Opinion
No. CV 00 0374736
October 1, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#118)
The present action arises out of a slip and fall incident that occurred in a school's parking lot. The plaintiff, Clarence Ragsdale, brought this action in seven counts against Victor Herbert (Herbert), superintendent of schools for the city of Norwalk, the city of Norwalk (City) and Norwalk Board of Education (Board).
The causes of action are as follows: Count One (against Herbert) sets forth a claim for negligence; Count Two (against the City) sets forth a claim for statutory indemnification pursuant to General Statutes § 7-465; Count Three (against the Board) sets forth a claim for statutory indemnification pursuant to General Statutes § 7-465; Count Four (against the city) sets forth a claim for negligence; Count Five (against the Board) sets forth a claim for negligence; Count Six (against the City) sets forth a claim for statutory nuisance; Count Seven (against the Board) sets forth a claim for nuisance.
The essential allegations are as follows. On or about November 7, 1998, the plaintiff attended a band competition held at Norwalk high school (premises). At approximately 7:45 p.m., the plaintiff was walking from his car, across the parking located near the entrance to Norwalk high school, when he fell over a defective asphalt curbing incurring serious and painful injuries.
It is further alleged that at all relevant times, the City owned, possessed, controlled, occupied and/or maintained the premises; that at all relevant times the Board controlled, managed and supervised the premises for its use by students and members of the general public; that at all relevant times Herbert was responsible for prescribing any supervision or maintenance necessary for the safe use of school grounds and facilities such as the premises, including the parking lot area where the plaintiff fell; and that the plaintiff's fall, and all the results thereof, were caused by the negligence and carelessness of Herbert, the City and the Board (collectively, defendants).
The defendants filed an answer in which they denied the material allegations of the complaint. The defendants also filed an amended special defense, arguing contributory or comparative negligence and governmental immunity pursuant to common law and statutory law. They also argue that the plaintiff's exclusive remedy is pursuant to General Statutes § 13a-149. The defendants now move for summary judgment on the ground that the plaintiff's exclusive remedy is pursuant to General Statutes § 13a-149, and therefore, the plaintiff fails to state a cause of action for which relief may be granted.
General Statute § 13a-149 provides, irrelevant 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."
Although the defendants improperly use the standard for a motion strike in their motion for summary judgment, the court recognizes that the substance of the defendants argument is that there is no factual dispute that the plaintiff's exclusive remedy is pursuant to General Statutes § 13a-149.
"The standard of review of a trial courts decision to grant a motion for summary judgment is well established. Summary 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 that the moving party is entitled to judgment as a mater of law." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). "To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict maybe rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." Dugan v. Mobile Medical Testing Services, 265 Conn. 791, 815 (2003).
The defendants contend that they are entitled to summary judgment because the plaintiff's action is based on negligence, nuisance and statutory indemnification rather than on General Statutes § 13a-149, which provides his exclusive remedy. Their argument is as follows. General Statutes § 52-557n (a)(1)(C) provides that an action under General Statutes § 13a-149 is the exclusive remedy for plaintiffs who are injured as a result of a defective road. To bring an action under General Statutes § 13a-149, the plaintiff must have been injured because of a defective "road or bridge" and the party against whom the plaintiff is seeking redress must be responsible for keeping and repairing the location where the injury occurred. Connecticut "courts have employed an expansive definition of the term road or highway . . ." (Defendants' Memorandum p. 10.) "[W]herever a pedestrian is a `traveler' upon an open and public way they are traveling upon a road or highway." (Defendants' memorandum p. 10.)
General Statutes § 52-557n (a)(1) provides: "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) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (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 13a-149." (Emphasis added.)
Citing Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), Amore v. Frankel, 228 Conn. 358, 636 A.2d 786 (1994), Novicki v. New Haven, 47 Conn. App. 734, 709 A.2d 2 (1998), Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999), and Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), the defendants argue that this court should find that, as a matter of law, the plaintiff fell on a roadway and, therefore, his exclusive remedy is pursuant to General Statutes § 13a-149.
