Opinion
No. CV-05-5000474 S
June 28, 2006
MEMORANDUM OF DECISION
This is a decision on the defendants' motion to strike, dated March 7, 2006. The defendants claim that the exclusive remedy for damages sustained from a defective roadway is general statutes § 13a-149, and as such, the court should strike the entire complaint.
On December 28, 2005, the minor plaintiff, Nicholas Dionne, through his parents filed a six-count amended complaint. The action is being brought against the defendants, the town of Watertown (the town); Merideth Robson (the town manager); Harry Ward (the director of parks); and Peter Tomsheck (the chairman of the town's parks commission).
Attached to the complaint is a copy of a letter dated and stamped December 6, 2004, which indicates that the letter was received on December 6, 2004, and that it was intended to serve as notice of the plaintiff's injury as required by General Statutes § 52-557n.
The plaintiff alleges the following facts in his complaint. On September 11, 2004 the plaintiff, who was then twelve years old, was an invitee at Crestbrook Park, a multiple use recreational facility, owned and operated by the town. He was riding a friend's bicycle on a driveway that provides the only ingress and egress for visitors of the park. There are no roads through the park. The plaintiff was riding near a pond approximately 450 feet from the park entrance where the driveway bridges a concrete lined sluiceway. At that point, the driveway is approximately thirteen feet above the base of the sluiceway. There is a barrier along the side of the driveway and bridge over the sluiceway, but it is not continuous and leaves an opening near the sluiceway. "The plaintiff's bicycle went to the left and entered the opening in the barrier." He struck the retaining wall that forms the sidewall of the sluiceway, fell over the sidewall and plunged thirteen feet onto the concrete lined sluiceway. As a result the plaintiff was severely injured.
In count one, the plaintiff alleges that the town was negligent in its performance of a proprietary function and for which it has no immunity pursuant to General Statutes § 52-577n(a)(1)(B). In count two, he alleges the creation of a nuisance by the town for which immunity has been abrogated under General Statutes § 52-577n(a)(1)(C). In count three, the plaintiff alleges that the individual employees, agents and officers of the town were negligent during the scope of their employment and have no immunity under Genera! Statutes § 52-577n(a)(1)(B). In count four, the plaintiff alleges that he is within the purview of the exception to governmental immunity as an identifiable and forseeable victim for any discretionary acts of the town manager, the director of parks and the chairman of the parks and recreation commission. In count five, the plaintiff alleges indemnification by the town for the negligent acts of its employees pursuant to General Statutes § 7-465, and, in count six, he alleges that the town manager, the director of parks and the chairman of the town parks commission were negligent in subjecting him, as an invitee, to a grave danger.
On March 9, 2006, the defendants filed a motion to strike the plaintiff's entire complaint on the ground that the sole cause of action available to the plaintiff is under General Statutes § 13a-149. The defendants submitted a memorandum of law in support of the motion. The plaintiff filed a memorandum of law in opposition to the defendants' motion on March 24, 2006. On March 30, 2006, the defendants filed a reply memorandum. The matter was heard at short calendar on April 10, 2006.
I.
"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, 498, 815 A.2d 1188 (2003). "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." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
II.
The defendants argue that the facts alleged in the plaintiff's complaint set forth a claim under General Statutes § 13a-149, the defective highway statute, and that based on the language in § 52-557n(a)(1), the sole remedy for injuries arising from a defective highway or bridge is pursuant to § 13a-149. The defendants assert that despite the plaintiff's referring to the accident location as a "driveway," the area in question is a `highway" within the purview of § 13a-149. The plaintiff counters that the essential elements necessary to pursue a claim under the defective highway statute have not been alleged, and, as a result, the defendants' motion to strike should be denied.
General Statutes § 52-557n addresses the liabilities and immunities of political subdivisions, their employees, officers and agents and states 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: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, 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 section 13a-149." Section 13a-149, which states in relevant part that "[a]ny 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" is "a plaintiff's exclusive remedy against a municipality or other political subdivision." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991).
