Linda Richmond v. Frederick Richmond et al. (2013)

MEMORANDUM OF DECISION REGARDING MOTION FOR SUMMARY JUDGMENT # 125, TOWN OF MIDDLEBURY

ISSUE

Should the court grant the defendant Town of Middlebury's motion for summary judgment on the ground that there exists no genuine issue of material fact and such defendant is entitled to judgment as a matter of law because (1) the defendant Town of Middlebury does not own or maintain Middlebury Road/Route 64 and (2) General Statutes § 13a–149 is the plaintiff's exclusive remedy.

FACTS

On December 14, 2010, Linda Richmond filed a three-count complaint against the defendants, Frederick Richmond, the Town of Middlebury (town), the Department of Transportation Commissioner Jeffrey Parker (Department of Transportation), and State of Connecticut (state).   In her complaint, the plaintiff alleges the following facts.   On December 12, 2008, the plaintiff was a passenger in a vehicle owned and operated by Frederick Richmond.   As Frederick Richmond drove along Middlebury Road, also known as Route 64, a public highway in Middlebury, he encountered ice on the roadway and lost control of the vehicle, striking the wire rope guide rail and hitting four guide rail posts.   As a result, the plaintiff suffered harm.

In three separate counts, the plaintiff claims that the defendants' negligence and/or statutory violations caused her injuries and losses.   In count one, the plaintiff asserts that Frederick Richmond was negligent and careless in the operation of a motor vehicle, including failing to keep and operate his vehicle under proper control and operating his vehicle at an unreasonable rate of speed.   In count two, brought pursuant to General Statutes § 13a–144, the plaintiff asserts that the state and the Department of Transportation, as well as their agents, servants, and employees, failed to keep the roadway in proper repair, maintain the roadway in a reasonably safe condition, and prevent water collection and icy conditions on the roadway.   In count three, brought pursuant to General Statutes §§ 13a–149 and 7–465, the plaintiff asserts that the town failed to keep the roadway in proper repair, maintain the roadway in a reasonably safe condition, properly maintain the roadway to prevent water collection or icy conditions on the roadway, and install drainage, repair drainage, or correct the problem of water collecting on the roadway.

On June 6, 2013, the town filed a motion for summary judgment as to count three with a supporting documentation and a memorandum of law asserting that there exists no genuine issue of material fact and the town is entitled to judgment as a matter of law.   Then, on July 25, 2013, the plaintiff filed an objection to the motion for summary judgment.   The matter was heard at short calendar on October 15, 2013.

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 ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating [its] entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law ․ To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

The town argues that there is no genuine issue of material fact regarding ownership and responsibility for maintenance of Middlebury Road/Route 64, that responsibility admittedly lies with the state and the Department of Transportation, and that the highway defect statute, § 13a–149, is the plaintiff's exclusive remedy against the town.   The town asserts that it is entitled to judgment as a matter of law as to the third count of the plaintiff's complaint brought pursuant to § 13a–149 and § 7–465.   To demonstrate that no genuine issue of material fact exists, the town has submitted the plaintiff's complaint, an affidavit of First Selectman Edward St. John concerning the ownership and maintenance duties of Middlebury Road/Route 64, the police accident report which includes a drawing of the scene of the accident, a certified copy of the Town of Middlebury's TRU Map, which can be used to identify road category and jurisdictional responsibility.   In addition, the town referenced the answer filed by the state and Department of Transportation in which it states that the Commissioner of Transportation owns and maintains the roadway.¹  The plaintiff, in reply, argues that there is a genuine issue of material fact as to the ownership of and responsibility for the drainage from property adjacent to Middlebury Road/Route 64.

To succeed on its motion for summary judgment as to count three, the town has to show there exists no genuine issue of material fact and the town is entitled to judgment as a matter of law pursuant to § 13a–149 and § 7–465.

A

General Statutes § 13a–149

General Statutes § 13a–149 provides, in relevant part, that “[a]ny 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 statutory provisions of § 13a–149 have two components that must be met to trigger its application:  (1) the plaintiff must have sustained an injury by means of a defective ‘road or bridge’ and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair.”  (Internal quotation marks omitted.)  Novicki v. New Haven, 47 Conn.App. 734, 739–40, 709 A.2d 2 (1998).  “[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 ․” (Internal quotation marks omitted.)  Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991).   Moreover, “a highway is defective within the meaning of § 13a–149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.”   Novicki v. New Haven, supra, 47 Conn.App. 740.  “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, 255 Conn. 330, 341–42, 766 A.2d 400 (2001).   A highway “can be considered defective by reason of ice and snow.”  Escourse v. 100 Taylor Avenue, LLC, Superior Court, judicial district of Fairfield, Docket No. CV–11–6020040–S (May 31, 2012, Richards, J.).

