III v. State of Connecticut et al.

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Superior Court of Connecticut.

Martin Fagan, III v. State of Connecticut et al.

NNHCV116025092S

Decided: February 14, 2014

MEMORANDUM OF DECISION RE Ruling on Defendant's Motion for Summary Judgment (# 164)

The issue before the court is whether the defendant's motion for summary judgment should be granted on the ground that there is no issue of material fact that the manhole cover the plaintiff allegedly injured himself on was not an “obstruction” for purposes of the Connecticut Highway Defect Statute.   The term “obstruction” in the relevant section of the statute—General Statutes § 13a–116—is undefined, and so the court is tasked with ascertaining its meaning.   For the reasons set forth in this memorandum, the defendant's motion for summary judgment is denied.

FACTS

The plaintiff, Martin Fagan, III, commenced this action by service of writ, summons, and complaint on November 11, 2011, against Black and Bouicher, LLC, and Tilcon, Inc., and on November 14, 2011, against the city of Meriden and the State of Connecticut, Department of Transportation.   Although this case involves these several defendants, the present motion pertains to only one:  the Department of Transportation of the State of Connecticut.   For this reason, the Department of Transportation will be referred to as the defendant in this memorandum.

The plaintiff brings this action pursuant to the Connecticut Highway Defect Statute, codified in General Statutes § 13a–144 et seq.   The operative complaint in the present case is the plaintiff's amended complaint, which was filed on February 28, 2013.   In the amended complaint, the plaintiff alleges the following facts.   On June 29, 2011, the plaintiff was operating a motorcycle on the northbound side of North Broad Street, a public highway in Meriden, Connecticut.   The street was under repair on that date.   While operating his motorcycle, the plaintiff came into contact with a raised manhole cover that protruded unreasonably high from the ground.   The plaintiff lost control of his motorcycle, fell onto the highway, and suffered severe injuries.   The defendant has a statutory duty pursuant to § 13a–144 to maintain public highways in a reasonably safe condition and breached that duty by, inter alia, failing to maintain the highway in a reasonable condition and failing to adequately warn motorists of the dangerous elevated manhole cover.

The defendant filed the present motion for summary judgment on August 15, 2013, together with a supporting memorandum of law and exhibits.   The plaintiff objected to the defendant's motion on October 15, 2013, and appended to his objection a memorandum of law and exhibits.   The defendant filed a reply to the plaintiff's objection on November 20, 2013, to which the plaintiff surreplied on November 22, 2013.   The matter was heard at the short calendar on November 25, 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 his 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).   “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 him to a judgment as a matter of law.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “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.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).

As stated above, this action arises from injuries within the purview of the Highway Defect Statute, which is codified in General Statutes § 13a–144 et seq.  Section 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.”  “A cause of action under [the Highway Defect Statute] is not really one to recover damages for an injury arising from negligence but for breach of a statutory duty.”  (Internal quotation marks omitted.)  McManus v. Jarvis, 128 Conn. 707, 710, 22 A.2d 857 (1939).  “Section 13a–144 constitutes only a limited waiver of the state's sovereign immunity in cases involving alleged highway defects.”  Lussier v. Dept. of Transportation., 228 Conn. 343, 349, 636 A.2d 808 (1994).  “While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory ․” (Internal quotation marks omitted.)  McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005).   Consequently, “because the statute constitutes a break with common law, it must be strictly construed.”  Lussier v. Dept. of Transportation, supra, 349.

The injuries in the present case were allegedly sustained in a construction zone.   The defendant argues that, pursuant to General Statutes § 13a–116,1 the state cannot be held liable for a highway defect in a construction zone if adequate warning signage is posted.   The defendant concedes that § 13a–116 carves out an exception to this right to limited liability if there are “obstructions within the traveled portion of the road or adjacent thereto”;  General Statutes § 13a–116;  but argues that this exception is not applicable to the facts of this case.   Specifically, the defendant argues that the raised manhole cover at issue was not an obstruction because an “obstruction,” as the term is used in § 13a–116, is something that renders the road impassable.   Because the road was passable, notwithstanding the manhole cover, the defendant argues that the manhole cover was not an obstruction, that the defendant is not liable for the plaintiff's injuries, and that summary judgment should enter in its favor.

