Opinion
No. CV 04 4000062
October 13, 2005
I. Procedure and Factual Background
On July 7, 2004, the plaintiff, Anya Larkin, filed a complaint against defendants One Seventy Six Water Street Condominium Association (Condominium Association) and Judith DuPont, Commissioner of Sidewalks, Street Lighting and Community Relations of the Borough of Stonington (Commissioner DuPont). The complaint alleges that "[o]n December 8, 2002 . . . the plaintiff, Anya Larkin, while in the exercise of due care, was walking within the limits of the Borough of Stonington along the sidewalk on Broad Street adjacent to the property known as 176 Water Street Condominium Association, Inc. It is further alleged that, the plaintiff was caused to slip and fall to the ground as a result of an accumulation of snow and/or ice located on the sidewalk, thereby suffering personal injuries and losses.
In the first count of the complaint, the plaintiff alleges negligence on the part of the defendant Condominium Association as the owner of property adjacent to the location where the plaintiff allegedly fell and sustained injuries. In the second count, the plaintiff alleges negligence on the part of Commissioner DuPont as the individual charged with the proper care and maintenance of the sidewalks, within the limits of the Borough of Stonington as Commissioner of Sidewalks, Street Lighting Community Relations for that Borough. Specifically, the plaintiff claims Commissioner DuPont, or her agents, servants, and/or employees, among other things, [f]ailed to prevent ice and snow from accumulating and remaining on said area; and [f]ailed to make proper and reasonable inspection of said area to determine its unsafe condition.
The plaintiff served the complaint to be served on the defendants Condominium Association and Commissioner DuPont. The Clerk for the Borough of Stonington accepted service for Commissioner DuPont. The complaint states that [n]otice pursuant to 7-101a and 7-465 and] 13a-149 of the Connecticut General Statutes was given to the defendant by the plaintiff on February 28, 2003.
The defendant Commissioner DuPont does not dispute that the plaintiff gave proper notice to the Borough clerk pursuant to General Statutes 13a-149.
On January 24, 2005, the defendant Commissioner DuPont filed a motion for summary judgment and a memorandum of law in support of the motion for summary judgment. Commissioner DuPont asserts four arguments in the memorandum of law in support of the motion for summary judgment.
First, Commissioner DuPont argues that, she is not a proper party in interest to the action. Commissioner DuPont asserts that [t]he highway defect statute [13a-149] is the plaintiff's sole remedy for allegations against a municipality and any cause of action lies directly against [the] municipality itself and not against any individuals.
Second, Commissioner DuPont contends that she cannot be held liable for the plaintiff's injuries in her individual capacity since [a]t the time of the incident which is the subject matter of this lawsuit, Judith DuPont was not an agent, servant or employee of the municipality. Therefore, the defendant argues, Commissioner DuPont bore no responsibility to maintain or repair the area of the driveway apron where the plaintiff allegedly fell and as such could not possibly be responsible pursuant to the highway defect statute . . .
The complaint alleges that the plaintiff slipped and fell on the sidewalk. The plaintiff testified at her deposition that she fell when she stepped from the sidewalk onto the driveway apron.
The third and fourth arguments set forth in the defendant's memorandum of law presume, in effect, that the plaintiff asserts her claim against the Borough of Stonington rather than against Commissioner DuPont in her individual capacity. The defendant maintains that the Borough of Stonington, by enacting an ordinance in which it adopted the provisions of General Statutes 7-163a, shifted responsibility for the location where the fall occurred onto the abutting property-owner; codefendant 176 Water Street Condominium Association, Inc. Lastly, the defendant argues that, as a matter of law, the plaintiff cannot prove that the Borough of Stonington's conduct is the sole proximate cause of the plaintiff's injuries.
