Opinion
No. CV 06-5007701 S
August 10, 2009
MEMORANDUM OF DECISION ON TOWN'S MOTION FOR SUMMARY JUDGMENT
(1)
In this case the town has moved for summary judgment. The claim is based on an alleged violation of § 13a-149 of the general statutes and the motion argues that the claim does not fall within the statute.
The underlying facts are not in dispute. The incident giving rise to this suit occurred on July 28, 2005. On that date the plaintiff was riding his bicycle, coming to a stop at the intersection of Whitney Avenue and Putnam Avenue. At the intersection there is a crosswalk signal pole. The plaintiff in his brief states that the signal pole is located on a public sidewalk. The defendant does not appear to dispute this. While waiting for a "walk" signal to appear the plaintiff alleges he leaned against the pole and the pole gave way due to loose anchoring which caused the plaintiff to fall resulting in injury. The plaintiff claims and the defendant concedes that the roads previously mentioned are within the geographical bounds of the town and the subject intersection is under the care, control and maintenance of the defendant town.
As noted the basis of the motion rests on the defendant's position that the plaintiff's claim does not fall within the purview of § 13a-149 while the plaintiff argues that his claim does fall within the purview of the statute.
(2)
The standards to be applied in deciding a motion for summary judgment are well-known Such a motion should not be granted if a disputed issue of material fact is presented because a party has a constitutional right to a trial. If no material issue of material fact exists to prevent the granting of the motion it should be granted to forestall the burden and expense of litigation.
(3)
To set the discussion in context it should be noted that it is clear that a municipality is immune from liability unless the legislature enacts a statute abrogating immunity. The Legislature did that in enacting § 52-557n which states that "no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to § 13a-149." That statute is thus the exclusive remedy given the allegations of the complaint and the parties dispute whether the claims are covered by the statute.
(a)
In Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201 (1991) the court said that "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 (§ 13a-149) is a question of law which may be determined on a motion to strike," citing Older v. Old Lyme, 124 Conn. 283, 285 (1938). This is a motion for summary judgment but none of the material facts are in dispute and Larobina v. McDonald, 274 Conn. 394 (2005) indicates such a motion can be used to test the legal sufficiency of the allegations of a complaint. Horton and Knox in Vol. 1 of the Connecticut Practice Series commenting on Practice Book § 17-44 say that our court "has clarified that summary judgment is an appropriate means of testing the legal sufficiency of the complaint when the defendant shows that the plaintiff could not establish a cause of action by repleading," ( Id., page 401.) Section 13a-149 is the exclusive remedy available to the plaintiff and as noted no material facts are an issue nor has the plaintiff suggested the existence of any material facts not plead which might advance his argument that his claim lies within the purview of § 13a-149. The plaintiff does not seem to object to summary judgment procedure here but just argues the facts alleged indicate a § 13a-149 claim is viable.
Furthermore a Larobina analysis is probably not necessary. The plaintiff submitted an affidavit in which he adopts the allegations of the complaint and Court Exhibit 1, introduced at argument, shows the location of the crosswalk signal pole in relation to the street and its placement on the sidewalk.
(b)
In Novicki v. New Haven, 47 Conn.App. 734, 740 (1998) the court said "the word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . the town sidewalk is meant to apply to those areas the public uses for travel . . . Furthermore, 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." Moving from the general to the particular, there are several cases which in the court's opinion set forth the law as to the circumstances in which a highway defect can be found and what a highway defect is under § 13a-149 and the ambit of the concept.
In discussing these cases it is helpful, at least to the court, to discuss the factual basis for the claim of highway defect made in those cases. In Ferreira v. Pringle, 255 Conn. 330 (2001) it was alleged that "the plaintiff was a passenger on a public bus in the town of East Lyme . . . As he disembarked the bus onto a grassy embankment at the shoulder of North Bridebrook Road, he tripped on the remnant of a severed steel signpost embedded in the ground and fell backward into the road where he was run over by the bus." Id., page 332. Referring to prior case law and specifically to the early case of Hewison v. New Haven, 34 Conn. 136, 142 (1867), the court said that although the defect in the case before it "was not located in the paved portion of the road we repeatedly have determined that the purview of § 13a-149 is not limited solely to defects that are located in the road," Id., page 344 (emphasis by court). Thus the fact that here the crosswalk signal pole was located on the sidewalk but not in a portion that would be expected to be used for travel — you have to walk around it — does not preclude the finding of a highway defect. Here the crosswalk signal pole is separated by a few feet from a light pole and travelers, going in the same direction as the plaintiff, would walk through that space to enter the crosswalk in the street. Travelers walking perpendicular to that line of travel or a right angle to it would normally walk to the left of the light pole and to the right of the crosswalk signal pole on the main portion of the sidewalk.
The foregoing just sets the predicate for the discussion as to whether the fact that this crosswalk signal pole, located where it is and due to its anchoring, could tip off its moorings, constitutes a highway defect. What is a highway defect then? Our case law has adopted the definition set forth in Sanzone v. Board of Police Commissioners, 219 Conn. 197, 202-03 (1991), see Kozlowski v. Commissioner, 274 Conn. 497, 502-03 (2005) which quoted Sanzone to the effect that:
"We have held that 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 . . ." Hewison v. New Haven, 34 Conn. 136, 142 (1867); see Hickey v. Newtown, 150 Conn. 514, 518, 192 A.2d 199 (1963). In Hewison, we distinguished such highway defects from 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 . . ." Hewison v. New Haven, supra, 143. We explored this distinction more recently in Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979). In that case, rejecting the plaintiff's assertion that an overhanging tree limb, which subsequently fell on a traveling automobile, could be a "highway defect," we explained: "[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." Id., 271."
