Conroy v. Town of Greenwich

Full title: John C. CONROY, Executor et al. v. TOWN OF GREENWICH

Court: Superior Court of Connecticut

Date published: Jul 24, 2018

FSTCV176033330S (Conn. Super. Ct. Jul. 24, 2018)

Opinion

FSTCV176033330S

07-24-2018

John C. CONROY, Executor et al. v. TOWN OF GREENWICH

Jacobs, J. BACKGROUND This action arises out of a tragic incident which occurred at a municipal marina in the Cos Cob area of Greenwich. As alleged by the plaintiffs in their January 30, 2018 revised complaint [# 106], the decedent Patrick Conroy, Jr., operating his vehicle, was attempting to negotiate a turn within the marina when his vehicle left the travel portion of the marina and entered the harbor. Count one of the plaintiffs’[1

UNPUBLISHED OPINION

Jacobs, J.

BACKGROUND

This action arises out of a tragic incident which occurred at a municipal marina in the Cos Cob area of Greenwich. As alleged by the plaintiffs in their January 30, 2018 revised complaint [# 106], the decedent Patrick Conroy, Jr., operating his vehicle, was attempting to negotiate a turn within the marina when his vehicle left the travel portion of the marina and entered the harbor. Count one of the plaintiffs’

On February 22, 2018, the defendant filed the current motion to strike all counts of the plaintiffs’ revised complaint, except count one, along with a memorandum of law in support of its motion. On March 23, 2018, the plaintiffs filed a memorandum of law in opposition to the motion, which included plaintiffs’ counsel’s representation that the motion to strike as to counts three, five, seven, nine, eleven, thirteen, and fifteen should be granted. The motion and objection thereto were heard by the court at short calendar on April 9, 2018.

DISCUSSION

"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480 (2003). "The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112 (2011). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385 (2016).

Section 13a-149 provides 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." General Statutes § 52-557n provides in relevant part: "(a)(1) except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ... (C) acts of the political subdivision which constitutes the creation ... of a nuisance; provided no cause of action shall be maintained for damages resulting from injury to any person ... by means of a defective road ... except pursuant to section 13a-149 of the General Statutes." "Whether a highway is defective involves 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." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330 (2001).

In Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991), the Supreme Court construed "§ 52-557n to provide that an action under the highway defect statute, § 13a-149, is a plaintiff’s exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge." "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." Novicki v. New Haven, 47 Conn.App. 734 (1998).

"Our Supreme Court has recognized that, when the state either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadways, a defective condition therein may give rise to a cognizable action under the [state highway defect] statute." (Internal quotation marks omitted.) Cuozzo v. Orange, 147 Conn.App. 148 (2013). "Whether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury ..." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419 (1999). "Defective conditions located near the roadway, but in areas unintended for travel, are not highway defects within the ambit of the highway defect statute." (Internal quotation marks omitted.) Cuozzo v. Orange, supra, 147 Conn.App. 159.

"Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242 (1985); see also DeVita v. Esposito, 13 Conn.App. 101 (1987). When it remains unclear from the allegations in the complaint whether the area where the incident occurred was a public roadway and the highway defect statute was applicable, the plaintiffs can be allowed to plead alternative theories of liability and the defendant’s motion to strike should be denied. Read v. Plymouth, 110 Conn.App. 657 (2008), Marcoux v. Waterbury, Superior Court, Waterbury J.D., Docket No. CV-131227 (6/4/96, Pellegrino, J.).

In the current case, the plaintiffs allege in their revised complaint that the defendant town owned, maintained and/or controlled a drive, a parking lot and a boat ramp known as the Cos Cob Marina, and that the plaintiff’s decedent was attempting to negotiate a turn within the marina when his vehicle left the travel portion of the marina and entered the water. It remains unclear from the allegations in the revised complaint that the area in which the incident occurred was a public roadway as defined by the highway defect statute.

CONCLUSION

The court concludes that genuine issues of material fact remain. The motion to strike is denied. The plaintiffs are: John Conroy, executor of the estate of Patrick Conroy Jr. and the decedent’s son; Michelle Conroy, the decedent’s daughter-in-law; Kayla Conroy, the decedent’s granddaughter; Erin Conroy, the decedent’s granddaughter; Kiersten Conroy, the decedent’s granddaughter; Sean Conroy, the decedent’s grandson.