See movants' Exhibit E, deposition of plaintiff, p. 114.
Stewart has shown that he did not act recklessly or wantonly as alleged in the thirty-fifth count. He did not place an orange construction cone on Route 1 nor did he have any knowledge that a construction cone was there as alleged by the plaintiff. He had no responsibility associated with the construction activity at the intersection. Neither he nor the Stonington Highway Department had an obligation to maintain Route 1 in Stonington. There is no genuine issue as to the material facts concerning the plaintiff's claim against Stewart in the thirty-fifth count.
Accordingly, Stewart is entitled to summary judgment as to the thirty-fifth count. Likewise, he is entitled to summary judgment as to the loss of spousal consortium claim in the thirty-sixth count, which is based on the common-law recklessness claims brought against him in the thirty-fifth count. See Mazurek v. Great American Insurance Co., supra, 284 Conn. 32 n. 13 (derivative cause of action is barred since it is dependent on the predicate action).
B Town of Stonington
The Town of Stonington moves for summary judgment as to the plaintiff's claim in the thirty-eighth count of the complaint. In that count, the plaintiff seeks damages pursuant to General Statutes § 13a-149, the defective highway statute.
Section 13a-149 provides, in pertinent 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."
"A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, [a]ny 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 . . . [I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 341.
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective `road or bridge' 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.'" Novicki v. City of New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998).
Here, again, the plaintiff alleges that he attempted to avoid an orange construction cone in the roadway and was struck by a motor vehicle operated by co-defendant Stacy Moody. See complaint, thirty-eighth count, ¶ 4. He claims in the thirty-eighth count, paragraph 5, that his injuries and damages were caused by a dangerous or defective Town of Stonington roadway, in one or more of the following ways:
a. The town improperly placed or allowed to be placed or to remain, orange construction cones and other such devices in the roadway preventing the safe passage of bicyclists and/or other persons upon said road which is known to have a high pedestrian and bicyclist traffic during the summer months;
b. The town failed to provide adequate traffic controls including signage, traffic lights, traffic lines and other devices so as to create a safe crossing area for bicyclists and/or other persons at said intersection;
c. The town failed to provide a clear and unobstructed bicycle lane through the area of the intersection while roadwork was underway;
d. The traffic light at the intersection of Route 1 and Flanders Road was not operating properly at the time of the collision;
e. The traffic light at the intersection of Route 1 and Flanders Road was not adequate for traffic control;
f. The town failed to provide adequate testing or monitoring of a newly installed traffic light at said intersection.
The undisputed evidence, discussed above, shows that the Town of Stonington had no duty to maintain Route 1 in Stonington, where the plaintiff claims an orange construction cone was in the roadway just before the collision, since it is a State road, and is not within the Town of Stonington's right of way. In addition, the undisputed evidence in the record shows that the traffic control signal for the intersection is owned, controlled and maintained by the State of Connecticut, not by the Town of Stonington. See Ferreira v. Pringle, supra, 255 Conn. 350 ("[w]hether the place of injury is within the . . . right-of-way line is the threshold inquiry in determining whether the condition complained of falls under § 13a-149." (Internal quotation marks omitted.)).
In his deposition testimony, the plaintiff stated that, on the day of the alleged accident, he stayed on Route 1 for the "entire trip, because the bike lane was good." See movants' Exhibit E, deposition of plaintiff, December 15, 2006, p. 114. He stated that the alleged orange construction cone was on Route 1 at the time of the alleged accident. See movants' Exhibit F, deposition of plaintiff, December 15, 2006, p. 333.
As discussed above, in support of the motion, the Town has submitted the affidavits of Erskine, the chief of police, and Stewart, the superintendent of highways for the Town of Stonington. Both are familiar with the intersection. The following summary of undisputed facts is drawn from their affidavits.
The area of the traveled portion of the roadway where the plaintiff alleges the orange construction cone was located was within the bounds of a State highway, Route 1 in Stonington.
The State of Connecticut, not the Town of Stonington, is wholly responsible for maintaining Route 1 in Stonington. The State of Connecticut is wholly responsible for maintaining Route 1A in Stonington, also known as North Water Street. Flanders Road, a Town road, ends at Route 1 in Stonington. Route 1, which is a State road, is not within the jurisdiction of the Stonington Highway Department. The Town of Stonington did not do any repair work at the intersection on August 23, 2003, or at any time prior thereto, since the area is State property.
