Aren Stone v. Vincent Mesce (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE SIXTH COUNT

This eight-count complaint arises from a motor vehicle accident on February 16, 2009 on Simsbury Road, West Hartford at its intersection with the driveway leading into the Greater Hartford Jewish Community Center.

Defendant Town of West Hartford moves to strike the Sixth Count directed to it because it is based on Gen.Stat. § 13a–149, Municipal Defective Highway Statute but fails to allege that the Town's negligence was the sole proximate cause of the accident.

-I-

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.”  Lombardi v. East Haven, supra, 126 Conn.App. 573–74, citing Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75 cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009), accord Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our Supreme Court first articulated the sole proximate cause standard for liability under the Defective Highway Statute in Bartram v. Sharon, 686, 43 A. 143 (1899).

The focus with respect to the element of sole proximate cause is whether any factors other than the municipality's breach of its statutory duty caused the plaintiff's injuries.  Bovat v. Waterbury, 258 Conn. 574, 586–87, 783 A.2d 1001 (2001).   To survive a motion to strike, the plaintiff's complaint must allege all of the requisite elements of a cause of action.  Stancuna v. Schaffer, 122 Conn.App. 484, 489, 998 A.2d 1221 (2010).

An allegation that a defect was the sole proximate cause of the plaintiffs' injuries and damages is an element of the municipal highway defect cause of action that must be specifically pleaded.

—II—

If the plaintiff is attempting to proceed under a negligence theory, other than under the statute, the allegations stated would require acts of discretion or judgment by the town and the town would be protected by governmental immunity.

Motion to strike Sixth Count granted.

Wagner, J., JTR

Wagner, Jerry, J.T.R.