Plaintiff, Anya Larkin, has filed a memorandum of law in opposition to defendant Commissioner DuPont's motion for summary judgment. The plaintiff asserts two arguments in opposition to the motion for summary judgment. First, the plaintiff argues that this action, which arises under General Statutes 13a-149, was properly brought against the defendant municipality via the Commissioner of Sidewalks. The plaintiff asserts as the basis for this argument that, under 13a-149, the party whom the plaintiff is suing must be the party bound to keep the location where the injury was sustained in repair. The plaintiff states that the Borough of Stonington, pursuant to its own validly enacted ordinances, has charged its Sidewalk Commissioner with the duty of enforcing rules relating to the removal of snow and ice from sidewalks within the Borough of Stonington. Thus, the plaintiff argues that it is the governmental entity charged with the duty to keep the property in repair on which the statute imposes liability under certain circumstances. The plaintiff also argues in her memorandum in opposition to the motion for summary judgment that, [t]he presentation of the issue of sole proximate cause is necessarily one for the jury.
Defendant Commissioner DuPont filed a reply to the plaintiff's memorandum of law in opposition to the motion for summary judgment. In Commissioner DuPont's reply brief, she reasserts the four arguments set forth in the memorandum of law in support of summary judgment. In particular, Commissioner DuPont disputes the plaintiff's contention that this action is brought against the Borough of Stonington. The defendant argues that the civil summons sheet makes clear that the party served was Judith Dupont, Commissioner of Sidewalks, Street Lighting and Community Relations, Borough of Stonington. The defendant also refers to the allegations in the complaint, which, the defendant argues, are specifically directed to [Commissioner DuPont] individually as opposed to the Borough of Stonington.
II. Issue and Discussion
One of the principal issues to be resolved by the Court on the defendant's motion for summary judgment is whether the plaintiff can, as a matter of law, maintain a cause of action under General Statutes 13a-149 against Commissioner DuPont, the named party defendant. For several reasons, it cannot be concluded that the plaintiff's claim is directed to the Borough of Stonington, rather than Commissioner DuPont. First, the civil summons sheet annexed to the complaint names as defendant DUPONT, Judith Commissioner of Sidewalks, Street Lighting Community Relations, Borough of Stonington. However, the Borough of Stonington is not named as a separate defendant. Secondly, the allegations in the second count are specifically directed at Judith DuPont, Commissioner of Sidewalks, Street Lighting Community Relations of the Borough of Stonington, or her agents, servants, and/or employees. There are no factual separate allegations in the complaint directed against the Borough of Stonington. Finally, the State Marshal's return of service indicates that service of process was made on Commissioner DuPont, rather than the Borough of Stonington.
According to the State Marshal's return of service, service of the complaint was made by leaving two true and attested copies of the original Writ, Summons and Complaint, with and in the hands of Barbara Perry, Borough Clerk and authorized by statute to accept service for Judith DuPont, Commissioner of Sidewalks, Street Lighting Community Relation, Borough of Stonington, the within named Defendant . . . General Statutes 52-57 directs that service against a borough be made upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses. There is no indication from the return of service that the Borough Clerk accepted service on behalf of the Borough of Stonington.
In the plaintiff's memorandum in opposition to the motion for summary judgment, she cites to Coughlin v. City of Waterbury, 61 Conn.App. 310, 763 A.2d 1058 (2001) and Novicki v. City of New Haven, 47 Conn.App. 734, 709 A.2d 2 (1998). These cases, the plaintiff argues, support the proposition that service against the municipality is properly made via the Commissioner of Sidewalks because the Commissioner is charged by ordinance with the duty to keep the area in repair where the plaintiff allegedly incurred her injuries. Neither Coughlin nor Novicki instructs that a claim against a municipality is properly brought by serving the complaint on an individual within the municipality whose responsibility it is to maintain the walkway in question. Rather, the issue presented in both of those cases was which of either the city or the board of education may have been responsible for maintaining the walkway on which the plaintiffs' injuries were allegedly sustained. The court determined in each case that the claim properly lies against whichever entity bears that responsibility. Coughlin, supra, at 315; Novicki, supra, at 740-42.
