Opinion
CV136020215
12-15-2015
Nicole Flandreau v. James Redeker, Commissioner of the Department of Transportation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#115)
James W. Abrams, Judge.
I
FACTS
This action was brought by the plaintiff, Nicole Flandreau, against the defendant, James P. Redeker, Commissioner of the State of Connecticut Department of Transportation (CDOT), by Complaint dated March 4, 2013, pursuant to General Statutes § 13a-144, the defective highway statute. The defendant Commissioner filed an Answer dated June 17, 2013, which included a denial of liability.
On May 27, 2014, the defendant filed a Motion for Summary Judgment accompanied by affidavits, a police accident report, copies of relevant climatological data, and copies of relevant supervisor's daily reports. On March 23, 2015, the plaintiff filed an Objection to the defendant's Motion for Summary Judgment accompanied by affidavits, general supervisor's daily reports, deposition transcript excerpts, call logs, police accident reports, and the transcripts of relevant 911 calls and dispatcher calls. On April 28, 2015, the defendant filed a Reply Brief to the Objection and on September 2, 2015, the plaintiff filed a Surreply Brief. The court heard oral argument on September 8, 2015.
The plaintiff alleges that on March 7, 2011, at around 7:25 p.m., she was traveling on Route 39, near Shortwoods Road in New Fairfield, when her vehicle encountered an extensive patch of ice on the road, causing her to lose control and collide with another vehicle traveling on the opposite side of the road. The complaint further alleges that the plaintiff's injuries and damages were caused by the defendant's breach of its statutory duty to keep and maintain the road at issue in a reasonably safe condition.
The issue before the court is whether it should grant the defendant's Motion for Summary Judgment on the ground that there is no genuine issue of material fact that the defendant did not receive actual or constructive notice of the ice patch that allegedly caused the plaintiff's accident.
II
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
The defendant moves for summary judgment on the ground that the plaintiff cannot establish the prerequisites for a claim under § 13a-144, as there is no genuine issue of material fact that the defendant did not receive actual or constructive notice of the ice patch in question. In addition, the defendant argues that even if there is a genuine issue of material fact as to actual or constructive notice, there is no genuine issue of material fact that there was not enough time to remedy the defective condition upon receipt of such notice. The plaintiff counters that there is a genuine issue of material fact as to whether the defendant had actual or constructive notice.
" The state highway liability statute is a legislative exception to the common-law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common-law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common-law theory . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." (Internal quotation marks omitted.) Stotler v. Dept. of Transportation, 313 Conn. 158, 166, 96 A.3d 527 (2014).
" In order for a plaintiff to recover under § 13a-144, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [ Commissioner of Transportation ] actually knew of the particular defect or that, in the exercise of [ his ] supervision of highways . . . [ he ] should have known of that defect ; (3) that the [ Commissioner of Transportation ], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so ; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence . . . 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 . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 166-67.
" The state highway notice requirement under General Statutes § 13a-144 must be strictly construed." Curry v. Burns, 33 Conn.App. 65, 69, 633 A.2d 315 (1993). " Because the state is not an insurer of the safety of travelers on the highways, the statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation. That is, the [Commissioner's] obligation under § 13a-144 is to remedy a highway defect once he: (1) has actual notice of a specific defect; or (2) is deemed to have constructive notice of a specific defect. As we have noted previously, his obligation does not sound in general negligence . . . Thus, the [commissioner's] statutory obligation is to act reasonably in remedying a defect of which he has actual or constructive notice. [In the absence of] such actual or constructive notice, his obligation does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur." (Citations omitted; internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 269-70, 875 A.2d 459 (2005).
It should be noted that prior holdings by the Appellate Court seem to conflict with the most recent statement by our Supreme Court regarding the duty for reasonable inspection. The Appellate Court previously held that " [t]he defendant can be charged with having constructive notice of a defect when it is of such a nature and duration that a reasonable inspection would have disclosed the risk." (Emphasis in original; internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn.App. 98, 110-11, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001), quoting Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990). The Appellate Court further stated: " The defendant's subduty to make a reasonable inspection, i.e., investigation or detection, of a dangerous condition on the highway is therefore a factor to be considered in determining whether the defendant received actual or constructive notice of the alleged defect and had a reasonable opportunity to remedy it. The extent of the duty to inspect varies with the particular circumstances of the case . . . The duty to make a reasonable inspection . . . absent actual notice, depends upon the nature of the defect and the length of time it existed. The circumstances of each case must be examined." (Internal quotation marks omitted.) Ormsby v. Frankel, supra, 111, quoting Hall v. Burns, supra, 479-80.
