Opinion
FBTCV146045589S
11-22-2016
Susan Smith v. Town of Monroe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
Defendants Town of Monroe (" Town") and Monroe Board of Education have moved for summary judgment to dismiss plaintiff's claims pursuant to the municipal highway defect act, Connecticut Gen. Statutes § 13a-149. For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion for Summary Judgment.
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
There is a Genuine Issue of Fact Concerning the Stairway's Proximity to a Public Highway for Liability Under C.G.S. § 13a-149.
There are two elements plaintiff must prove to meet her burden under Connecticut Gen. Statutes § 13a-149: " (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. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998) (brackets in original).
Defendants argue that the stairway at Masuk High School in Monroe, where plaintiff fell, was not " a highway within the meaning of [C.G.S.] § 13a-149, because it was not in such proximity to the highway so as to be considered in, upon, or near the travel path of the highway." Defendants have not provided any evidence concerning the stairway's proximity to the nearest public road.
In Pramuka v. Town of Cromwell, 160 Conn.App. 863, 127 A.3d 320 (2015), the Appellate Court reversed the granting of summary judgment under the municipal highway defect statute where " plaintiff tripped and fell while walking along an uneven and cracked portion of the walkway that went from the designated parking area to the entrance" of an elementary school. The Appellate Court concluded that there was a genuine issue of fact concerning whether the walkway was in such proximity to the highway as to be considered " in, upon, or near the travel path, " so as to fall within the purview of the municipal highway defect statute. 160 Conn.App. at 875-76. The Pramuka Court cited the Supreme Court's decision in Baker v. Ives, 162 Conn. 295, 298-299, 294 A.2d 290 (1972), as an analogous case in which the Supreme Court upheld a jury verdict under the state highway defect statute, C.G.S. § 13a-144, in which the alleged defect was located in a grassy area used for parking adjacent to the highway. 160 Conn.App. at 874-75.
The Appellate Court in Pramuka explained its reasoning for extending the reach of the municipal highway defect statute to areas such as the school walkway that could be found to be in proximity to a public highway:
' . . . The duty of the municipality to use reasonable care for the reasonably prudent traveler extends to pedestrian travel as well as to vehicular traffic . . . [T]o fall within the ambit of § 13a-149, a person must simply be on the highway for a legitimate purpose connected with travel and the defect need not be on the actual traveled portion of the highway . . . Our Supreme Court has construed the word road or highway, as used in § 13a-149, to include the shoulders of the roadway as well as sidewalks . . .'[t]he term sidewalk is meant to apply to those areas that the public uses for travel . . . [the] term highway also extends to [t]he shoulders of a highway, [which] while not designed for ordinary . . . traffic, are intended for use when need arises . . .'
'Whether a parking lot is included or excluded from coverage under the defective highway statute, however, is a question for the fact finder' . . . 'The Connecticut Supreme Court has declined to decide whether a parking lot is or is not a 'road' as a matter of law for purposes of the state's defective highway laws, but instead has focused the analysis on the location of the defect to determine whether an injury occurring in a parking lot is covered under the statute . . .'
Additionally, '[o]ur Supreme Court has recognized that, when the state [or municipal subdivision] either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the [applicable highway defect] statute . . . [D]efective conditions located near the roadway, but in areas unintended for travel, are not highway defects within the ambit of the highway defect statute.'
'[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 . . .' 160 Conn.App. at 871-73 (citations omitted).
The affidavits submitted by defendants provide no information relating to the proximity of the stairway to the parking area and to the highway beyond leading to and from the school. Without this information the Court is unable to determine as a matter of law whether the stairway was in such proximity to the highway so as to be considered " in, upon or near the travel path of the highway, " and thus within the ambit of the highway defect statute. Compare, McKay v. City of Middletown, 2015 WL 9595174 **2-4 (Conn.Super. 2015), quoting Cuozzo v. Orange, 315 Conn. 606, 607, 109 A.3d 903 (2015). That issue therefore remains with the jury.
There are Genuine Issues of Material Fact Whether the Town is Liable Under C.G.S. § 13a-149.
The Town asserts it is not liable under C.G.S. § 13a-149 for any defect in the stairway located on school grounds because the Board of Education and not the Town was " the party bound to keep it in repair . . ."
In Novicki, 47 Conn.App. at 742, the Appellate Court upheld the dismissal of the claim under C.G.S. § 13a-149 against the city of New Haven for an accident that occurred on the walkway because affidavits submitted by defendant showed that the Board of Education and not the city was the party bound to keep the sidewalk in repair. The Novicki Court felt bound by the Supreme Court's decision in Amore v. Frankel, 228 Conn. 358, 367-68, 636 A.2d 786 (1994), which upheld dismissal of a claim under the state highway defect act, C.G.S. § 13a-144, based on affidavits that the University of Connecticut, and not the State Transportation Department, was responsible for repair of the subject driveway on the college campus.
Defendant Town has submitted evidence by affidavit and a transcript of deposition testimony that the Board of Education, and not the Town, is responsible for repair and maintenance of the school stairway where the accident occurred. Defendant also cites Connecticut Gen. Statutes § 10-220 that provides, in pertinent part: " [e]ach local or regional Board of Education . . . shall have the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes . . ."
