George A. McLean et al. v. John P. Thompson et al (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 117)

FACTS

On January 25, 2010, the plaintiffs, George A. McLean and Rose Longo–McLean, co-administrators of the estate of the decedent, George Lucas McLean, filed a three-count complaint alleging that the decedent's death was caused by the defendants, John P. Thompson, Robert V. Baltramaitis, Henry McCully, Edward J. Niland, Sal Sandillo, Douglas Dortenzio and the town of Wallingford.   In the complaint, the plaintiffs allege that on January 20, 2008, at approximately 10:11 p.m., George Lucas McLean was driving in a southerly direction on Williams Road in the town of Wallingford (the town), when he struck a tree cluster, which caused his injuries and death.

In the first count of the complaint, the plaintiffs allege that the decedent's injuries and death were “solely the result of the violation of the statutory duty of the defendant Town of Wallingford which was the sole cause of the dangerous conditions created by the unmarked Town of Wallingford construction project on Williams road.”   In count two, the plaintiffs brought a negligence cause of action against various defendants in their individual and official capacities pursuant to General Statutes § 7–465(a).   They allege that the defendants were acting within the scope of their employment, and through their negligence in performing ministerial duties, they caused the decedent's injuries and death.   In the third count, the plaintiffs allege that the town is liable for the damages to the person and property caused by the negligent acts or omissions of its employees, pursuant to General Statutes § 52–557n.

On September 14, 2011, the defendants filed a motion for summary judgment as to counts two and three on the ground that the plaintiffs' exclusive remedy is provided by the municipal highway defect statute, General Statutes § 13a–149 et seq.   The motion was accompanied by a memorandum of law.   The plaintiffs filed their memorandum of law in opposition to the motion for summary judgment on November 30, 2011.   On December 5, 2011, the defendants filed their reply memorandum of law.   The matter was heard at short calendar on December 5, 2011.

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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “Where the issues are purely legal and there is no disputed issue of fact, summary judgment is appropriate.   See Vernon v. Cassadega Valley Cent. School Dist., 49 F.3d 886, 889 (2d Cir.1995).”   Annelli v. Ford Motor Co., Superior Court, judicial district of New London, Docket No. CV 04 4001345 (June 7, 2007, Hurley, J.T.R.).   See also Blackwell v. Barone's Sports Café, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 02 4000570 (January 10, 2005, Schuman, J.) (38 Conn. L. Rptr. 636) (“Because the defendants do not dispute the facts for the purposes of this motion, but instead raise [a] purely legal issue ․ the court can decide the issue on summary judgment”).

In the defendants' memorandum of law in support of their motion for summary judgment, they argue that the plaintiffs' claims for negligence and indemnification in counts two and three are barred by their exclusive remedy provided in the highway defect statute, General Statutes § 13a–149 et seq.   In their memorandum in opposition to the defendants' motion for summary judgment, the plaintiffs argue that the allegations in counts two and three do not involve defects as contemplated under the defective highway statute, and therefore, an analysis under the statute would be inappropriate for their common-law negligence claims.   They also argue that the defendants were negligent while performing ministerial duties and that the town was engaged in a proprietary function, so the defendants cannot avail themselves of governmental immunity.

The defendants counter in their reply memorandum of law that, the plaintiffs' allegations invoke the defective highway statute, and because such statute provides the plaintiffs' exclusive remedy, counts two and three must fail as a matter of law.   They also argue that their motion for summary judgment is not based on governmental immunity, and thus, the plaintiffs' argument with respect to governmental immunity should be disregarded.

“A town is not liable for highway defects unless made so by statute.”   (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).  General Statute § 13a–149 provides in relevant part:  “Damages for injuries by means of defective roads and bridges.   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 ․ If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.”

“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 ․ (Internal quotation marks omitted.)   Ferreira v. Pringle, supra, 255 Conn. 341–42.  “[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.”  (Internal quotation marks omitted.)  Id., 342.  “To hold that a defect ․ must exist in the traveled portion of the highway would run counter to our decisions and lead to results bordering on the ridiculous ․ If in the use of the traveled portion of the highway and, as incidental thereto, the use of the shoulders for the purposes of which they are there, a condition exists which makes travel not reasonably safe for the public, the highway is defective.”  (Internal quotation marks omitted.)  Id., 344.

General Statutes § 52–557n provides in relevant part:  “Liability of political subdivision and its employees, officers and agents.   Liability of members of local boards and commissions. (a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit;  and (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.”

The Connecticut Supreme Court has construed “ § 52–557n ․ to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy ․ In addition, because § 7–465(a) requires a municipality to indemnify its officers for their negligent acts, § 52–557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect.”  (Citations omitted.)  Ferreira v. Pringle, supra, 255 Conn. 341.