In considering which party is bound to keep the location in repair, “[o]wnership of the property does not establish liability ․” Novicki v. New Haven, supra, 47 Conn.App. 742.   Rather, “it is the governmental entity charged with the duty ․ to keep [the property] in repair” that will bear the liability under the statutes.  (Internal quotation marks omitted.)  Id. Moreover, “the manner in which a defect is created in and of itself has no bearing on ․ liability under the statute.   Rather, it is the existence of the defect and the ․ actual or constructive knowledge of and failure to remedy that defect that are of primary importance in making out a prima facie case of ․ liability ․” (Emphasis in original;  internal quotation marks omitted.)  Himmelstein v. Windsor, 304 Conn. 298, 314, 39 A.3d 1065 (2012).

“Although generally, a plaintiff is able to seek recovery under alternate and inconsistent theories, § 13a–149 is a plaintiff's exclusive remedy in an action against a municipality for damages resulting from a highway defect.”   Escourse v. 100 Taylor Avenue, LLC, supra, Superior Court, Docket No. CV–11–6020040–S;  see Ferreira v. Pringle, supra, 255 Conn. 341;  Sanzone v. Board of Police Commissioners, supra, 219 Conn. 192.

In the present case, the town has the burden of showing there exists no genuine issue of material fact as to its liability under § 13a–149.   Because there are two components that must be met to trigger the application of § 13a–149, the town must show that, either there is no genuine issue of material fact that the roadway was not defective or there is no genuine issue of material fact that the town was not bound to keep the highway location where the loss occurred free of defect.

In support of its position that the town is not the party bound to keep the subject roadway free of defect, the town provided an affidavit of First Selectman Edward St. John stating that Middlebury Road/Route 64 is a state road that passes through the town of Middlebury, the town does not own, control or possess the road, and the town is not responsible for inspecting the road or remediating any defects that it may have.   In addition, the town provided a certified map showing that Middlebury Road/Route 64 is a state highway.   Finally, the state and Department of Transportation admitted in their answer that the Commissioner of Transportation “owned and was responsible for keeping in repair Route 64.”   Given this evidence, the town has sustained its burden in showing that it is not the party that has the duty to maintain and repair the roadway at issue.   Rather, the state and Department of Transportation are the parties bound to keep the subject roadway in repair.

Because the town has sustained its burden, the burden shifts to the plaintiff to present evidence that contradicts the town's evidence, thereby creating a genuine issue of material fact.   In her objection, the plaintiff argues that the affidavit provided by the town does not address responsibility for the drainage from property or areas controlled by the town.   However, the plaintiff has not presented evidence that contradicts the town's evidence regarding ownership of and responsibility for Middlebury Road/Route 64.   In fact, at short calendar, counsel for the plaintiff conceded that it is the State of Connecticut's “obligation to maintain the specific area of the accident.”   The issue of responsibility for adjacent roadways controlled by the town or responsibility for creating the alleged defect is not relevant to a claim pursuant to § 13–149.   The Supreme Court has stated that “the manner in which a defect is created in and of itself has no bearing on ․ liability under the statute.”  (Internal quotation marks omitted.)  Himmelstein v. Windsor, supra, 304 Conn. 314.   Therefore, the plaintiff has not sustained her burden of contradicting the town's evidence.

The court therefore concludes that because the town has met its burden of showing the absence of any genuine issue of material fact regarding the state's ownership of and duty to maintain the roadway and the plaintiff has failed to submit any evidence establishing the existence of any disputed fact as to that ownership and duty, the town has no ownership or control over Middlebury Road/Route 64.   Because the town is not the party bound to keep the area of the alleged defect in repair, it follows that the town cannot be held liable pursuant to § 13–149 and is entitled to judgment as a matter of law as to § 13a–149.   The town's motion for summary judgment is granted pursuant to § 13a–149.

B

General Statutes § 7–465

General Statutes § 7–465 provides, in relevant part, “[a]ny town, city or borough, notwithstanding any inconsistent provision of law ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”

The town argues that summary judgment should be granted as to § 7–465 because § 13a–149 is the exclusive remedy.   In support of its motion with regard to § 7–465, the town relies primarily on General Statutes § 52–557n and Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179.   The plaintiff does not address this argument in her objection.