To complete the picture of the law as it applies to this case one has to examine Comba case more closely. That was a falling tree limb case and the court struck the § 13a-149 claim saying: "The condition alleged in this case did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury," 177 Conn. at page 271. Comba cites Hewison at 34 Conn. page 143 for this proposition. There a cloth was suspended over a city street. It was at a height of 12 feet above the street and was secured by iron weights. A strong wind caused all this to fall striking the poor plaintiff in the head from which injuries he later died. In rejecting a highway defect claim the court said:
On 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. For example, trees or walls of a building standing beside the road, and liable to fall by reason of age and decay, or from other cause; or any object suspended over the highway so high as to be entirely out of the way of travelers; these, and like objects, may be more or less dangerous, but they do not obstruct travel. A person may be injured by them, but the use of the way, as such, does not necessarily conduce to the injury; he will be quite as likely to be injured while standing on the way, as while in motion; quite as likely to be injured while off the way as while on it. The tree or other object may or may not fall; it may or may not fall upon the highway; if it does, it may or may not fall upon a person traveling thereon; such a coincidence may possibly occur; but it is certainly not to be expected as a probable event.
The court will try to apply the foregoing review of the case law to the issue raised by this motion.
(c)
This case has been difficult for the court to decide and the cases do not present specific guidelines for the situation presented by these peculiar facts. The court could find no cases in our state at any level presenting a similar fact pattern nor could it discover relevant cases from other jurisdictions, discussed in 40 Am.Jur.2d "Highways, Streets, Bridges" § 370 et seq., § 450 et seq. On Loislaw the court could find only one relevant case in a search of all state decisions. The case is Rufner v. Traverse City, 295 NW 620 (Michigan Supreme Court, 1941). In that tragic case a youngster was walking near the intersection of two streets and "while he was on the crosswalk, a street light pole owned by the city and located on the southwest corner of the intersection within the highway limits in the grass placed between the street curb and the sidewalk fell and struck" the boy who later died from his injuries, Id., page 621. Later investigation indicated that the pole had become rotted near the ground level which caused it to topple over and there were no records the city had ever inspected it, Id. The court noted state statute made cities liable for defects in its streets; they have a duty to keep streets in reasonable repair, Id., page 622. In finding liability was appropriate the court held . . . "the pole was located between the sidewalk and the curb. It had not been inspected for a number of years, if ever. It stood there apparently safe and useful, but in fact posed a menace and a danger to anyone passing that way. Under such circumstances the city was liable for any danger caused by its fall." Id., page 623.
The court is, of course, not obligated to follow Michigan law but the case seems in some measure to apply a similar test as that developed by our courts at least as reflected in the menace to travelers category. There are differences between that case and this one. There the pole fell of its own volition on a user of the highway.
Furthermore this crosswalk signal pole only moved when the plaintiff leaned against it. No evidence was offered through expert testimony or otherwise that it could have fallen over by the mere force of wind or without any pressure being put on it.
On the other hand the picture of the intersection introduced into evidence shows the crosswalk signal pole was near the edge of the sidewalk and it is opposite a light pole. These two objects are separated by only a few feet and users of the sidewalk are in effect invited to walk between them because the marked crosswalk on the street directly aligns with the space between the light pole and the subject crosswalk signal pole. True the plaintiff leaned against the crosswalk signal but given the just mentioned spacing factors it is not to be unexpected that pedestrians or bike riders would come in contact with the crosswalk signal pole whose condition would cause it to move and thus endanger travelers.
The court will not grant the motion for summary judgment, however, it would like to make two observations. The net effect of its decision is to hold that based on the allegations of the complaint and the court exhibit introduced at the time of oral argument, it cannot hold that the crosswalk signal was not a highway defect as a matter of law. The court does not mean to rule, nor can it, that based on its present ruling the defendant town cannot raise new or unaddressed factual allegations that might lead to a finding that the crosswalk signal was not a highway defect. In such a case should that be a question for the jury?
All of this is especially so in light of the unusual facts of this case. There is nothing about a crosswalk signal post as such or given the location of this crosswalk signal here that would make it, without more, a highway defect. On the present state of the allegations the court has held that it was a highway defect because of its movement. In light of this certain language in Comba v. Ridgefield, 177 Conn. page 271 must be examined. Referring to an older case, Dyer v. Danbury, 85 Conn. 128 (1911) the court said: "In Dyer, however this court reasoned that if there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. Udkin v. New Haven, 80 Conn. 291, 297 . . . (1907)." This language was referred to in Sanzone, 219 Conn. 202, and McIntosh v. Sullivan, 274 Conn. 261, 269 (2005). In effect the Michigan case Rufner v. Traverse City, 295 NW at page 623 implied the same view by noting the pole that fell and injured the young boy had not been inspected for years. In other words, if a condition cannot be considered a highway defect unless there is a lack of reasonable inspection and repair, a highway defect cannot be found if unreasonableness in these respects cannot be shown. Neither side addressed this issue and the court by its decision does not mean to preclude consideration of facts that might bear on it.
In any event the court, with the understandings just referred to, denies the motion for summary judgment.