To support their motion for summary judgment, the defendants submitted an uncertified letter from Salvatore J. Corda, Ph.D., in which he stated that the address for Norwalk high school is 23 Calvin Murphy Drive and that the postal worker routinely delivers mail bearing this address to the school. They also submitted a certified affidavit from Peter L. Romano (Romano), assistant director of operations for the department of public works (Public Works) for the city of Norwalk.
Essentially, Romano stated that access to the school's parking area is made through Calvin Murphy Drive; Public Works is responsible for maintaining the parking area and Calvin Murphy Drive; Public Works delegates this duty to independent contractors; Public Works repairs and repaves the parking area when necessary; independent contractors constructed the asphalt island running through the parking lot; the parking lot is maintained and treated like any other street in Norwalk. An illegible map of the school grounds was attached to Romano' s affidavits.
The defendants also submitted a copy of Norwalk Code § 95-1, which defined "encroach," "excavate," "public utility," "street" and "traveled way"; and they submitted a copy of Esteves v. Danbury, Docket No. CV 02 0344674, Superior Court, judicial district of Danbury (May 5, 2003, White, J.).
The plaintiff counters that the defendants have not produced evidence that establishes that the plaintiff's claim comes within the purview of General Statutes § 13a-149. Furthermore, the plaintiff argues that "whether a condition constitutes a defective road or bridge within the meaning [General Statutes § 13a-149] must be determined on a case by case, fact sensitive basis." (Plaintiff's memorandum, p. 6.) Thus, the defendants' reliance on Novicki and Esteves is misplaced. Novicki merely stands for the proposition that a plaintiff can bring a cause of action under General Statutes § 13a-149 when the plaintiff alleges that she fell on property leading from a city street to a public school. "To the extent that the Esteves court read Novicki as permitting a conclusive determination whether General Statutes § 13a-149 applied without a more detailed factual inquiry, the decision is contrary to appellate law." (Plaintiff's memorandum, p. 9.)
The plaintiff submitted, as evidence, various trial court decisions, and argues that they stand for the proposition that whether a parking lot falls within the purview of General Statutes § 13a-149, depends on its proximity to a public roadway.
This court finds that there is no evidence to support the defendants' contention that a cause of action under General Statutes § 13a-149 is the plaintiff's exclusive remedy. "The statutory provisions of [General Statutes] § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.) Novicki v. New Haven, supra, 47 Conn. App. 739-40.
This court will first consider the issue whether the plaintiff in the present action was injured as a result of a defective road or bridge. In assessing this issue, Baker v. Ives, supra, 162 Conn. 300, and Serrano v. Burns, supra, 248 Conn. 419, provide guidance. In Baker the court held that a pedestrian who fell in a parking area adjacent to the highway was entitled to bring a cause of action under the defective highway statute, General Statutes § 13a-144. The action in Baker arose out of a slip and fall incident due to the accumulation of unsanded ice and snow. The plaintiff alleged that she parked her automobile in a parking area composed of dirt and grass, located between the paved highway and the sidewalk. Baker v. Ives, supra, 162 Conn. 297. Two-hour parking was "not only permitted but invited by parking signs placed there by the state." Id. The plaintiff fell about thirty-two feet from the edge of the paved state highway. Id.
General Statutes § 13a-144 is the state's version of General Statutes § 13a-149.
The court stated that the "duty of reasonable care extends to pedestrian travel as well as to vehicular traffic . . . A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute . . ." Id., 299. The court stated "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 and position, would be likely to produce that result, would generally constitute a defect in the highway [under General Statutes § 13a-144] . . . Whether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury . . ." (Internal quotation marks omitted.) Id., 300.
The court emphasized that "the public in general were encouraged to use this area for parking . . ." Id., 301. It stated that "it was reasonably to be expected that after parking her car the plaintiff would cross the dirt and grass area to reach the sidewalk. The fact that the defective condition was in an area which an occupant of an automobile was likely, and in fact encouraged, to use is an important consideration." Id., 301-02.
