Opinion
No. NNI-CV04-5000003S
February 2, 2007
MEMORANDUM OF DECISION RE MOTION TO AMEND SCHEDULING ORDER
This memorandum of decision addresses the defendants' joint Motion to Amend Scheduling Order dated October 4, 2006 (#125) (Motion to Amend), and the plaintiff's responsive Objection to Defendant's Motion to Amend Scheduling Order dated October 18, 2006 (#126) (Objection). The matter was argued at the short calendar session on November 27, 2006. For the following reasons, the Motion to Amend is hereby GRANTED; the Objection is hereby OVERRULED.
I. PROCEDURAL HISTORY
The Motion to Amend and the Objection should be viewed in the context of the procedural history of this case. The underlying action arises from injuries the plaintiff allegedly sustained on January 24, 2004, when he fell upon a pedestrian crosswalk located in directly in front of the New Haven Train Station at 50 Union Avenue in that city, due to uncleared slush and ice that had accumulated there. The original complaint, dated June 28, 2004, named two defendants: Count I alleges that the City of New Haven (City) is liable for the plaintiff's injuries due to defective maintenance of municipal property, as contemplated by General Statutes § 13a-149; Count II sounds in general negligence against the City; and Count III alleges that the Parking Authority is liable to the plaintiff on general negligence grounds, as well. The original complaint alleges that at the time the injuries occurred, the City "owned, controlled, possessed, managed and/or maintained" the crosswalk at issue. Complaint dated June 28, 2004, Count I ¶ 6 and Count II ¶ 5; see also Court I ¶ 4. The original complaint also alleged that at the time of these events, the Parking Authority had a leasehold interest in the property upon which plaintiff fell, including the crosswalk, and that the Parking authority "was responsible for maintenance including snow and ice removal at the New Haven Train Station pursuant to a contract it had with the City of New Haven." Complaint dated June 28, 2004, Count III ¶¶ 5, 6.
The plaintiff submitted a revised complaint under date of August 2, 2004, leaving intact the fundamental claims of all three counts, and restating the aforementioned paragraphs from Counts I and II against the City, and from Count III against the Parking Authority (#104). Under date of September 29, 2004, the City submitted its answer and special defense addressed to the revised complaint; the special defense was based upon principles of governmental immunity (#108). Under date of October 1, 2004, the Parking Authority submitted its answer and special defense; the Parking Authority's special defense alleged that the plaintiff's injuries resulted from his own negligent conduct (#109). Under date of October 12, 2004, the plaintiff replied to the Parking Authority's special defenses (#111). Although the court file does not reflect a reply to the City's special defense, the plaintiff filed a certificate of closed pleadings and claimed the matter to the jury on October 12, 2004 (#112).
On November 22, 2005, the court (Wiese, J.) conducted a pretrial conference and issued Scheduling Orders obliging the parties to complete matters such as discovery and submissions of motions for summary judgment on or before by March 1, 2006 (#118).
On its face, the Meriden JD-Scheduling Order dated November 22, 2005 obligates the parties to submit such motions "by 3/1/05." At oral argument on November 27, 2006, counsel agreed that this aspect of the scheduling order reflects a scrivener's error and that, in fact, the orders required compliance as of March 1, 2006.
Under date of November 30, 2005, the Parking Authority requested permission to amend its answer by adding a special defense to Count Three of the revised complaint, expressly adding the special defense of governmental immunity to the issues of comparative negligence (#119). The court file does not reflect any objection to the amendment of the Parking Authority's answer.
