Opinion
No. CV00-0502703S
April 4, 2003
MEMORANDUM OF DECISION ON DEFENDANT TOWN OF LITCHFIELD'S MOTION TO STRIKE
On October 12, 2000, the plaintiff, Jean Pierre Pires, filed a six-count amended complaint against the defendants, the town of Litchfield, Ocean Trace Development Corporation d/b/a Ocean Trace Demolition and Sanitary Services Corporation, to recover for personal injuries and losses he sustained when the truck he was driving collided with a trash dumpster located at the Litchfield town landfill on Little Pitch Road, in Litchfield, Connecticut.
Counts one, three and four are directed against the town. Count one alleges that on June 22, 1999, the plaintiff was driving his pick up truck on a dirt road at the landfill when his truck left the roadway and fell six feet into a dumpster located directly adjacent to but below the surface of the road. (Amended Complaint, ¶¶ 5, 6 9.) Count one further alleges that the town was negligent by failing to erect a fence or barrier to prevent persons or vehicles from falling into the dumpster; by removing and/or by failing to post proper warnings of the dangerous condition; by failing to inspect the disposal site for the presence of warning signs or barriers; and by maintaining and/or permitting the dangerous and defective design of the site even though it knew or should have known that the design rendered the area unsafe. (Amended Complaint, ¶ 7.)
Count three seeks indemnification from the town for the negligence of town employee Ralph Zimbouski, his agents, servants and/or employees, pursuant to General Statutes § 7-465. ( Id., ¶¶ 12-14.) Count four alleges that the dumpster site was inherently dangerous and a nuisance and seeks damages pursuant to General Statutes § 52-557n.
General Statutes § 7-465 provides in relevant part: "(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
General Statutes § 52-557n provides 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: (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. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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."
Presently before the court is the town's motion to strike counts one, three and four of the plaintiff's complaint on the grounds that General Statutes § 13a-149, the defective highway statute, is the plaintiff's exclusive remedy for the allegations contained in said counts.
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 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."
"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, 709 A.2d 558 (1998). "The role of the trial court [is] to examine the [complaint] . . . to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378, 698 A.2d 859 (1997). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [The court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 803 A.2d 311 (2002).
"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." Id., 647. "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 . . . We have construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy . . . In addition, because § 7-465 (a) requires a municipality to indemnify its officers for their negligent acts, § 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). A highway defect includes a defect in an area adjacent to the traveled portion of the highway. Id. In Pringle, the highway defect consisted of a severed steel sign post in a grassy embankment adjacent to a roadway. In this case, the defect consists of concealed dumpsters adjacent to the roadway system within and intended to be used to traverse the town dump.
"[A] highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." Novicki v. New Haven, 47 Conn. App. 734, 740, 709 A.2d 2 (1998). "If in the use of the traveled portion of the highway . . . a condition exists which makes travel not reasonably safe for the public, the highway is defective." Ferreira v. Pringle, supra, 255 Conn. 344.
Construing the amended complaint in the light most favorable to the plaintiff, it is clear that the plaintiff's claims fall under the purview of the defective highway statute. The complaint alleges that the plaintiff was injured due to a condition that existed in a public roadway which made travel unsafe, namely the road "ended in a cliff" above a dumpster without any warnings or barriers in place to protect travelers. (Amended Complaint, ¶¶ 6-7.) Although the plaintiff has filed two memoranda of law in opposition to the town's motion, neither one addresses the issue of whether the exclusivity provisions of § 13a-149 govern the plaintiff's claims against the town. Because the court finds that they do, the town's motion to strike counts one, three and four is hereby granted.
BY THE COURT
Hon. Vanessa L. Bryant