Opinion
No. HHB CV 05 5000158 S
January 18, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#119)
The court heard argument at short calendar on November 13, 2006 concerning the defendant's motion for summary judgment. After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
The operative complaint is the second revised complaint, dated June 16, 2005 (#107). Therein, the plaintiff, Richard Read, alleges, in his second count, that the defendant, Town of Plymouth, is liable to him, based on the highway defect statute, General Statutes § 13a-149, as a result of an incident in which he sustained personal injuries at the town's transfer station. The plaintiff alleges that, on July 14, 2003, he attempted to discard metal waste into a dumpster located within the gated transfer station facility. He alleges that the dumpster was located approximately 100 yards within the transfer station gates, and that he was on a raised wall/path directly above it "when he was caused to trip and fall as a result of broken/separated concrete stone blocks which formed a platform/wall . . ." See second revised complaint, second count, ¶ 4.
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 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."
The plaintiff also alleges that "[t]he public road and parking area . . . described was at all times . . . a frequently used road within the territorial limits of the Defendant and was in use by members of the public." See second revised complaint, second count, ¶ 3. He alleges that the defendant had the duty to maintain the sidewalks and road within its territorial limits in a reasonably safe condition. Additional facts are discussed below.
On January 9, 2006, by memorandum of decision, this court granted the defendants' motion to strike the first, third, fourth, fifth, sixth, seventh, and eighth counts of the second revised complaint. The second count is the only remaining count.
Individual town employees were originally also named as defendants; the counts concerning those defendants were stricken.
On September 25, 2006, the defendant filed a motion for summary judgment, with a supporting memorandum of law. The defendant submitted the affidavit of Ralph Zimbouski, who was the town's director of public works at the time of the alleged injury. On October 26, 2006, the plaintiff filed an objection and a memorandum in opposition to the motion for summary judgment. The defendant filed a reply memorandum on October 30, 2006.
II DISCUSSION
"Practice Book § 17-49 provides in relevant part that 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 matter of law.' . . . The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
Practice Book § 17-45 provides, in pertinent part, "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
The defendant argues that there is no genuine issue of material fact with regard to the claim under § 13a-149, the highway defect statute, because the plaintiff's alleged fall did not occur on a public roadway. In his affidavit, Ralph Zimbouski, the former director of public works for the town (Zimbouski affidavit), states that, in July 2003, at the time of the alleged incident, the transfer station was a restricted access facility, the use of which was limited to permit-holding town residents who had registered their vehicles with the town. See Zimbouski affidavit, ¶¶ 6-7. Also, the transfer station was open during limited hours; during the hours when it was closed, access to it was restricted by means of a locked gate. See Zimbouski affidavit, ¶¶ 5, 7. "In July 2003, the general public did not have unrestricted access to enter, traverse or use any part of the Transfer Station and did not have an equal right with permit-holding Plymouth residents who had registered their vehicles to enter, traverse or use any part of the Transfer Station." See Zimbouski affidavit, ¶ 8.
The plaintiff presented no affidavit or other evidence in opposition to the facts stated in the Zimbouski affidavit.
In his written submissions, the plaintiff asserts that the facts of the case are undisputed. See plaintiff's objection, p. 1; plaintiff's memorandum of law, pp. 1, 3. He argues that the Superior Court has recognized, in two earlier cases, that city dumps fall within the highway defect statute, § 13a-149. The plaintiff also argues that, according to this court's previous memorandum of decision, under the doctrine of the law of the case, § 13a-149 is applicable to the undisputed facts. The court addresses each of these arguments below.
A Public Highway
"A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, [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 . . . [I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
Our Supreme Court has stated, "[t]he plain meaning of the word `highway' is `[a] main road or thoroughfare; hence, a road or way open to the use of the public.' Webster's New International Dictionary (2d Ed.) 1179. It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . [T]he term `highway' is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass." (Citation omitted; internal quotation marks omitted.) New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). " `Public highway' is not a term of art . . . [I]t is a way over which the public at large has a right to pass." State v. Harrison, 30 Conn.App. 108, 118-19, 618 A.2d 1381 (1993), affirmed, 228 Conn. 758, 638 A.2d 601 (1994).
The term "highway" is the judicially adopted term for "road" as used in the statute. See Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Hu v. Metro-North Commuter Railroad, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0102401 (August 6, 1991, Mottolese, J.).