The plaintiff characterizes the defendant's definition of the term “obstruction” as “extremely narrow,” and argues that the court should adopt his proposed definition.   The plaintiff offers that “obstruction” is more properly defined as an “obstacle” or “impediment” to passing.   Under this definition, the plaintiff argues that there is a clear issue of material fact regarding whether the manhole cover was an “obstruction” within the meaning of § 13a–116.   The plaintiff further argues that even if the court accepts the defendant's proposed definition, there is still an issue of material fact as to whether the manhole cover rendered the highway impassable.

The parties are correct that “obstruction” as it is used in § 13a.116 is an undefined term.   Therefore, the court must determine the meaning of an undefined statutory term.  “In the absence of a statutory definition, we turn to General Statutes § 1–1(a) ․” Stone–Krete Construction, Inc. v. Eder, 280 Conn. 672, 677, 911 A.2d 300 (2006).  General Statutes § 1–1(a) provides in relevant part:  “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language ․” “To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term.”  (Internal quotation marks omitted.)   Stone–Krete Construction, Inc. v. Eder, supra, 678.

Merriam–Webster's Collegiate Dictionary (11th ed.2003) defines the word “obstruction” as:  “1 a:  the state of being obstructed:  a condition of being clogged or blocked;  b:  an act of obstructing. 2:  something that obstructs.”   Merriam–Webster's online version defines “obstruction” as:  “something that blocks something else and makes it difficult for things to move through;  the condition of being blocked so that things cannot move through easily;  the act of making it difficult for something to happen or move forward.”   The American Heritage College Dictionary defines “obstruction” as:  “1. One that gets in the way;  an obstacle. 2. An act or instance of impeding or obstructing.”   While these definitions vary slightly from one another, the picture is far from that which the defendant would paint.   None of these definitions come close to describing an “obstruction” as “something that renders impassable.”   Instead, the definitions use words like “clogged” and “blocked,” and phrases like “things cannot move through easily” and “the act or instance of impeding.”   This language supports the plaintiff's view that an “obstacle” is something that impedes, interferes with, or serves as an obstacle to travel.

The definitions in legal dictionaries likewise support the plaintiff's view.   Black's defines “obstruction” as “1. Something that impedes or hinders, as in a street, river, or design;  an obstacle. 2. The act of impeding or hindering something;  interference.”   Black's Law Dictionary 1183 (9th ed.2009).2  Ballentine's defines “obstruction” as:  “A blocking of passage, such as an object on or near a railroad track.   An impediment.”   Ballentine's Law Dictionary 878 (3d ed.1969).   Further, and more pointedly, Ballentine's defines “obstructing highway” as:  “Impeding, delaying, or obstructing traffic ․ Impeding, embarrassing, or opposing the passage along and over a street or highway, but not necessarily to such an extent as to stop travel. ”  (Citation omitted;  emphasis added.)   Ballentine's Law Dictionary 878 (3d ed.1969).   As with the dictionary definitions quoted in the preceding paragraph, the definitions in the legal dictionaries do not comport with the defendant's proposed definition.   Thus, the “commonly approved usage of [the] word”;  Stone–Krete Construction, Inc. v. Eder, supra, 280 Conn. 678.;   shows that an “obstruction” is something far less than the impassable blockade advanced by the defendant.

Connecticut appellate precedent dealing with this issue is nonexistent.   Both parties rely on the case DeLeo v. Orlando, 29 Conn.Sup. 107, 273 A.2d 725 (1971), to support their respective proposed definitions.   The plaintiff in DeLeo sustained injuries in a motor vehicle collision allegedly caused by a malfunctioning traffic light.   The plaintiff filed an action against the city of Norwalk, alleging that the malfunctioning traffic light constituted a defect under the Highway Defect Statute.   The DeLeo court quoted the earlier decision of Hewison v. New Haven, 34 Conn. 136, 143 (1867), which is the landmark case in Connecticut defining the term “defect.”   The DeLeo court noted that the definition supplied in Hewison “uses the words ‘obstruct’ and ‘hinder’ “;  DeLeo v. Orlando, supra, 29 Conn.Sup. 109;  to define the term “defect.”   The court then defined the term “obstruct,” quoting from Webster's Third New International Dictionary, as:  “to block up ․ or close up:  place an obstacle or fill with obstacles or impediments to passing.”   (Internal quotation marks omitted.)  DeLeo v. Orlando, 29 Conn.Sup. 109.   In consideration of this definition, the court ruled that “the malfunctioning traffic light [was] a defect within the scope of [the Highway Defect Statute].”  Id., 110.

