Sharon Giarratona v. Town of Wolcott et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 123)

Preliminary Statement

This action arises out of a slip and fall due to an accumulation of snow and/or ice in the parking lot of Tyrell Middle School, located in Wolcott, Connecticut.   The defendants are the Town of Wolcott (the Town) and the Wolcott Board of Education (the Board).   Count one of the complaint alleges a violation of the Town's statutory duty to maintain its roads pursuant to Conn. Gen.Stat. § 13a–149, the so-called highway defect statute applicable to municipalities.   Count two alleges, in the alternative, negligence in the maintenance of the subject premises pursuant to Conn. Gen.Stat. § 52–557n.   The defendants filed a motion for summary judgment in which they argue as to count one—the parking lot is not, as a matter of law, within the purview of CGS § 13a–149, and as to count two—the defendants are entitled to governmental immunity.   The plaintiff opposes the motion.   For the reasons set forth, the motion for summary judgment is DENIED.

Legal Standard for Summary Judgment

A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17–44;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Indeed, until the moving party comes forward with evidence which would establish that he is entitled to judgment as a matter of law, the non-moving party is under no obligation to produce any evidence.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).   Once the movant does so however, the party opposing such a motion must provide an evidentiary foundation to slow the existence of a genuine issue of material fact.  Id. This evidentiary foundation must be demonstrated with counter affidavits and concrete evidence.  Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).

Litigants have a constitutional right to have issues of fact decided by a jury.  Michaud v. Gurney, 168 Conn. 431, 434 (1975).   Therefore, “[t]he function of the trial court [on a motion for summary judgment] is to determine whether an issue of fact exists but not to try that issue if it does exist.”   Id. at 433.

Facts

For purposes of the defendants' motion, the location of and the circumstances under which the plaintiff sustained injury are not at issue.   On the date of the incident, the plaintiff and her husband drove to Tyrell Middle School to watch her grandsons' youth basketball games.   They parked in the parking lot in an area adjacent to a drain and a grassy area and near a snow bank.   The parking lot had been cleared but there remained snow and/or ice in the lot between the plaintiff's car and the grassy area.   When the plaintiff returned from watching the games, she slipped and fell just as she reached her car.

The parking lot is accessible from Todd Road, which is a public street maintained by the Town. The parking lot was open to visitors of the school and it was anticipated that people attending events at the school would use the parking lots for parking.

Discussion

Count One—The Highway Defect Claim

The defendant Town alleges that, as a matter of law, the parking lot is not within the purview of CGS § 13a–149, which provides that a “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.”   The defendants cite several superior court decisions which held that parking lots are not within the scope of the defective highway statutes.   However, the Supreme Court has specifically declined to hold that parking lots either do or do not come within the purview of the defective highway statutes.  Serrano v. Burns, 248 Conn. 419, 427–29 (1999).   See also, Baker v. Ives, 162 Conn. 295, 299–301 (1972).   Rather, the Court has focused upon the location of the alleged defect in relation to the road and the impact of the defect on travel thereupon.   Id.

In Baker v. Ives, supra, the plaintiff fell on snow or ice after parking her car in a parking area which was located between the traveled portion of the state highway and a sidewalk.   The Court made clear that the defect does not have to be on the “actual traveled portion of the highway.”  Id. at 299.   The defect must only be “in, upon, or near the traveled path,” so as to “obstruct or hinder one in the use of the road for the purpose of traveling thereon.”  Id. at 300.   Whether “the defect is in such proximity to the highway so as to be considered ‘in, upon, or near the traveled path’ of the highway must be determined on a case-by-case basis after proper analysis of its own particular circumstances, and is generally a question of fact for the jury.”  Id. The Court noted that “under the particular circumstances of this case, the proximity of the defect to the traveled portion of the highway in conjunction with the fact that the locus of the fall was in an area where occupants of vehicles were invited by the state to park their cars for the purpose of walking from their cars to the stores in the vicinity, warrants the conclusion that this defect was ‘in, upon, or near the traveled path’ so as to ‘obstruct or hinder one in the use of the road for the purpose of traveling thereon.’°”  Id. at 302, n.3.