Plaintiff seeks to avoid summary judgment by arguing that the Board of Education is an agent of the town; therefore both the Board of Education and the Town would be liable for defects on school property that fall within the municipal highway defect act. Plaintiff cites Town of Cheshire v. McKenney, 182 Conn. 253, 258-59, 438 A.2d 88 (1980), which found the " local boards of education [to be] . . . agents of the municipality they serve" quoting C.G.S. § 10-240 that provides, in part, " [e]ach town shall through its board of education maintain the control of all the public schools within its limits . . ."
The Supreme Court in Board of Education v. New Haven, 237 Conn. 169, 180-82, 676 A.2d 375 (1996), decided sixteen years after Cheshire, ruled local school boards are agents of both the state and the municipality in connection with maintaining school facilities and note that independence and control of the care, maintenance and operation of facilities depends on whether the subject is routine maintenance or capital projects, with the boards retaining control over discretionary spending for routine maintenance and municipalities controlling capital projects:
'Although § 10-220(a) charges boards of education with 'the care, maintenance and operation of buildings, lands, apparatus and other property, ' when that provision is read in conjunction with § 10-241, it is obvious that 'maintenance, ' as used in § 10-220, refers to general maintenance, such as the daily upkeep of school facilities and equipment, the cost of which is provided for in an annual operating budget. Section 10-241, which delegates certain duties to municipalities, however, pertains to capital expenditures, such as the construction and renovation of physical facilities, the purchase of real property, or the purchase of capital equipment.
A local board of education acts as an agent of the state when it performs those duties delegated to it by the state . . . In other words, if a school board is engaged in the provision of primary and secondary education, it is acting under the authority of the state and as the state's agent. Nevertheless, even in performing its duties as an agent of the state, " a local charter may limit the powers of the local board of education where its provisions are not inconsistent with or inimical to the efficient and proper operation of the educational system otherwise entrusted by state law to the local boards.' . . .
Local boards of education, however, are also agents of the municipalities that they serve . . . A board of education acts as an agent of its respective municipality when it performs those functions originally entrusted by the state to the municipality that the municipality has subsequently delegated to the board of education; e.g., the construction of schools or the acquisition of capital equipment. While acting as an agent of the municipality, the local boards of education must comply with the municipality's charter, ordinances and established fiscal procedures.'
Plaintiff has not submitted any evidence whether the alleged defect in the stairway was related to any capital projects, as opposed to routine maintenance. Although ordinarily it would be incumbent on plaintiff to submit evidence to refute the evidence submitted by defendant that the Town was not responsible to maintain the school stairway, the decisions in Cheshire and Board of Education v. New Haven indicate that there are instances where the Board of Education acts as an agent of the municipality. The Town has not submitted evidence as to the precise nature of the claimed defect and whether it related to a failure routine maintenance or design and/or construction of the stairway and lighting. Without this information the court cannot determine whether the Board of Education was acting as an agent of the Town, which should bear responsibility for the defect.
The Revised Complaint (¶ 6) alleges: " The staircase area where the Plaintiff was injured was unsafe, dangerous and/or defective in that there was improper and/or inadequate lighting and/or there was an absence of lighting."
Plaintiff cites McCarroll v. City of East Haven, 2016 WL 3027076 *4-5 (Conn.Super.Ct. 2016) , a negligence case in which Judge Fischer denied a summary judgment motion and concluded that the city could be held liable on an agency theory as the principal of the board of education and its employees. Judge Fischer cited the early case of Cheshire, 182 Conn. at 258-59 (but not the New Haven case), which he noted had recognized the dual agency of local boards of education. He also cited two other Superior Court negligence cases, Carlino v. Seymour, 1998 WL 352333 *2-4 (1998), and Fasano v. East Hartford, Superior Court, Judicial District of Hartford, Docket No. CV-11-6017856-S (June 5, 2014, Stengel, J.T.R.), in which the courts concluded that the boards of education were agents of the municipalities and its employees were municipal employees so the municipalities were proper defendants.
Judge Fischer later relied on his prior case in Rajeh v. Hamden Board of Education, 2016 WL 3609704 *10 (Ct.Conn.Super. 2016) , a school bullying case, in denying a motion to strike claims against the municipality.
None of the above cases concern claims under C.G.S. § 13a-149, which restricts liability to " the party bound to keep it in repair." In Carlino, 1998 WL 352333 *1, Judge Corradino distinguished Steeg v. City of Stamford, 1990 WL 283859 *2 (Ct.Conn.Super. 1990) , as a case decided under the specific liability limitation set forth in the municipal highway defect statute. In Steeg Judge Lewis granted summary judgment on a claim against the City of Stamford for a defect in a school walkway citing both § 13a-149 and § 10-220 for the proposition that the board of education, not the city, was responsible for the maintenance of the sidewalk on school property. Id.
Although it could be significant that this case was brought under § 13a-149, and not negligence, so the distinction between routine maintenance and capital projects may come into play to determine which entity was " the party bound to keep [the stairway] in repair, " based on the limited evidence submitted in support of this motion, the Court cannot determine that the Town is free of liability as a matter of law. A reasonable jury could conclude that the Board of Education and its employees acted as agents of the municipality in maintaining the alleged unsafe stairway in question.
For the reasons stated above the motion for summary judgment is denied.