Opinion
No. CV 09-5032005 S
May 28, 2010
MEMORANDUM OF DECISION
On September 29, 2009, the plaintiff, Barbara Sheppard, filed this two-count complaint against the defendants, Edward Masotta and the town of Branford. The complaint alleges the following facts. On July 31, 2007, the plaintiff was walking on the Stony Creek dock in Branford, Connecticut for the purpose of boarding a boat. As she was walking, she tripped and fell on the surface of the dock due to a depression where the asphalt met the concrete of the dock. The depression had existed for some time and had become a dangerous and hazardous condition. Masotta, the director of public works for the town of Branford, was responsible for maintaining the dock area and keeping it in a reasonably safe condition. The plaintiff suffered injuries, damages and a diminishment in the quality of her life due to her fall. She alleges that Masottta's negligence in failing to exercise reasonable care in taking reasonable precautions to correct the conditions, failing to maintain the dock and failing to erect warning signs in the area caused her injuries. The first count of the complaint alleges negligence against Masotta, while the second count alleges vicarious liability, pursuant to § 7-465, against the town of Branford. The plaintiff seeks money damages in excess of $15,000.
Section 7-465 provides in relevant part: "(a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . 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 set forth in this section, 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."
The defendants filed an answer on November 6, 2009 denying the claims and alleging five special defenses. They allege that any injuries were a proximate cause of the plaintiff's own negligence, the plaintiff has failed to state a claim for which relief can be granted, the statute of limitations bars the claims, governmental immunity pursuant to § 52-557n bars the claims and finally that § 13a-149 precludes the current action. On March 23, 2010, the defendants filed the current motion for summary judgment. The plaintiff filed a memorandum of law in opposition to the motion on May 7, 2010.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to 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 . . . 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.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendants make several arguments in support of the current motion. First, they argue that the highway defect statute is the exclusive remedy in this case and has not been properly pleaded. Next, they argue that the plaintiff has failed to give the proper notice pursuant to § 13a-149 of the highway defect statute. Lastly, the defendants argue that if the court determines the highway defect statute is not applicable then the plaintiff's claims are barred by governmental immunity. The defendants have attached to their motion an authenticated affidavit of Masotta, authenticated excerpts of the plaintiff's deposition and photographs. The plaintiff argues that whether or not the Stony Creek dock in Branford is considered a road or bridge, and therefore subject to § 13a-149, is a question of fact and that governmental immunity does not apply. Attached to the plaintiff's memorandum are excerpts from the plaintiff's deposition and copies of written notes.
I. Applicability of the Highway Defect Statute Pursuant to § 13a-149
The court must first address whether the plaintiff's sole remedy against the defendants is by means of the highway defect statute, pursuant to § 13a-149. A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . 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). "The statutory provisions of [General Statutes] § 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." (Internal quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998).
Section 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."
Specifically, at issue is whether the plaintiff sustained her injury by means of a defective road or bridge. The Supreme Court has held that: "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 . . . [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." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 341-42.
In the present case, the plaintiff alleges that her injuries occurred when she was "walking on the Stony Creek dock for the purpose of boarding a boat when she was caused to trip and fall on the surface of the dock due to a depression in the asphalt where the asphalt met the concrete portion of the dock." The defendants argue that the location is included under the highway defect statute. They have cited several cases arguing the highway defect statute extends to walkways leading to buildings, sidewalks and areas off of public paths and should, therefore, include the dock location in the present matter.
The defendants first cite to Ferreira as evidence that the highway defect statute applies. In Ferreira, the plaintiff, upon disembarking from a bus, tripped on a signpost located on the shoulder of the highway. Id., 341. The court held that the location of the injury was a road or bridge for purposes of the highway defect statute. Id. The defendants also cite to other cases arguing that Connecticut courts have interpreted roads and bridges, under the highway defect statute, to include all sidewalks and public walkways. See Novicki v. New Haven, supra, 47 Conn.App. 740; Dunleavy v. Groton, Superior Court, judicial district of New London, Docket No. CV 98 545592 (November 23, 1998, Mihalakos, J.) ( 23 Conn. L. Rptr. 424). They argue that the location of the plaintiff's alleged injury was also on a public walkway, the walkway to the dock, and therefore part of a road or bridge.