In other words, " [i]n a cause of action based on § 13a-144 the plaintiff must prove . . . that the authority charged with maintenance of the highway . . . have notice of the defect, actual or constructive, i.e., it must have had actual knowledge of the existence of the defect, or it must have existed for such a length of time that it would have been known in the exercise of reasonable care and a reasonable opportunity have been afforded in which to remedy it." (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990). " [T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it . . . [O]ur Supreme Court has stated that [i]nferences as to prior existence [of a highway defect] for a considerable time, which might arise from a condition necessarily more or less permanent or of slow development are permitted in certain circumstances." (Citation omitted; internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn.App. 563, 575, 12 A.3d 1032 (2011).
Moreover, The Appellate Court has stated that " [w]hether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact for the jury and unless the period of time is such that but one conclusion could be found, its determination should be left to the trier." (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn.App. 98, 110, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001); see also Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006) (" [w]hat constitutes a reasonable length of time [to discover a defect for the purposes of constructive notice] is largely a question of fact to be determined in the light of the particular circumstances of a case" [internal quotation marks omitted]). Finally, " [i]t is also settled law that the notice must be of the particular defect itself which caused the injury and not merely notice of the conditions naturally productive of the defect and in fact producing it." (Internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn.App. 597, 602, 691 A.2d 594 (1997).
In the present case, the defendant has submitted the affidavit of Glen Curtis, supervisor of the New Milford garage, and copies of relevant climatological data in support of its Motion for Summary Judgment. Curtis is " very familiar with the roads in the area covered by the New Milford garage." (Affidavit of Curtis, ¶ 3.) According to Curtis, there was a rain storm on March 6 and March 7, 2011, and the New Milford garage was busy addressing storm related issues. (Affidavit of Curtis, ¶ 6.) More specifically, he states that most of the time between 6:30 p.m. on March 6 and 4 p.m. on March 7, the garage was busy working on water related problems throughout the garage's area of responsibility, which includes 135 miles of state roads. (Affidavit of Curtis, ¶ ¶ 4, 6.)
More importantly, two trucks were sent out after 4 p.m. on March 7 " to cover the roads because of concerns of ponding or flooding, and that as the night wore on, it might become icy." (Affidavit of Curtis, ¶ 9.) Curtis further states: " When the New Milford garage sends out two trucks to check the roads, the trucks are sent out on predetermined routes . . . One truck would be assigned to a route that would take it on the road where [the plaintiff's] accident eventually occurred. While the time to cover the route can vary greatly, depending on the road and weather conditions, the amount of traffic, and what the truck is doing, if one assumes that road conditions are not so bad as to significantly impede traffic, and that there is not a need to salt [the] area, it normally would take a truck about [two] hours to cover that route. If there was traffic, if road conditions were not good, and there was a need to salt, it could take up to [two and one-half] hours to cover the route. (If plowing was necessary, it would take even longer.)" (Affidavit of Curtis, ¶ 11.)
Curtis then clarifies: " [T]ypically, the truck responsible for that route would proceed to [Route] 37 and 39. In such an event, and assuming the truck has not encountered ice, it would take a truck about [thirty to forty] minutes to get to the area of the [plaintiff's] accident. As the workers had already worked a full work day, it is likely that after completing one run that they would have stopped for a break before continuing to cover the roads. It is more probable than not that the truck would not have gone by the accident site a second time prior to the accident." (Affidavit of Curtis, ¶ 12.)
Curtis further states that the location of the plaintiff's accident fell within the responsibility of the New Milford garage. (Affidavit of Curtis, ¶ 8.) Even though " some roads may be prone to flooding or prone to icing, the stretch of road where the accident occurred was not a known problem area. It was not prone to either early icing, or to flooding." (Affidavit of Curtis, ¶ 8.) He also states that, as " of the time of the accident, there had been no calls for ice on roads in New Fairfield in the area covered by the New Milford garage prior to the accident." (Affidavit of Curtis, ¶ 14.) Moreover, " [a]s of the time of the accident, while the New Milford garage had not been notified of any ice condition in New Fairfield, it nonetheless had two trucks out on duty, after hours." (Affidavit of Curtis, ¶ 9.)
