Opinion
No. CV-08-5005247 S
August 18, 2009
MEMORANDUM OF DECISION
The defendant moves for summary judgment on the plaintiff's complaint. The plaintiff alleges in her complaint that on July 10, 2007 she suffered personal injuries and losses as a result of a defective sidewalk located on the property of the defendant's town hall. The plaintiff further alleges that the defendant had the duty to maintain the sidewalk where she fell and is liable to her pursuant to General Statutes § 13a-149, commonly referred to as the "highway defect statute." The defendant claims that summary judgment should be granted in its favor because (1) the subject sidewalk is not a highway within the meaning of § 13a-149; (2) if it is a highway, then the plaintiff cannot prove that the defendant had either actual or constructive notice of the defect; and (3) General Statutes § 52-557n(a)(2)(B) provides the defendant with discretionary act immunity. The plaintiff has filed memoranda in opposition to the defendant's motion for summary judgment. For the reasons hereinafter discussed, the court denies the defendant's motion.
The parties agree that the facts pertinent to the court's determination in this case are not in dispute. The plaintiff parked in the Orange town hall parking lot and went into the building. The plaintiff exited the town hall and was walking on the sidewalk used for ingress and egress to the building when she fell and sustained injuries. Generally, the plaintiff claims that the sidewalk was defective to the extent that it was uneven where the plaintiff fell.
The defendant first claims that the sidewalk where the plaintiff fell is not a road or highway within the meaning of § 13a-149 and that therefore, that statutory section is inapplicable to the plaintiff's action. The plaintiff asserts that under the circumstances of the present action the sidewalk falls within the scope of the highway defect statute and, alternatively, that such a determination is a question of fact.
The plaintiff seeks damages against the defendant pursuant to General Statutes § 13a-149, which concerns damages for personal injuries caused by a defective road. "The statutory provisions of § 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 . . . 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.) Himmelstein v. Windsor, 116 Conn.App. 28, 42 n. 12, 974 A.2d 820 (2009).
General Statutes § 13a-149 provides: "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. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
There is no dispute that the defendant is the party bound to keep the area where the plaintiff allegedly fell in repair.
The defendant moves for summary judgment claiming that the sidewalk at issue is not a "road" within the meaning of the statute and, therefore, summary judgment should be granted in its favor. The court disagrees and concludes that a question of fact exists as to whether the area of the sidewalk where the plaintiff allegedly fell is a "road" within the meaning of § 13a-149.
The plaintiff improperly argues that the sidewalk is not a "highway" within the meaning of § 13a-149. The word "highway" is not used in that statutory section, and the court considers the use of the term to be a scrivener's error.
The cases of Novicki v. New Haven, 47 Conn.App. 734, 709 A.2d 2 (1998) and Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972) are instructive on the issue. In Novicki, the plaintiff alleged that she suffered injuries on a cracked walkway that extended from Davis Street to the Davis Street School. Novicki v. New Haven, supra, 47 Conn.App. 735. The defendant city moved to dismiss the action for lack of subject matter jurisdiction asserting, among other things, that the walkway on which the plaintiff fell was not a road for purposes of § 13a-149. Id., 737. Although the Appellate Court affirmed the trial court's dismissal of the action on other grounds, it found that the walkway was "a road or bridge for purposes of the highway defect statute, and, in that respect, the plaintiff's allegations [were] sufficient to state a cause of action against the governmental entity bound to keep the walkway in repair." Id., 740. In support of its conclusion, the Court reasoned that "[t]he word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel . . . Furthermore, 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 . . . Since the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it." (Citations omitted.) Id., 740.
