Opinion
HHDCV146051827S
03-15-2016
Michael D. Milano v. State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE: MOTION FOR RECONSIDERATION (#122)
Sheila A. Huddleston, Judge.
The plaintiff, Michael D. Milano, brought this action pursuant to General Statutes § 52-556, alleging that he was injured while on a Department of Transportation (DOT) road work detail that required him to get in and out of a truck repeatedly. The defendant, State of Connecticut, moved to dismiss the action on the ground that the allegations of negligence place the matter outside the scope of the waiver of sovereign immunity provided in § 52-556. The court (Rittenband, J.T.R.), denied the motion to dismiss. The defendant timely moved for reconsideration. Because the judge trial referee who decided the motion had retired, the motion was assigned to a different judge. This judge reviewed the briefs and exhibits submitted with the original motion to dismiss, the recording of the argument on the motion to dismiss, and the briefs submitted with respect to the motion for reconsideration. Oral argument on the motion for reconsideration was heard on November 17, 2015. After due consideration, the court grants the motion for reconsideration and further grants the motion to dismiss for lack of subject matter jurisdiction.
I
FACTS
In the revised and second amended complaint filed on August 27, 2014 (#105), the plaintiff alleged the following material facts: The plaintiff was an inmate incarcerated at the Willard Cybulski Correctional Facility in March 2012, when he was approved for an outside work assignment with the DOT at the Farmington maintenance facility. The plaintiff was picked up for work by a DOT employee, Zygmunt Hajdasz, who drove the plaintiff and other inmates in a DOT vehicle to perform maintenance tasks. The DOT employee instructed the plaintiff and other inmates throughout the day to jump off the truck to load and unload road signs, tripods, sandbags, and other items, and to clean up debris on the roadsides. On or about August 1, 2012, the DOT driver instructed the plaintiff to jump off the truck, which was not moving at the time. When the plaintiff jumped off the truck, he twisted his right foot and leg, which allegedly caused him severe leg, neck, back, and arm pain. The plaintiff continued to work after this incident. He saw the institutional doctor, who told him that he had arthritis but could continue to work. The plaintiff's symptoms worsened over the following weeks until he could no longer work. After a CT scan and an MRI, the plaintiff underwent surgery to correct four crushed discs in his neck. The plaintiff remains in severe pain and in need of further surgery to repair his lumbar spine. The plaintiff alleges that his injuries were caused by the repetitive trauma caused by getting in and out of the truck.
The plaintiff alleges that his injuries were caused by the motor vehicle driven by the defendant's agent, and that the defendant's agent was negligent in the following ways: (1) he failed to write an accident report at the time of the " incident"; (2) he failed to inform the institution of the plaintiff's injury; (3) he allowed other inmates to " conceal" the plaintiff's injury by having them help the plaintiff while he worked; and (4) he failed to prohibit the plaintiff from working, knowing that the plaintiff had injured himself.
In support of the motion to dismiss, the defendant submitted portions of the plaintiff's deposition. (#113.) In opposition to the motion, the plaintiff submitted an affidavit and further excerpts from his deposition. (#116, #117.) From those submissions, the court gleans the further undisputed facts.
The plaintiff's job necessarily required him to get in and out of the truck frequently to unload or pick up items on the side of the road. He had to be physically fit and approved by a doctor to get on that work detail. The truck was always stopped as a safety precaution when he got in and out of it. He did not claim that the DOT driver did anything inappropriate in terms of directing him to get signs in and out of the truck. He had worked at the job for eight or nine months before he first injured himself on August 1, 2012. When he jumped out of the truck on that day, he landed on his feet but felt a shooting pain up one leg. He exclaimed " this freaking hurts, " but " didn't think nothing of it" because " you know, you bang your knee, you bang your knee." He continued to work both that day and subsequent days, generally getting in and out of the cab rather than jumping off the back of the truck. As his symptoms worsened, it got harder for him to get in and out of the truck. The DOT driver noticed that he was limping and limited him to certain tasks next to guardrails rather than having him climb down embankments or hills. The plaintiff did not believe that the DOT driver had done anything wrong with regard to his driving. Instead, he thought that the DOT driver should have taken him off the job.
II
APPLICABLE LAW
" [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts." (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). The defendant here appropriately sought reargument concerning the construction of § 52-556 as applied to the undisputed facts at issue in this case.
