Barry Graham v. State of Connecticut Commissioner of Dept. of Transportation James P. Redeker (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 116)

The plaintiff in this action, Barry Graham, seeks damages from the State of Connecticut, through the defendant Commissioner of the Department of Transportation (defendant;  Department of Transportation being “DOT”), under General Statutes § 13a–144 ¹ caused by a highway defect, specifically black ice on the Gold Star Bridge, Interstate Route 95 northbound, at about six thirty in the morning on December 12, 2011.   The defendant does not dispute that the black ice condition was a highway defect but, on May 8, 2014, moved for summary judgment.   The plaintiff filed an opposing brief on November 3, 2014.   The defendant filed a reply brief on December 8, 2014.   The motion was argued on January 12, 2015.²

FACTS

In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the non-moving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Statements that are merely conclusions are not evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Viewing the parties' submissions in this light, the court finds the following pertinent facts.   There was another accident due to the black ice on the bridge about one hour before the plaintiff's accident.   Police were contacted at 5:40 a.m. about that accident and the state police arrived on scene at about 5:55 a.m. In the light most favorable to the plaintiff, it can be inferred that the police were alerted to the black ice condition at 5:40 a.m.³ The police alerted DOT of the ice at 5:49 a.m. The report of the accident before the plaintiff's accident set in motion the defendant's response to the black ice condition, which included calling maintenance staff of two men, the men getting from their homes to the defendant's garage in Waterford, Connecticut, opening up the DOT garage, warming up a dumptruck and payloader, loading the dumptruck with salt, and driving to the black ice condition on the bridge about six miles from the DOT garage.   This process took at least sixty minutes—until after the plaintiff's accident—and the plaintiff does not claim that that time after the 5:49 a.m. call to DOT was unreasonable.

After the plaintiff's accident, the bridge was closed due to the black ice conditions including, but apparently not limited to, the condition which caused the plaintiff's accident.

DISCUSSION

The defendant claims three grounds for the present motion.   The defendant first argues that DOT did not have actual or constructive notice of the specific defective condition.   Second, the defendant argues that DOT did not have an adequate opportunity to remedy the defective condition.   Finally, the defendant argues that the plaintiff cannot establish sole proximate cause because the plaintiff was negligently operating his vehicle at the time of the accident.

Practice Book § 17–49 provides that summary judgment must be rendered if the pleadings, affidavits, and any other proof submitted demonstrate 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.   A genuine issue of material fact has been defined as a triable issue of fact, which can be maintained by substantial evidence.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).   A motion for summary judgment shall be supported by appropriate documentary evidence, such as affidavits and certified transcripts of testimony given under oath.  Practice Book § 17–45.

In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist;  however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In ruling on the present motion, the court's function is to determine whether any issues of material fact exist, not to decide any such issues.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Summary judgment is inappropriate when necessary inferences concern intent, motive, and subjective feelings and reactions.  Batick v. Seymour, 186 Conn. 632, 646–47, 443 A.2d 471 (1982).

The defendant first claims it is entitled to judgment because they did not have notice of the particular highway defect—the black ice spot which caused the plaintiff's accident—before the accident and it did not, as a matter of law, have even constructive notice of that defect in time to remedy the black ice condition.

“To prove a breach of statutory duty under this states' defective highway statutes, the plaintiff must prove by a preponderance of the evidence:  (1) that the highway was defective as claimed;  (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect;  (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so;  and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.”  (Footnote omitted;  internal quotation marks omitted.)  Ormsby v. Frankel, 255 Conn. 670, 675–76, 768 A.2d 441 (2001).

The “statutory obligation under § 13a–144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation.   That is, the [commissioner's] obligation under § 13a–144 is to remedy a highway defect once he:  (1) has actual notice of a specific defect;  or (2) is deemed to have constructive notice of a specific defect, ․ [H]is obligation does not sound in general negligence ․ Absent such actual or constructive notice, his obligation does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur.”  (Citations omitted.)  Id., 676–77.  “To charge the defendant with constructive notice, it was incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.”  Falkowski v. MacDonald, 116 Conn. 241, 245, 164 A. 650 (1933).

