Opinion
No. X04 CV 04 4002631 S
March 8, 2007
MEMORANDUM OF DECISION
This is a personal injury case. The plaintiff, Edward Petner, Jr., alleges in his complaint that he was very seriously injured when, while riding his bicycle, he was hit by a car. He states that, while relying on faulty traffic control signals, he attempted to avoid an orange construction cone which had been placed sometime previously in the path of travel. As a result, and as a result of negligent operation of the car, he suffered injury and damages. His wife and children allege losses of spousal and filial consortium. The 112-page "revised second amended complaint" dated November 17, 2005, contains 64 counts against a variety of defendants, including various contractors who had been working at the intersection, the electric utility company, the state of Connecticut, the town of Stonington and several employees of the town.
The town of Stonington ("town") and the defendant town employees have moved to strike all but one of the counts brought against them. The gravamen of the town's argument is that the complaint factually alleges a highway defect claim. The exclusive remedy, therefore, is General Statutes § 13a-149, which in fact is pleaded in count 38 and which is not sought to be struck. The town defendants also urge that Connecticut does not recognize causes of action for loss of parental consortium. The plaintiffs argue, principally, that the alleged facts do not necessarily state a highway defect claim and that the various consortium claims are permitted.
The standards governing motions to strike are well known and need not be stated in detail here. Suffice it to say that in deciding a motion to strike on the ground of whether a claim has been stated on which relief may be granted, the court must confine itself to the allegations of the pleading, both express and necessarily implied, and must accept as true those allegations. See, e.g., Gazo v. Stamford, 255 Conn. 245, 260 (2001); see also Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990). The pleadings will be construed in favor of the pleader if there is any ambiguity as to whether relief could be granted under the pleading. Doe v. Marselle, 38 Conn.App. 360, 364 (1995). Conclusions which are pled, however, need not be accepted as true for the purpose of ruling on motions to strike. Doe v. Yale University, 252 Conn. 641, 694 (2000).
Count 16 alleges that the town of Stonington, its police chief, two police officers and the Stonington Police Department, were responsible for supervising traffic conditions (¶ 2), provided services to Electrical Contractors for the project (¶ 3), and provided services for pecuniary benefit. (¶ 4). The paragraph stating the operative facts (¶ 5) alleges:
On August 23, 2003 at approximately 7:15 a.m., the plaintiff, Edward J. Petner, Jr., was a bicyclist proceeding south on Route 1 through its intersection with Flanders Road in the Town of Stonington. While relying on the traffic light controls at said intersection, he attempted to avoid an orange construction cone which had been placed in the roadway and was then suddenly and without warning struck by a 1995 Dodge vehicle operated by the defendant Stacy Moody who was making a left hand turn from Flanders Road onto Route 1. Said collision caused [injuries].
The count continues to chronicle ways in which the defendants were allegedly negligent, including, inter alia, failure to inspect, failure to remove debris, failure to supervise personnel or provide adequate personnel, failure to train, failure to fulfill contractual duties for Electrical Contractors and failure to adhere to proper police procedures. (¶ 6). The count states that it has been brought pursuant to General Statutes § 52-557n(a)(1)(B) and claims that the town must indemnify employees pursuant to General Statutes § 7-101a. (¶¶ 11, 17.)
The defendants named in this count seek to strike the count on the ground that General Statutes § 13a-149, the "highway defect statute" is the exclusive remedy for injuries which may be redressed by that statute. It provides, in operative part, that "[a]ny 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 . . ." Much of the underlying black letter law has been stated in Ferreira v Pringle, 255 Conn. 330, 341-42:
"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 . . ." Id., 201; see id. (determining that "[w]hether or not the accident was caused by the defective traffic light, the plaintiffs' claim that it was caused by the defective traffic light is, as a matter of law, a claim based upon a `defective road'"); see also Older v. Old Lyme, 124 Conn. 283, 285, 199 A. 434 (1938) ("[t]he question whether a highway is defective, the answer to which may depend on a great variety of circumstances, is in general one of fact but determination whether or not the facts found warrant, in law, the conclusions reached therefrom is open on appeal"). "[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 . . .'" Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202, quoting Hewison v. New Haven, 34 Conn. 136, 142 (1867). "`[I]f there is a defective condition that 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.'" Sanzone v. Board of Police Commissioners, supra, 202, quoting Comba v. Ridgefield, 177 Conn. 268, 271, 413 A.2d 859 (1979).
If a highway defect is "any 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 or position, would be likely to produce that result," it is hard to see how a cone in a traveled portion of the road is not a highway defect. A minimally protruding portion of a sawed-off street sign in the shoulder was held to be a highway defect in Ferreira. A radar trailer protruding into the roadway was held to be a highway defect in Himmelstein v. Windsor, 2006 Ct.Sup. 8987 (Keller, J.). As noted by Judge Keller (at 8997):
There can be no question but that a malfunctioning traffic signal is deemed to be a "highway defect." Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991).
In this case, the plaintiff does not allege that anything other than the failure of the town and/or its employees to remedy or warn him of the position of the radar trailer was the proximate cause of his injuries. He clearly alleges that a physical impediment at street level, in the traveled portion of the roadway, rendered the roadway not reasonably safe for travel. While the word "defective" does not include anything a traveler might encounter on a highway for purposes of liability under § 13a-149, it has been made clear that the statute was intended to make it the duty of town to keep the highway clear of . . . obstructions in or so near the roadbed as to "seriously impede the public travel." Hewison v. City of New Haven, 34 Conn. 136, 142 (1867).
