George M. Giarnese v. Town of Litchfield et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE

On November 23, 2012, the defendant, Town of Litchfield, filed a motion to strike the first count of the plaintiff's complaint, supported by a memorandum of law.   On December 3, 2012, the plaintiff, George M. Giarnese, filed his objection to the motion, along with a supporting memorandum of law.   This matter came before the court at the short calendar on April 15, 2013.   The motion to strike count one is granted.

I

PROCEDURAL AND FACTUAL HISTORY

On June 19, 2012, the plaintiff filed a two-count complaint,¹ alleging that he was injured as a result of a single vehicle motorcycle accident.   The plaintiff claims that he was riding his motorcycle at night when he hit a pothole on a road within the White Memorial Foundation (“WMF”) in Litchfield.   The motorcycle crashed, causing the plaintiff to suffer various injuries, as well as lost income.   Count one alleges that the defendant created and maintained a nuisance.

The complaint alleges the following relevant facts.   On May 26, 2010, the plaintiff was riding his motorcycle on South Lake Street, which is owned and maintained by the defendant.   South Lake Street, a paved public highway consisting of two lanes, funnels into and is contiguous with a road on property owned by WMF. Specifically, the paved portion of South Lake Street continues for twenty feet onto WMF's property, at which point it ends abruptly and turns into an unpaved road, which continues further onto WMF's property.   This configuration makes the two roads indistinguishable.   South Lake Street features a highway sign, showing arrows pointing in both directions on South Lake Street.   This sign, the plaintiff alleges, informs motor vehicle operators that South Lake Street continues as a through street in both directions.

The complaint further alleges that various motorists, unaware that South Lake Street is not a through street, have caused the roadway to become damaged by emergency braking and evasive maneuvers, aggravated by weather conditions and erosion.   These events made the condition of the roadway at the end of South Lake Street, on May 26, 2010, dangerous in that it was ridden with ruts, puddles, depressions and deep holes.   This condition was hazardous to unsuspecting motorists and was a public nuisance, as defined by law.

The plaintiff also claims that there were no lights, reflectors or sources of illumination, either on South Lake Street or on the WMF road;  the defendant was aware that this was a popular source of entry to WMF's property for many years;  and the defendant had sufficient previous experience and notice to anticipate that motorists using South Lake Street were likely to mistake entry to WMF's property as a continuation of a public street.   The plaintiff further alleges that he was not familiar with the area or with WMF's property, as he proceeded on South Lake Street.   He believed that it was a through street from which he could connect to Route 63.   He contends that the physical features of South Lake Street created a spatial illusion that the street continued in a straight line.   The plaintiff asserts that, as he approached the end of South Lake Street and entered WMF's property, his motorcycle hit a deep depression, which extended over the surface of the entry, causing him to crash and be violently thrown to the ground.

The complaint alleges that the defendant contributed to the public nuisance by failing to give notice by posting signs to alert the plaintiff and public that South Lake Street came to an end and does not continue as a public road.

On November 23, 2012, the defendant moved to strike count one.   The plaintiff objected on December 3, 2012.

II

PARTIES' ARGUMENTS

The defendant moves to strike count one of the complaint on the ground that the plaintiff's nuisance claim is barred by the exclusivity provision of the Highway Defect Statute, General Statutes § 13a–149.   The defendant contends that, under General Statutes § 52–557n, an action under the Highway Defect Statute is a plaintiff's only remedy against a municipality where damages result from injury to a person by means of a defective roadway.

In contrast, the plaintiff argues that nuisance is a distinct cause of action, separate from a claim under the Highway Defect Statute.   According to the plaintiff, a municipality may be liable for injury resulting from a nuisance, which it created and maintains, and it is for a trier of fact to determine if the elements in the complaint are sufficient to find the existence of a nuisance.

III

DISCUSSIONAMotion to Strike Standard

Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

“[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).