In Ferreira, the dispositive issue before the Supreme Court was whether a condition that allegedly caused the injuries to the plaintiff, was, as a matter of law, a “highway defect” within the meaning of § 13a–149.   The plaintiff argued that the statute should not be implicated because he alleged that he had “tripped on a portion of a steel sign post that had been cut off just above ground level while disembarking a public transportation bus that had stopped approximately seven feet from the location of the broken post ․ [T]he [town] and/or its employees [had] allowed buses to stop and disembark passengers at the location where [the plaintiff had fallen] despite the fact that there was no sidewalk or appropriate spot for a pedestrian to disembark from a bus, thus exposing the plaintiff, pedestrians, and other bus passengers to an unreasonable risk of injury.”  (Internal quotation marks omitted.)  Id., 334.   The Supreme Court, however, held that as a matter of law, such allegations necessarily invoked the defective highway statute, and thus, the plaintiff's exclusive remedy for his injuries was under § 13a–149.   The Supreme Court held further that, the plaintiff's claims against the defendants in their individual capacities “serve[d] as a veiled attempt to impose liability on the municipality.   Thus, the plaintiffs claim for damages against the defendants involves what can be construed only as a claim under the defective highway statute.”  Id., 344.

Similarly in Machado v. Hartford, the plaintiff, who suffered damages by hitting “a large depression in the roadway that had developed as a result of road repair work,” sought to recover damages against the defendant city for her injuries pursuant to § 13a–149.  Machado v. Hartford, 292 Conn. 364, 366, 972 A.2d 724 (2009).   She alleged that the defendant, its employees or agents negligently had failed to smooth the roadway during construction, light the construction area or warn of it.   The Supreme Court held that regardless of the involvement of a third-party construction company, the defendant city was liable under § 13a–149, as a matter of law, as it was the party bound to keep the defective road in repair.  Id., 375.

In the present case, the plaintiffs allege in paragraph three of the first count that “George Lucas McLean, while driving in a southerly direction on Williams Road, struck a tree cluster causing injury and death ․” In the next paragraph, they allege that “[t]he accident and resulting injuries and death, losses and damages were caused by a large rise in the road, which was followed by an area of unmarked and unsigned construction on Williams Road in the area of Carter Trail ․ The rise in Williams Road, the uneven surface of it, poor sight lines, inadequate illumination, the presence of the construction area and the resultant narrowing of the travel portion of the road, and the complete absence of any signage, lights, markings or warnings whatsoever of the impending construction area, created a defective condition in the road that caused the McLean vehicle to lose control and strike the cluster of trees, and caused injuries and losses to George Lucas McLean, including craniocerebral blunt force trauma which caused his death.”   In paragraph five, the plaintiffs allege that “[t]he absence of signs, markings, lights or of any warnings whatsoever, combined with the obstructions caused by the raised, exposed catch basins protruding approximately 33” into the 120” lane was the proximate cause of said injuries, death ․” These paragraphs are incorporated into counts two and three.   Additionally, in paragraph seven of counts two and three, the plaintiffs allege that the individually named defendants are “sued in their individual and official capacities for the negligent performance of said duties, specifically the design, execution, supervision and inspection of the ․ project on Williams Road in the town of Wallingford.”

Although the plaintiffs brought negligence and indemnification claims in counts two and three, the specific allegations set forth in paragraphs three, four and five of these counts fall within the province of § 13a–149.   In particular, the allegations such as the uneven surface of and the rise in Williams Road, inadequate illumination, the narrowing of the road due to the construction, the absence of signs, markings or warnings of the construction area and the raised, exposed and protruding catch basin area, fall under the purview of the highway defect statute.¹  Therefore, on the basis of controlling case law, because counts two and three set forth an allegation of a municipal highway defect, the court concludes that § 13a–149 is the exclusive remedy available to the plaintiff.   As a result, the defendants are therefore entitled to judgment as a matter of law on counts two and three.

CONCLUSION

For the foregoing reasons, it is submitted that the court should grant the defendants' motion for summary judgment as to counts two and three.

Wilson, J.

FOOTNOTES

FN1. The Superior Court, in a companion case Priore v. Longo–McLean, also held that the construction area alleged to have caused the death of the plaintiffs' decedent “strongly resembles the construction area found to be a highway defect in Machado v. Hartford ․” (Citation omitted.)   Priore v. Longo–McLean, Superior Court, judicial district of New Haven, Docket No. CV 10 6007283 (July 6, 2011, Blue, J.) [52 Conn. L. Rptr. 250]..  FN1. The Superior Court, in a companion case Priore v. Longo–McLean, also held that the construction area alleged to have caused the death of the plaintiffs' decedent “strongly resembles the construction area found to be a highway defect in Machado v. Hartford ․” (Citation omitted.)   Priore v. Longo–McLean, Superior Court, judicial district of New Haven, Docket No. CV 10 6007283 (July 6, 2011, Blue, J.) [52 Conn. L. Rptr. 250].

Wilson, Robin L., J.