Opinion
No. LLI CV 106002756S
November 22, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE SHORT CALENDAR NOVEMBER 8, 2010 (#104)
ISSUE
The issue is whether the court should grant the city of Torrington's motion to strike count three of the plaintiff's complaint.
FACTS
On July 12, 2010, the plaintiff, Benay Skoglund, filed a three-count complaint against the defendants, the Salvation Army, Inc., the Salvation Army and the city of Torrington. The plaintiff's complaint arises out of an accident that occurred on June 1, 2008, when the plaintiff was walking on the sidewalk in front of the Salvation Army at 57 Main Street in Torrington, Connecticut. The plaintiff alleges, inter alia, that she tripped and fell over a defective brick that was raised and tilted above the surface of the sidewalk. As a result, the plaintiff suffered several injuries, some of which may be permanent. Counts one and two are brought against the Salvation Army, Inc. and the Salvation Army, respectively, while count three is against the city of Torrington (the city).
In count three, the plaintiff alleges that the city was responsible for the maintenance of all of the sidewalks within its territorial limits and that it had a duty to keep and maintain the sidewalks in a reasonably safe condition for public travel. The plaintiff also asserts that Torrington Code § 180-19E provides: "[n]o person shall place any obstructive substance in any . . . sidewalk . . . or place any other thing upon any . . . sidewalk in such a manner or to such an extent as unreasonably to impede or cause inconvenience to public travel." In addition, the plaintiff asserts that the city had actual or constructive notice of the defect in the sidewalk and that it was negligent in a variety of ways, including its violation of Torrington Code § 180-19E. The plaintiff asserts that she provided the city with notice of the incident pursuant to General Statutes § 13a-149.
On August 11, 2010, the city filed a motion to strike the claim against it in count three, along with a supporting memorandum of law. The plaintiff filed an objection to the city's motion on November 4, 2010, to which the city filed a reply on November 5, 2010. This matter was heard at the November 8, 2010 short calendar.
DISCUSSION
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In its motion to strike, the city argues that count three of the plaintiff's complaint fails to state a legally sufficient cause of action under § 13a-149. Specifically, the city argues that the plaintiff has failed to allege that the sidewalk defect was the sole proximate cause of her injuries and/or that she was exercising due care at the time of her fall. In response, the plaintiff argues that an allegation of proximate cause does not need to be pleaded expressly. Moreover, the plaintiff asserts that she has alleged that "the sidewalk was defective and dangerous; that the [c]ity, which is responsible for maintaining the sidewalk, had notice of the defect; that the [c]ity failed to remedy the defect; that the defect caused the [p]laintiff's injuries; and that the [p]laintiff was lawfully on the sidewalk," and she cites the defective highway statute. The plaintiff argues that these allegations are sufficient to state a cause of action under § 13a-149.
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." "To prove a breach of statutory duty under [§ 13a-149], the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of "the injuries and damages claimed." (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583-84, 783 A.2d 1001 (2001).
While affirming a trial court's decision to grant a motion for summary judgment, the Connecticut Appellate Court stated: "Allegations of due care must be specifically pleaded in a defective highway claim brought against a municipality and cannot be presumed." Mastrolillo v. Danbury, 61 Conn.App. 693, 699, 767 A.2d 1232 (2001). Likewise, while deciding motions to strike, several trial courts have concluded that "the issue of the plaintiff's due care must be raised by the pleadings in order to sustain an action based on General Statutes § 13a-149." (Internal quotation marks omitted.) Pajor v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 94 0366807 (June 20, 1995, Martin, J.). Some trial courts have "allowed a party, under certain circumstances to plead either that the plaintiff was exercising due care or that the defendant was the `sole' proximate cause of the plaintiff's injuries" in order to satisfy the pleading requirements of § 13a-149. (Emphasis added.) Id. In Zablocki v. Winchester, Superior Court, judicial district of Litchfield, Docket No. CV 05 5000105 (April 26, 2006, Bozzuto, J.), for example, the court granted a motion to strike as a result of a plaintiff's failure to plead sole proximate cause. The court reasoned: "One of the elements to state a cause of action pursuant to § 13a-149 is that the defect was the sole proximate cause of the injury . . . The plaintiff, who properly brought his claim pursuant to § 13a-149 . . . alleged that his injury was caused by the negligence and carelessness of the town to keep its streets in a reasonably safe condition. He, however, did not allege that the town was the sole proximate cause of his claimed injuries. Therefore, the plaintiff has failed to allege a legally sufficient claim under § 13a-149." Id.
The Zablocki court cited several other Superior Court decisions in reaching its conclusion, including Roebuck v. Stamford, Superior Court, judicial district of Stamford, Docket No. CV 00 0176850 (January 24, 2001, D'Andrea, J.) (motion to strike granted when the plaintiff failed to "allege that the defendant was the sole proximate cause of her claimed injuries"), Leonard v. Winchester, Superior Court, judicial district of Litchfield, Docket No. CV 99 0079644 (August 25, 1999, DiPentima, J.) (motion to strike granted when the plaintiff "failed to allege . . . that the alleged defect was the sole proximate cause of her injuries"), Sandoval v. Rafferty, Superior Court, judicial district of Stamford, Docket No. CV 97 0159400 (August 16, 1999, D'Andrea, J.) (motion to strike denied because the plaintiff alleged he "was in exercise of due and reasonable care," which "fulfills the requirement that the highway defect was the sole proximate cause of [his] injuries"), Argiriou v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 97 0140220 (May 7, 1998, Kulawiz, J.) ( 22 Conn. L. Rptr. 210) (motion to strike granted when the plaintiff failed to allege that the highway defect was the sole proximate cause of her injuries), and Sandoval v. Stamford, Superior Court, judicial district of Stamford, Docket No. CV 97 0158477 (November 20, 1997, Lewis, J.) (motion to strike granted because the plaintiff failed to allege "that the defect complained of was the sole proximate cause of her injury").
At least one trial court has concluded that sole proximate cause may be implied and need not be pleaded specifically under § 13a-149 in order to survive a motion to strike. In Moreino v. State, Superior Court, judicial district of New London, Docket No. CV 05 4003227 (April 11, 2008, Abrams, J.), the court concluded that although the relevant count "[did] not contain a specific reference to General Statutes § 13a-149 or the words `sole proximate cause,' it [did] contain the phrase `the Town of Ledyard's breach of its statutory duties'" and this "sufficiently [implied] the allegation of a claim under General Statutes § 13a-149 and the claim that the alleged defect was the sole proximate cause of the accident." Id.
In the present matter, count three of the plaintiff's complaint is devoid of any allegation that the sideway defect was the sole proximate cause of the plaintiff's injuries or that the plaintiff exercised due and reasonable care. Under Mastrolillo and a majority of Superior Court decisions, this court grants the motion to strike count three on the ground that a plaintiff is required to plead at least one of these allegations in order to state a legally sufficient cause of action under § 13a-149. Therefore, The City of Torrington's motion to strike count three is granted.