Carmine A. Fillie, Jr. v. City of Norwich et al. (2011)

Facts

The plaintiff, Carmine A. Fillie, Jr., alleges that he suffered injuries while operating a motorcycle on Main Street in Norwich.   He brings his action against the defendants, the city of Norwich, the board of public utilities commissioners of Norwich, Norwich Community Development Corporation, Inc. (NCDC), and the department and director of public works.   The operative complaint is the second amended complaint that the plaintiff filed on June 20, 2011.

The complaint alleges the following facts as to all defendants.   At all times one or more of the defendants owned, possessed, or controlled Main Street, a public street in Norwich, Connecticut.  “It was the duty of one or more of the defendants to exercise reasonable care to maintain and repair ․ Main Street in a [reasonably] safe condition for individuals traveling on [the] street, including the plaintiff.”   On April 24, 2010, at 10:18 a.m., the plaintiff was operating a motorcycle east bound on Main Street approaching the intersection of North Main Street and the Viaduct.   As he approached the intersection, he traveled over a depressed or recessed manhole cover and defective roadway surface causing him to lose control of the motorcycle and collide into the rear of another motor vehicle and sustain serious injuries.   On that date and for some time prior, that area of Main Street was in a dangerous and defective condition in that it was recessed, not level and had a height differentiation between the portions of the street.   Additionally, there were no warnings or notices placed on or near Main Street regarding its dangerous and defective condition.   The defendants knew or in the exercise of reasonable care should have known of the dangerous and defective condition of the street.

In count four, the plaintiff alleges negligence against NCDC and the following facts.   At all times NCDC was and is a public corporation organized and existing under the laws of Connecticut and is charged with the proper care and maintenance of the roads within the limits of Norwich, including Main Street.   The negligence and carelessness of the NCDC acting through its agents, servants and employees caused the plaintiff's injuries.   NCDC caused the plaintiff's injuries in that it:  created and maintained Main Street in a dangerous and defective condition;  knew or should have known of the dangerous and defective condition of Main Street, but failed to make the necessary repairs to it;  failed to provide adequate warnings to persons traveling on the street;  failed to use reasonable care in the maintenance of Main Street;  and failed to inspect or discover the defective and dangerous condition on Main Street when reasonable care required it to do so.

The plaintiff brings counts one, three and five pursuant to General Statutes § 13a–149 ¹ against the city of Norwich, the board of public utilities commissioners of Norwich and the department and director of public works, respectively.   As to all counts he seeks money damages and any other relief deemed just and equitable by the court.

On March 4, 2011, NCDC filed an answer in which it denied the plaintiff's allegations against it.   On May 18, 2011, NCDC filed a motion for summary judgment on the ground that the law and undisputed facts show that it does not owe a duty to the plaintiff.   In support of its motion, NCDC filed a memorandum of law, the affidavit of Robert Mills, the executive director of NCDC, dated May 18, 2011 and the affidavit of Alan H. Bergren, the city manager of Norwich, dated May 9, 2011.   On July 1, 2011, the plaintiff filed an objection to the motion for summary judgment.   On July 18, 2011, the court heard oral argument at short calendar.

Discussion

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

NCDC argues that the court should grant its motion for summary judgment on the ground that the law and undisputed facts show that it does not owe a duty to the plaintiff.   It argues that under General Statutes § 13–99 ² the city of Norwich has the duty to establish and maintain highways within its borders.   It argues that the affidavits of Mills and Bergen show that NCDC is not a public corporation but a nonprofit organization organized to further the economic development of the Norwich community.   Additionally, it argues the affidavits show that Norwich designates NCDC as a development agency for the city from time to time under General Statutes § 8–188.³  Moreover, it argues that these affidavits show that Main Street is a public street within Norwich, and Norwich has not given or delegated any responsibility for the care and maintenance of its streets, including Main Street to NCDC. Therefore, NCDC argues that it does not owe a duty to the plaintiff.

The plaintiff argues that while NCDC denies that Norwich has not given or delegated any responsibility for the care and maintenance of its public streets, it fails to address whether it had been delegated any responsibility for the care and maintenance of the manhole cover.   He argues that NCDC as the moving party for summary judgment has the burden of showing the absence of any genuine issue of material fact and it has failed to meet that burden.

The plaintiff alleges in his complaint that “[i]t was the duty of one or more of the defendants to exercise reasonable care to maintain and repair ․ Main Street in a [reasonably] safe condition for individuals traveling on [the] street, including the plaintiff.”   In order to establish NCDC's liability, the plaintiff must prove that it had a duty to maintain and repair Main Street.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