While the prior decision of the court on the motion to dismiss should be given due consideration, it is not binding on a subsequent judge if the court retains jurisdiction over the case. " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . Our Supreme Court has recognized that the law of the case doctrine is not one of unbending rigor . . . A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citations omitted; emphasis in original; internal quotation marks omitted.) McCarthy v. McCarthy, 55 Conn.App. 326, 332-33, 752 A.2d 1093 (1999).
Here, the defendant seeks reconsideration of a denial of a motion to dismiss. The standards applicable to a motion to dismiss are well established. " Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book § 10-30] may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (Footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id., 651. " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 651-52. In this case, the court considers the allegations of the complaint and the undisputed facts established by the affidavit and supplementary deposition excerpts provided by the parties. The supplementary facts provide greater context for the allegations in the complaint.
Finally, General Statutes § 52-556 provides: " Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury." By the terms of § 52-556, the state has waived its sovereign immunity for actions falling with the ambit of its provisions. See Babes v. Bennett, 247 Conn. 256, 263, 721 A.2d 511 (1998).
Decisions of our Supreme and Appellate Courts " have repeatedly emphasized that statutes in derogation of sovereign immunity must be strictly construed in favor of the state, and, if there is any doubt about their meaning or intent, they must be given the effect that makes the least rather than the most change in sovereign immunity." Rodriguez v. State, 155 Conn.App. 462, 475, 110 A.3d 467, cert. granted, 316 Conn. 916, 113 A.3d 71 (2015).
III
ANALYSIS
The Appellate Court first addressed the meaning of § 52-556 in Rivera v. Fox, 20 Conn.App. 619, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990). In Rivera, a state employee positioned a DOT truck partly in the left travel lane and partly in the left shoulder of an interstate highway fifty feet from the scene of a fatal accident, which he was helping to clear. He left the vehicle's engine running and strobe lights on and set up flares on the road behind the vehicle. Some two hours later, a motorist collided with the parked truck and was killed. An action was brought under § 52-556 against the state to recover on behalf of the decedent's estate. The trial court granted summary judgment against the plaintiff, and the Appellate Court affirmed. The court analyzed the statutory language, " when operating a motor vehicle, " in light of sovereign immunity principles and concluded that it " implies a simultaneousness of negligent operation and injury, because 'when' denotes the time or exact moment at which something is done. Here, there was no coalescence in time of the operation and the injury. Without temporal congruence, the state cannot be held liable even if the negligent operation of a state owned motor vehicle by a state employee proximately caused the injury." Id., 622-23.
" [The] court in Rivera recognized that, under certain circumstances, if the state vehicle caused an accident because of the location it was parked incident to travel . . . then a plaintiff might be able to establish that the negligence occurred when operating a motor vehicle owned and insured by the state . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Rodriguez v. State, supra, 155 Conn.App. 477. In Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004) ( Allison I ), the Appellate Court considered circumstances under which the state might be liable under § 52-556 for a state vehicle that caused an accident even though it was parked at the time of the accident. In that case, a DOT worker parked his vehicle partly within the westbound lane of Route 44 while the worker got out to perform a road maintenance task. The plaintiff's vehicle, which was traveling in the eastbound lane, was struck by a tractor trailer that swerved into her lane to avoid the parked DOT truck. The trial court concluded that the parked vehicle was not being operated at the time of the accident and dismissed the action under § 52-556. The Appellate Court reversed, holding that the action was within the scope of § 52-556 because the driver " had parked the truck as an activity incident to moving it from one place to another along his designated maintenance route to fulfill his responsibilities for the department [of transportation]. There was, consequently, a temporal congruence between the operation of the truck and the plaintiff's injury." Id., 542.
On remand, the Allison case was tried to a jury, which rendered a verdict for the plaintiff. The state again appealed, arguing that the jury was not properly instructed. The Supreme Court agreed, explaining that " if [the DOT worker] had parked the state truck as an activity incident to moving it from one place to another along his designated maintenance route to fulfill his responsibilities, he was operating the truck as that word is used in § 52-556, even though the truck was parked and he was outside of it at the time of the accident." (Internal quotation marks omitted.) Allison v. Manetta, 284 Conn 389, 399, 933 A.2d 1197 (2007) (Allison II ). 1f however, " the truck was being used as a warning device or as a protective barrier . . . the jury . . . must find for the defendant because the truck was not being 'operated' under § 52-566." Id., 400.