In Novicki, the plaintiff was on a walkway between a public property and a school when she fell and was injured due to an alleged defect. Novicki v. New Haven, supra, 47 Conn.App. 740. The defendant-city originally brought a motion for summary judgment arguing that the location did not constitute a road or bridge, but that motion was denied because the "court could not conclude, as a matter of law, that the location of the plaintiff's fall was not a public highway or sidewalk." Id., 736. After which the complaint was amended and the defendant brought a motion to dismiss with new affidavits. The court held that "the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, [and] it was reasonably anticipated that the public would make use of it." Id., 740. The court, ultimately, dismissed the case on other grounds. Id., 742.
In Dunleavy, the plaintiff, while exiting Groton City Hall fell on the exterior steps and was injured. Dunleavy v. Groton, supra, 23 Conn. L. Rptr. 424. The plaintiff sued and the defendant brought a motion to strike two counts of the complaint arguing that the claims were barred. Id. The Dunleavy court granted the motion concluding that the location of the alleged defect of the steps was in such close proximity to the walkway that it fell under the highway defect statute. Id., 425.
The present case is distinguishable from the aforementioned cases. In the cases cited by the defendants the injuries occurred in close proximity to public buildings. The present case brings about a separate set of facts that are still in dispute. Here, the injury was not in close proximity to a public building, but instead in a dock area, distinct from the public areas described in the previous cases. The plaintiff in her deposition testified that she was on her way to the town dock, where she was to travel by ferry to her island home, when she fell in a depression in the asphalt. Masotta testified that the Stony Creek town dock is open to members of the general public and serves as a launch for transportation to the Thimble Islands. He further testified that the dock "consists of Indian Point Road, a concrete bridge, an asphalt ramp and a wooden pier from which boats and barges are loaded and unloaded." While this description is detailed, there remains a fact specific question as to the exact location of the alleged depression and whether the area of the plaintiff's alleged injury constitutes part of the dock and part of the "traveled path." Although the defendants provide authenticated photographs, they have not proven that this is where the alleged injury occurred. Instead, the plaintiff testified in her deposition that the photographs do not depict where she was injured.
The court in Dunleavy, in understanding the uniqueness of cases involving the highway defect statute, stated "[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." Dunleavy v. Groton, supra, 23 Conn. L. Rptr. 424.
The Supreme Court in Baker v. Ives, 162 Conn. 295, 299, 294 A.2d 290 (1972), also agreed that an analysis of the particular circumstances in each case is appropriate. In Baker, the plaintiff fell in a grassy area, due to snow and ice, that was located between the highway and sidewalk and was often used for general public parking. Id., 297. The Supreme Court upheld the original trial court ruling that it was a question of fact for the jury and ruled that the jury appropriately looked at the specific facts in determining the grassy area was a road or bridge for purposes of the highway defect statute. Id. In doing so the Supreme Court stated that "[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, would generally constitute a defect in the highway . . . 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." (Citation omitted; internal quotation marks omitted.) Id., 300.
Later, in discussing the Baker decision, the Supreme Court stated that "[i]n 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 . . . 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, 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. (Citation omitted; internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 427, 727 A.2d 1276 (1999).
The present case must be considered separately from past decisions as distinct issues of fact exist as to whether the plaintiff's injury occurred on a road or bridge. Courts in this state have not determined as a matter of law that a dock and its surrounding areas constitute a bridge or road for purposes of applying § 13a-144 of the highway defect statute. As the court in Serrano noted such a determination must be made "on a case-by-case basis after a proper analysis of its own particular circumstances." (Internal quotation marks omitted.) Id., 426. In the present case there are several issues of fact for the trier to determine including where the exact location of the injury occurred, whether the area was on a traveled pathway, and if not whether the defect was so close to the path as to "menace" travelers. Therefore, the court finds there are issues of fact as to whether the highway defect statute applies.
II. Notice Pursuant to § 13a-144 of the Highway Defect Statute
It is also necessary for the court to address whether the defendants were given proper notice under the highway defect statute. "The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity. The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit . . . The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." (Citations omitted; internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).
