Opinion
No. CV09 6002601
August 23, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The defendant, Aquarion Company has moved for summary judgment on the second count of the plaintiff's complaint alleging negligence. The complaint is dated January 12, 2009 and bears a return date of February 24, 2009. The Second Count is the only count alleged against Aquarion. Aquarion maintains that no genuine issues of material facts exist because pursuant to General Statutes § 16-1 et seq. and Regulations of the Public Utilities Commission, Aquarion was not in possession or control of, nor was it responsible for the maintenance and/or repair of an allegedly defective water meter pit. Therefore, Aquarion maintains it did not owe the plaintiff a duty of care and cannot be held liable for negligence. Aquarion also argues in the alternative that the plainitiff's negligence action is time-barred pursuant to General Statutes § 52-584.
The First Count is brought against the City of Bridgeport pursuant to the municipal highway defect statute, General Statutes § 13a-149.
The plaintiff seeks recovery for personal injuries, losses and damages allegedly sustained on March 29, 2007, as a result of a fall that occurred on a public sidewalk adjacent to Park Terrace and abutting property located at 104 Columbia Street, Bridgeport, Connecticut. The Second Count directed to Aquarion, sounding in negligence, alleges that Aquarion was responsible for the "maintenance and repairs of water service equipment and service connections in the City of Bridgeport, including but limited to, curb valves, water meters, water meter pits and water meter pit covers." The plaintiff further alleges that "he was caused to fall because of an insecure and unstable water meter pit cover in the sidewalk." The plaintiff was injured when a water meter pit that he stepped on gave way and broke apart beneath him. He then allegedly fell backward into a metal fence incurring injuries and aggravating a prior injury. At the time of his fall, the plaintiff alleges he was using due care for his own safety. The plaintiff alleges several ways in which he claims Aquarion was negligent and responsible for the plaintiff's fall and resulting personal injuries.
Aquarion denies it was responsible for the maintenance or repair of the water service equipment at issue in this case. It also has denied that the plaintiff was using due care. In its First Special Defense Aquarion pleads that according to Connecticut Department of Public Utility Control ("DPUC") Regulations § 16-11-65, the water meter pit and cover described by the plaintiff was owned and was to be maintained by the City of Bridgeport, the record owner of the property located at 104 Columbia Street on March 29, 2007. The Second Special Defense filed by Aquarion claims the plaintiff's action is time-barred by General Statutes § 52-584.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." CT Page 18705 Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 283 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
II Discussion A. General Statutes § 52-584
General Statutes § 52-584 reads as in relevant part:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Id.
Aquarion states that the City of Bridgeport has admitted that it took ownership of the property and demolished the building, thereon, in June 1997. The lot remained vacant until the City sold it on December 27, 2007, approximately nine months following the plaintiff's fall at the property. Aquarion has submitted a sworn affidavit relating that Aquarion has ceased servicing the property on February 6, 2002 and did not resume servicing the property until October 6, 2008. The plaintiff's complaint was filed in court in January 2009, nearly seven years after Aquarion had ceased providing service to the property on February 6, 2002. Therefore, Aquarion argues that the plaintiff's action against Aquarion alleging negligence "must have been brought within two years of his injury or within three years of the negligent act complained of. Aquarion argues that any alleged negligent act by Aquarion would have been more than three years before the plaintiff sustained his injuries. Under this reasoning, Aquarion's responsibilities pursuant to General Statutes § 52-584, would have expired on February 6, 2005, more than two years before the plaintiff was injured. The defendant, Aquarion, relies upon Johnson v. Town of North Branford, 64 Conn.App. 643, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).
General Statutes § 52-584 is the statute of limitations applicable in an action to recover damages for injury to the person or property caused by negligence . . . That statute imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action "within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ." The second provides that in no event shall a plaintiff bring an action "more than three years from the date of the act or omission complained of . . ." The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs.
(Citations omitted.) Id., 648. "Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission." Id.; see also Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 127 A.2d 814 (1956).
The plaintiff disagrees with Aquarion's reasoning, arguing that the law must hold Aquarion accountable because how is someone who falls on March 29, 2007 supposed to have constructive knowledge of the last time Aquarion serviced the meter pit, in order to sue Aquarion within two years of that date. The plaintiff disagrees that, as soon as, Aquarion stops servicing the water meter pit the statute of limitations begins to run. The plaintiff argues that it is Aquarion's decision when a water meter pit will be installed or removed. The issue of control cannot be determined at the "whim" of the defendant. It is, thus, illogical to allow Aquarion to unilaterally determine when it controls the pit and when it does not in order to escape the reach of the law. No one else services the water meter pits but Aquarion. If there was a problem with a water meter pit, a property owner would call Aquarion. If the water meter in the pit was not functioning at the time of the plaintiff's fall, as in this case, the owner would have no reason to call Aquarion, as the lot was vacant. The plaintiff maintains that Aquarion controlled the pit and the cover at the time of the fall, it just did not service it.