In Rodriguez v. State, supra, 155 Conn.App. 462, the Appellate Court again addressed the scope of the waiver of sovereign immunity in § 52-556. In that case, a tractor trailer struck from behind three vehicles that had slowed as they approached metal debris in the left and center southbound lanes of Interstate 95. A passenger in one of the vehicles was killed and the driver of another was seriously injured. The injured driver and the representative of the decedent later brought actions against the owner of the tractor trailer and its driver. The actions were consolidated. The defendants brought an apportionment complaint, alleging that a DOT service patrol officer had negligently parked his truck so as to obstruct the right travel lane and had used his vehicle to direct traffic into the center and left lanes, creating a dangerous bottleneck around the debris. When the case was tried, a video of the accident showed that the DOT worker had positioned his truck in the right lane and illuminated warning lights on the vehicle, including a left directional arrow on an arrow board mounted on the back of his truck. The jury returned a verdict finding that the tractor trailer's operator was 70 percent responsible for the accident and the state was 30 percent responsible. The state appealed, claiming errors in the admission of evidence and errors in the jury instructions. The Appellate Court reversed, concluding that the jury charge had not properly summarized the law regarding § 52-556. In its decision, the court traced the interpretation of § 52-556 from Rivera through Allison II and summarized the law as follows: " Taken together, this court's decision in Rivera and our Supreme Court's decision in Allison II can be distilled into the following legal principles that the trier of fact, in applicable cases, must follow: (1) the state may be held liable pursuant to § 52-556 only if the state vehicle that is alleged to have caused the accident was being operated at the time of the accident; (2) a motor vehicle ordinarily is still being operated if it is parked incident to travel, that is, in a convenient or an ordinarily appropriate place to park; and (3) the state may still not be sued or held liable if the state vehicle is positioned or parked in a particular location so as to warn drivers as to the danger ahead or to serve as a protective barrier." Rodriguez v. State, supra, 155 Conn.App. 480.
In this case, the facts alleged in the complaint as supplemented by deposition and affidavit are sufficient to establish that the DOT truck at issue in this case was " being operated" in the sense that it was " parked incident to travel, that is, in a convenient or ordinarily appropriate place to park, " and the defendant does not contend that it was parked as a warning device or protective barrier. The issue with the plaintiff's complaint is with the first prong--that is, that the operation of the vehicle must be alleged to have caused the accident. Although the plaintiff conclusorily alleges that his injuries were " caused by the motor vehicle driven by the state's agent" in paragraph 23 and that he was injured " by the operation of that vehicle by a state employee" in paragraph 24, all of his specific factual allegations of negligence concern the conduct of the driver in supervising the work detail. The plaintiff alleges that the DOT driver negligently failed to write an accident report when the plaintiff was injured by jumping off the truck; that he failed to inform the institution about the plaintiff's injury and allowed the plaintiff to keep his injury " concealed" by having other inmates helping the plaintiff; and that he did not prevent the plaintiff from continuing to work after his initial injury.
At his deposition, the plaintiff admitted that the truck was always stopped when he was getting in or out of it. He admitted that the job itself required him repeatedly to get in and out of the truck. He did not claim that the driver had parked the truck in a dangerous location or had allowed the truck to move while the plaintiff was getting in or out of it. When asked what the driver should have done, he replied only, " He probably should have took me off the job." This is an allegation of negligent supervision, not of negligent operation of a motor vehicle. The waiver of sovereign immunity in § 52-556 does not extend to claims that do not allege negligent operation of the vehicle.
The mere fact that a vehicle was involved does not automatically bring the claim within the scope of § 52-556. This can be seen in the decisions discussed above, where it was held that a truck being used as a barrier or warning device was not being " operated." It can also be seen in decisions construing General Statutes § 31-293a, which excepts from the exclusivity provisions of the Workers' Compensation Act any action based on a " fellow employee's negligence in the operation of a motor vehicle." Construing that statute, the Appellate Court has concluded that " [i]f a co-employee is not engaged at the time of the fellow employee's injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of General Statutes § 31-293a." Kegel v. McNeely, 2 Conn.App. 174, 178, 476 A.2d 641 (1984) (affirming directed verdict for defendant where evidence showed that truck was stationary at time of accident, which was caused by movement of crane mounted on truck, not truck itself). Similarly, in Rodriguez v. Clark, 162 Conn.App. 785 (2016), the Appellate Court affirmed a trial court's decision that a police officer's negligence in leaving a police dog unsecured in a police cruiser with a window down was not negligence in the operation of a motor vehicle, as required for the fellow employee exception under § 31-293a.