In Hu v. Metro-North Commuter Railroad, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0102401 (August 6, 1991, Mottolese, J.), the facts before the court were analogous to those in the present case. The plaintiff allegedly was injured when he fell on the waiting platform at the Stamford railroad station. He brought an action against the city under § 13a-149 claiming that the platform was a sidewalk. In granting the defendant's motion for summary judgment, the court stated that "[n]ot only is there no documentary evidence that this waiting platform is adjacent to a public highway, but by its very nature and function it does not fit the definition of a sidewalk because the general public clearly does not have a right to use it equal to that of a commuter." Id.
In Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998), a walkway leading from a city street to a public school was found to come within the defective highway statute.
In the present case, the Zimbouski affidavit states that only town residents could use the transfer station. The pool of potential users of the facility was further limited by the permit requirement and the fact that the facility gate was locked when the transfer station was closed. The general public did not have access to the facility equal to that of a permit-holding town resident.
The plaintiff argues that the transfer station qualifies as a public highway and cites two Superior Court cases for support. First, in Kelly v. New Britain, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 02 0518091 (December 10, 2004, Burke, J.) ( 38 Conn. L. Rptr. 403), the plaintiff allegedly was injured when he stepped from an exterior stairway at the city dump's office onto a walkway leading thereto. The court denied summary judgment, holding that walkways leading to public buildings come within the ambit of § 13a-149. The plaintiff also cites Pires v. Litchfield, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 00 0502703 (April 4, 2003, Bryant, J.) ( 34 Conn. L. Rptr. 366), where the plaintiff allegedly was injured as a result of an unsafe condition on a dirt road at the town landfill facility. The court denied the defendant's motion to strike, holding as sufficient the plaintiff's allegation that the "condition that existed in a public roadway . . . made travel unsafe, namely the road `ended in a cliff' above a dumpster without any warnings or barriers in place to protect travelers." Id.
The facts in those cases are distinguishable. Neither Kelly nor Pires states that use of the town facility was restricted to permit-holding town residents, as opposed to being available for use by the general public. In the present case, according to the Zimbouski affidavit, the town imposed a two-pronged requirement limiting potential users of the facility; first, access was limited to town residents, and second, town residents were required to hold a permit in order to use the facility. These requirements make it impossible to characterize the transfer station as a public highway.
In describing the meaning of the term "public highway," the Supreme Court has stated that "[i]t is used at will . . . not only by residents . . . but by the public in general." Wamphassuc Pt. Prop. Owner's Ass'n. v. Public Utilities Commission, 154 Conn. 674, 682, 228 A.2d 513 (1967). "The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character." State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988).
The undisputed evidence here is that use of the transfer station was restricted to permit-holding town residents. The plaintiff offered no evidence to contradict the defendant's affidavit asserting that the transfer station was a restricted use facility.
The Supreme Court also has considered the level to which parties are invited or encouraged to enter the defective area in determining the applicability of § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 349-50. In Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 876 A.2d 1148 (2005), for example, the plaintiff alleged that he was injured after he stepped on a defective catch basin cover located in a dirt and grass area directly adjacent to the roadway. See id., 499, 504. The Supreme Court, in denying the applicability of § 13a-144, stated that "it is clear that the public is neither invited nor expected to traverse the catch basin area." (Footnote omitted.) Id., 505. In the present case, the fact that the public is neither invited to nor expected to enter the transfer station is evidenced by both the restricted use to town residents and the requirement that users of the facility hold a permit.
In Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999), the court stated that § 13a-144 "affords a right of recovery similar to that against the municipalities under § 13a-149 and is subject to the same limitations." (Internal quotation marks omitted.)
At oral argument, the plaintiff argued that the transfer station was a public area for residents, where people dumped garbage. Argument by counsel, concerning "purported facts," may not be considered by the court. Schmidt v. Schmidt, 180 Conn. 184, 191 n. 5, 429 A.2d 470 (1980). As noted above, the plaintiff did not submit an affidavit or other evidence in opposition to the defendant's presentation. The argument of counsel is not a substitute for evidence in the record. See Director, Dept. Of Information Technology v. Freedom of Information Commission, 274 Conn. 179, 191-92, 874 A.2d 785 (2005). Plaintiff's oral argument is a "[m]ere assertion . . . of fact . . . [which is] insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.). Socha v. Bordeau, supra, 277 Conn. 586.
