Keith Sprague v. City of Torrington (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 119)

ISSUE

The issue is whether the court should grant the defendant's motion for summary judgment?

FACTS

On October 7, 2009, the plaintiff, Keith Sprague, filed an amended, one-count complaint against the defendant, the city of Torrington, under General Statutes § 13a-149, commonly referred to as the highway defect statute.   The plaintiff alleges that on or about April 24, 2008, he was walking on East Main Street in Torrington, Connecticut when he tripped and fell over a hole on the road that was approximately thirty inches in length, fourteen inches in width and two feet deep.   As a result of this fall, the plaintiff alleges that he sustained serious and permanent physical injuries.   The plaintiff alleges that his fall and subsequent injuries were the result of the defendant's breach of its statutory duty under § 13a-149, in that the defendant:  allowed the sidewalk to become dangerous and defective and to be repaired in a defective manner;  failed to erect or maintain proper safeguards or warning signs or to make a proper inspection;  allowed an unsafe condition to remain for an unreasonable period of time;  and failed to use the degree of care that a reasonably prudent person would have used under similar circumstances.   Moreover, the plaintiff alleges that the defendant should have taken remedies to fix the defective condition because it existed for a sufficient amount of time that the defendant knew or should have known about it.¹  In an amended answer filed on November 24, 2009, the defendant denies the material allegations in the plaintiff's complaint.

After both the plaintiff and defendant filed admissions, the defendant filed the present motion for summary judgment on May 6, 2010.   The plaintiff filed an objection to the defendant's motion on July 23, 2010, and the defendant filed a reply brief on July 29, 2010.   This matter was heard at the short calendar on August 16, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury, [however] ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “It necessarily follows that it is only [o]nce [the] [movant's] burden in establishing ․ entitlement to summary judgment is met [that] the burden shifts to [the] [nonmovant] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

In its motion for summary judgment, the defendant argues that there are no questions of material fact and it is entitled to judgment as a matter of law because the plaintiff cannot establish that the allegedly defective condition was present for a sufficient period of time to provide the defendant with actual or constructive notice of that condition.   The defendant argues that actual or constructive notice is required in order for the plaintiff to prevail under § 13a-149.   In support of its motion, the defendant submits a memorandum of law, a picture of the alleged defect, the plaintiff's responses to the defendant's requests for admissions, portions of the deposition testimony of traffic officer Robert Shopey, a work order from the Torrington police department and an affidavit of traffic officer Robert Shopey.

In his objection, the plaintiff argues that the defendant's motion for summary judgment must be denied because there are genuine issues of material fact as to whether the defendant had actual or constructive notice of the alleged defect.   Specifically, the plaintiff argues that Thomas Delekta, an employee of Fall Mountain Outfitters, which is in the immediate vicinity of the defect, witnessed the injuries suffered by the plaintiff and stated that he notified the defendant of the same defect numerous times prior to the date of the plaintiff's injuries.   Although Delekta's statements are contained within the sworn affidavit of Kimberly Kenneson and not within his own affidavit, the plaintiff argues that Deletka's statements are admissible and do not constitute hearsay because they are being offered to show the effect on the hearer and not in order to prove the truth of the matter asserted.   Moreover, the plaintiff argues, even if Deletka's statements do not establish actual notice, they are sufficient to raise a question as to constructive notice.   In support of its objection, the plaintiff submits a memorandum of law, an unauthenticated letter from Kimberly Kenneson, an investigator, attached to which is a copy of an unauthenticated, investigative report allegedly conducted by Kenneson.

In a reply brief filed on July 29, 2010, the defendant argues that the only evidence submitted in support of the plaintiff's objection constitutes hearsay because the portions of the report upon which the plaintiff relies are “recollections of a third party investigator as to what she was told by [an] alleged witness.”   The defendant asserts that the investigator has no personal knowledge as to the veracity of the alleged witness' statement, and the investigator would not be permitted to testify as to another witness' recollections at trial.   As to the plaintiff's claim that Deletka's alleged statements fall within an exception to the hearsay rule because they are not offered for the truth of the matter asserted but, rather, to show its effect upon the reader, the defendant asserts that this argument is disingenuous because the report is offered to raise a question of fact as to actual or constructive notice.   Moreover, the defendant argues that Deletka's statement lacks any indicia of reliability to warrant consideration by the court under the residual exception to the hearsay rule.   Finally, the defendant asserts that it has submitted a sworn affidavit, sworn deposition testimony and requests to admit that support its motion, but that the plaintiff has failed to submit admissible evidence to show that there is a genuine issue of fact in dispute.   As a result, it argues that it is entitled to judgment as a matter of law.

General Statutes § 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 recover under § 13a-149, a plaintiff must prove, by a fair 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, which means that the plaintiff must prove freedom from contributory negligence.”  (Internal quotation marks omitted.)  Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75, cert. denied 293 Conn. 937, 981 A.2d 1079 (2009).

