Nirmala Sreenivasan v. City of Bristol (2013)

Ruling re Motion to Strike No. 118

This case stems from a slip and fall incident on October 28, 2011.   The plaintiff, Nirmala Sreenivasan, alleges that she was walking from her parked motor vehicle to the fourth floor entrance of 131 North Main Street in Bristol (premises), when she fell to the ground due to an accumulation of ice and snow.   Additionally, the plaintiff alleges that the defendant, the city of Bristol, was the owner and/or the party in possession and control of the premises, including the parking areas, walkways and exterior entrances to and exits from the building.   She alleges that the defendant leased a portion of the premises to a third party deriving a special corporate profit or pecuniary benefit, and that the lessee's employees, including herself, were authorized to use the parking areas, including the area where the plaintiff parked her car.   She also alleges that the defendant had a duty to keep and maintain those areas of the premises in a reasonably safe condition for her and persons lawfully using them.   The plaintiff's two-count amended complaint sounds in:  (1) common-law negligence and (2) responsibility pursuant to General Statutes § 13a–149, commonly known as the municipal highway defect statute.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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).  “[The court takes] the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id., 252.

The defendant moves to strike count one for failing to state a cause of action upon which relief may be granted on the ground that the plaintiff's exclusive remedy is pursuant to § 13a–149 and thus that the negligence cause of action is barred.   The plaintiff counters that whether the highway defect statute applies to the present case is a question of fact inappropriate for a motion to strike, and that even if the court could properly decide whether the highway defect statute applies on a motion to strike, the facts alleged in count one do not amount to a highway defect because there are facts that remain at issue.

“Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).  “[I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a–149] is the plaintiff's exclusive remedy ․ 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 ․ [A] highway defect is [a]ny 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 ․ [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.”  (Citations omitted;  internal quotation marks omitted.)   Ferreira v. Pringle, 255 Conn. 330, 341–42, 766 A.2d 400 (2001).  “Our Supreme Court has not established whether a parking lot is, as a matter of law, a highway for the purposes of § 13a–149.   Rather, it has set out a fact-based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway ․” Zebelman v. New Haven Parking Authority, Superior Court, judicial district of New Haven, Docket No. CV 10 6008785 (December 14, 2010, Wilson, J.), quoting Serrano v. Burns, 248 Conn. 419, 427, 727 A.2d 1276 (1999).

In Zebelman, the primary case on which the defendant relies, the plaintiff alleged that the defendants “operated [a] [parking garage] for use by members of the general public in return for the payment of a fee ․ that the defendants [had] a duty to keep roads, streets, sidewalks, and parking areas used in conjunction with the same, in a reasonably safe condition ․ that she fell while walking toward her car on the fifth floor parking area of the parking garage ․ and that the fall was in an area where ․ members of the general public ․ would have to walk to reach their parked vehicles ․” (Internal quotation marks omitted.)  Zebelman v. New Haven Parking Authority, supra, Superior Court, Docket No. CV 10 6008785.   The court found that “it [was] clear ․ that the plaintiff intended to place her claim within the purview of the statute when she alleged that the parking garage is used in conjunction with roads, streets and sidewalks that the municipal defendants had a duty to maintain.”  Id. Further, the court distinguished the case from Reed v. Plymouth, 110 Conn.App. 657, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008), and stated that “the plaintiff does not allege that there are yet to be determined facts regarding the location of her fall.”  Id. The Reed court held that “it was not clear when the [trial] court struck the subject counts that the plaintiff's claim was within the purview of the defective highway statute,” that “[the plaintiff's] complaint properly contained alternative theories of recovery,” and found that “the [trial] court improperly struck the [subject] counts of [the plaintiff's] ․ complaint on the basis of yet undetermined facts regarding the applicability of the defective highway statute.”  Reed v. Plymouth, supra, 662.

In the present case, reading “the complaint in the manner most favorable to sustaining its legal sufficiency”;  Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252;  the plaintiff has not alleged facts that establish that count one falls within the purview of the highway defect statute as a matter of law.   As distinguished from the allegations in Zebelman, here, lacking from count one are any facts indicating that the area where the plaintiff fell was connected to use of a roadway.   Apart from general allegations as to the circumstances of the plaintiff's slip and fall and the ownership, control of and duty over the premises and where she was walking, there is nothing more alleged as to the nature of the parking area connecting it to the highway defect statute.   The court cannot state, as a matter of law, that the plaintiff has alleged facts in count one that amount to a highway defect.   Because the court determines that the plaintiff has not alleged facts that as a matter of law amount to a highway defect, it does not need to address the plaintiff's contention of whether the highway defect statute applies is a question of fact inappropriate for a motion to strike.

Therefore, the motion to strike is hereby DENIED.

SO ORDERED

BY THE COURT

PETER EMMETT WIESE

Wiese, Peter E., J.