B

Analysis

“Prior to the enactment of [General Statutes] § 52–557n(a)(1), a person who sustained injuries on a municipal road by means of a nuisance created by the positive acts of a municipality could recover against the municipality either by way of a common-law nuisance action or an action pursuant to the municipal highway defect statute ․ Section 52–557n(a)(1) abrogated the common law, however, by making [General Statutes] § 13a–149 the exclusive remedy against a municipality for damages resulting from injury to any person or property caused by a defective road or bridge.”  (Citations omitted.)  Kumah v. Brown, 307 Conn. 620, 630–31, 58 A.3d 247 (2013).

General Statutes § 52–557n(a)(1) “provides in relevant part that a municipality is liable for damages caused by certain acts of negligence by its agents and employees and for any nuisance ² that the municipality creates, ‘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.’  “ Kumah v. Brown, supra, 307 Conn. 627;  see Marchitto v. West Haven, 150 Conn. 432, 437, 190 A.2d 597 (1963) (“[i]t is well established that a town may be held liable for injury resulting from a nuisance created and maintained by it”);  see also Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949) (“[a] town is not liable for highway defects unless made so by statute”).  “[A] person who sustains injuries or property damage as a result of a nuisance created by a municipality may recover against the municipality either by way of an action sounding in nuisance or, if the nuisance was created on a road or bridge that the municipality was legally responsible for maintaining, under § 13a–149.”  Kumah v. Brown, supra, 628;  see Ferreria v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001) (“in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy” (internal quotations marks omitted)).

In essence, the defendant maintains that the plaintiff's nuisance claim is barred by the exclusivity provision of General Statutes § 13a–149 because the plaintiff's complaint alleges that his injuries occurred as a result of a defective road.  “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 which may be determined on a motion to strike.”  Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 595 A.2d 912 (1991).

Our appellate courts have had multiple opportunities to address the issue of whether a motorist's nuisance claim fell within the scope of General Statutes § 13a–149.   It can be gleaned from those decisions that a nuisance claim will fall squarely within the ambit of General Statutes § 13a–149 if the complaint alleges that the municipality is the party responsible for maintaining the road on which the injury occurred.   See Kumah v. Brown, supra, 307 Conn. 620 (highway defect statute not exclusive remedy where plaintiff did not allege that town was bound to keep the subject road in repair);  Himmelstein v. Windsor, 304 Conn. 298, 308, 39 A.3d 1065 (2012) (highway defect statute was exclusive remedy where plaintiff alleged that his bicycle struck a police radar on road that the town had the responsibility to maintain, repair and render safe);  Steele v. Stonington, 225 Conn. 217, 222–23, 622 A.2d 551 (1993) (allegations of the complaint were sufficient to state a cause of action under § 13a–149 where a plaintiff claimed that a pothole caused his crash and subsequent injuries”).

However, regardless of whether a complaint alleges that a municipality is responsible for maintaining the road, “a defect in the design of a highway generally is not actionable” under the Highway Defect Statute.  McIntosh v. Sullivan, 274 Conn. 262, 280, 875 A.2d 459 (2005).   Our Supreme Court recognized a limited exception to this rule in Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897).   See McIntosh v. Sullivan, supra.   The Hoyt exception provides that “notwithstanding the general rule that the state [or a municipality] is not liable for damages sustained by a traveler due to a defect in a highway's design, the state [or municipality] nevertheless may be liable if such a defect gave rise to a hazard that otherwise would be actionable under [the highway defect statutes].”  McIntosh v. Sullivan, supra, 271;  see Bovat v. Waterbury, 258 Conn. 574, 585, 783 A.2d 1001 (2001) ( “[a]lthough § 13a–149 expressly refers only to liability for defects in repair or maintenance ․ this court has long recognized that liability could also be predicated on a design defect”).

