Opinion
UWYCV176032889S
01-10-2020
Maria A. Desousa v. City of Waterbury et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gordon, Matthew D., J.
MEMORANDUM OF DECISION REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (NO. 139)
MATTHEW DALLAS GORDON, Judge
The plaintiff, Maria Desousa, brings this action against the city of Waterbury (city) pursuant to the Connecticut highway defect statute, General Statutes § 13a-149, claiming that she was injured while driving on South Leonard Street in Waterbury, Connecticut, when a fire hydrant that was discharging water onto the street created an icy condition that caused her to lose control of her vehicle. The city has filed a motion for summary judgment claiming that the plaintiff cannot prove that the condition of the roadway was the "sole proximate cause" of her injuries and losses because the plaintiff has also alleged that the negligence of two independent contractors, Tri-State Industrial Maintenance (Tri-State) and Three D Industrial Maintenance (Three D), proximately caused her accident.
In support of its motion for summary judgment, the city relies upon Isaac v. Truck Service, Inc., 52 Conn.App. 545, 727 A.2d 755 (1999), aff’d, 253 Conn. 416, 752 A.2d 509 (2000), Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), and Smith v. New Haven, 258 Conn. 56, 779 A.2d 104 (2001), for the proposition that the plaintiff’s allegations of negligence against Tri-State and Three D constitute judicial admissions that are inconsistent with the plaintiff’s assertion that the city’s failure to correct the defective condition of the roadway was the "sole proximate cause" of her accident. According to the city, "the sole proximate cause doctrine precludes municipal liability, not only where the plaintiff was contributorily negligent, but also where other purported tortfeasors or independent nontortious factors contributed to the injury ..." Smith v. New Haven, supra, 60.
The court concludes that summary judgment is inappropriate in this case because the relevant inquiry for purposes of assessing sole proximate cause is not whether some third party was responsible for creating the defect, but whether other factors unrelated to the defect contributed to the accident. See Machado v. Hartford, 292 Conn. 364, 972 A.2d 724, 734 (2009).
In Machado, the plaintiff lost control of her vehicle when she hit a depression in the roadway, which caused the plaintiff’s car to become airborne and land on an exposed manhole cover projecting six to eight inches above the surface of the roadway. Id., 366. As in the present case, the defect in Machado was created by a third-party contractor. Id. Following the trial court’s entry of judgment in favor of the plaintiff, the city appealed claiming that it was error for the trial court to determine that the city’s negligence was the "sole proximate cause" of the plaintiff’s injuries because the trial court also determined that the plaintiff’s injuries resulted from the negligence of the independent contractor. Id. In rejecting this premise, the Supreme Court noted that regardless of whether the third party was the defendant’s agent or an independent contractor, the city remained liable under § 13a-149 because a municipality’s liability under the highway defect statute is predicated on its statutory duty to maintain the roadway regardless of how the defect was created. Id., 375-78. According to the Connecticut Supreme Court: "It is settled law in this state that the liability of [a town] under § 13a-149 is purely for breach of a statutory duty and does not arise from negligence ... Such liability represents a penalty for the town’s failure to perform adequately its statutory duty to repair its roads, and it is solely the town’s failure in that regard that renders it liable ... That duty encompasses an obligation to repair all defects of which the town is or should be aware, and not just those defects that arise in the absence of negligence on the part of a third party. Accordingly, because municipal liability under § 13a-149 is predicated exclusively on the town’s failure to carry out its statutory duty, it follows that the manner in which a defect is created in and of itself has no bearing on the town’s liability under the statute. Rather, it is the existence of the defect and the town’s actual or constructive knowledge of and failure to remedy that defect that are of primary importance in making out a prima facie case of municipal liability under § 13a-149. See Agriesto v. Fairfield, 130 Conn. 410, 417, 35 A.2d 15 (1943) (’[l]iability [under the highway defect statute] depends upon the existence of a defect, not the underlying causes which produced it’); see also 57 Am.Jur.2d [207, Municipal, County, School, and State Tort Liability § 164 (2001) ] (when municipality has nondelegable duty and hires independent contractor to perform that duty, municipality is liable ‘not for the negligence of the contractor, but for [the municipality’s] failure to perform the duty imposed on it by law’); 19 E. McQuillin, [Municipal Corporations (3 Ed. Rev, 2004) ] § 54:71, pp. 263-64 (’Where the defect is caused by a third person, the negligence for which the municipality is liable is not the [third person’s negligence in creating] the defect, but instead [its own] negligence in failing to remove or guard the defect after [receiving] actual or constructive notice of it ... This rule applies, inter alia, to defects or obstructions caused by the acts of abutting owners, occupants of property bordering on a public way, and independent contractors.’)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 377-78.
"That is not to say that principles of negligence are entirely irrelevant in an analysis under § 13a-149 ... As previously discussed, for example, negligence on the part of the plaintiff or an independent third party may serve as a defense to liability under the sole proximate cause requirement of § 13a-149 when such negligence combines with the defect to cause the plaintiff’s injuries. Such liability, however, also may be defeated by the concurrence of an existing defect and nonnegligent intervening factors ... Thus, it is not the mere existence of third-party negligence that defeats municipal liability under § 13a-149 but, rather, the existence of any intervening factors unrelated to the defect itself, whether negligent or not, that combine with the defect to cause the plaintiff’s injuries." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 378-79.
Whether the plaintiff will be able to sustain her burden of proving that the city’s failure to maintain the roadway in a reasonably safe condition was the sole proximate cause of her accident remains to be seen. For now, the court merely concludes that the plaintiff’s allegations of negligence against the two independent contractors is not ipso facto inconsistent with her claim that the city’s failure to maintain the roadway in a reasonably safe condition was the sole proximate cause of her accident and resulting injures.
Having carefully considered the plaintiff’s complaint, the city’s motion for summary judgment, and the plaintiff’s objection, and having entertained oral argument at which the parties had a full opportunity to be heard, the court concludes that summary judgment is inappropriate in this case because there are numerous unresolved issues of material fact concerning how the accident occurred, and whether any factors, other than the creation of the defect itself, somehow combined with the defect to cause the plaintiff’s accident.
For all of the forgoing reasons, the city’s motion for summary judgment is hereby denied.