In Johnson v. Town of North Branford, supra, 64 Conn.App. 643, the plaintiffs, who had sought to recover for flood damage to their property that was allegedly caused by the defendant town's negligent installation of riprap in a swale on neighboring property, appealed to the Appellate Court from the judgment of the trial court which had rendered a directed verdict in favor of the town. The Appellate Court held that the riprap having been installed in 1970 and the first damage from drainage having occurred before 1981, the trial court properly determined that the action here, which was brought in 1994, was barred by the applicable statutes of limitation. Id., 649. The plaintiffs' common-law negligence and nuisance claims were required by statute (§ 52-584) to have been brought within three years of the installation of the riprap, Id.
Here, the negligent act complained of occurred in either 1969 or 1970, when the town filled the swale on the neighbor's property with riprap. The evidence further shows that the plaintiffs were aware of actionable harm in 1990, when they experienced severe flooding for the first time after they purchased the property.[fn 12] The plaintiffs did not commence this action, however, until July 1994, which is beyond the time period permitted by § 52-584. We conclude, therefore, that the court properly determined that the statute of limitations bars the plaintiffs' common-law claims.
Id.
The court finds that Johnson v. Town of North Branford, supra, 64 Conn.App. 643, is not applicable to the present case. The plaintiff has not alleged that the water meter pit was negligently installed by Aquarion on a prior date. Rather, the plaintiff has alleged that the insecure and unstable water meter pit cover had existed for an unreasonable period of time and Aquarion had taken no continuing measures to remedy or correct the situation. The plaintiff further alleges that in the exercise of reasonable care and inspection over the course of years Aquarion should of known of the condition of the water meter pit cover and should have remedied the situation. The court finds that for the purposes of summary judgment, the plaintiff's action was brought timely pursuant to General Statutes § 52-584.
B. DPUC Regulations and Negligence
The defendant next argues that pursuant to DPUC Regulations § 16-11-65, Aquarion neither owns nor is responsible for maintaining water pits and covers. Instead, ownership of the meter pit and cover, and the responsibility for maintaining the same, vests in the owner of the property that is serviced by the water service. Section 16-11-65(1) reads as follows:
(1) Meter installed out of doors shall be so located as to be accessible to the utility's distribution line for proper service connection and so far as practicable the location should be mutually acceptable to the customer and the utility. The meter shall be installed so as to be unaffected by climatic conditions and reasonably secure from injury. Meter pits shall be owned and maintained by the property owner.
General Statutes § 16-6b allows the DPUC to "adopt such regulations with respect to rates and charges, services, accounting practices, safety and the conduct of operations generally of public service companies . . ." Water companies, such as Aquarion, are public service companies. General Statutes § 16-1(4). DPUC Regulation § 16-11-62(4) provides: "the customer at his own expense shall furnish, install and own and maintain the necessary curb box and the service pipe from the curb stop to the place of consumption and shall keep them in good repair and in accordance with the reasonable requirements of the utility." DPUC Regulation § 16-11-65(1) provides: "Meter pits shall be owned and maintained by the property owner."
General Statutes § 16-6b reads as follows:
The department of Public Utility Control may, in accordance with chapter 54, adopt such regulations with respect to rates and charges, services, accounting practices, safety and the conduct of operations generally of public service companies subject to its jurisdiction as it deems reasonable and necessary. The department may, in accordance with chapter 54, adopt such regulations with respect to services, accounting practices, safety and the conduct of operations generally of electric suppliers subject to its jurisdiction as it deems reasonable and necessary. After consultation with the Secretary of the Office of Policy and Management, the department may also adopt regulations establishing standards for systems utilizing cogeneration technology and renewable fuel resources.