Two other decisions construing " negligence in the operation of a motor vehicle" under § 31-293a confirm the conclusion that the alleged negligent supervision of the plaintiff in this case is not negligence occurring in the " operation" of a motor vehicle. In the first case, Kiriaka v. Alterwitz, 7 Conn.App. 575, 509 A.2d 560, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), the Appellate Court concluded that to find negligent operation under § 31-293a, " the fellow employee's injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer's truck." Id., 579. In Kiriaka, the defendant was driving a furniture van and the plaintiff, a co-worker, was his passenger. The defendant parked the van at the easterly curb of a road with its lights and flashers on. After parking the van, the defendant remained in its cab, reviewing some papers. The plaintiff got out of the van and started to cross the road, where he was struck by a motor vehicle. The Appellate Court concluded that the plaintiff had not established that either the defendant's movement of the van or a circumstance relating to the movement of the van had caused the accident. " 'Operation' of a motor vehicle connotes the control and direction of it, the activity of an 'operator' or 'driver' licensed for that purpose. The exception to § 31-293a relates to injury causally connected to the control and direction of the employer's vehicle." Id., 580.
Similarly, in Chamberland v. LaBonte, 99 Conn.App. 464, 913 A.2d 1129, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007), the Appellate Court affirmed summary judgment for a defendant on the ground that the accident at issue had not been caused by the " operation of a motor vehicle." In Chamberland, the plaintiff and defendant were co-workers on a garbage truck. The defendant had parked the truck over a garbage pit and both the plaintiff and defendant had exited the truck to uncouple a hopper from the body of the truck. While the plaintiff was working on the passenger's side of the vehicle, the defendant, without checking the plaintiff's location, pulled a lever that raised the hopper of the truck. At the time, the plaintiff was holding onto a lever on the hopper, and the sudden movement of the hopper thrust him out and up into the air over the garbage pit. He then jumped from the lever to the ground and was injured. Relying on the Supreme Court's decision in Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), the Appellate Court agreed that the plaintiff had not alleged facts sufficient to show that his co-worker's negligence occurred in the operation of a motor vehicle. See Chamberland v. LaBonte, supra, 99 Conn.App. 474. The Appellate Court quoted Dias as follows: " In the case before us it is clear that, when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself . . . He was engaged only in operating the shovel [of a backhoe]. His negligence, which the jury found to have caused the accident, did not occur, therefore, in the operation of a motor vehicle, as § 31-293 a requires for the exception allowing such a suit against a fellow employee." Chamberland v. LaBonte, supra, 99 Conn.App. 474, quoting Dias v. Adams, supra, 189 Conn. 358.
Both § 31-293a and § 52-556 allow recovery in negligence only when the negligence relates to the " operation" of a motor vehicle. The cases construing those statutes have applied the similar language and reached similar conclusions concerning what constitutes " operation" of a motor vehicle. General Statutes § 52-556 is, as stated previously, a statute in derogation of the state's sovereign immunity, and it must be strictly construed. In this case, the defendant was doing nothing related to driving or moving the vehicle itself when the plaintiff was injured. The vehicle was fully stopped each time the plaintiff got off or out of it. The plaintiff does not allege that the operation or the position of the truck caused his injury. Because his allegations of negligence do not relate to the movement or control of the truck or to any circumstance related to its movement or position or location, the plaintiff has not sufficiently alleged a claim under § 52-556. Accordingly, this action should be dismissed.
IV
CONCLUSION
Review of the allegations in this action, in light of the decisions by the Supreme and Appellate Courts construing the term " operation" of a motor vehicle, lead this court to conclude that the plaintiff's complaint alleges negligent supervision of a work detail rather than negligent operation of a motor vehicle. The motion for reconsideration is therefore granted, and the motion to dismiss is also granted.