Opinion
No. CV-03-0180935S
March 15, 2004
MEMORANDUM OF DECISION
This is a decision on the defendant's motion to strike, dated November 20, 2003. The defendant has filed an objection, dated December 3, 2003. The defendant claims that the court should strike the second and third counts of the plaintiff's complaint alleging common-law negligence and nuisance because they violate General Statutes § 52-557n, which states that General Statutes § 13a-149 is the exclusive remedy for damages sustained from a defective roadway. For the foregoing reasons, the defendant's motion to strike is granted.
The plaintiff, Julie Kloznick, filed a five-count complaint against the defendants, the town of Wolcott and Tele-Media, Co., for injuries she allegedly sustained while walking along Todd Hollow Road in Wolcott. Kloznick claims that she fell over an accumulation of rock that had purportedly washed onto the road from a construction ditch. The first three counts are directed at the town of Wolcott. The first count asserts a breach of statutory duty pursuant to § 13a-149 for maintaining a defective roadway. The second and third counts allege negligence and nuisance, respectively. Counts four and five pertain to Tele-Media and are not germane to this decision.
General Statutes § 13a-149 states 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 . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation."
"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). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Wolcott moves to strike the second and third counts of the complaint on the ground that § 52-557n, as confirmed by Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), prohibits all remedies for damages caused by defective roadways except for the breach of statutory duty remedy provided by § 13a-149. Since Kloznick alleges such a breach of statutory duty in the first count of her complaint, Wolcott argues, the subsequent counts of negligence and nuisance must be stricken.
General Statutes § 52-557n 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 . . . (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 CT Page 3829 13a-149."
In her memorandum in opposition, Kloznick counters that the negligence and nuisance counts, as pleaded, are not alternative remedies, but are alternative theories of liability under § 13a-149. Citing Steele v. Stonington, 225 Conn. 217, 622 A.2d 551 (1993), she argues that negligence claims are allowed under the statute, and by extension, nuisance should be allowed as well.
"[T]o establish liability [under § 13a-149], the plaintiff ha[s] the burden of proving (1) the existence of a defect which resulted from the failure of the defendant to use reasonable care to keep the . . . [highways] within its control in a reasonably safe condition for public travel; (2) notice, either actual or constructive, to the defendant of the defect; and (3) the exercise by him of due care." (Internal quotation marks omitted.) Steele v. Stonington, supra, 225 Conn. 220-21. "The similarities between these requirements and the elements of negligence are so strong that it [is] not inappropriate for the plaintiff to allege negligence in stating a claim under § 13a-149." Id., 221. However, in the context of § 13a-149, the Supreme Court has specifically "construed [§]52-557n to bar, in addition to nuisance actions, actions in negligence or for breach of ministerial duty brought against [a] municipality directly or derivatively . . ." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 200, 592 A.2d 912 (1991). "[T]he defective highway statute is the plaintiff's exclusive remedy." Ferreira v. Pringle, supra, 255 Conn. 341.
The Supreme Court's decisions in Ferreira and Sanzone are clear: only one remedy exists for damages caused by a defective highway. Ferreira v. Pringle, supra, 225 Conn. 341; Sanzone v. Board of Police Commissioners, supra, 219 Conn. 200. Sanzone in particular specifically holds that counts of negligence and nuisance are not permitted as alternative theories of liability when a cause of the injury is a defective highway. Sanzone v. Board of Police Commissioners, supra, 219 Conn. 200-01.
Steele v. Stonington does not allow a claim of negligence as a separate remedy under § 13a-149, as Kloznick suggests. In Steele, the plaintiff, who alleged that a pothole in the road caused his motorcycle accident injuries, pleaded a count of negligence instead of stating a claim under § 13a-149. Steele v. Stonington, supra, 225 Conn. 218-19. Despite the plaintiff's failure to cite the statute explicitly, the court found that his letter to the defendant and his allegations in the pleadings sufficiently satisfied the three statutory requirements of defect, notice and due care. Id., 221-22. Reasoning that the statutory requirements are essentially grounded in negligence, the court held that a single negligence count can serve as a substitute for the statutory remedy as long as the statutory elements are otherwise satisfied. Id., 221-22. This negligence count, however, stands in place of the statutory remedy, not in addition to it. Steele, therefore, does not permit Kloznick to plead extra counts of negligence and nuisance when she has already pleaded a breach of statutory duty under § 13a-149.
Therefore, Wolcott's motion to strike the second and third counts of the plaintiff's complaint is granted because § 13a-149 is the exclusive remedy for damages caused by a defective highway.
Matasavage, J.