Notwithstanding the orders limiting the time for completing discovery and submitting motions, the plaintiff disclosed an expert medical witness under date of March 15, 2006 (#120). The court file does not reflect objection to this disclosure. On June 6, 2006, the defendants filed a joint Motion for Summary Judgment (#121) directed at Counts Two and Three of the revised complaint. This motion asserted in part that the plaintiff is legally barred from prevailing because "the defendants are entitled to sovereign immunity for the negligence claims" (#121). The motion further argues that the Parking Authority, as a "municipal subdivision with a prescribed area of duties . . ." is expressly immune from the negligence theories asserted in the complaint. Memorandum of Law in Support of Motion for Summary Judgment, June 6, 2006. Under date of June 13, 2006, the plaintiff objected to the defendants' submission of the motion for summary judgment (#122), as the motion was filed after expiration of the court's scheduling order. Under date of June 20, 2006, the defendants moved for permission to modify the scheduling order, and to file the summary judgment motion (#123).
On June 28, 2006, the court (Wiese, J.) sustained the plaintiff's objection to the filing of the summary judgment motion (#122) and denied the defendant's motion for permission to file a summary judgment motion and to modify the scheduling order (#123). Under date of July 27, 2006, the plaintiff filed an Objection to Defendant's Motion for Permission to file Summary Judgment (#124), as the defendant's had ostensibly reclaimed #123 for hearing on the short calendar; the court (Wiese, J.) sustained the plaintiff's objection on August 8, 2006, referring to the court's previous ruling on June 28, 2006 (#124).
Under date of October 4, 2006, notwithstanding the court's original and subsequent orders, the defendants jointly submitted a Motion to "Amend Scheduling Order" (#125). Through this motion, the defendants again seek permission to file a motion for summary judgment based on principles of governmental immunity. As the basis for its motion, the defendants assert, among other things, that they interpreted the November 22, 2005 order so as to permit the filing of dispositive motions after March 1, 2006; that the case has not been scheduled for trial; and that "judicial economy requires that the issues be addressed prior to the time of trial" (#125). Under date of October 18, 2006, the plaintiff filed his Objection to Defendant's Motion to Amend Scheduling Order (#126). In support of his objection, the plaintiff argues that "the law of the case" precludes the defendants from filing their motion for summary judgment, as the November 22, 2005 order and the court's subsequent rulings order expressly forbidding such submissions. The plaintiff requests sanctions by way of denial of the defendants' motion, and the imposition of "appropriate sanctions for the costs of having to respond to the defendant's motion for a third time" (#126).
On November 3, 2006, the court administratively informed the parties that jury selection preparatory to trial of this matter is scheduled to commence on May 22, 2007.
II. THE LAW OF THE CASE
The plaintiff cites two aspects of this matter's procedural history as support for his claim that the court is constrained from granting the defendants permission to raise their governmental immunity issues through amendment of the scheduling order so as to allow submission of a motion for summary judgment. First, the plaintiff argues that "[t]his issue was already decided when the defendant previously filed a Motion for Permission to File Summary Judgment and for Modification of Scheduling Order, which was denied by Judge Wiese on August 9, 2006." (Emphasis in the original.) (#126.) Second, the plaintiff argues that "the merits" of the summary judgment motion were discussed at the November 22, 2005 pretrial conference, and that defense counsel clearly indicated awareness that such a motion would be subject to any deadline established by the scheduling order.
Viewed as a whole, the plaintiff's objection is primarily based upon the doctrine of the law of the case; this doctrine generally adheres to the premise of judicial finality but also recognizes the discretion in the court's inherent authority to manage the litigation process through its various developmental phases. See Lamothe v. Midstate Medical Center et al., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002893 (October 4, 2006, M. Taylor, J.) [ 42 Conn. L. Rptr. 139]. Thus, "[t]he law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power." Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005). "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Emphasis added; external citations and internal quotation marks omitted.) Waterbury Equity Hotel, LLC v. Waterbury, 85 Conn.App. 480, 489-90, 858 A.2d 259 (2004). See also Lamothe v. Midstate Medical Center et al., supra. Accordingly, "[i]t is familiar law that a court has the inherent authority to open, correct or modify its judgments. See Nastro v. D'Onofrio, 76 Conn.App. 814, 821, 822 A.2d 286 (2003)." Bridgeport v. Triple 9 of Broad Street, Inc., supra, 87 Conn.App. 744.