“With respect to the duty to maintain and repair public highways, it has long been recognized that [t]he establishment and maintenance of public highways is a function of the state ․ The state may, however, impose the duty of establishing or maintaining highways upon any agency which it chooses ․ In Connecticut, the legislature chose to delegate that duty to the state's towns when it enacted § 13a–99, which provides in relevant part that ‘[t]owns shall, within their respective limits, build and repair all necessary highways and bridges ․ except when such duty belongs to some particular person ․’ “ (Citation omitted;  internal quotation marks omitted.)  Machado v. Hartford, 292 Conn. 364, 372, 972 A.2d 724 (2009).  “[Our Supreme Court] consistently [has] interpreted the ‘particular person’ language in § 13a–99 to account for those rare instances in which the legislature has specifically authorized the delegation of the duty of maintaining public highways to a particular person or entity by statute, special act or public charter, as it did, for example, when it enacted General Statutes § 7–163a ․ In the absence of such a legislative exception to the duty specifically imposed by § 13a–99, however, towns lack the authority to shift that duty onto a third party.”  (Citation omitted.)  Id., 373–74.  “Although General Statutes § 7–163a permits a municipality to shift the burden of maintenance to abutting landowners with respect to snow and ice removal on sidewalks, there is no comparable statute allowing it to do so with respect to the construction and general maintenance of its roads.”  Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 332, 973 A.2d 64 (2009).

NCDC has met its initial burden to show that there is no dispute of material fact regarding whether it had a duty to maintain and repair Main Street.   NCDC's evidence shows that it owed no such duty.   First, in his affidavit, Bergen, the city manager of Norwich, attests that “Main Street is a public street within [Norwich].”   Second, the affidavits show that NCDC is not a public corporation of Norwich but a nonprofit organization organized to further the economic development of the Norwich community.   According to the affidavit of Mills, the executive director of NCDC, “NCDC is a non-profit corporation organized pursuant to the Non-stock Corporation Act of the Connecticut General Statutes to further the economic development of the Norwich community through growth development of the Norwich Business Park, revitalization of the Downtown Norwich area, and preservation of the historic Norwich Harbor and waterfront, by recognizing existing industry and commerce, furthering their expansion, and encouraging and assisting in attracting new development for the community and its environs.”   According to Bergen's affidavit, NCDC “is a private non-profit corporation designated from time to time by [Norwich] as a development agency for [Norwich] under the authority granted to it pursuant to [General Statutes § 18–188.”   Third, the affidavits show that Norwich did not delegate its duty to maintain Main Street or any of its streets to NCDC. Mills attests that “NCDC is not charged with the proper care and maintenance of Main Street by statute, ordinance or otherwise.”   Bergen attests that Norwich “has not given or delegated any responsibility for the care and maintenance of its public streets, including Main Street to NCDC.”

Given this evidence that NCDC did not owe a duty to the plaintiff to maintain and repair Main Street, the plaintiff must present evidence to the contrary.   The plaintiff has submitted no evidence in opposition to NCDC's motion for summary judgment.   Instead, the plaintiff argues that NCDC fails to address whether it had been delegated any responsibility for the care and maintenance of the manhole cover.   NCDC does not need to address whether it had been delegated any responsibility for the care and maintenance of the manhole cover because the plaintiff does not allege in his complaint that NCDC had a duty to maintain the manhole cover.   Rather the plaintiff alleges that “[i]t was the duty of one or more of the defendants to exercise reasonable care to maintain and repair ․ Main Street in a [reasonably] safe condition for individuals traveling on [the] street, including the plaintiff.”  “The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).   Since the plaintiff does not allege that NCDC had a duty to maintain and repair the manhole cover, NCDC does not need to address that issue in its motion for summary judgment.

In conclusion, the evidence shows that there is no genuine issue as to whether NCDC owed the plaintiff a duty to maintain and repair Main Street and that NCDC is entitled to judgment as a matter of law.   For the foregoing reasons, NCDC's motion for summary judgment is granted.

Martin, J.

FOOTNOTES

FN1. 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 ․”.  FN1. 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 ․”

FN2. General Statutes § 13a–99 provides in relevant part:  “Towns shall, within their respective limits, build and repair all necessary highways and bridges ․ except when such duty belongs to some particular person ․”.  FN2. General Statutes § 13a–99 provides in relevant part:  “Towns shall, within their respective limits, build and repair all necessary highways and bridges ․ except when such duty belongs to some particular person ․”

FN3. General Statutes § 8–188 provides in relevant part:  “Any municipality which has a planning commission is authorized, by vote of its legislative body, to designate the economic development commission or the redevelopment agency of such municipality or a nonprofit development corporation as its development agency and exercise through such agency the powers granted under this chapter ․ Any municipality may, with the approval of the commissioner, designate a separate economic development commission, redevelopment agency or nonprofit development corporation as its development agency for each development project undertaken by the municipality pursuant to this chapter.”.  FN3. General Statutes § 8–188 provides in relevant part:  “Any municipality which has a planning commission is authorized, by vote of its legislative body, to designate the economic development commission or the redevelopment agency of such municipality or a nonprofit development corporation as its development agency and exercise through such agency the powers granted under this chapter ․ Any municipality may, with the approval of the commissioner, designate a separate economic development commission, redevelopment agency or nonprofit development corporation as its development agency for each development project undertaken by the municipality pursuant to this chapter.”

Martin, Robert A., J.