A plaintiff may remedy a failure to name the proper defendant pursuant to General Statutes Section 52-593. Section 52-593 permits a plaintiff who has failed to name the right person as defendant to bring a new action naming the correct defendant, despite the fact that the statute of limitations would otherwise bar the action. However, an action against a municipality arising under the highway defect statute would necessarily raise an issue as to the effects, if any, of General Statutes Section 7-163a, and municipal ordinances enacted pursuant to that statute, on the municipality's liability.
General Statutes Section 52-593 provides: When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. If service of process in the original action has been made upon an agent of the defendant named in the new action, . . . notice of any claim for damage shall be sufficient if given in the original action, pursuant to the statutory provisions, to any officer or agent of the defendant in the new action.
General Statutes 7-163a provides: Municipal liability for ice and snow on public sidewalks.
(a) Any town, city, borough, consolidated town and city or consolidated town and borough may, by ordinance, adopt the provisions of this section.
(b) Notwithstanding the provisions of section 13a-149 or any other general statute or special act, such town, city, borough, consolidated town and city or consolidated town and borough shall not be liable to any person injured in person or property caused by the presence of ice or snow on a public sidewall unless such municipality is the owner or person in possession and control of land abutting such sidewalk, other than land used as a highway or street provided such municipality shall be liable for its affirmative acts with respect to such sidewalk.
(c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury. (2) No action to recover damages for injury to the person or to property caused by the presence of ice or snow on a public sidewalk against a person who owns or is in possession and control of land abutting a public sidewalk shall be brought but within two years from the date when the injury is first sustained.
Summary Judgment and the Highway Defect Statute
The standard for granting summary judgment is set forth in Connecticut Practice Book Section 17-49. Section 17-49 provides that "[s]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." On a summary judgment motion, the moving party bears the burden of showing the nonexistence of any material fact. Cummings Lockwood v. Gray, 26 Conn.App. 293, 297, 600 A.2d 1040 (1991). "[The] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Id. This case arises under General Statutes 13a-149, which is known as the highway defect statute. Section 13a-149 permits a person injured in person or property by means of a defective road or bridge [to] recover damages from the party bound to keep it in repair. The words "road or [bridge]" as used in the highway defect statute has usually been construed to include sidewalks. Novicki v. City of New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998). "Sidewalk," in turn, is meant to apply to those areas that the public uses for travel. Id. Section 13a-149 has been recognized as one of the exceptions to the rule of sovereign immunity carved out by the legislature where it has allowed the governmental entity to be subject to suit. Novicki v. City of New Haven, 47 Conn.App. 734, 739, 709 A.2d 2 (1998). This state legislature has also made it a requirement that, in certain circumstances, the municipality must indemnify municipal employees who are sued in connection with their employment or official duties. General Statutes Section 52-557n provides for indemnification of municipal employees in certain circumstances. However, the statute specifically exempts causes of action arising under the highway defect statute.
General Statutes Section 13a-149 provides in pertinent 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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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."
General Statutes Section 52-557n provides in pertinent part: LIABILITY OF POLITICAL SUBDIVISION AND ITS EMPLOYEES, OFFICERS AND AGENTS. (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) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe . . .
The court in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991) analyzed the implications of General Statutes Sections 52-557n and 7-465 in light of a claim arising under the highway defect statute, 13a-149. In Sanzone, the plaintiffs sued the City of Bridgeport's Board of Police Commissioners, individual members of the board, the superintendent of police and a police sergeant in negligence, nuisance and misperformance of ministerial duties to recover for injuries sustained in a car accident which occurred after a traffic light malfunctioned. The court held 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." (Internal quotation marks omitted.) Id., 192. The court also determined that section 52-557n precludes joint action against a municipality and its officer for damages resulting from a defective road or bridge. Id. Moreover, the court found that section 52-557n removes torts related to highway defects from the class of torts for which municipal employees may be indemnified under 7-465(a). Id., 193. The court in Sanzone noted, however, that it "[does] not . . . construe [section] 52-557n to bar a plaintiff from asserting causes of action in tort against those individuals whose actual conduct was a proximate cause of the injury." Id., 192-93. Yet, the court refused to address the issue of the defendants' individual liability because the plaintiffs "[never] suggested that they intended to assert claims against the named individuals in their individual capacities except as a basis for imposing liability on the municipality." Id., 194.