Finally, Curtis explains his experience with black ice, and states, in part: " Black ice can crop up unexpectedly. It can come into existence without warning, and because of its nature, it can appear very quickly and disappear as quickly . . . The existence of black ice and when and where it will occur can be difficult, if not impossible to predict." (Affidavit of Curtis, ¶ 13.) It should be noted that, around the time of the accident, the temperature was just above freezing at 33 degrees Fahrenheit. (Defendant's Exhibit 3.)
Based on the foregoing evidence, the defendant has shown that there had been no calls made to the garage during the relevant time period, and that the garage was addressing water related issues in the general area, but not necessarily any ice issues related to the specific accident scene. Furthermore, the defendant has shown that he was not aware of any prior history of ice in the area where the accident occurred. Thus, the defendant has met his initial burden to show that there is no genuine issue of material fact as to actual or constructive notice.
The plaintiff counters that there is a genuine issue of material fact as to actual and/or constructive notice because: (1) there was notice of dangerous flooding and icing conditions in New Fairfield; (2) there was evidence related to the accident scene; (3) there was evidence that the defendant was previously dealing with issues at the same location as the accident; (4) there was evidence of actual or constructive notice of road conditions on Route 39 before the plaintiff's accident; and/or (5) there was evidence of other undocumented calls to the defendant reporting ice conditions in the vicinity of the accident.
A. Notice of Dangerous Flooding and Icing Conditions in New Fairfield on March 7, 2011
The plaintiff argues that the defendant was clearly aware of icy conditions on the roads in New Fairfield and, in support of her argument, submitted information regarding the CDOT employees' assignments on the day of the accident. Most significantly, the plaintiff included a Daily Report for the 4 p.m. to midnight shift on March 7, 2011. The Daily Report shows that two trucks from the New Milford garage were assigned to work during that time period, and these employees were assigned to check for ponding, road closures, and icing. (Plaintiff's Exhibit F; see also Plaintiff's Exhibit G.) The Daily Report does not include any information about the exact routes that the employees took. In fact, Curtis testified during his deposition that he did not know the route that the two trucks followed that evening, and he was not aware of any document that would show that route. (Plaintiff's Exhibit D, pp. 165-66.)
Even if this evidence shows that the defendant was aware of the danger of icy conditions on the roads in New Fairfield, this would not be sufficient to establish a genuine issue of material fact as to whether the defendant had actual or constructive notice of the particular defect. See McIntosh v. Sullivan, supra, 274 Conn. 270 (" [T]he [commissioner's] statutory obligation is to act reasonably in remedying a defect of which he has actual or constructive notice. [In the absence of] such actual or constructive notice, his obligation does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur." [Internal quotation marks omitted.])
B. Evidence Relating to the Accident Scene
The plaintiff argues that the evidence demonstrates that the defendant had notice of dangerous flooding and icing conditions in New Fairfield throughout the day on March 7, 2011 and that he could have identified or remedied the icy road conditions on Route 39 upon reasonable inspection before the plaintiff's accident. In support of her argument, the plaintiff submitted the affidavit of Lawrence Colombo, the driver of the other vehicle that was involved in the plaintiff's accident, who observed a sheet of ice that covered the entire roadway at the accident site, and that the sheet of ice covered both the northbound and southbound lanes of Route 39 for approximately fifty yards. (Plaintiff's Exhibit A, ¶ 9.) In addition, Colombo observed a fog-like mist that was originating from a brook that ran under the roadway at the accident scene. (Plaintiff's Exhibit A, ¶ 10.) This same fog-like mist was observed by the plaintiff's mother, Kristen Flandreau. (Plaintiff's Exhibit B, ¶ 5.)
The foregoing evidence does not raise a genuine issue of material fact as to actual or constructive notice, because the evidence only addresses the conditions of the road and the presence of the alleged defect at the time of the accident, or shortly thereafter. The evidence does not show that the defect was present prior to the accident for a length of time sufficient to raise a genuine issue of material fact as to actual or constructive notice.
C. Evidence that Defendant was Previously Dealing With Issues at the Location where the Accident Took Place
The plaintiff presents evidence that the defendant was previously dealing with various problems on the same location as the accident during the early morning of March 7, 2011. Specifically, the daily reports indicate that the defendant assigned at least two employees to " Candlewood Corner, " on Route 39, which is in the vicinity of the accident site, during the 12:01 a.m. to 8:00 a.m. shift on March 7, 2011. (Plaintiff's Exhibit C.) Curtis had no specific recollection as to the nature of the concern that lead to the assignment. (Plaintiff's Exhibit D, pp. 152-53.) Curtis acknowledged, however, that the daily report indicates that the assignment was a " 239" activity, or " other drainage, " which may include issues such as ponding in the roadway or drainage problems at a basin. (Plaintiff's Exhibit D, pp. 122-23.)