There is no genuine issue of material fact as to the plaintiff's claim that the transfer station qualifies as a public highway because access to the facility was limited to permit-holding town residents. Section § 13a-149 is an exclusive remedy available to persons injured while traveling on public highways. Because the defendant has presented evidence showing that the transfer station was not available for use by the general public, which the plaintiff has not disputed, the defendant has met its burden to demonstrate that the plaintiff cannot prove an essential element of his claim under § 13a-149, that the incident occurred on a public highway. See second revised complaint, second count, ¶ 3. The record before the court establishes that the plaintiff is unable, as a matter of undisputed fact, to prove one of the material allegations essential to his claim, that the area where he allegedly was injured was a public road.
B Law of The Case
As to the "law of the case," our Supreme Court has stated that "[t]he doctrine provides that, when 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." (Internal quotation marks omitted.) CT Page 2183 Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 76, 856 A.2d 364 (2004). "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 . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Internal quotation marks omitted.) Bridgeport v. Triple 9 Of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005).
As noted above, the decision to which the plaintiff refers involved this court granting a motion to strike other counts in the plaintiff's second revised complaint, so the aspect of the law of the case doctrine of having hesitancy to overturn another judge's decision does not present itself.
As noted in this court's previous decision, on a motion to strike, the court must "take the facts to be those alleged in the complaint . . ." (Internal quotation marks omitted.) See memorandum of decision, dated January 9, 2006, p. 3. In his second count, the plaintiff alleges, in paragraph 3, that "[t]he public road and parking area hereinafter described was at all times hereinafter mentioned a frequently used road within the territorial limits of the Defendant and was in use by members of the public." This court stated, in its decision on the motion to strike, "These allegations clearly come within § 13a-149's purview since, as stated above, the plaintiff alleges that he was injured as a result of a defective public path or walkway which the Town had a duty to maintain. See complaint, second count, ¶ 2. Such an alleged path or walkway is a defective highway for the purposes of § 13a-149." See memorandum of decision, dated January 9, 2006, p. 6.
On the motion to strike, the court did not consider evidence. Rather, the motion to strike was addressed to the legal sufficiency of the plaintiff's allegations in the second revised complaint. As required by the applicable standard of review, the plaintiff's allegations were assumed, for the purposes of the motion to strike, to be true, to permit an analysis of whether the challenged counts were legally sufficient. In finding that the plaintiff's exclusive remedy was under § 13a-149, the court focused on the plaintiff's allegations alone and stated that "[t]he first, third, sixth, seventh and eighth counts allege the same nucleus of operative facts as alleged in the second count, that the dangerous condition complained of amounts to a highway defect and that the Town was responsible for maintaining the area where he was injured." See memorandum of decision, dated January 9, 2006, pp. 8-9. In addition, concerning the claims made against individual defendants in the fourth, fifth, sixth, seventh, and eighth counts, the court concluded that the allegations of each invoked § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 343-44; See memorandum of decision, dated January 9, 2006, pp. 9-10. " Ferreira stands for the proposition that where the highway defect statute is triggered by the underlying factual allegations, it is the exclusive remedy against not only the municipality, but also for its employees who are acting in their official capacity." Estate of Robishaw v. New England Central Railroad, Superior Court, judicial district at Tolland, Complex Litigation Docket, Docket No. X07 CV99 0071617 (September 20, 2001, Bishop, J.) ( 27 Conn. L. Rptr. 586). Thus, this court's ruling on the motion to strike established only that the plaintiff's allegations brought the case within the ambit of § 13a-149. Whether or not the evidence would be sufficient to withstand a motion for summary judgment was not before the court for decision at that time.
As to the fourth and fifth counts, the court struck them also since the individual defendants were entitled to governmental immunity. See memorandum of decision, dated January 9, 2006, pp. 10-12.
In contrast to the motion to strike, which the court adjudicated based only on the plaintiff's allegations in his complaint, on a motion for summary judgment, evidence may be presented, including in affidavit form. See Practice Book §§ 17-45 and 17-46. As discussed above, in support of its motion for summary judgment, the defendant has submitted the Zimbouski affidavit.
The court's prior determination as to the motion to strike, that the alleged path or walkway is a defective highway for the purposes of § 13a-149, was based on the allegations in the plaintiff's second count, that he was injured as a result of a defective public path or walkway. It was not based on facts showing that the area where the plaintiff alleges that he was injured was open for use by the general public. The court's determination on the motion to strike is not the law of the case for the purposes of the current motion for summary judgment.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.
It is so ordered.