James Poulin v. Town of Killingly (2012)

RULING RE DEFENDANT'S OBJECTION TO PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT

Pending before the court is the defendant's objection to plaintiff's request to file a fifth amended complaint.   The case is scheduled for jury selection on June 20, 2012.   The operative complaint alleges a violation of the defective highway statute, General Statutes § 13a–149.   The proposed amendment seeks to add a second count for nuisance.   Defendant objects, inter alia, on the ground that the parties earlier stipulated to a withdrawal of the same nuisance count and agreed that the plaintiff's claim was within the ambit of the defective highway statute, and that the statutory remedy was the exclusive remedy.   For the following reasons, the court agrees with the defendant.   Plaintiff's request is unseasonable, unjust, and prejudicial to the defendant.   Therefore, the defendant's objection is sustained.

I

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.”  (Citation omitted;  internal quotation marks omitted.)   Mastrolillo v. Danbury, 61 Conn.App. 693, 696, 767 A.2d 1232 (2001);  accord Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979) (“a trial court may allow, in its discretion, an amendment to pleadings before, during, or ․ after trial to conform to the proof”);  see also General Statutes § 52–130;  Practice Book §§ 10–60 and 10–62.  “While our courts have been liberal in permitting amendments ․ this liberality has limitations.   Amendments should be made seasonably.   Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ․ Whether to allow an amendment is a matter left to the sound discretion of the trial court.”  (Citations omitted;  internal quotation marks omitted.)  Intercity Development, LLC v. Andrade, 286 Conn. 177, 190, 942 A.2d 1028 (2008).  “Where a sound reason to amend is shown, the trial court must allow the amendment.   Refusal under such circumstances constitutes an abuse of discretion ․ The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial ․ In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party.”  (Citations omitted;  internal quotation marks omitted.)  Moore v. Sergi, 38 Conn.App. 829, 836, 664 A.2d 795 (1995).

II

This case was commenced by service on September 2, 2010.   The complaint alleges that on or about September 11, 2008, the plaintiff fell into an uncovered catch basin located “on the side of Cotton Bridge Road ․ Killingly, Connecticut,” and suffered substantial injuries.   Fourth Amended Complaint, para. 5. The original complaint set forth three causes of action in three counts:  the first count alleged that the defendant was liable under the highway defect statute;  the second count sounded in nuisance;  and the third in negligence.   On November 19, 2010, the plaintiff filed a second amended complaint to satisfy the defendant's request to revise.   The defendant subsequently filed a motion to strike counts two and three, asserting that the highway defect statute was the exclusive remedy available to the plaintiff.   To resolve that motion, the plaintiff and defendant stipulated that the highway defect statute was applicable and was the exclusive remedy, and that the other claims, therefore, would be withdrawn.   This stipulation was memorialized in a preamble to the third amended complaint filed January 5, 2011:

Based on defendant's motion to strike dated December 1, 2010, and defendant's representation through its counsel that it will not contest the fact that the alleged defective condition falls within the defective highway statute, plaintiff submits this third amended complaint.

Third Amended Complaint, p. 1.

The third amended complaint accordingly eliminated counts two and three, leaving only count one, the claim under the highway defect statute.   With the consent of the defendant, the plaintiff again amended his complaint on February 14, 2011, making some changes not pertinent to the present issue.   Therefore, the operative complaint is the Fourth Amended Complaint alleging only one count under the highway defect statute.   Thus, the parties have been preparing for trial on that one claim only since January 5, 2011.

Plaintiff argues that the justification for reviving the nuisance count at this time is the fact that during a deposition taken on August 15, 2011, the town engineer, Bruce Chimento, “created serious doubt as to whether the catch basin constitutes a highway defect under the statute.”   He points to the law that defines a highway defect as “any 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, 342, 344, 766 A.2d 400 (2001).   The law also mandates that if the allegations in the complaint necessarily invoke the highway defect statute, then that remedy is the plaintiff's exclusive remedy.  Id. at 340.   Plaintiff argues that the witness created doubt as to whether the catch basin defect was a highway defect when the witness answered a question asked by plaintiff's counsel.   The witness was asked if he agreed that this catch basin without a cover “constitutes a dangerous situation where someone could get seriously hurt.”   In response to that question, the witness answered:

A I really do not agree.