General Statutes § 7-465 provides in pertinent part: ASSUMPTION OF LIABILITY FOR DAMAGE CAUSED BY EMPLOYEES OR MEMBERS OF LOCAL EMERGENCY PLANNING DISTRICTS. JOINT LIABILITY OF MUNICIPALITIES IN DISTRICT DEPARTMENT OF HEALTH OR REGIONAL PLANNING AGENCY.
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty . . .
Similarly, in Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), the court rejected the plaintiff's contention that the requirements of section 13a-149 did not apply where the defendant town officials were sued in their individual capacities. The court in Ferreira, based its decision on a finding that, "the claims asserted against the defendants in their individual capacities serve as a veiled attempt to impose liability on the municipality." Ferreira, supra at 345. For this reason, the court concluded that "the plaintiff's claim for damages against the defendants involves what can be construed only as a claim under the defective highway statute." Id. Likewise, in this case, the facts presented lead to the conclusion that the plaintiff intended to assert a claim under section 13a-149 against Commissioner DuPont only as a basis for imposing liability on the municipality, Borough of Stonington. This is evidenced by the plaintiff's statement in her memorandum in opposition to the motion for summary judgment that, "[i]n the Second Count of the complaint, the plaintiff brings an action under Conn. Gen. Stat. Sec. 13a-149 against the Borough of Stonington for the injuries that she sustained." Thus, in accordance with Sanzone and Ferreira, the second count of the complaint against Commissioner DuPont fails as a matter of law. Assuming arguendo, that the plaintiff asserts a claim of common-law negligence against Commissioner DuPont, as stated in the second count of the complaint, the plaintiff might only prevail if she was able to demonstrate that Commissioner DuPont's actual conduct was the proximate cause of the plaintiff's injury. Sanzone, supra at 192-93; but see Perone v. City of Stamford, Docket No. CV93 0132901 at *6 n. 4 (Conn.Super. April 27, 1994) (not reported in A.2d) ( 11 Conn. L. Rptr. 429) (rejecting an interpretation of Sanzone which would permit a cause of action in common-law negligence against a municipal employee in circumstances within the purview of section 13a-149).
Such an argument is refuted by the plaintiff's statement in the memorandum in opposition to the motion for summary judgment, acknowledging, [i]n the Second Count of the complaint, the plaintiff brings a cause of action under Conn. Gen. Stat. 13a-149.
It is an undisputed fact that, at the time the plaintiff incurred her injuries, Commissioner DuPont was not an agent, servant or employee of the municipality. Nor did Commissioner DuPont have any responsibility for maintaining the walkway upon which the plaintiff alleges she suffered injuries. In Commissioner DuPont's affidavit which was submitted with the defendant's memorandum of law in support of the motion for summary judgment, Commissioner DuPont states that she was not an agent, servant and/or employee of the Borough of Stonington at the time of the subject incident. The plaintiff alleges she sustained injuries that are the subject of the present action on December 8, 2002. Commissioner DuPont was appointed to serve her first term as Burgess for the Board of Warden and Burgesses for the Borough of Stonington on May 5, 2003. Therefore, as a matter of law, the plaintiff cannot establish that Commissioner DuPont's actual conduct was a proximate cause of the plaintiff's injury.
Even assuming that Judith DuPont is misnomer in that the plaintiff intended to name as defendant, the individual who was Commissioner of Sidewalks, Street Lighting Community Relations for the Borough of Stonington at the time the plaintiff allegedly sustained her injuries, the plaintiff has not alleged facts sufficient to establish that the Commissioner's individual acts were the proximate cause of the plaintiff's injuries.
For the reasons that 1) Connecticut General Statutes Section 13a-149 is the exclusive remedy for the injuries claimed in this situation and limits any action therefor to the borough itself; 2) this action does not name the borough as a defendant, and it was not so served, and; 3) this action was brought not against the borough, but against defendant Judith G. Dupont, as Commissioner, her Motion for Summary Judgment is granted.