DeLeo is distinguishable.   The dispute in DeLeo was over the meaning of the term “defect,” not “obstruction.”   The jurisprudence concerning the meaning of “defect” under § 13a–144 is well documented.   As stated in the preceding paragraph, the term was first defined in Hewison v. New Haven, supra, 34 Conn. 142, where the court stated:  “[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, would generally constitute a defect in the highway.”   The court continued:  “[o]n the other hand, those objects which have no necessary connection with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective.”   Id., 143.   In the roughly 150 years since Hewison was decided, a myriad of decisions have further fleshed out the meaning of the term “defect.”   See, e.g., Wadsworth v. Middletown, 94 Conn. 435, 438–39, 109 A. 246 (1920) (holding shade trees not defects unless and until they interfere with or obstruct public travel, or their removal is required for use of highway);  McIntosh v. Sullivan, supra, 274 Conn. 285 (holding objects that fall into roadway are not defects unless and until they actually fall into roadway, they actually obstruct traffic, and commissioner has reasonable notice of object);  Stotler v. Dept. of Transportation, 142 Conn.App. 826, 834, 70 A.3d 114 (2013) (stating commissioner's obligation to remedy defects does not sound in general negligence, but is instead an obligation to act reasonably to remedy defects of which commissioner has actual or constructive notice).   None of these cases define the term “obstruction” for purposes of § 13a–116, but instead deal with the issue of what is a highway “defect.”  DeLeo is simply one case in a litany of cases dealing with this separate issue.   Because DeLeo involved a different issue and defined a different term, it is distinguishable and unpersuasive.

More instructive is judicial precedent from sister states that have considered the term “obstruction” in the context of actions involving alleged highway defects.   First, in the case Boston & Maine R.R. v. Middlesex, 239 Mass. 127, 137, 131 N.E. 283 (1921), which involved a dispute between a railroad company and a board of county commissioners over a bridge maintained by the railroad that allegedly obstructed a roadway, the Massachusetts Supreme Judicial Court noted and rejected one of the railroad's arguments:  “[t]he petitioner further contends that the word ‘obstruct’ ․ must be taken to mean ‘to wholly block up’ and not to mean ‘to impede, hinder or retard a person or thing in motion.’   We ․ are not convinced by the argument of the petitioner that the natural and logical meaning of that word is ‘to wholly block up.’   If such were the true construction there would be no relief by statute for any impediment of the way which did not wholly obstruct the way ․” Second, in a case involving injuries sustained due to a collapsed bridge, the Supreme Court of Nebraska held that “[a]n obstruction, in the sense here used, includes anything which will interfere with the public's reasonable use of the highway easement.”  Shupe v. Antelope County, 157 Neb. 374, 377, 59 N.W.2d 710 (1953).   Third, in the Ohio case of Ashdown v. Tresise, 26 Ohio App. 575, 585, 160 N.E. 502 (1927), the court stated the following:  “[a]n obstruction is a blocking up;  filling with obstacles or impediments;  an impeding, embarrassing or opposing the passage along and over the street, and, to constitute it such, it need not be such as to stop travel.”  (Emphasis added;  internal quotation marks omitted.)   Finally, in the California case of Frates v. Ghirardi, 48 Cal.App.2d 596, 600, 120 P.2d 82 (1942), the court held that whether a tow car in a highway was an “obstruction” within the meaning of the relevant statute was “a question for the jury ․”

The plain meaning of the term “obstruction” as established by the above quoted dictionary definitions, coupled with judicial authority from other jurisdictions, compels the court to reject the defendant's proposed definition.   By enacting § 13a–116, the legislature intended to provide a remedy for motorists injured by virtue of obstructions in highway construction zones.   If the court were to adopt the defendant's definition, this remedy would be rendered ineffectual, which the legislature could not have intended.   See Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d 759 (2011) (“[s]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant” [Internal quotation marks omitted] ).   In other words, and as stated in Boston & Maine R.R. v. Middlesex, if the court were to adopt the defendant's definition, “there would be no relief by statute for any impediment of the way which did not wholly obstruct the way ․” Boston & Maine R.R. v. Middlesex, supra, 239 Mass. 137.   This could not have been the legislature's intention.

