Opinion
No. CV 01 0064944
August 20, 2003
MEMORANDUM OF DECISION, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( #117)
I FACTS
On February 9, 2001, the plaintiff, Holly Backes, filed a four-count complaint against the defendants, Allstates Asphalt, Inc. (Allstates) and the town of Pomfret, Connecticut (Pomfret), seeking damages for personal injuries she sustained after her car veered off the road and struck a tree in Pomfret, Connecticut on July 12, 2000. Counts one, three and four are brought against Allstates and allege negligence, nuisance and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., respectively. Count two, brought against Pomfret, alleges violation of the defective highway statute pursuant to General Statutes § 13a-149.
General Statutes § 13a-149 states in relevant part: "Any 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."
According to the complaint, on July 12, 2000, Allstates had been engaged in resurfacing approximately two miles of Freedley Road in Pomfret. The complaint alleges that later that evening, at approximately 11:00 p.m., Backes was driving her car on Freedley Road in the area that Allstates had resurfaced when she suddenly encountered a dramatically altered road surface, containing loose stone and other debris, and this caused her to lose control of the car. As a result, she suffered severe personal injuries.
On December 27, 2002, Allstates filed a motion for summary judgment as to counts one, three and four on the ground that Backes has failed to provide any evidence establishing Allstates' culpability. In support of its motion for summary judgment, Allstates submits a memorandum of law and documentary evidence including a deposition transcript of Fred Sirrine, a road foreman employed by Pomfret, and a police accident report. On February 26, 2003, Backes filed an objection to Allstates' motion. In support of her motion, Backes submits a supporting memorandmn and documentary evidence including the bid contract between Allstates and Pomfret, an affidavit of William Fritz, an accident reconstructionist hired by Backes, photographs of the accident site, and statements of witnesses, Todd Wakefield, a volunteer firefighter who responded to the accident, and Todd Morin, Backes' fiancé. On June 13, 2003, Allstates filed a reply to Backes' objection with additional supporting evidence including a portion of a deposition of Fritz, and a portion of a deposition of Morin.
II LAW Negligence
With respect to Backes' count one negligence cause of action, Allstates moves for summary judgment on two independent grounds. First, Allstates argues that it owed no duty to Backes. Alternatively, Allstates argues that Backes has failed to identify any work defects that establish that Allstates caused her accident.
As to the issue of duty, without pointing to specific evidence, Allstates argues that it had no duty to perform any tasks related to erecting warning signs, sweeping away loose stone, or selecting the area to be paved, as this was responsibility of Pomfret. Allstates further argues that once Pomfret's road foreman, Fred Sirrine, approved Allstates' job, it was released from any duty it may have had for maintaining the safety of the road. In response, Backes argues that Allstates had an ongoing contractual duty to maintain the safety of the roadway both during and after the paving operations were conducted. According to Backes, the point and time that this obligation ceased presents an issue of material fact. As such, Backes argues that summary judgment is inappropriate. Backes cites, inter alia, the contract between Allstates and Pomfret, as well as the deposition of Fred Sirrine, the town's road foreman.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Citations omitted; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998).
Based on the evidence proffered by the parties, it is uncontested that Allstates undertook the duty of maintaining the safety of the roadway during its paving operations. For example, Sirrine testified in his deposition that during the paving operations, Allstates posted six warning signs, visible on Freedley road, at 6:30 am on July 12, 2000, and removed the signs at approximately 2:00 pm on that day. See Allstates' Exhibit A, Deposition of Fred Sirrine, pp. 27-29. Additionally, Allstates parked pickup trucks with flashing orange lights at each end of the resurfacing area during this time period. See Allstates' Exhibit A, Deposition of Fred Sirrine, pp. 30. The question, therefore, is the scope of Allstates' duty. Specifically, a question remains as to whether Allstates had an ongoing duty to maintain the safety of the roadway after 2:00 pm that was breached when it removed the warning signs.
In support of this ongoing duty argument, Backes relies on the affidavit of her accident reconstructionist, William Fritz. According to the affidavit, Fritz depends, inter alia, on the Regulations of Connecticut State Agencies to conclude that Allstates breached its duty to maintain temporary traffic controls after completing its work. Backes also points to the deposition of Fred Sirrine as evidence that Allstates was involved in the post paving inspection of the road and the decision not to post warning signs.
For example, Section 14-298-801 (b) of the Regulations of Connecticut State Agencies provides: "Traffic control devices shall be installed at the inception of construction or maintenance operations and shall be properly maintained and/or operated during the time such special conditions exist. They shall remain in place only as long as they are needed and shall be removed immediately thereafter. Where operations are performed in stages, there shall be in place only those devices that apply to the conditions present."