The 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 [§ 13a–149] is the plaintiff's exclusive remedy.”  Ferreira v. Pringle, supra, 255 Conn. 341.   See Sanzone v. Board of Police Commissioners, supra, 219 Conn. 192;  Himmelstein v. Windsor, supra, 304 Conn. 303 (deciding plaintiff's exclusive remedy is § 13a–149 because radar trailer alleged to constitute highway defect).   Section 52–577n, therefore, also “precludes a joint action seeking such damages against a municipality and its officers pursuant to § 7–465(a);  otherwise, the proviso in § 52–577n would be stripped of all meaning, for § 7–465(a) would permit a plaintiff to reach the result forbidden by § 52–577n:  the imposition of tort liability on a municipality for a highway defect claim.”  (Footnotes omitted.)  Sanzone v. Board of Police Commissioners, supra, 192.

In the present case, the plaintiff brought count three of her complaint against the town pursuant to both § 7–465 and § 13a–149.   The Supreme Court has deemed § 13a–149 the exclusive remedy in highway defect cases.   See Ferreira v. Pringle, supra, 255 Conn. 341;  Sanzone v. Board of Police Commissioners, supra, 219 Conn. 192.   The plaintiff, therefore, cannot bring a claim pursuant to both § 7–465 and § 13a–149.   Even though the court has already established that the town is entitled to summary judgment as to § 13a–149, the plaintiff still cannot pursue a claim under § 7–465.   The Supreme Court has stated that once it is determined that the allegations in the complaint invoke § 13a–149 as a matter of law, other claims are legally insufficient and no longer viable.  Himmelstein v. Windsor, supra, 304 Conn. 304 (discussing the Appellate Court's approval of the trial court's determination that once the allegations invoke § 13a–149 as a matter of law, a nuisance count is legally insufficient and no longer viable).   Count three of the plaintiff's complaint alleges the existence of a defect, namely, ice on the roadway, and the existence of the town's duty to keep that roadway free of defect.   These allegations invoke § 13a–149 and, in turn, bars a claim sounding in § 7–465.

The court concludes that the town has sustained its burden in showing that there is no genuine issue of material fact as to the applicability of § 7–465.   The plaintiff, in addition, has failed to submit any evidence establishing the existence of any disputed fact regarding the applicability of § 7–465 to this case.   The town is entitled to judgment as a matter of law as to § 7–465 and the motion for summary judgment should be granted for the town as to § 7–465.²

CONCLUSION

For the foregoing reasons, the town's motion for summary judgment is granted as to count three of the plaintiff's complaint.

Zemetis, J.

FOOTNOTES

FN1. On February 1, 2012, the state and the Department of Transportation filed an answer and special defense.   The plaintiff replied to the special defense on March 7, 2012..  FN1. On February 1, 2012, the state and the Department of Transportation filed an answer and special defense.   The plaintiff replied to the special defense on March 7, 2012.

FN2. Although the argument is not raised in the town's motion for summary judgment, the complaint and the case law show that there is no genuine issue of material fact as to the applicability of § 7–465 for a second reason.  “A plaintiff bringing suit under General Statutes § 7–465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification.”  (Emphasis omitted;  internal quotation marks omitted.)  Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).   This means that, “[a] claim under § 7–465 [therefore] should contain two counts, one against the agent, and the second against the municipality in indemnification.”  (Internal quotation marks omitted.)  Skrobacz v. Sweeney, 49 Conn.Sup. 15, 23, 858 A.2d 899 (2003).   The complaint in this case fails to plead a claim against a municipal employee..  FN2. Although the argument is not raised in the town's motion for summary judgment, the complaint and the case law show that there is no genuine issue of material fact as to the applicability of § 7–465 for a second reason.  “A plaintiff bringing suit under General Statutes § 7–465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification.”  (Emphasis omitted;  internal quotation marks omitted.)  Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).   This means that, “[a] claim under § 7–465 [therefore] should contain two counts, one against the agent, and the second against the municipality in indemnification.”  (Internal quotation marks omitted.)  Skrobacz v. Sweeney, 49 Conn.Sup. 15, 23, 858 A.2d 899 (2003).   The complaint in this case fails to plead a claim against a municipal employee.

Zemetis, Terence A., J.