This evidence of certain " other drainage" problems at the location of the plaintiff's accident does not create a genuine issue of material fact as to actual or constructive notice of the defect that caused the plaintiff's accident. Even though the evidence may show, at best, that there is a genuine issue of material fact as to the notice of conditions naturally productive of the defect, this is not sufficient notice of the defect itself. See DiDomizio v. Frankel, supra, 44 Conn.App. 602 (" [i]t is also settled law that the notice must be of the particular defect itself which caused the injury and not merely notice of the conditions naturally productive of the defect and in fact producing it" [internal quotation marks omitted]).
D. Evidence of Actual or Constructive Notice of Icy Road Conditions on Route 39 Shortly Before the Plaintiff's Accident
The plaintiff argues, in part, that a phone call 38 minutes before the plaintiff's accident, reporting ice on Route 39, creates a genuine issue of material fact as to actual or constructive notice. In support, the plaintiff has submitted evidence, including a transcript of the call in question. In the 6:49 p.m. call, Communications Manager Daniel McDermott spoke with " Heidi" from " Highway Operation." During the call, McDermott informs Heidi that there are " extremely icy conditions, " and that there are car accidents as a result. (Plaintiff's Exhibit U.) McDermott states that the icy conditions are on Route 39 (Ball Pond Road), and adds, " just, you know, just the normal hot spots, I guess." (Plaintiff's Exhibit U). When asked to specify a cross street, McDermott mentions Bigelow Road, but then states, " [u]m, just . . . [e]verywhere." (Plaintiff's Exhibit U.)
Despite all of the foregoing evidence, the plaintiff has failed to establish constructive notice, as a matter of law, because there is no admissible evidence as to the length of time the defect existed. See Irish v. Ives, 158 Conn. 116, 117, 256 A.2d 245 (1969) (plaintiff failed to establish constructive notice as matter of law when there was no proof as to how long defect existed); cf. Lombardi v. East Haven, supra, 126 Conn.App. 576 (" [w]e cannot conclude that the plaintiff failed to establish constructive notice as a matter of law when, as here, there was evidence as to the length of time the defect existed that the jury reasonably could have credited").
Moreover, although the plaintiff relies in part on Ormsby v. Frankel, supra, 54 Conn.App. 98, in arguing that the defendant had constructive notice, Ormsby is distinguishable from the present case. In Ormsby, the particular icy condition that caused the accident existed for two and one-half hours before the accident occurred, and the prior icy conditions, involving a different patch of ice, occurred the day before the accident (and other earlier times). The court in Ormsby held, in part, that there was evidence of constructive notice of the ice patch that caused the plaintiff's accident because there was evidence that another accident had occurred twenty-four hours earlier at the same location, the ice patch in question existed at least two and one-half hours before the accident, and the response time to correct an icy area would have been about one hour.
In the present case, the single phone call reporting ice on Route 39 was made 38 minutes before the plaintiff's accident. The location of the plaintiff's accident was not specified as the location of the ice. As the defendant argues, " the plaintiff has provided no evidence as to when the very ice was formed, how long the very ice that allegedly caused the accident had been in existence, or of prior icing conditions."
Furthermore, even if the earlier phone call reporting ice everywhere on Route 39, including two miles from the site of the accident, constitutes constructive notice of the defect at issue, the fact that CDOT did not remedy the condition within the 38-minute period prior to the accident was reasonable as a matter of law. The holding in Graham v. State, Superior Court, Judicial District of New London, Docket No. CV-12-6014094-S (May 12, 2015, Cole-Chu, J.) (60 Conn. L. Rptr. 733), is instructive. In Graham, the plaintiff sought damages from the State of Connecticut, pursuant to § 13a-144, caused by black ice on the Gold Star Bridge on Interstate 95 at about 6:30 a.m. There was a prior accident caused by the black ice on the bridge about one hour before the plaintiff's accident. Id., 733. The police alerted CDOT of the ice at 5:49 a.m. Id. After being given notice, " [t]he report of the accident before the plaintiff's accident set in motion the defendant's response to the black ice condition, which included calling maintenance staff of two men, the men getting from their homes to the defendant's garage in Waterford, Connecticut, opening up the DOT garage, warming up a dumptruck and payloader, loading the dumptruck with salt, and driving to the black ice condition on the bridge about six miles from the DOT garage. This process took at least sixty minutes--until after the plaintiff's accident . . ." Id.