General Statutes § 16-1(a)(1), (4), and (10) (Definitions) read as follows:
(a) Terms used in this title and in chapters 244, 244a, 244b, 245, 245a and 245b shall be construed as follows, unless another meaning is expressed or is clearly apparent from the language or context:
(1) "Authority" means the Public Utilities Control Authority and "department" means the Department of Public Utility Control;
(4) "Public service company" includes electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, water and community antenna television companies and holders of a certificate of cable franchise authority, owning, leasing, maintaining, operating, managing or controlling plants or parts of plants or equipment, and all express companies having special privileges on railroads within this state, but shall not include telegraph company functions concerning intrastate money order service, towns, cities, boroughs, any municipal corporation or department thereof, whether separately incorporated or not, a private power producer, as defined in Section 16-243b, or an exempt wholesale generator, as defined in 15 USC 79z-5a;
(10) "Water company" includes every person owning, leasing, maintaining, operating, managing or controlling any pond, lake, reservoir, stream, well or distributing plant or system employed for the purpose of supplying water to fifty or more consumers. A water company does not include homeowners, condominium associations providing water only to their members, homeowners associations providing water to customers at least eighty per cent of whom are members of such associations, a municipal waterworks system established under chapter 102, a district, metropolitan district, municipal district or special services district established under chapter 105, chapter 105a or any other general statute or any public or special act which is authorized to supply water, or any other waterworks system owned, leased, maintained, operated, managed or controlled by any unit of local government under any general statute or any public or special act;
DPUC Regulation § 16-11-62(1), (2), (3) and (4) read as follows:
In the case of class 1 utilities:
(1) the utility shall furnish, install, own and maintain at its expense all new service connections, provided the costs of excavation, backfill, and removal and replacement of paving, walks, curbs, etc., necessarily incurred in respect to new services, shall be borne by the customer or other applicant for service;
(2) the utility shall furnish, install, own and maintain at its expense all replacements of service connections, including the cost of excavation, backfill and removal and replacement of paving, walks, curbs, etc., necessarily incurred in respect to each replacement;
(3) as used herein, service connection means the service pipe from the main to the curb stop, at or adjacent to the street line or the customer's property line and such other valves, fittings, etc., as the utility may require at or between the main and the curb stop, but does not include the curb box. All service connections shall include a curb stop;
(4) the customer at his own expense shall furnish, install, own and maintain the necessary curb box and the service pipe from the curb stop to the place of consumption and shall keep them in good repair and in accordance with reasonable requirements of the utility. A curb box shall be installed at each curb stop.
Section 16-11-65(1) provides:
(1) Meter installed out of doors shall be so located as to be accessible to the utility's distribution line for proper service connection and so far as practicable the location should be mutually acceptable to the customer and the utility. The meter shall be installed so as to be unaffected by climatic conditions and reasonably secure from injury. Meter pits shall be owned and maintained by the property owner.
Regulations of the Department of Public Utility Control have the force of statutes. Citrella v. United Illuminating Co., 158 Conn. 600, 608 (1969). "Regulations of Connecticut State Agencies . . . have the full force and effect of the law." Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 375 (2009).
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Citations omitted; internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 294-95, 933 A.2d 256 (2007).
General Statutes § 1-2z, the plain meaning rule, reads as follows:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The City of Bridgeport has admitted that the building on the property located at 96-104 Columbia Street, Bridgeport, Connecticut was condemned and demolished by the City on or about June 24, 1997, and it was the record owner of the property on March 29, 2007, the date of the plaintiff's alleged fall with resulting injuries. Pursuant to the afore-cited DPUC Regulations, the City, as the property owner, was required to maintain and/or repair the water meter pit and cover, which allegedly caused the plaintiff's personal injuries, losses and damages.
See, the City's responses to Requests for Admission.
See, Sheik v. Vittorio, No. CV 87-0242887 Superior Court, judicial district of Fairfield at Bridgeport (Sep. 10, 1991, Nigro, J.) [ 4 Conn. L. Rptr. 792] (denying summary judgment finding that a genuine issue of fact existed as to whether a pipe, which was uncontested to be part of the water supply system to the premises and over which the plaintiff allegedly tripped was a "curb box," as opposed to service connection, a service pipe or some other fitting.)
Accordingly, as Aquarion had no duty to maintain and/or repair the subject water meter pit and cover. "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others, fails to do so." Dean v. Hersowitz, 119 Conn. 398, 407-08 (1935). The essential elements of negligence are a duty; breach of that duty; causation; and actual injury. Stokes v. J. Lyddy, 75 Conn.App. 252, 257 (2003). In this matter, Aquarion owned no duty of care to the plaintiff and cannot be held liable for negligence. Aquarion's motion for summary judgment as to Count Two, alleging negligence is hereby granted.