Under certain circumstances, "[p]ermitting a party to repeatedly revisit the same or similar issues would result in undue delay of litigation and unnecessarily consume judicial resources." Lamothe v. Midstate Medical Center et al, supra. Repeated attention to such issues might also cause undue prejudice to a party who, for instance, faces imminent trial of a matter. In this case, however, trial is not imminent; jury selection is presently scheduled for late May 2007, but the court maintains the authority to modify that schedule so as to meet the needs of the parties or other just interests. Moreover, while acknowledging the plaintiff's protest that the defendants have previously sought permission to submit the summary judgment issues before the court, the record fails to reflect any final consideration of substance of the governmental immunity defense. Even though the subject may have been discussed in chambers, there has been no representation that the court's scheduling orders or subsequent rulings effectively addressed the merits of this special defense in any context; instead, those rulings appear to be administrative in nature. In the absence of any indication that the court has previously resolved the substantive subject of governmental immunity, the premise of judicial finality does not provide the plaintiff the protection he here seeks. See Bridgeport v. Triple 9 of Broad Street, Inc., supra, 87 Conn.App. 744.
The subject of governmental immunity is well suited for disposition through a motion for summary judgment. "The issue of governmental immunity is simply a question of the existence of a duty of care, and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law.' Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)." Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "`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 . . . Craig v. Stafford Construction, Inc., 271 Conn. 78, 83, 856 A.2d 372 (2004).' (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005)." Doe v. Petersen, 279 Conn. supra, 613. As the subject of governmental immunity raises issues of law, the question of whether or not a defendant is immune from the effects of this litigation is particularly appropriate for resolution at a pre-trial summary judgment hearing. Id.
Applying these legal tenets to the case at bar, it is clear that the defendants' "Motion to Amend Scheduling Order," the defendants' pending request offers the court the opportunity to efficiently and economically address, prior to trial, legal issues that may be dispositive of some aspects of the complaint. Rather than unduly delaying this litigation of unnecessarily consuming judicial resources, the court is compelled to conclude that adjudication of the governmental immunity issues, prior to jury selection, would advance the efficient resolution of the plaintiff's claims. See Lamothe v. Midstate Medical Center et al, supra. As the governmental immunity issues have not been addressed on the merits, as the matter will not be unduly delayed in terms of scheduling for trial, the court finds that the subject "should not be discarded by the court under the discretionary legal doctrine of the law of the case." Lamothe v. Midstate Medical Center et al, supra. In view of the exigencies of the present case, in which the defendant has claimed protection ostensibly proffered the application of discrete legal theories, the court finds adequate basis for amending the extant scheduling order to enable appropriate hearing of the defendants' governmental immunity claims. See Bridgeport v. Triple 9 of Broad Street, Inc., supra, 87 Conn.App. 741. Accordingly, the defendants' motion #125 must be granted, and the plaintiff's objection #126 must be overruled.
III. APPARENT JURISDICTIONAL ISSUES
The exigencies of this case present a second reason why the defendants' motion to amend #125 must be granted, and why the plaintiff's objection #126 must be overruled. Simply put, by raising the issue of the extent, if any, to which the plaintiff's cause of action is barred by the application of the principles of governmental immunity, the defendants' request implicates the subject matter of the court. The law demands resolution the subject matter jurisdictional issues presented through the pleadings prior to testing the substantive issues raised by the parties.
" `Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.' 1 Restatement (Second), Judgments § 11." Board of Education v. Naugatuck, 58 Conn.App. 632, 633, 755 A.2d 297 (2000). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 755, 900 A.2d 1 (2006). "`[T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.' (Internal quotation marks omitted; emphasis added.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006)." Lichtman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006). This rule applies even in the context of jurisdictional issues raised through a special defense, as "once the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, supra, 273 Conn. 616.