In light of the burden shifting analysis on a motion for summary judgment, the first question is whether the defendant has submitted sufficient evidence to support a judgment in its favor.   It is only once the defendant submits such evidence that the court will consider whether the plaintiff has raised a genuine issue of material fact justifying a trial.   The defendant argues that it is entitled to judgment as a matter of law because the plaintiff cannot prove that the defendant had notice of the defect and a reasonable opportunity to remedy the allegedly defective condition.   This assertion requires the court to examine the defendant's evidence.

In responses to the defendant's request to admit, the plaintiff admits that:  (1) he has no personal knowledge of the length of time the alleged defect existed;  (2) he is not aware of anyone who has personal knowledge concerning the length of time that the alleged defect existed;  and (3) he is not aware of any written or recorded statements from any person or persons who have personal knowledge concerning the length of time that the alleged defect existed.   In response to a statement regarding whether he is aware of any individual who complained to the city about the alleged defect within one year prior to his accident, the plaintiff states that he “cannot admit or deny” and that he is “aware of an individual who complained to the city of Torrington about the subject traffic control box prior to the plaintiff's fall,” but that he “does not know if it was complained of one year of his fall.”   In response to a statement about this person's name or address, the plaintiff identifies the person who allegedly complained as “Tom Last name unknown, who works at Fall Mountain Sports.”

In the deposition testimony submitted in support of the defendant's objection, Robert Shopey, the defendant's traffic officer, testifies that the defendant did not know of the alleged defect before the plaintiff's accident and that it first became aware of this defect on April 24, 2008.   Moreover, Shopey testifies that the defendant did not receive any complaints regarding the location of the alleged defect because “nothing was reported to the traffic division or the police department.”   Shopey testified that if the police department had received a complaint, that complaint would have been sent over to Shopey's office, the traffic division, automatically.   Shopey also testified that he did not know how long the hole existed before the plaintiff's fall, and that the police dispatcher would also have been aware of any other prior complaints.   Once again, however, Shopey testified that if the police dispatcher had received any complaints, Shopey would have known because the dispatcher “would immediately enter it into their computer systems and notify [Shopey or his office] that there was an issue.”   In Shopey's affidavit, which is also submitted in support of the motion, he states that he “reviewed the records from the traffic division of the City of Torrington concerning the hand hole in question and determined that a new cover was placed on the hand hole on August 23, 2006,” and that the traffic division “does not have records of any complaints concerning the subject hand hold between August 23, 2006, and the date of the plaintiff's alleged fall on April 24, 2008.”   The defendant also submits an August 23, 2006 work order from the Torrington police department's traffic division.   This work order states that the “handhole cover in the parking area of Jimmy's Store/Fall Mtn Sports is bent and creating a hazard to vehicles,” and that the cover was “replaced with a new cover.”   Finally, the work order states that the cover “needs to be paved around the handhole.”

Rather than establish the nonexistence of any issues of material fact, the defendant's evidence raises such issues.   First, the plaintiff's admissions plainly state that he believes that there were complaints about the defect, prior to his accident from another party.   While the defendant questions the plaintiff's evidence in support of this accusation, the court will not consider the plaintiff's evidence until the defendant has met its burden with its own evidence.   Moreover, although the defendant submits the deposition testimony of Robert Shopey stating that he had no knowledge of the alleged defect and that, as a result, the defendant had no knowledge of the defect, Shopey's testimony and affidavit supports such a conclusion only on the grounds that his office did not received a direct complaint and that the police dispatcher must not have received a complaint because Shopey never received one from the dispatcher.   The defendant does not submit deposition testimony or an affidavit from the police dispatcher confirming that he or she did not, in fact, receive such a complaint.   Even assuming, arguendo, that Shopey's deposition testimony and affidavit establish that the defendant lacked actual notice of the allegedly defective condition, the defendant has not established that it lacked constructive notice of the defect or that the plaintiff cannot prove constructive notice.   Finally, the August 2006, work order states that a new cover was placed at the site of the alleged defect but also states that “paving is required around the new handhole.”   The defendant fails to submit any evidence that this paving was actually done.   For all of these reasons and due to the moving party's heavy burden on a motion for summary judgment, the court cannot conclude that there are no genuine issues of material fact and that the defendant has met its burden.   As a result, the court denies the defendant's motion for summary judgment.

BY THE COURT

Roche, J.

FOOTNOTES

FN1. The plaintiff provided written notice of its action to the city clerk of Torrington, which is attached to the complaint as exhibit A, as required by § 13a-149..  FN1. The plaintiff provided written notice of its action to the city clerk of Torrington, which is attached to the complaint as exhibit A, as required by § 13a-149.

Roche, Vincent E., J.