Baker involved a claim by the plaintiff against the town of Portland, Connecticut and the state highway commissioner for personal injuries alleged to have been sustained as a result of a slip and fall on snow and ice that occurred off the paved portion of a state highway within the boundaries of a right of way line. Baker v. Ives, supra, 162 Conn. 297. The action against the highway commission alleged a highway defect under § 13a-144. Id., 296. The plaintiff received a jury verdict in her favor, and the trial court denied the defendant commissioner's motion to set aside the verdict. Id. The Supreme Court "affirmed the trial court in Baker because, in addition to the fact that the plaintiff had fallen in an area within the `state right-of way line' . . .'the proximity of the defect to the paved portion of the highway in conjunction with the fact that the locus of the fall was in an area where occupants of vehicles were invited by the state to park their cars for the purpose of walking from their cars to the stores in the vicinity warrant[ed] the conclusion 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" . . . thereby allowing recovery under § 13a-144.' . . . The facts in Baker were such that the commissioner was not entitled to a directed verdict as a matter of law." (Citations omitted.) Serrano v. Burns, 248 Conn. 419, 425-26, 727 A.2d 1276 (1999).
Our Supreme Court has "applied . . . the rationale in cases involving statutory suits against municipalities under § 13a-149 to actions against the state highway commissioner under § 13a-144." Baker v. Ives, supra, 162 Conn. 299.
In Serrano, the Supreme Court went on to discuss the scope of a defective highway claim as outlined in Baker as follows:
"In Baker, moreover, we determined that [§ ]13a-144 authorizes civil suits against the sovereign for injuries caused by the neglect or default of the state . . . by means of any defective highway . . . in the state highway system. This statute affords a right of recovery similar to that against the municipalities under § 13a-149 and is subject to the same limitations . . . The state is not [however] an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel . . . Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler . . . This duty of reasonable care extends to pedestrian travel as well as to vehicular traffic . . . A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute . . . To qualify, a plaintiff is not obliged to remain seated in a vehicle proceeding on the highway . . . Reasonable latitude is allowed to meet the exigencies of travel . . . Nor does the defect have to be on the actual traveled portion of 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 . . ."
(Citations omitted; internal quotation marks omitted.) Id., 426.
There is no dispute in this case as to the following facts: (1) the plaintiff's alleged fall occurred on a town sidewalk; (2) the sidewalk provides the public and others access to the Orange town hall; (3) the sidewalk is adjacent to a town hall parking lot; (4) the parking lot is contiguous to a town road; and (5) the area where the plaintiff allegedly fell is outside the travel portion of the road. In view of the foregoing, it is for the trier of fact to determine whether the allegedly defective sidewalk on which the plaintiff fell and sustained injuries "is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway . . ." (Internal quotation marks omitted.) Id. Therefore, the plaintiff's motion for summary judgment, premised on the ground that the sidewalk at issue is not a toad for purposes of § 13a-149, is denied.
As a result of the court's conclusion on this issue, the court need not consider the defendant's ancillary claim that if the plaintiff's claim were found to be one not under § 13a-149 because the subject sidewalk is not a road, then the plaintiff's claim does not fall within the purview of General Statutes § 52-557n.
The defendant additionally claims that it is entitled to summary judgment because there is no factual question that the plaintiff "cannot provide evidence" that the defendant had either actual or constructive notice of the allegedly defective sidewalk. In opposition to the defendant's summary judgment motion, the plaintiff submitted photographs showing the crack in the sidewalk.
It is well settled that in defective road cases under § 13a-149 the plaintiff must prove that the defendant "had either actual notice of the defect or constructive notice through its existence for such a length of time that it would have been known in the exercise of reasonable care, and a reasonable opportunity afforded to remedy it." (Internal quotation marks omitted.) Baker v. Ives, supra, 162 Conn. 305. "Whether or not the defect existed for such a length of time sufficient to constitute constructive notice is a question of fact for the jury . . ." Id., 307.
It is for the jury to review and consider the photographs submitted in opposition to summary judgment, along with other evidence, in order to determine whether the defendant had at least constructive notice of the alleged defect, if not actual notice. The plaintiff has satisfied her burden of coming forward with evidence demonstrating a triable issue of fact. Therefore, the defendant's motion for summary judgment on this ground is denied.