Anthony J. Pellecchia, Admin. v. The Connecticut Light and Power Company et al. (2011)

MEMORANDUM OF DECISION

This matter is before the court concerning the defendant Town of Killingly's (Town) motion to strike the third count of the plaintiff, Anthony J. Pellecchia, Administrator's Complaint As To Apportionment Defendants (# 131) (complaint).   The court heard oral argument concerning the motion on June 27, 2011.   After considering the parties' arguments, the court issues this memorandum of decision.

I

Background

In its motion, the Town asserts that the third count should be stricken, as the plaintiff's claim in negligence is barred by the operation of General Statutes § 13a–149, the highway defect statute, and, in the alternative, that it is entitled to governmental immunity pursuant to General Statutes § 52–557n.   In opposition, the plaintiff claims that a party in a case involving a Town is allowed to plead in the alternative and that his claim is being made pursuant to General Statutes §§ 52–102b, for the purposes set out in 52–572h (apportionment of liability;  pleading over against apportionment defendant);  52–555 (wrongful death);  and 52–592 (accidental failure of suit).

In the third count of the complaint, the plaintiff alleges that he is the administrator of the estate of Anthony E. Pellecchia (deceased), who died on or about July 29, 2006.   The plaintiff alleges that defendants Connecticut Light and Power Company, Northeast Utilities Service Company, and Northeast Utilities brought an apportionment complaint in this action.   He alleges that, on July 28, 2006, at approximately 6:00 p.m., electrical wire was caused to fall onto and across Mashentuck Road in Killingly and these wires remained energized.   See complaint, third count, ¶ 5.   The plaintiff alleges that, thereafter, at approximately 11:30 p.m., the decedent, while driving his motorcycle on Mashentuck Road, made contact with the downed wires, was electrocuted, and died.   See complaint, third count, ¶ 7.

In paragraph 10, the plaintiff alleges that “Mashentuck Road is a Town highway that is owned, controlled or maintained by the Town.” He further alleges that, shortly after 6:00 p.m. on July 28, 2006, Anthony Shippee, the Town's Assistant Superintendent of Highways, and David Sabourin, the Town's Superintendent of Highways, observed the downed wires on Mashentuck Road, and “left the ․ the Downed Wires across and on the Town highway.”   See complaint, third count, ¶ 11.   He alleges also that, at approximately 8:30 p.m., Shippee returned to Mashentuck Road at or near the downed wires and left shortly thereafter.   See complaint, third count, ¶ 12.   In paragraphs 13–15, he alleges that, when Shippee and/or Sabourin left Mashentuck Road, they knew or should have known (1) that the downed wires remained energized, (2) that there were no barriers or other protections in place, and (3) that no other person, representative or entity would be remaining at the scene to keep it safe and/or secure.

In paragraph 16, the plaintiff alleges that the decedent's injuries, losses, death, and/or damages were caused by the negligence or carelessness of the Town, its agents, servants or employees, in one or more ways, including leaving the road and downed wires without formally closing the road to traffic;  failing to keep personnel stationed at either end of the road;  and failing to provide fencing, barricades or reflective tape to prevent people and motorists from entering the area.   In paragraph 17, the plaintiff alleges that, to the extent that the Town is found to have caused the decedent's injuries, losses, death, and/or damages, as a result of its negligence, the Town is liable to the plaintiff pursuant to General Statutes §§ 52–572h et seq. and 52–102b et seq.¹

II

Standard Of Review

The standard of review on a motion to strike is well established.  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   Legal conclusions in a complaint are not deemed to be admitted.   See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).²

III

Discussion

In relevant part, 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 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.”   In addition, General Statutes § 52–557n(a)(1) provides, in relevant part, “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  ․ (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance;  provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149.”  (Emphasis added.)

“Historically ․ municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control ․ The highway defect statute, § 13a–149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed ․ The statutory provisions of § 13a–149 have two components that must be met in order to trigger its application:  (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.’  “ (Emphasis in original;  internal quotation marks omitted.)  Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 157–58, 7 A.3d 414 (2010), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011).