If a highway defect causes injury, it generally doesn't matter what sort of negligent or nuisance-creating behavior precipitated the existence of the defect. That is, whether failures to train or to supervise, or failure to fulfill a contract, or other off-road deficiencies "caused" the defect is of no moment. The point is that where the injury results from a highway defect, the sole remedy against the party bound to keep it in repair is § 13a-149. In Ferreira, for example, the complaint was framed in terms of failing to paint a protruding sign post and negligently allowing buses to stop at the location of the post, but § 13a-149 was held to be the exclusive remedy as to the town and town employees.
A second position of the plaintiffs is that the action as to the employees is different from the action as to the town, which is the party bound to keep the roadway in repair. The count immediately in issue, however, is expressly brought pursuant to § 52-557n(a)(1)(B), which provides that a town may be liable for damages caused by activities from which the town derives profit or pecuniary benefit; the subdivision is modified by the provision that "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 13a-149." Where the action is stated to lie against individuals, but the action effectively is against the town because of required indemnification, the action is deemed to be against the town. Ferreira v. Pringle, supra, 352-54; Read v. Town of Plymouth. 40 Conn. L. Rptr. 607, 2006 Ct.Sup. 731, 737-38 (Shapiro, J.) (2006).
Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991), similarly precludes joint actions against towns and their employees for actions arising from highway defects. Sanzone does state, however, that there is no bar under § 52-557n to pursuing individuals separately. Id., 192-93. Ferreira, however, decided ten years later, clearly holds that actions against individuals for claims arising from highway defects are barred (except indirectly through § 13a-149) where the effect of such actions would be to impose liability on municipalities.
The plaintiff expressly pleads such indemnification in the seventeenth count, brought pursuant to General Statutes § 7-101a. ("Each municipality shall protect and save harmless any municipal officer . . . or any municipal employee . . . arising out of any claim . . . by reason of alleged negligence . . . while acting in the discharge of his duties.") See also General Statutes § 7-465; Himmelstein, supra.
It seems quite clear, then, that because the action arises from a defective highway, any recovery under § 52-557n(a)(1)(B) against the town and its employees, claimed to be negligent in the course of their duties, is barred by application of the exclusive remedy provided by § 13a-149. The motion to strike the sixteenth count is, then, granted.
The plaintiffs do not argue that the cones were situated in an area other than one which the town was bound to keep in repair, for the purpose of this motion.
The same analysis applies to the twentieth count, brought pursuant to § 52-557n(a)(1)(A), the twenty-seventh count, brought against the town and the superintendent of highways and bridges pursuant to § 52-557n(a)(1)(B) and the thirty-first count, brought against the town and the highway and bridge superintendent pursuant to § 52-557n(a)(1)(A). The indemnification and consortium counts deriving from the sixteenth, twentieth, twenty-seventh arid thirty-first counts similarly fall. The motion to strike is granted, then, as to counts 16, 17, 18, 19, 20, 21, 22, 23, 27, 28, 29, 30, 31, 32, 33 and 34.
A different situation presents itself as to the two counts alleging recklessness as to the town and town defendants. When a highway defect is alleged, whether expressly or not, the highway defect statute is the exclusive remedy against the "party bound to keep it in repair," according to the language of General Statutes § 13a-149. The town ordinarily is the party bound to keep the road in repair; a separate statute, General Statutes § 13a-144, provides a remedy when the state is the party. Individuals ordinarily are protected by the exclusive remedy rule as well, because indenmity provisions, whether expressly pleaded or operating behind the scenes, convert the action against individuals effectively to one against the governmental employer. See, e.g., Ferreira, supra. But the situation may be different when the pleadings are such that individual liability may not be indemnified by the governmental entity. Then the action perhaps may not be brought against the "party bound to keep it in repair," and because indemnity may not be required where the individual conduct is determined to be "malicious, wanton, wilful act or ultra vires act" (§ 7-101a), or "wilful or wanton act" (§ 7-465); compare "criminal conduct, fraud, actual malice or wilful misconduct" (§ 52-557n(a)(2)(A).
Private roads need not be addressed here.
Counts 24 and 35 allege that the town and police officials and the town and a highway official, respectively, were "reckless and wanton" in disregarding safety of people in the plaintiff's position. The counts are titled as common-law recklessness counts. Paragraph six of both counts alleges that the officials chose a course of conduct which they knew or should have known posed a serious danger and the conduct was a substantial factor in causing injuries. In ruling on a motion to strike, the court must construe pleadings in a manner most favorable to the pleading party. It is plausible, on the language presented, that liability of individuals would not be required by statute to be indemnified, and thus the action against those individuals, but not the action as to the town, survives the motion to strike. The motion to strike, then, is granted as to the town as to counts 24 and 35 but not as to the individual defendants.
There may, of course, be other defenses and facts may not support the allegations. Only the exclusive remedy line of reasoning was presented by the defendants in arguing this part of the motion.
Counts 25 and 36 allege loss of spousal consortium. The motion to strike is denied as to these counts.
Counts 26 and 37 allege loss of parental consortium. It seems clear to me that parental consortium claims are barred by application of Mendillo v. Board of Education, 246 Conn. 456 (1998). Although an inconsistent ruling was made with respect to a similar consortium claim against another defendant, and I recognize the reasoning behind that ruling, I strongly believe that I am bound by Mendillo. The Superior Court decisions presented by the plaintiffs, with very limited exception, predates Mendillo. The motion to strike counts 26 and 37 is granted.
Unless there is a change in the law, I would not intend to present any count alleging loss of parental consortium to the jury. Although this position in effect reverses a prior trial court ruling in this case, the "rule of the case" doctrine does allow (though not encourage) such reversals of position. See, e.g., Breen v. Phelps, 186 Conn. 86, 99-101 (1982).
The motion to strike is granted in part and denied in part.