In the present case, the defendants argue that no notice was given pursuant to § 13a-144, but fail to provide the court with any evidence. The defendants, as the party moving for summary judgment, have the burden of showing the absence of any genuine issue of material fact. "Ordinarily the question of the adequacy of the notice is one for the trier of fact . . . Only if the notice is patently defective should the court decide the question as a matter of law." (Citation omitted.) Tyson v. Sullivan, 77 Conn.App. 597, 607-08, 824 A.2d 857 (2003). Here, there is a question of fact as to what, if any, notice was given to the defendants. There is no evidence that the plaintiff failed to give notice, and thus no evidence that any notice was patently defective. As a result, the defendants have not met their burden and failed to prove as a matter of law that the plaintiff has not given notice pursuant to § 13a-144.
Therefore, the court finds there are issues of fact as to whether the highway defect statute is applicable and whether proper notice under the statute was given.
III. Applicability of Governmental Immunity Pursuant to 52-557n
Separately, the defendants argue that if 13a-149 does not bar the plaintiff's claims then the doctrine of governmental immunity, pursuant to 52-557n, bars the claims. The defendants argue that they are immune from liability under the doctrine because the alleged acts of the plaintiffs involve public discretionary acts. The plaintiff argues that the defendants are obligated to maintain the dock making their duty ministerial and not discretionary. The plaintiff further argues that whether the duty is ministerial or discretionary is a question of fact. In the alternative, the plaintiff argues if it is considered a discretionary duty then it falls within the imminent harm exception to the doctrine of governmental immunity.
"The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n . . . Section 52-557n(a)(1) sets forth the circumstances when a political subdivision will be held liable for damages to a person. This statute provides in relevant part: `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 . . . The statute also lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: `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."' (Citations omitted; internal quotation marks omitted.) Kastancuk v. East Haven, 120 Conn. App. 282, 286-87, 991 A.2d 681 (2010).
"Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).
The present case involves alleged claims of negligence based on maintenance, inspection and the failure to repair alleged hazards. "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Grignano v. Milford, 106 Conn.App. 648, 943 A.2d 507 (2008). The Supreme Court held that where the plaintiff alleged that the defendants were negligent in inspecting, maintaining and warning of the dangers of a trail, on which the plaintiff was injured, the alleged acts were discretionary in nature because they involved the exercise of judgment. Martel v. Metropolitan District Commission, 275 Conn. 38, 50, 881 A.2d 19 (2005). Similarly, the allegations here are based on the failure to inspect and maintain something, in this case the conditions of the dock. Masotta testified that he did not have any written policies or procedures mandating or prescribing the manner in which to conduct maintenance leaving the decisions to the employee's discretion. Therefore, the alleged acts of negligence were discretionary in nature and not as the plaintiff claims ministerial.
Lastly, the court must consider whether any exceptions to governmental immunity apply. The plaintiff argues that she was an identifiable person subject to imminent harm and therefore falls within the imminent harm exception to governmental immunity. The defendants do not agree. "[M]unicipalities are exposed to possible liability when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 609. "The `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989). "Discretionary act immunity is abrogated when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Citation omitted; internal quotation marks omitted.) Doe v. Peterson, supra, 279 Conn. 616. "[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts . . ." Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007).
"[O]ur courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." Burns v. Board of Education, 228 Conn. 640, 647, 638 A.2d 1 (1994). In the present case, when and who was threatened harm by the alleged dangerous, defective and hazardous condition, the depression in the asphalt leading to the dock, would be too open ended to fall within the exception. The plaintiff here does not fall within a cognizable class of foreseeable victims nor was she subject to imminent harm. Instead, courts in this state have held that groups that are readily identifiable and prescribed to be at a specific place at a specific time, such as school children injured at school, fall within the exception. See Durrant v. Board of Education, supra, 284 Conn 101 (discussing how courts in this state have applied the imminent harm exception to schoolchildren who are injured during school because they represent a class of foreseeable victims who are statutorily recognized). The plaintiff does not fall within any such recognizable group. As a result, the imminent harm exception does not apply to the plaintiff and barring application of the highway defect statute governmental immunity applies.
There are issues of fact as to whether the highway defect statute applies and whether proper notice was given, therefore the defendants' motion for summary judgment is denied.