“[A] design defect claim can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway's plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear.”  McIntosh v. Sullivan, supra, 274 Conn. 282.  “[A] defect in a plan of construction of a highway may, upon execution of that plan, render the highway ‘out of repair from the beginning’ ․ such that, if a person were to be injured as a result of the disrepair, he or she would have a cause of action under the highway defect statute.   Thus, the exception to the general rule barring liability under [the highway defect statutes] for design defects is premised on the notion that certain design defects also may constitute highway defects within the meaning of [the highway defect statutes].”  (Citation omitted.)  Id., 284.  “Because this rationale applies to claims brought under [General Statutes] § 13a–144, it applies as well to claims brought under [General Statutes] § 13a–149 ․ Therefore, to bring [a] claim within the design defect exception, [a] plaintiff must present evidence sufficient to show that the plan for [the highway] was so defective as to have been faulty from the start.”  (Citations omitted.)   Trotta v. Branford, 26 Conn.App. 407, 411, 601 A.2d 1036 (1992).

Thus, “[a] claim arising from a defective design is not per se incompatible with recovery under § 13a–149.   If the design defect is so egregious, requiring obvious correction, to neglect to make the repairs to correct the design defect can be a basis for an action under the statute ․ The language of Hoyt 's exception has been passed along from case to case like a judicial heirloom, the test being ‘were the plan of construction adopted one which was totally inadmissible ․ the highway would have been in such a defective condition as to have been out of repair from the beginning.’  ․ It is not necessary to allege a design defect if it is implicit throughout the proceedings that the plaintiff is complaining of a condition that was ‘out of repair from the beginning.’  ․ It would not necessarily be fatal, therefore, if the plaintiff's cause of action were one for damages due to design defect, that he failed to allege a design defect, which the town negligently allowed to exist after it knew or should have known that it could cause injury ․” (Citations omitted.)  Langton v. Westport, 38 Conn.App. 14, 17–19, 658 A.2d 602 (1995).

For example, “[i]n [Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920) ], the town of Hamden had installed a drain pipe twelve inches below the surface of a highway in accordance with [a] plan adopted for the construction used in improving [the] highway ․ In accordance with the plan of design, twelve inches of gravel and sand were packed between the surface of the road and the drain pipe ․ The plaintiff was injured, several years after the drain pipe's construction beneath the road, when the roadway over the pipe collapsed under the weight of the plaintiff's truck ․ The Perrotti Court found the plaintiff's design defect claim to be actionable under the defective highway statute and reversed the judgment of dismissal entered by the trial court, reasoning that, ‘Whenever the plan [of design] in its execution creates a nuisance, or causes direct injury to another, liability follows for the damage done ․ If the plan [is] defective from the beginning, or if its defect originate[s] shortly after the completion of the improvement, and injury [is] ultimately necessarily the inevitable or probable result, the municipality will be liable.   Clearly this is just ․ The finding is that the drain was not properly protected due to the covering of the roadway above it ․ Obviously from the time the drain was laid it constituted a defect in the highway, whether this was due to the want of adequate covering, or to the character of the pipe, or both.”  (Citations omitted.)   Cummings v. Dept. of Transportation, Superior Court, judicial district of Hartford, Docket Nos. CV 07 5011774, CV 07 5011825 (September 29, 2011, Sheldon, J.);   see McIntosh v. Sullivan, supra, 274 Conn. 283–84.

In the present case, although the site of the plaintiff's accident was the unpaved portion of WMF's road, the defect alleged against the defendant is the “visual identity” that makes South Lake Street indistinguishable from WMF's road at the point where the two roads merge.   Because of this illusion, a motorist is unaware that the paved South Lake Street, essentially, is a dead end road because it ends abruptly, without an outlet, and continues as an unimproved road onto WMF's property.   Although the plaintiff's complaint does not explicitly allege a design defect, on a motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.   The gravamen of the plaintiff's complaint is that the physical features of South Lake Road created a visual identity of South Lake Road and WMF's unpaved road.   Thus, the plaintiff is claiming that the plan of design for South Lake Street was so defective as to have been faulty from the start and South Lake Street was “out of repair from the beginning.”   See Perrotti v. Bennett, supra, 94 Conn. 541–42.