The court in Graham considered the defendant's Motion for Summary Judgment, which argued, in part, that CDOT did not have actual or constructive notice of the specific defective condition, and, alternatively, that CDOT did not have an adequate opportunity to remedy the defective condition. After considering all of the relevant evidence, the court concluded: " [D]espite the 'more attenuated standard' and the drawing of inferences in the light most favorable to the non-moving party . . . the court concludes that the defendant is entitled to judgment as a matter of law. The court cannot conclude that the defendant had actual notice of the black ice condition which caused the plaintiff's accident before the report of that accident. Even treating the black ice on the bridge in general as the defect which caused the plaintiff's accident and treating the black ice accident on the same bridge fifty minutes before the plaintiff's accident as constructive notice to the defendant of that defect, the court finds as a matter of law that the defendant's response time was reasonable . Indeed, the plaintiff does not contend otherwise, other than by claiming that the defendant should have anticipated the black ice condition. The defendant is not required to anticipate highway defects." (Citation omitted; emphasis added.) Id., 735.
In the present case, viewing the evidence in the light most favorable to the plaintiff, there was one phone call 38 minutes before the plaintiff's accident, reporting ice " everywhere" on Route 39, including two miles from the location of the accident site. Much like in Graham, there was no actual notice of the black ice condition which caused the plaintiff's accident until the report of the accident. Furthermore, much like in Graham, even if the earlier phone call reporting ice everywhere on Route 39, including two miles from the site of the accident is constructive notice of the very defect, it is submitted that the defendant's response time was reasonable as a matter of law. See Carvalho v. Redeker, Superior Court, judicial district of Litchfield, Docket No. CV-12-6006717-S, (December 24, 2013, Pickard, J.) (granting summary judgment because no reasonable person could conclude that a period of thirty minutes is sufficient time for CDOT to discover the presence of black ice and to remedy the defect).
The plaintiff also argues that Battista v. Redeker, Superior Court, Judicial District of Litchfield, Docket No CV-11-6005584-S, (November 21, 2012, Pickard, J.), is applicable to the present case. In Battista, the court held that there is a genuine issue of material fact as to constructive notice where there was no evidence of prior accidents, and where the " plaintiff's evidence indicates only that there were icy patches in the general area of Federal Road and that there was snow on the ground at the time of the accident, " because there are genuine issues of material fact as to when the specific icy condition was created, and how long it existed prior to the accident. That case is distinguishable from the present case, however, because the Battista case involved an active snow storm, and the court relied in part on the statements of multiple witnesses regarding the poor condition of the road prior to the plaintiff's accident. Specifically, in Battista, there was evidence of heavy snow and ice on the road in question in the hours prior to the accident. In contrast, here there was no active storm at the time of the plaintiff's accident, and there is no evidence that there was ice on Route 39 until the 6:49 p.m. call.
E. Other Undocumented Calls to the Defendant Reporting Ice Conditions in Vicinity of Accident
The plaintiff argues that the evidence suggests that CDOT's call log is not complete, and that the defendant received additional notice of icy conditions on Route 39 in New Fairfield on the date of the plaintiff's accident. The most important piece of evidence in support of this argument is a letter from L. Don Blackwell, the Manager of the New Fairfield Communications Center. In the letter, Blackwell states that CDOT was notified of icing roads in the area before the plaintiff's accident, specifically at 6:43 p.m. and at 7:15 p.m. on March 7, 2011. (Plaintiff's Exhibit P.) The second call, however, is not reflected in the CDOT's phone call log. (Plaintiff's Exhibit K.)
Nevertheless, for the reasons discussed in the preceding subsection, even if the defendant was notified of icy road conditions in the general area where the accident occurred, the 7:15 p.m. call, as a matter of law, did not provide for sufficient time for the defendant to locate the defect and remedy it. In addition, mere speculation, based on the evidentiary inconsistencies, that other calls may have taken place that are not documented in the CDOT's logs is not sufficient to raise a genuine issue of material fact as to notice.
III
CONCLUSION
For the foregoing reasons, the court finds that are no genuine issues of material fact regarding the issue of whether the defendant had actual or constructive knowledge of the ice patch and, as a result, the defendant's Motion for Summary Judgment is granted.