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998). Moreover, "the purview of § 13a-149 is not limited solely to defects that are located in the road . . . [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 . . . To hold that a defect . . . must exist in the traveled portion of the highway would run counter to [our Supreme Court] decisions and lead to results bordering on the ridiculous . . . If in the use of the traveled portion of the highway and, as incidental thereto, the use of the shoulders for the purposes for which they are there, a condition exists which makes travel not reasonably safe for the public, the highway is defective." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 344, 766 A.2d 400 (2001). "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 is a question of law which may be determined on a motion to strike." Sanzone v. Board of Police Commissioners, supra, 219 Conn. 201.
In Ferreira v. Pringle, supra, 255 Conn. 332, our Supreme Court considered an action where the plaintiff had sought relief under § 52-557n for injuries he sustained after disembarking a public transportation bus, when he tripped over the remnant of a severed steel sign post and subsequently fell backwards into the road and was struck by the bus. Despite the plaintiff's attempt to bring the action under § 52-557n, the court concluded that, "[i]t is clear to this court . . . both from the express words employed by the plaintiff and from the unchallenged affidavits of the defendants, that the dangerous condition complained of constitutes a highway defect and that the defendants were responsible for keeping the area of the alleged injury in repair. Therefore, § 13a-149 necessarily is invoked." Id., 354. The court reasoned that, "the alleged defective condition was, by the plaintiff's own admissions, located in the road shoulder, which had been used knowingly and intentionally by departing bus passengers as part of the road. As [the court has] noted previously, the plaintiff himself expressly stated that the nature and location of the defect was such that it necessarily presented a public hazard to himself, pedestrians, and other disembarking bus travelers. In addition . . . the plaintiff . . . was a traveler on the road at the time of his injury. Indeed, bus travel necessarily dictates that passengers disembark on the side of the road in connection with the use of the bus and for purposes of public travel." Id., 352.
In Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202, an action arising from an automobile accident in which a traffic light malfunctioned and signaled green to vehicles converging on the same intersection, the court stated 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 . . ." (Internal quotation marks omitted.) The court "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." (Internal quotation marks omitted.) Id. The court explained that if the defective condition "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." (Internal quotation marks omitted.) Id. The court concluded that, "a malfunctioning traffic light, although not physical impediment at street level, is, as a matter of law, such a highway defect, or in the language of the statute, part of a `defective road.'" Id., 203.
Connecticut courts have interpreted "road or bridge" within § 13a-149 to include sidewalks and public walkways. "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that 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." (Citations omitted.) Novicki v. New Haven, supra, 47 Conn.App. 740. Our Appellate Court recently released Bellman v. Town of West Hartford, 96 Conn.App. (2006), which addressed whether § 13a-149 was an exclusive remedy even though statute was not pleaded as means of recovery. In the decision, the court held "(w)hether 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 [finder of fact] . . ." (Citations omitted; internal quotation marks omitted.).
In the present case, the plaintiff alleges that he was an invitee in Crestwood Park on the day in question; that he was driven to the park that day and spent most of the day playing in the park; and that he was riding a friend's bicycle beside a fishing pond when the bicycle entered an opening in a barrier between the driveway and a thirteen-foot deep sluiceway bridged by the driveway. The plaintiff claims that his injuries were caused by a dangerous and artificial condition of the driveway and resulted from his fall onto the concrete sluiceway. Nowhere in the complaint has he alleged that his injuries were caused by a defect in the highway. Nor can the court determine from the facts alleged whether the injury was caused by a defect in such proximity to the highway so as to be considered in, upon, or near it.
Therefore, in construing the allegations of the complaint in favor of the plaintiff, the court cannot make the determination of whether, as a matter of law, § 13a-149 is applicable.
Therefore, the defendants' motion to strike is denied.