“[I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy ․ Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law ․ [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result ․” (Citations omitted;  internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 341–42, 766 A.2d 400 (2001).

Here, the plaintiff's allegations against the Town in the third count of the complaint “invoke § 13a–149 because they contemplate that the [decedent's] injury occurred as a result of a defective road that the town was ‘bound to keep ․ in repair.’  General Statutes § 13a–149.”  Id., 343.   As discussed above, the plaintiff alleges both that “Mashentuck Road is a Town highway that is owned, controlled or maintained by the Town,” see complaint, third count, paragraph 10, and that the decedent was electrocuted and died after he made contact with the downed, energized wires.   See complaint, third count, ¶ 7.

As a matter of law, the allegations concerning the fact that the scene of the downed wires on Mashentuck Road was not rendered safe and/or secure by the Town amount to a claimed highway defect under § 13a–149.  “If in the use of the traveled portion of the highway ․ a condition exists which makes travel not reasonably safe for the public, the highway is defective.”  Ferreira v. Pringle, supra, 255 Conn. 344.   See Bartlett v. Metropolitan District Commission, supra, 125 Conn.App. 161 (“physical obstruction at street level in traveled portion of road resulted in highway defect under § 13a–149”).   “[T]he absence of citation to § 13a–149 in [the third count] is of no importance, as a complaint may still contain allegations sufficient to invoke that statute.  Ferreira v. Pringle, supra, 255 Conn. 337.”  Himmelstein v. Windsor, 116 Conn.App. 28, 39, 974 A.2d 820, cert. granted on other ground, 293 Conn. 927, 980 A.2d 910 (2009).

It is clear that “that the dangerous condition complained of constitutes a highway defect and that the defendants were responsible for keeping the area of the alleged injury in repair.   Therefore, § 13a–149 necessarily is invoked.   As a condition precedent to maintaining an action under § 13a–149, a plaintiff must provide a municipality with notice within ninety days of the accident.”  Ferreira v. Pringle, supra, 255 Conn. 354.  “The statute requires that the notice contain the following five essential elements:  (1) written notice of the injury;  (2) a general description of that injury;  (3) the cause;  (4) the time;  and (5) the place thereof ․ A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality.”  (Internal quotation marks omitted.)  Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003).

While a plaintiff is permitted to plead in the alternative, see Read v. Plymouth, 110 Conn.App. 657, 661–62, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008), in the complaint the plaintiff has not done so as to the Town. Here, it is clear that the plaintiff's claim against the Town, as pleaded in the third count, is “within the purview of the defective highway statute[.]”  Id., 662.   The third count, which is the sole count alleged against the Town, contains only allegations of negligence about a claimed defect in a public highway, which necessarily invoke § 13a–149.   No alternative theories of recovery are pleaded.

As a matter of law, according to the allegations pleaded in the third count, § 13a–149 is the plaintiff's exclusive remedy against the Town. Under these circumstances, the court need not consider the Town's alternative argument concerning governmental immunity.

CONCLUSION

For the reasons stated above, the Town's motion to strike the third count of the plaintiff's Complaint As To Apportionment Defendants is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Paragraph 17 contains an apparent typographical error.   While the third count is otherwise directed to the Town, the paragraph erroneously refers to “QVEC,” another apportionment defendant..  FN1. Paragraph 17 contains an apparent typographical error.   While the third count is otherwise directed to the Town, the paragraph erroneously refers to “QVEC,” another apportionment defendant.

FN2. At oral argument, the plaintiff referred to photographs and a police report.   As stated above, on a motion to strike, the court is limited to considering the allegations in the challenged pleading..  FN2. At oral argument, the plaintiff referred to photographs and a police report.   As stated above, on a motion to strike, the court is limited to considering the allegations in the challenged pleading.

Shapiro, Robert B., J.