It is true, as the defendant points out, that “[t]he [state highway defect statute] ․ is to be strictly construed in favor of the state.”  (Internal quotation marks omitted.)  Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).   This rule of favorable construction was described as follows:  “[s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed ․ Where there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity ․ The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication.”  Dept. of Public Works v. ECAP Construction Co., 250 Conn. 553, 558–59, 737 A.2d 398 (1999).   Thus, where the legislature intends to limit sovereign immunity, it uses clear, express language.   Here, the legislature expressly authorizes victims of highway defects to sue, notwithstanding adequate signage, when there is an “opening or obstruction” in the road.   Further, the necessary implication of the statute supports the plaintiff's definition.   Defining “obstruction” as something that renders a road impassable would effectively foreclose plaintiffs from pursuing a statutorily provided remedy unless there is some barrier great enough to block the entire roadway.   This definition would yield the absurd result of practically swallowing the remedy and would disrupt the reasonable expectations of people relying on the plain language of the term “obstruction.”   See State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010) (“it is axiomatic that those who promulgate statutes ․ do not intend to promulgate statutes ․ that lead to absurd consequences or bizarre results” [internal quotation marks omitted] ).   Accordingly, the court rejects the defendant's proposed definition, notwithstanding the favorable construction afforded the state.   Instead, the court accepts the plaintiff's definition.   For purposes of § 13a–116, an “obstruction” is anything in the road that impedes or serves as an obstacle to highway travel.

Having defined the term, there is an issue of material fact in the present case.   Specifically, the issue is whether the manhole cover was an obstruction to the plaintiff's highway travel.   The plaintiff submitted photographs of the situs of the accident, which depict the manhole cover on which the plaintiff was allegedly injured.   See Pl.'s Ex. A. The manhole cover is clearly raised several inches above the ground.   The asphalt fill around the cover, which is also raised above ground level, extends several feet in each direction.   In total, the raised manhole cover and asphalt cover up a very large portion of the lane of travel.   The plaintiff also submitted the report of the Meriden Police officer responding to the plaintiff's accident.   See Pl.'s Ex. C. The officer reported that he discovered a disabled vehicle at the scene.   The tire of the vehicle was flat “due to hitting a raised manhole cover ․” See Pl.'s Ex. C. Based on this evidence, a jury could find that, due to its size, the manhole cover obstructed and impeded travel in the lane.   The jury could also find that the manhole cover's capacity to cause flat tires obstructs travel in the lane.   Conversely, the jury could find that the manhole cover was not an obstruction to travel at all.   Ultimately, this is an issue of fact for the jury, and not the court, to decide.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Frechette, J.

FOOTNOTES

FN1. Section 13a–116 provides in relevant part:  “On any road or bridge maintained by the state where repairs or construction are under way or on any road or bridge being constructed or reconstructed under supervision of the commissioner, the display of reflectorized signs ․ shall be deemed adequate warning, provided there are no openings or obstructions within the traveled portion of the road or adjacent thereto.”.  FN1. Section 13a–116 provides in relevant part:  “On any road or bridge maintained by the state where repairs or construction are under way or on any road or bridge being constructed or reconstructed under supervision of the commissioner, the display of reflectorized signs ․ shall be deemed adequate warning, provided there are no openings or obstructions within the traveled portion of the road or adjacent thereto.”

FN2. The defendant cites the definition of “obstruction” contained in the sixth edition of Black's Law Dictionary.   The defendant points out that the definition of “obstruction” in the sixth edition references the term “obstruct,” which is defined in the sixth edition as follows:  “to block up;  to interpose obstacles;  to render impassable;  to fill with barriers or impediments, as to obstruct a road or way.”  (Emphasis added.)   The court finds the more recent and updated definition of the term “obstruction” in Black's ninth edition to be the more relevant definition.   The definition provided in the ninth edition, cited above, was initially published in 2009, while the sixth edition was initially published in 1990.   The ninth edition is therefore more current and persuasive, and the court will rely on it rather than the sixth..  FN2. The defendant cites the definition of “obstruction” contained in the sixth edition of Black's Law Dictionary.   The defendant points out that the definition of “obstruction” in the sixth edition references the term “obstruct,” which is defined in the sixth edition as follows:  “to block up;  to interpose obstacles;  to render impassable;  to fill with barriers or impediments, as to obstruct a road or way.”  (Emphasis added.)   The court finds the more recent and updated definition of the term “obstruction” in Black's ninth edition to be the more relevant definition.   The definition provided in the ninth edition, cited above, was initially published in 2009, while the sixth edition was initially published in 1990.   The ninth edition is therefore more current and persuasive, and the court will rely on it rather than the sixth.

Frechette, Matthew E., J.

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