Q Bruce, come on.

A Matt, you would have to be walking out here, well off the road, to get involved in any of these things.   Look where the road is compared to the catch basin there.   This is at least four feet off the center of the road.   And it's not in a pedestrian way anyway.

Q Well, its incident to the roadway.   Don't you agree that that's an area where people are likely to walk?

A No.

Deposition of Bruce Chimento (8/15/11) pp. 62–63.

Defendant argues that this does not demonstrate that there is an issue as to the applicability of the highway defect statute because the defendant has stipulated to its applicability.   The court agrees with the defendant.   The parties have made an admission by stipulation to the applicability of the statute in the complaint.   The admission in the pleadings establishes the point.   The admission of an allegation in a pleading is a judicial admission conclusive on the parties making it.  Isaac v. Truck Service, Inc., 52 Conn.App. 545, 550–51, 727 A.2d 755 (1999), aff'd, 253 Conn. 416, 752 A.2d 509 (2000).   Where there is a judicial admission on the issue of applicability of the highway defect statute, “the plaintiff's contention that numerous facts are still in dispute, or unestablished at this point, is without merit.”   Ferreira v. Pringle, supra, 255 Conn. 344.

“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.”  (Citations omitted;  internal quotation marks omitted.)  Ferreira v. Pringle, supra, 255 Conn. 341–42.   Thus, in light of the status of the pleadings, the opinion of the witness, assuming arguendo that it would be admissible at all, would be probative not on the legal issue of the applicability of the statute, but on the factual issues.   In order to recover under General Statutes § 13a–149, the plaintiff must establish, by a preponderance of the evidence, that (1) the highway was defective as claimed;  (2) that the municipality knew or should have known of the defect;  (3) that the municipality, armed with actual or constructive knowledge of the defect, failed to remedy the defect within a reasonable time;  and that (4) the defect was the sole proximate cause of the injuries that it caused.  Lukas v. City of New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).   However, that is a different issue from the issue of whether the statute is applicable.   The applicability of the statute is admitted by stipulation in the pleadings.   The parties agreed that the statute supplied the exclusive remedy and the other claims were withdrawn accordingly.   The defendant admitted to the applicability of the statute as the grounds for the plaintiff's claim.   It did not admit to liability and damages.   It denied, inter alia, that the catch basin was defective and that it caused the plaintiff's injuries.   See Defendant's Answer.   Hence, the matter is scheduled for trial.

Plaintiff cites to Kozlowski v. Commissioner, 274 Conn. 497, 876 A.2d 1148 (2005) as further cause for doubt as to the applicability of the highway defect statute and, thus, justification for pleading nuisance in the alternative.   That case, like the instant case, involved an injury to a pedestrian at a catch basin on the side of a highway.   The court in that case found that the statute was not applicable because the catch basin at the side of the road was not in an area where the public was invited or expected to traverse.  Kozlowski v. Commissioner, supra, 274 Conn. 504.   However, that case is readily distinguishable.   In that case, the catch basin was guarded by posts, a paved curb and heavy shrubbery.   It was clearly in an area unintended for automobile or pedestrian travel.  Id. at 504.   Other cases cited and arguments by plaintiff are inapposite.

Since the applicability and exclusivity of the highway defect statute is admitted in this case, the plaintiff's effort to revive a previously withdrawn additional claim of nuisance at this late date would be contrary to the parties' stipulation, unseasonable, unjust and, therefore, the defendant's objection is sustained.   It would cause prejudice to the defendant to permit a change in the issues at this late date.   The parties have been litigating and preparing the case for trial since January 2011, as a highway defect statute case.   There is no justification for reinventing it at this late date.   Having resolved the defendant's objection on this point, it is unnecessary to address the other issues raised by the defendant.

III

For all of the foregoing reasons, the defendant's objection to the plaintiff's proposed fifth amended complaint is sustained.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.