For example, Fred Sirrine testified to the following during his deposition of November 7, 2002:
Q. You mentioned that a guy from Allstates was with you when you inspected the road after the oiling was done.
A. Right
Q. On Freedley Road. Was that a normal process? Would somebody from Allstates go with you?
A. Oh yes. Not only that, but the crew, the crew chief that's there, that does the work, he goes over the road with me too.
Q. Okay. And who was the crew chief with you?
A. I don't remember his first name, but his last name was Bucket.
Q. Okay. And he inspected the road with you?
A. Yes.
Q. After the work was done?
A. Yep.
Q. Okay. And he — I'm sorry. Was he present when his men picked up the signs that they had utilized during the construction process?
A. Oh yes. Right.
Q. And left without any other signs being put up?
A. Right.
Q. Okay. And did he make any recommendations to you that the town should put up any signs?
A. No.
(Allstates' Exh. A, pp. 52-53)
While "[t]he existence of a duty is generally a question of law that is subject to summary judgment . . . when the question of duty includes elements of both fact and law, summary judgment is inappropriate . . . That is to say, the existence of the duty or its absence often hinges on what the facts are, and if in dispute, a summary judgment decision ought not rest on the unsettled foundation." McGuire v. Derby Savings Bank, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 97 0056878 (April 24, 2002, Nadeau, J.). Based on the evidence, the court finds that Backes has demonstrated the existence of a genuine issue of material fact with respect to the issue of the scope of Allstates' duty to maintain the safety of the roadway. Because of the factual issues in dispute, summary judgment is denied on this ground. See, e.g., Linsky v. Sikorsky Aircraft Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 03680455 (October 9, 2002, Gallagher J.) (denying summary judgment on the ground that questions of fact relating to duty, control, and causation of the plaintiff's injury are undetermined).
Alternatively in the negligence count Allstates moves for summary judgment on the ground that Backes has failed to identify any work defects that establish that the defendant caused her accident. Specifically, Allstates argues that evidence of loose stone in the road is insufficient to establish negligence. Allstates points to the deposition of Fritz and the statement of Wakefield for the proposition that loose stone in the roadway is a normal condition of this type of road maintenance and that sweeping is normally not conducted until several days after the resurfacing. Allstates further argues that there is no evidence that piles of loose stone were actually present on the roadway, pointing to the deposition of Morin and the statement of Wakefield.
"Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances. Generally, the question whether a highway is defective is one of fact, depending on a great variety of circumstances . . ." Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). Further, a highway defect does not have to be on the actual traveled portion of the highway. See Baker v. Ives, 162 Conn. 295, 299, 294 A.2d 290 (1972).
The court finds that issues of material fact exist as to whether the stone in the road constitutes a defect and whether Backes encountered piles of stone in the road at the time the accident occurred. According to Morin's statement and deposition, for example, there were piles of loose stone in the road at the accident scene. See Plaintiff's Exhibit 9 and Allstates' Supplemental Exhibit B. According to Wakefield's statement, for example, "[t]here were piles of stone in the in the center of the road and on the edges which were `washboard' which is a rippling of loose stone . . ." See Plaintiff's Exhibit 9. Accordingly, Allstates' motion for summary judgment is denied on this ground.
Nuisance
With respect to the nuisance count, Allstates moves for summary judgment on the ground that Allstates had no control over the allegedly defective road at the time of the accident. Allstates argues that the evidence proves that Pomfret maintained exclusive control over the roadway and, therefore, Backes' nuisance claim must fail as a matter of law. Allstates cites State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184-86, 527 A.2d 688 (1987), in support of this position.
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of Backes' injuries and damages." (Internal quotation marks omitted.) CT Page 9514 Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "Liability for damage caused by [a nuisance] turns upon whether the defendant was in control, either through ownership or otherwise . . . Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question." (Citations omitted; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 185.
In State v. Tippetts, the plaintiff, the state of Connecticut, brought, inter alia, a nuisance action against the defendants, contractors who designed and supervised the construction of a bridge in 1959, seeking damages for expenses it allegedly incurred as a result of the collapse of the bridge in 1983. See id., 177. The Supreme Court affirmed the trial court's order striking the nuisance claim against the defendants at the conclusion of testimony. As the court in State v. Tippetts explained, "[the] terms of the contract [between the state and the contractors] permitted the (state] to maintain strict control over the planning and construction of the bridge, while relinquishing only limited responsibility for the project's execution to the [contractors] . . . The [state's] delegation of its authority over the bridge project was temporally as well as functionally limited. The contract established a strict timetable for the [contractors] to complete their contractual duties to the [state], and provided for penalties in the event of delays. Once the [state] had inspected the completed bridge and, in 1959, authorized its acceptance into the state highway system, the [contractor's] involvement in the project ended. Thenceforth, the maintenance and operation of the bridge was the exclusive responsibility of the [state]." Id., 186-87.