In Serrano, the plaintiff alleged that "she slipped and fell in the parking lot of a public rest area located between exits 19 and 20 on Interstate 91 in the city." Serrano v. Burns, 248 Conn. 422. The issue before the court was "whether, in an action against the commissioner pursuant to § 13a-144, a personal injury occurring in a parking lot that is within the state right-of-way line, and is in a public rest area connected to a highway, is not compensable as a matter of law." Id., 429. The court reiterated its statement in Baker v. Ives, supra, 162 Conn. 300, that General Statutes § 13a-144 applies to "defect[s] in such proximity to the highway so as to be considered in, upon, or near the traveled path . . ." Id. It then stated that, "facts showing that highway travelers are invited by the state to use a rest stop along the highway may establish that the use of such an area is so closely related to travel upon the highway that such an area is part of the state highway system. [There is] no significant difference between an area within the state right-of-way line that is adjacent to the traveled portion of a highway, and to which, as in Baker, the travelers are invited by the state, and an area that is away from the traveled portion of the highway, which otherwise fits the factors set out in Baker . . . [T]he question of whether the plaintiff is entitled to recover pursuant to § 13a-144 is one for the fact finder." (Emphasis added.) Id.
Trial courts have analyzed General Statutes § 13a-149 using Baker and Serrano as guidance. See, e.g., Nelson v. Bristol, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 01 0508846 (March 27, 2002, Berger, J.). Under the facts of this case, this court cannot find that there is no question of fact that the plaintiff fell on a roadway, as defined under Baker and Serrano. The plaintiff in the present action stated that his fall took place in "the parking lot near an entrance to Norwalk high school . . ." (Complaint, count one ¶ 6.) The only relevant evidence the defendants presented on this issue is Romano's certified statements that the "school's internal driving, traffic, parking, pick up and delivery public travel ways is made through Calvin Murphy Drive" and that "the United States Post Office routinely delivers mail to the Norwalk high school at [23 Calvin Murphy Drive]." (Defendant's Exh. B, ¶ 4, 5.)
This evidence is insufficient to show that there is no question of fact that the plaintiff injured himself on a "roadway" and therefore his exclusive remedy is pursuant to General Statutes § 13a-149. In Baker the court had evidence that the parking area was immediately adjacent to a public highway and the defect was in close proximity to the edge of the highway (32 feet) "so as to be considered in, upon, or near the traveled path of the highway." Baker v. Ives, supra, 162 Conn. 300. Here the defendants have presented some evidence to suggests that a parking area at Norwalk high school is accessible by Calvin Murphy Drive; however, the applicable analysis goes beyond whether the parking lot is connected to a roadway. The defendants must also present evidence to show that there is no question of fact that the plaintiff's fall occurred in close proximity to the roadway so as to be considered in, upon, or near the traveled path of the roadway. Indeed, none of the defendants' evidence establishes exactly where the plaintiff fell and the plaintiff has not offered any such evidence.
Similarly, this case is distinguishable from Serrano in which there was evidence showing that the state invited commuters to use the parking lot of a public rest-stop located along the highway. This evidence was important in establishing that use of rest-stop was so closely tied to travel upon the highway that it could be considered part of the highway system. Whether the use of the Norwalk high school's parking lot is so integrated with travel on the public road so as to be considered part of the roadway itself is a question of fact for the fact finder. Serrano v. Burns, supra, 248 Conn. 429.
This court finds that the defendants have not met their burden of coming forth with evidence, which, when viewed in the light most favorable to the nonmovant, clearly establishes that the plaintiff fell on a road and, therefore, his exclusive remedy is pursuant to General Statutes § 13a-149.
Because the defendants have not provided evidence that the plaintiff's injury occurred on a roadway, the court need not consider, on a summary basis, whether the parties whom the plaintiff is suing are responsible for maintaining and repairing the location where the his injury was sustained.
Accordingly, the defendants' motion for summary judgment is denied.
By the Court,
Joseph W. Doherty, Judge