Opinion
No. LLI CV 09 5007030S
May 27, 2010
MEMORANDUM RE MOTION TO STRIKE #108
ISSUE
The issue is whether the court should grant the defendants' motion to strike the second, third, fourth, fifth, sixth and seventh counts of the plaintiff's complaint on the ground that the causes of action enumerated in those counts are foreclosed by the exclusivity of General Statutes § 13a-149 and are, thus, insufficient as a matter of law?
FACTS
On October 23, 2009, the plaintiff, Richard Pesce, filed an eight-count complaint alleging the following facts. In count one, brought pursuant to General Statutes § 13a-149, the plaintiff alleges that as he was mowing grass at 18 Apley Road, a private residence in the town of Goshen, he "stepped on a [wooden] catch basin cover located on such property adjacent to the roadway, when the grate covering the basin collapsed, causing the [p]laintiff . . . to fall and to sustain and suffer . . . severe personal injuries and losses." The plaintiff alleges that the defendant, town of Goshen (Goshen), was under a statutory duty "to keep and maintain the streets, roads, bridges, culverts, sewers, roadside development and related projects within its territorial limits in a reasonably safe condition."
Moreover, the plaintiff, in count one, alleges that he provided Goshen with a "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 . . . pursuant to Connecticut General Statutes § 13a-149."
In count two, the plaintiff alleges nuisance pursuant to § 52-557n against Goshen, claiming that he was injured after stepping "on a catch basin cover located on [property at 18 Apley Road]." In count three, the plaintiff alleges negligence against Goshen pursuant to § 52-557n, pleading the same facts with regard to the location of the catch basin as in count two. Such allegation with regard to the catch basin is reiterated in count four, brought pursuant to § 7-465, against the defendant, David Bonaguide, the chairman of the water pollution control authority of the town of Goshen at the time of the subject incident. Count five, for indemnification, brought against Goshen pursuant to § 7-465, again alleges the same facts with regard to the catch basin as in count two. Count six, brought pursuant to § 7-465 against the defendant, Ed Perry, the public works department supervisor, and the defendant, Bill Gelormino, the working road foreman of the public works department of the town of Goshen at the time of subject incident and count seven, likewise for indemnification, brought against Goshen pursuant to § 7-465, also allege the same factual allegations concerning the catch basin as in count two.
Darlene Martin, the owner of the property at 18 Apley Road, although a defendant in this action, did not join in the present motion to strike filed by Goshen, Bonaguide, Gelormino and Perry. As such, Goshen, Bonaguide, Perry and Gelormino will hereinafter be referred to, collectively, as the defendants.
On January 15, 2010, the defendants filed a motion to strike counts two, three, four, five, six and seven of the plaintiff's complaint on the ground that the causes of action enumerated in those counts are foreclosed by the exclusivity of § 13a-149. The defendants have submitted a memorandum of law in support of their motion. On March 11, 2010, the plaintiff filed an objection to the motion to strike and memorandum of law in support thereof. The matter was heard at the short calendar on April 5, 2010.
DISCUSSION
"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). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The defendants argue that the facts alleged by the plaintiff in count one of his complaint state a cognizable claim under § 13a-149 and are, therefore, the plaintiff's exclusive remedy. As such, the defendants argue that the second through seventh counts of the complaint, sounding in negligence, nuisance and indemnification, "should be stricken because they fail to state claims upon which relief can be granted."
The plaintiff counters that the complaint "properly sets forth alternate theories of liability." In particular, the plaintiff argues that "there is no allegation in any of [counts two through seven] that the area in which the [p]laintiff was injured was intended for pedestrian traffic . . . If at trial, the trier of fact were to conclude that the area where the fall occurred was a highway defect within the meaning of § 13a-149, and such defect was the sole proximate cause of the [p]laintiff's injury, the [p]laintiff would be entitled to recover damages from . . . [Goshen] pursuant to the statute. If, on the other hand, the wooden grate were found to not be a defect within the meaning of . . . § 13a-149, the [p]laintiff's sole remedy would be for nuisance or negligence pursuant to . . . § 52-557n and § 7-465." Moreover, the plaintiff argues that he "was not a traveler [as contemplated by § 13a-149] in that he was not utilizing the area containing the wooden grate for the purpose of traveling from one destination to another, but was actually in the process of mowing the grass in such area."
General Statutes § 13a-149 provides 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." An action brought pursuant to § 13a-149 provides a plaintiff's exclusive remedy. Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). "[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.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991). "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." Ferreira v. Pringle, supra, 255 Conn. at 341-42, 766 A.2d 400.
"Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances." Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). If a 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.) Kozlowki v. Commissioner of Transportation, 274 Conn. 497, 506, 876 A.2d 1148 (2005).
The defendants, in their motion to strike, argue that the present facts are similar to those in Ferreira v. Pringle, supra, 255 Conn. 330, and Klein v. Norwalk, 499 F.Sup.2d 113 (D.Conn. 2007). In Ferreira, the plaintiff was injured after tripping over the remainder of a steel signpost located on a grassy portion of land approximately seven feet from a road shoulder. Ferreira v. Pringle, supra, 255 Conn. 330, 332. In that case, the plaintiff was disembarking from a public bus at the time of the subject accident. Id. In Klein, the plaintiff was injured after she tripped and fell over a drainage grate located in a parking lot on property owned and maintained by a municipality. Klein v. Norwalk, supra, 499 F.Sup.2d 113, 116.
The plaintiff counters that the present facts are more closely aligned with those in Kozlowki v. Commissioner of Transportation, supra, 274 Conn. 497. In that case, a construction worker was injured while he was working on the side of a road when a catch basin cover collapsed under him. Id., 499. The Kozlowksi court determined that the catch basin, guarded by two wooden posts and paved curbing, located in a dirt and grass area adjacent to a roadway and surrounded by embankments covered in heavy shrubbery was not a highway defect as contemplated by § 13a-149. Id., 504. The Kozlowski court stated that "[a]lthough the catch basin presumably exists to prevent excess water from impeding travel, the plaintiff does not allege that the catch basin was defective as to serving that function. Thus, its condition did not impede travel." Id., 506-7.
Under the present facts, the plaintiff was mowing grass at the time of the subject incident. The plaintiff makes no allegation that he ever traveled along the public right of way. Under the facts of both Ferreira and Klein, the plaintiffs were injured pursuant to their use of a public roadway. Specifically, in Ferreira, the plaintiff was injured on a grassy highway shoulder while disembarking a bus. In Klein, the plaintiff was injured when she tripped on a drainage grate in a parking lot while walking to her vehicle.
In the present case, the plaintiff's injuries were sustained incidental to his travel on a private right of way, namely the property located at 18 Apley Road. Moreover, as in Kozlowksi, the plaintiff has not alleged that the subject catch basin was defective as to serving its function of preventing the accumulation of excess water from impeding travel on the public way. Assuming all facts alleged in the complaint to be true, the allegations of count one do not establish, as a matter of law, that the catch basin was a highway defect within the meaning of § 13a-149.
"[As] a general rule, under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint . . . [If a plaintiff alleges] facts supporting his [alternative] claim . . . that [do] not fall within § 13a-149, then such alternative pleading [is] proper." (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 40 n. 9, 974 A.2d 820 (2009). Since the plaintiff has pleaded facts in counts two through seven that fall outside of the confines of § 13a-149, it is submitted that these counts should be permitted to stand.
CONCLUSION
Therefore, the defendants' motion to strike counts two (2) through seven (7) of the plaintiff's complaint is denied.