Allstates' reliance on State v. Tippetts is misplaced. With respect to the issue of control, the question of whether Allstates maintained control over the roadway sufficient to subject it to nuisance liability is a question that should not be resolved on summary judgment in this case. See, e.g., Linsky v. Sikorsky Aircraft Corp., supra, Docket No. CV 99 03680455. Unlike State v. Tippetts, where the injury from the alleged unabated nuisance occurred some twenty-five years after the contractor completed construction, the evidence in this case reveals that the accident allegedly occurred mere hours after Allstates left the roadway.
Moreover, summary judgment is inappropriate where there is a disputed issue of fact as to whether a contractor, through its positive act, created a dangerous condition that may form the basis for public nuisance. See Gambardella v. Kaoud, 38 Conn. App. 355, 359, 660 A.2d 877 (1995) ("[T]he plaintiffs alleged, inter alia, that their injuries were caused by the defendants `in that said defendants caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof . . .' This allegation is of a positive act by the defendants, which, if proved at trial, could form the basis for the defendants' liability in negligence or public nuisance."); see also Hanlon v. Waterbury, 108 Conn. 197, 200, 142 A. 681 (1928) ("If . . . a contractor or any other person by his act made a dangerous hole in a sidewalk he would have committed a nuisance for which he would be responsible in damages for injury resulting from his act."); see, e.g., Boice v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 00 0504976 (February 27, 2003, Bryant, J.). Based on the evidence proffered by the parties, an issue of material fact remains as to whether Allstates maintained control over the roadway during its paving operations and, through its own positive act, created the alleged nuisance, namely, piles of stone in the road. Accordingly, Allstates' motion for summary judgment on the nuisance count is denied.
CUTPA
With respect to the CUTPA count, Allstates moves for summary judgment on the ground that no commercial relationship existed between Backes and Allstates. Specifically, Allstates argues that Backes did not request Allstates to perform any paving activities, she did not negotiate with Allstates, she did not contract with Allstates, she did not pay Allstates, and she did not inspect Allstates' work. As such, Allstates argues that Backes' CUTPA claim must fail as a matter of law:
At the outset, the court notes that Allstates is essentially challenging the legal sufficiency of Backes' CUTPA count. While summary judgment may be granted on the basis of legal insufficiency of the complaint; see Haynes v. Yale New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), a party that raises legal insufficiency by way of a motion for summary judgment "assumes the burden of proving what the material facts are with regard to the sufficiency of the complaint." Arnone v. Connecticut Light Power, Superior Court, judicial district of Waterbury, Docket No. X01 CV 98 0168276 (March 22, 2002, Hodgson, J.) ( 32 Conn.L.Rptr. 58, 60).
"[A] consumer relationship is not a prerequisite to having standing to assert a CUTPA violation." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002). "[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]." (Internal quotation marks omitted.) Id., 644. Proof that a party acted negligently, however, is not sufficient to establish that the party's conduct was immoral, unethical, or unscrupulous unless the party claiming the act was violated also proved that by a preponderance of the evidence that the negligence caused substantial unjustified injury to consumers, competitors, or other business people. See Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 784, 720 A.2d 242 (1998) (affirming these elements of the trial court's jury instruction with respect to negligence and CUTPA). While ordinarily, all three criteria do not need to be satisfied to support a finding of a violation of CUTPA, "a number of Superior Court decisions have found that negligence is enough to support a CUTPA claim [only] when all three criteria of the `cigarette rule' are satisfied." Schur v. David Ogilvy and Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175461 (April 26, 2000, D'Andrea, J.) ( 27 Conn.L.Rptr. 103, 104); see also Farrah v. Acker, Superior Court, judicial district of Docket No. CV 95 0555890 (May 27, 1998, Lager, J.) ( 22 Conn.L.Rptr. 39).
The crux of Backes' count four CUTPA claim is that Allstates' negligent acts, arising out of its resurfacing job, constitute unfair trade practices. "[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002). Backes has neither alleged nor proffered any evidence to demonstrate that Allstates' practices were immoral, unethical, oppressive, or unscrupulous, in violation of public policy. In viewing the evidence in the light most favorable to Backes, the court finds that there is no evidentiary foundation to demonstrate the existence of a genuine issue of material fact with respect to Backes' CUTPA claim. Accordingly, Allstates' motion for summary judgment as to this count is granted.
CONCLUSION
Allstates' motion for summary judgment as to Backes' count one negligence cause of action and count three nuisance cause of action are denied. Allstates' motion for summary judgment as to Backes' count four CUTPA cause of action is granted.