In Serrano v. Burns, supra, the plaintiff fell in the parking lot of a public rest area along Interstate 91.   The court reversed the granting of summary judgment holding:  “facts showing that highway travelers are invited by the state to use a rest stop along the highway may establish that the use of such an area is so closely related to travel upon the highway that such an area is part of the state highway system.”  Id., 248 Conn. 429.   The Court, relying upon Baker, held that the question was one for the trier of fact.   Id.

Following the Baker and Serrano decisions, superior courts have oft held that whether a particular location falls within the ambit of the statute is a question for the jury.   See e.g. Halloran v. Town of Ridgefield, judicial district of Danbury, Dkt. No. CV 030349612, (September 14, 2004, Richards, J.) [37 Conn. L. Rptr. 894] (municipal parking lot not necessarily outside the purview of CGS § 13a–149);  Ragsdale v. Herbert, judicial district of Fairfield, Dkt. No. CV 000374736, (October 1, 2003, Doherty, J.) (plaintiff alleged negligence in maintenance of a school parking lot;  the defendant sought summary judgment on the grounds that the plaintiff's exclusive remedy was § 13a–149, as the parking lot was a road for purposes of the statute;  the court denied the motion insofar as the issue was one of fact for the trier);  Norlander v. Town of New Milford, judicial district of Litchfield, Dkt. No. CV 04 0093313 (July 14, 2005, Trombley, J.), 30 Conn. L. Rptr. 689 (whether public parking lot or area was within scope of defective highway statute was a question of fact).   But See, Press v. City of Ansonia, judicial district of Ansonia–Milford, Dkt. No. CV 0063447, (September 28, 1999, Corradino, J.) (Although proximity to the roadway was unclear, the defective condition was in a private parking lot servicing a single store and could not be found to have menaced or hindered travel upon the roadway);  Klein v. City of Norwalk,, 499 F.Sup.2d 113, (D.Conn.2007) (The undisputed facts surrounding the location of the injury within the parking lot and the nature and characteristics of the parking lot and its intended and regular use supported a finding on summary judgment that the parking lot was within the purview of the statute).

Here, the location of the fall is not in dispute and nor is the proximity of this location or the parking lot to the traveled portion of the road at issue.   However, the various purposes for which the parking lot is used and offered for use by the Town and the potential impact of the defect on the travelers using the adjacent road are matters on which reasonable minds may differ.   This court cannot, as a matter of law, determine that the parking lot is or is not within the purview of CGS § 13a–149.   The motion for summary judgment as to count one is denied.

Count two—Negligence

Generally, a municipality or its employees “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.”  CGS § 52–557n(a).   However, our common law as well as our statutes confer immunity for those acts, even if negligently performed, that are deemed governmental or discretionary, as opposed to acts which are deemed ministerial.  Violano v. Fernandez, 280 Conn. 310, 320 (2006).   Specifically, CGS § 52–557n(a)(2)(B) provides that municipalities and their employees will not be liable for damages caused by “negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

Our Supreme Court has “discussed extensively the difference between a ministerial and a discretionary act ․ ‘Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.’  (Internal citations omitted).”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167–68 (1988).   See also, Bonington v. Westport, 297 Conn. 297, 307–08 (2010) (“The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion”).   Whether an act is discretionary or ministerial can be a question of law for the court to decide.   See, Redfearn v. Ennis, 28 Conn.App. 398, 401 (1992).

Here, in order to prevail on their governmental immunity claim, the defendants bear the burden of establishing that there is no genuine issue of material fact that the clearing of snow and ice from the school parking lot was a discretionary function.   Inexplicably, as the moving parties, the defendants submitted absolutely no evidence on the issue.   They cite the applicable law and then without any factual foundation ask the court to find that the snow clearing of the school parking lot was a discretionary function.   There is no evidence offered by the defendants regarding the process by which snow and ice is cleared, the people responsible for performing the task, or how, when or even whether a decision is made by any person to direct the removal of snow and ice from the parking lot.   To this argument, the plaintiff need not have replied at all.   The fact that the plaintiff did reply and offered the testimony upon which she will rely as a basis for a finding that the task was ministerial in nature does not alleviate the defendants of their initial burden as the moving party.   See, Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).

For the foregoing reasons, the motion for summary judgment is denied.

K. DOOLEY, J.

Dooley, Kari A., J.