In the context of the present case, the issue of whether a governmental agency, such as the City or an agency such as the Parking Authority, has a duty of care to a particular plaintiff presents a question of law, bound to the issue of governmental immunity. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 171; see also Doe v. Petersen, supra, 279 Conn. 613. Where appropriate, our rules contemplate the court's consideration of a motion for summary judgment at any time during the course of the litigation, so long as the purposes of that motion can be fulfilled without unduly delaying trial of the matter. Practice Book § 17-44. As previously noted, the general purpose of the summary judgment process proceedings is to permit the efficient, economic resolution of whether a party is entitled to judgment as a matter of law. See Doe v. Petersen, 279 Conn. supra, 613; Practice Book § 17-49. Because the subject of governmental immunity raises issues of law, the matter is particularly appropriate for resolution at a pre-trial summary judgment hearing. See Doe v. Petersen, supra, 279 Conn. 613.
Practice Book § 17-44 provides, in pertinent part, that "any party may move for a summary judgment at anytime, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial. . . The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." (Emphasis added.) The court notes that in the present matter, the defendants filed their present motion to amend scheduling order under date of October 4, 2006, approximately one month before the court announced the date of trial assignment.
Despite the plaintiff's vigorous objection, the court concludes that strict adherence to previously issued scheduling orders would vitiate the flexibility contemplated by Practice Book § 17-44, and would deprive the parties of the opportunity for timely consideration of a fundamental legal issue clearly implicated in this case. Summary consideration of the governmental immunity issues will permit due adherence to the principles establishing that "once the question of lack of jurisdiction of a court is raised, . . . the court must fully resolve it before proceeding further with the case . . ." Board of Education v. Naugatuck, supra, 58 Conn.App. 633.
IV. DELEGATION OF LANDOWNER'S DUTY
Yet a third reason exists for granting the defendants' motion to amend the scheduling order issued November 22, 2005. On June 6, 2006, months after the expiration of the enunciated deadline for the submission of summary judgment motions, the Supreme Court published its opinion resolving premises liability issues in Smith v. Greenwich, 278 Conn. 428, 899 A.2d 563 (2006). Generally, that opinion establishes the circumstances under which a landowner, such as the City is alleged to be, may lawfully delegate responsibilities for management of its property insofar as removal of accumulated precipitation is concerned. Although, in Smith v. Greenwich, those issues arose in the context of apportionment claims between a landowner and a third-party contractor, it may be that the opinion affects the case at bar, as therein the Supreme Court reaffirmed that "the owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries. Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor's tortious conduct." Id., 460.
By allowing the defendants' requested amendment to the scheduling order, the court will not only permit the City and the Parking Authority to pursue motions for summary judgment; rather, this route to pre-trial resolution of patent legal issues will also become available to the plaintiff, should he choose to pursue a like motion against one defendant, either, or both.
V. CONCLUSION
WHEREFORE, based on the foregoing cases and principles of law, the court hereby GRANTS the defendants' joint Motion to Amend Scheduling Order submitted under date of October 4, 2006 (#125) and OVERRULES the plaintiff's Objection to Defendant's Motion to Amend Scheduling Order submitted under date of October 18, 2006 (#126).
AND WHEREFORE, the court issues the following remedial orders:
1. The Scheduling Order entered November 22, 2005 is hereby suspended insofar as it may be applicable to motions for summary judgment.
2. Any party may file a motion for summary judgment, with appropriate supporting documentation as contemplated by the rules for procedure in civil matters, within thirty (30) days of the issuance of this decision.
3. Any party seeking to contest another party's motion for summary judgment and/or seeking an extension of time within which to respond must do so in compliance with the schedule set forth in Practice Book § 17-45.CT Page 2031
4. The trial date of May 22, 2007 will be stayed, and another trial date assigned by the Presiding Judge, if the summary judgment issues have not been resolved prior to that date.
BY THE COURT,
N. Rubinow, J.