The traffic signal at the intersection of Route 1, Route 1A and Flanders Road is owned by the State of Connecticut. Construction activity associated with changing over traffic control signals at the intersection rests solely with the State of Connecticut. ECI, the contractor responsible for changing over the traffic signal at the intersection, was hired by the State of Connecticut. The contract associated with changing over the traffic signals at the intersection and the construction activity at the intersection were controlled by the State of Connecticut.
In arguing that a material question of fact is in dispute, the plaintiff again asserts that the Town had jurisdiction over the alleged defective condition, the presence of an orange construction cone, since it was "in, upon or near" a Town road. Ferreira v. Pringle, supra, 255 Conn. 342. There, the Supreme Court also stated, "[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." (Internal quotation marks omitted.) Id. As the Supreme Court later explained, "In Ferreira, the plaintiff was injured when he stepped off a public bus and tripped on the remnant of a severed steel signpost embedded in the grassy embankment at the shoulder of the road intended for disembarking bus passengers . . . We concluded therein that, although the alleged defect was off the roadway, it nonetheless fell within the scope of the municipal highway defect statute, General Statutes § 13a-149, because it was in an area where travelers, namely bus passengers, were likely, and in fact encouraged to traverse." (Citation omitted; internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 506, 876 A.2d 1148 (2005).
The plaintiff asserts that "[t]he cone in question was not in the town roadway, but was near the town roadway and constituted a direct menace to travel on Flanders Road." See plaintiff's memorandum in opposition, p. 12. The plaintiff's argument ignores the fact that it was the State of Connecticut which had the duty to maintain Route 1, not the Town of Stonington. The Supreme Court's reference in Ferreira to the existence of a defective condition which is "not in the roadway" does not refer to a defective condition which is in another roadway which another governmental entity has the duty to maintain. Rather, it refers to a condition which is so related to the roadway which a municipality does have a duty to repair that a failure to do so would be regarded as a failure to meet that duty. There is no factual or legal support for the plaintiff's concept of joint Town-State duties of maintenance of Route 1, merely because Route 1 intersects with Flanders Road, which is a Town road. To adopt such a concept would turn § 13a-149 on its head and make Towns liable for failure to maintain State roads which intersect with Town roads, depending on whether the alleged defect located on the State road was "near" enough to the Town road. See Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 348, 721 A.2d 1187 (1998). This would be contrary to established law, as to which "[w]hether the place of injury is within the . . . right-of way line is the threshold inquiry in determining whether the condition complained of falls under § 13a-149." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 350.
The court is also unpersuaded by the plaintiff's reference to McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 290, 791 A.2d 602 (2002), affirmed, 263 Conn. 378, 819 A.2d 795 (2003), where the Appellate Court stated that "the town had an affirmative duty to remedy hazards on its property caused by hazardous conditions on adjacent property." (Footnote omitted.) There, the facts dealt with a hazard on Town property, from an overhanging branch of a tree which was located on property owned by a neighboring church. McDermott v. Calvary Baptist Church, supra, 263 Conn. 382-83. Here, in contrast, the plaintiff claims that the alleged hazard existed on Route 1, which is a State road, not on Flanders Road, which is a Town Road.
Thus, the Town has presented evidence to show that the plaintiff's § 13a-149 claim against it cannot be sustained. The plaintiff provided no evidence to demonstrate the existence of a genuine issue of material fact as to a duty by the Town to keep the alleged location of the claimed defect in repair.
While the plaintiff's presentation focuses on the presence of the cone in the roadway, as opposed to the allegations that the traffic controls at the intersection were defective, the court notes that the movants have shown that it was the State of Connecticut, not the Town of Stonington, which had the duty to maintain the traffic control signal at the intersection.
Accordingly, the Town of Stonington is entitled to summary judgment as a matter of law as to the thirty-eighth count of the complaint.
CONCLUSION
For the reasons stated above, the motion for summary judgment is granted. Judgment may enter for the defendant Stonington Police Department. Judgment may enter for defendants Erskine, Johnson and Ritacco on the twenty-fourth and twenty-fifth counts. Judgment may enter for defendant Stewart on the thirty-fifth and thirty-sixth counts. Judgment may enter for the Town of Stonington on the thirty-eighth count.
It is so ordered.