Accordingly, this court finds that the plaintiff's claim falls within the parameters of the Highway Defect Statute.   The exclusivity provision of the Highway Defect Statute provides that the remedies available thereunder are exclusive, barring the plaintiff from bringing an action in nuisance.  Kumah v. Brown, supra, 307 Conn. 620;  see Ferreria v. Pringle, supra, 255 Conn. 342;  Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202.

The cases on which the plaintiff relies address the question of whether liability in nuisance may be imposed on a municipality generally, but those cases have no application to an action that is more properly brought under the Highway Defect Statute.  Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975), stands for the proposition that a municipality may be held liable for a nuisance where “the nuisance was created by the positive act of the municipality.”   However, Wright does not suggest that the latter principle overrides the exclusive remedy principle of the Highway Defect Statute.   Similarly, in Kostyal v. Cass, 163 Conn. 92, 302 A.2d 121 (1972), the court elaborated on the requirements that are necessary to permit the conclusion that a nuisance was created and maintained by a municipality.  Kostyal, however, does not involve roadways or the Highway Defect Statute, and does not undermine this court's conclusion that the plaintiff's allegations fall solely within the Highway Defect Statute.

In summary, because the plaintiff has alleged a highway defect, General Statutes § 13a–149 provides the exclusive remedy available to the plaintiff against the defendant.   Thus, the plaintiff's cause of action sounding in nuisance is barred by the exclusivity provision of the Highway Defect Statute.

V

CONCLUSION

For all of the foregoing reasons, the defendant's motion to strike count one is granted.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. Count one is directed at defendants, the Town of Litchfield and White Memorial Foundation.   The present motion to strike count one was brought by the Town of Litchfield, only..  FN1. Count one is directed at defendants, the Town of Litchfield and White Memorial Foundation.   The present motion to strike count one was brought by the Town of Litchfield, only.

FN2. “Actions against public authorities founded upon such nuisance fall into three general classes:  (1) nuisances which result from the conduct of the public authority in violation of a statute;  (2) nuisances which are intentional in the sense that the creator intended to bring about the conditions constituting a nuisance;  and (3) nuisances having their origin in negligence, that is, in the failure of the creator of the conditions to exercise due care.”  Dingwell v. Litchfield, 4 Conn.App. 621, 624, 496 A.2d 213 (1985).   The first and second types of nuisance are known as absolute, meaning they arise from intentional conduct.   In this context, intentional means “not that a wrong or the existence of a nuisance was intended but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.”  Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942).   At oral argument, the plaintiff's counsel stated that the cause of action in count one sounds in the second type of absolute nuisance.   Where a plaintiff alleges absolute public nuisance there are two additional elements of proof that must be met:  “(1) that the condition or conduct complained of interfered with a right common to the general public ․ and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance.”   (Citations omitted.)  State v. Tippetts–Abbett–McCarthy–Straton, 204 Conn. 177, 183, 527 A.2d 688 (1987)..  FN2. “Actions against public authorities founded upon such nuisance fall into three general classes:  (1) nuisances which result from the conduct of the public authority in violation of a statute;  (2) nuisances which are intentional in the sense that the creator intended to bring about the conditions constituting a nuisance;  and (3) nuisances having their origin in negligence, that is, in the failure of the creator of the conditions to exercise due care.”  Dingwell v. Litchfield, 4 Conn.App. 621, 624, 496 A.2d 213 (1985).   The first and second types of nuisance are known as absolute, meaning they arise from intentional conduct.   In this context, intentional means “not that a wrong or the existence of a nuisance was intended but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.”  Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942).   At oral argument, the plaintiff's counsel stated that the cause of action in count one sounds in the second type of absolute nuisance.   Where a plaintiff alleges absolute public nuisance there are two additional elements of proof that must be met:  “(1) that the condition or conduct complained of interfered with a right common to the general public ․ and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance.”   (Citations omitted.)  State v. Tippetts–Abbett–McCarthy–Straton, 204 Conn. 177, 183, 527 A.2d 688 (1987).

Danaher, John A., J.