“The test is whether, had the city exercised reasonable supervision, in view of the whole situation, it would have discovered the defect a sufficient time before the injury to have a reasonable opportunity to guard against it.   Unless the facts are undisputed and are such that but one inference reasonably can be drawn from them, the question of constructive notice is one of fact for the jury.”  Matchulot v. Ansonia, 116 Conn. 55, 57, 163 A. 595 (1932);  (standard for suits against municipalities under General Statutes 13a–149 is the same as for suits under § 13a–144.   See Baker v. Ives, 162 Conn. 295, 299–303, 294 A.2d 290 (1972)).   Furthermore, “[w]hether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact for the jury and unless the period of time is such that but one conclusion could be found, its determination should be left to the trier [of fact].”  Baker v. Ives, 162 Conn. 295, 307, 294 A.2d 290 (1972).   This is because “[w]hat constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case.”  Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946).

“[E]vidence of prior icing conditions [is] relevant to [prove] constructive notice of the defect.”  Ormsby v. Frankel, supra, 255 Conn. 681.   As our Supreme Court explained, “evidence of prior icing conditions [is] relevant to establish a more truncated time period than would otherwise be permitted during which the defendant should have discovered the particular icy condition on that day.   For example, absent actual notice of the specific icy condition on that day, if the icy condition had existed for a certain number of hours before the accident, evidence of prior similar conditions at that general area would be relevant to the jury's determination regarding whether that number of hours was long enough to charge the defendant with constructive notice of that condition.   In the present case, the plaintiff's evidence was that the particular ice that caused the accident had existed for two and one-half hours before the accident occurred.   Evidence of prior icing conditions was relevant to the jury's determination that this was a sufficient amount of time for the department to uncover and remedy the particular icy condition that caused the plaintiff's accident.”  Id., 680.

The Ormsby court also discussed the trial court's admission of evidence that an accident occurred at the same location as the plaintiff's accident, but on the day before.   See id., 683.   The Court stated that “[t]his claim presents us with the necessity of resolving an issue that we previously have noted, but have not found necessary to decide, namely, in an action brought under § 13a–144, what is the standard by which a trial court should gauge the admissibility of evidence of a prior accident offered to prove constructive notice of the particular defect in question?   More precisely, the question is whether the circumstances of the prior accident must be essentially the same as the accident in question, or whether a more relaxed standard is appropriate.   We conclude that the standard to be employed is the more relaxed standard previously articulated” by the Appellate Court in prior decisions.  (Emphasis omitted.)  Id., 683.

Specifically, the Court held “that in an action brought under § 13a–144, when a party offers evidence of a prior accident in order to prove constructive notice of the particular defect in question, and not the defect itself, a more attenuated standard is appropriate.   Under this standard, [a] plaintiff attempting to introduce evidence of prior accidents must show that the circumstances of the other accidents were substantially similar to those under which the plaintiff was injured ․ The requirement of a substantially similar condition is lessened when the evidence is offered to show notice of a dangerous condition.   In such a case, the prior accidents need only be such as [would] call [the] defendant's attention to the dangerous situation that resulted in the litigated accident ․ Moreover, consistent with our general jurisprudence on similar issues of admissibility, whether the evidence meets this standard is a matter for the trial court's discretion.”  (Citations omitted;  internal quotation marks omitted.)  Id., 688–89.

“[T]his type of evidence is analogous to our settled law regarding prior similar condition evidence ․ [P]rior accident evidence ․ like the evidence of prior icing conditions ․ [can be] offered to bear on the timing of the defendant's obligation to respond to the defect.   In other words, with evidence of a prior accident in the same area from the same general cause, the defendant was under a greater obligation to discover and respond to the defect ․ A prior accident at the same location, under the same weather and road conditions, is certainly relevant to how much time was reasonable for the defendant to have responded to road conditions” at a later date.  (Citation omitted.)  Id., 689–90.

