Elissa Pramuka v. Town of Cromwell et al. (2014)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The defendants, Town of Cromwell (“Town”) and the Cromwell Board of Education (“Board”) have moved for summary judgment with respect to the plaintiff's amended complaint dated November 7, 2013.

Factual and Procedural History

This action was commenced by complaint dated November 21, 2012.   The plaintiff filed a revised complaint dated April 4, 2013.   On July 19, 2013 the defendants filed a motion for summary judgment direct to the revised complaint.   The plaintiff then filed an amended complaint dated November 7, 2013.   The complaints are not substantially different, so the defendants filed a second motion for summary judgment on November 15, 2013 wherein they incorporated the memorandum of law which they had filed on July 19, 2013.

In the amended complaint of November 15, 2013, the plaintiff alleges that on February 17, 2011 at approximately 8:30 a.m. she “was a pedestrian on the paved walkway from the parking area to the entrance to Edna C. Stevens Elementary School” and that she “tripped and fell upon an uneven and cracked portion of the walkway.”   She claims to have sustained various injuries as a result of the alleged fall.

Discussion of the Law and Ruling

“Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the 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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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 him to a judgment as a matter of law.   The courts hold the movant to a strict standard.

“To satisfy his 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

It is unclear from the allegations of the amended complaint whether the plaintiff is alleging that the defendants violated the so-called highway defect statute, Connecticut General Statutes § 13a–149, or that the defendants' alleged conduct was negligent under the common law.   In the plaintiff's Memorandum of Law in Support of Objection to Motion for Summary Judgment dated November 7, 2013, she clarifies that the complaint alleges a violation of § 13a–149.  Section 13a–149 provides that “Any person injured ․ by means of a defective road or bridge may recover damages from the party bound to keep it in repair ․”

The parties have argued at length about whether the Town or the Board had a duty to keep the area in question in repair.   This may present an issue of fact.   However such issue of fact is not material because the area where the plaintiff claims to have fallen is not a “road” within the meaning of § 13a–149.

In Nelson v. Bristol, 2002 WL 725498 (March 27, 2002, Berger, J.) the court found that a fall which allegedly occurred as the plaintiff was alighting from her vehicle in a parking lot to the rear of the board of education building did not come within the purview of the defective highway statute, stating:

There is no allegation, let alone evidence, to support a claim that the alleged fall took place “in, upon or near the traveled path” as required in order to bring the plaintiff's claim within the purview of the highway statute.  Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972).   Nor is this a case like Serrano v. Burns, 248 Conn. 419, 427, 727 A.2d 1276 (1999), where there was a factual issue as to whether the roadside rest area of a state highway was so closely related to travel upon the highway that the area was part of the highway system itself.

In Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999) the court considered whether an injury which occurred in a parking lot in a rest area adjacent to the state highway fell within the meaning of “highway” under Connecticut General Statutes § 13a–144, the state highway defect statute.   The court stated:

Baker [v. Ives, 162 Conn. 295, 294 A.2d 290 (1972) ], is instructive on this issue.   In Baker, we held that recovery of damages for injuries sustained by travelers on state highways pursuant to § 13a–144 was not limited to injuries caused by defects in the ‘traveled portion’ of highways.   Id., 302.   In that case, the plaintiff had been injured after slipping and falling on an icy area that was not a traveled path on a state highway, but was within the state right-of-way line.  Id., 297.   The plaintiff brought an action against the state highway commissioner pursuant to § 13a–144 and, after a jury trial, the jury returned a verdict in favor of the plaintiff.   Id., 296.   The commissioner then moved to set aside the verdict and the trial court denied the commissioner's motion.  Id. On appeal, we affirmed the trial court's ruling.  Id., 307.

We affirmed the trial court in Baker because, in addition to the fact that the plaintiff had fallen in an area within the “state right-of-way line”;  id., 297;  “the proximity of the defect to the paved 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 warrant[ed] the conclusion that [the] 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’ ․ thereby allowing recovery under § 13a–144.

Serrano v. Burns, supra, at 425–26.

The Serrano court held that the state highway defect statute applies to defects “in such proximity to the highway so as to be considered in, upon or near the traveled path.”  Id. at 429.   The area where the plaintiff claims to have fallen in this case, the paved walkway that leads to the entrance of the Edna C. Stevens Elementary School, is not in such proximity to a municipal highway so as to be considered in, upon or near the traveled path for purposes of coming within the purview of Connecticut General Statutes § 13a–149.

The defendants have presented the affidavit of Michael Kochinsky, in which he avers that the walkway on which the plaintiff allegedly fell was located entirely within the school premises, did not extend to or connect with either public road adjacent to the school.   He further avers that the parking lot from which the walkway leads is separated from the public street by a grassy area on which there is a chain link fence and the distance from the nearest public street to the walkway at issue is 65 feet.   As a matter of law, a jury could not find that the walkway upon which the plaintiff allegedly fell had any relationship to the public roadway so as to bring it within the purview of § 13a–149.

For the foregoing reasons, summary judgment enters in favor of the defendants.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.