In this light, despite the “more attenuated standard” and the drawing of inferences in the light most favorable to the non-moving party;  Patel v. Flexo Converters U.S.A., Inc., supra;  the court concludes that the defendant is entitled to judgment as a matter of law.   The court cannot conclude that the defendant had actual notice of the black ice condition which caused the plaintiff's accident before the report of that accident.   Even treating the black ice on the bridge in general as the defect which caused the plaintiff's accident and treating the black ice accident on the same bridge fifty minutes before the plaintiff's accident as constructive notice to the defendant of that defect, the court finds as a matter of law that the defendant's response time was reasonable.   Indeed, the plaintiff does not contend otherwise, other than by claiming that the defendant should have anticipated the black ice condition.   The defendant is not required to anticipate highway defects.   Ormsby v. Frankel, supra, 255 Conn. 676.

Unfortunately for the plaintiff, he came upon the black ice condition before the defendant could respond to the first report of black ice on the Gold Star Bridge on December 12, 2011.   He was not spared by either the closure of the bridge or by the presence of the defendant's crew responding to the earlier black ice accident report.   Hypothetically, if the defendant, by DOT staff responding to the black ice condition reported before the plaintiff's accident, first got actual notice of the particular black ice patch which caused the plaintiff's accident by seeing that condition while on the way to remedy the black ice condition which was the subject of the first reported accident, it would not have been unreasonable, and it would have created no liability of the defendant, for that crew to have driven on and remedied the black ice condition of which the defendant was first notified before that which caused the plaintiff's accident.

For the foregoing reason, the defendant's motion is granted.   Though the court is skeptical that either contributory negligence and, therefore, a lack of sole cause of the accident, or the inadequacy of the plaintiff's § 13a–144 notice (particularly in view of the closure of the entire bridge) is subject to a finding for the defendant as a matter of law, it is unnecessary to address the defendant's other grounds for the present motion.

Cole–Chu, J.

FOOTNOTES

FN1. General Statutes § 13a–144 provides, in relevant part:  “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair ․ may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court ․”.  FN1. General Statutes § 13a–144 provides, in relevant part:  “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair ․ may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court ․”

FN2. The original complaint filed on July 17, 2012, was the operative complaint when the present motion was filed.   Since then, the plaintiff filed a “Revised Complaint” (# 119).  “[W]here a revised complaint is brought after a motion for summary judgment is filed on an original complaint, the motion is to be treated as if brought as to the revised complaint as long as the revised complaint does not alter the cause of action.”   New G.H. Berlin Oil Co. v. Chic Miller's Chevrolet, Inc., Superior Court, judicial district of Hartford, Docket No. CV–00–0597736–S (October 25, 2000) (1 Conn. L. Rptr. 444);  see Marine Midland Bank v. Pilgrim Mortgage, Superior Court, judicial district of Stamford, Docket No. CV–97–0159982–S (August 18, 1998) (22 Conn. L. Rptr. 688).   Because the allegations of the revised complaint do not alter the cause of action as to the ground upon which the court decides this motion, it is the complaint to which the present motion applies..  FN2. The original complaint filed on July 17, 2012, was the operative complaint when the present motion was filed.   Since then, the plaintiff filed a “Revised Complaint” (# 119).  “[W]here a revised complaint is brought after a motion for summary judgment is filed on an original complaint, the motion is to be treated as if brought as to the revised complaint as long as the revised complaint does not alter the cause of action.”   New G.H. Berlin Oil Co. v. Chic Miller's Chevrolet, Inc., Superior Court, judicial district of Hartford, Docket No. CV–00–0597736–S (October 25, 2000) (1 Conn. L. Rptr. 444);  see Marine Midland Bank v. Pilgrim Mortgage, Superior Court, judicial district of Stamford, Docket No. CV–97–0159982–S (August 18, 1998) (22 Conn. L. Rptr. 688).   Because the allegations of the revised complaint do not alter the cause of action as to the ground upon which the court decides this motion, it is the complaint to which the present motion applies.

FN3. There is no claim or evidence that the state police did not promptly respond to the prior accident and promptly report the black ice condition to DOT..  FN3. There is no claim or evidence that the state police did not promptly respond to the prior accident and promptly report the black ice condition to DOT.

Cole–Chu, Leeland J., J.