Opinion
No. LLI-CV-05-5000042-S
August 10, 2005
MEMORANDUM RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( #109")
I. NATURE OF PROCEEDINGS
In this action, the plaintiff is seeking damages for the total loss of his 1990 Ford Ranger pick-up truck as a result of said truck overturning on Brooks Road in Litchfield, during the evening of November 29, 2003. The plaintiff brings this action pursuant to General Statutes Sec. 13a-149, the so-called defective highway statute.
Sec. 13a-149. Damages for injuries by means of defective roads and bridges. 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. 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. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefore. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.
Specifically, the plaintiff claims in his amended complaint filed on February 8, 2005, that he was operating said vehicle on Brooks Road at 9:30 p.m. on the night in question, when he encountered "a flooded roadway, which was icy." When the tires passed over the icy portion, the vehicle spun and flipped on its side. The plaintiff further alleges that the roadway was flooded, "because a beaver dam, dammed the waterway [abutting that portion of the road], causing it to cover the road with water, which then became icy, creating a dangerous and defective condition." The plaintiff claims that the town violated its statutory duties in that it allowed the water to accumulate on the roadway; it knew or should have known that the road had water on it, causing the road to be icy and dangerous; it took no action to remedy said defect within a reasonable time, by either dismantling the beaver dam or establishing a drain, so that the water would not accumulate on the roadway; and that it had failed to warn motorists of the danger or to install appropriate barriers. The plaintiff asserts that the violation of the statutory duties was the sole proximate cause of the accident and the resultant damage to the plaintiff's truck. The plaintiff provided the town with a timely notice required by the statute.
On March 7, 2005, the town filed its answer, in which it denied the existence of a dangerous and defective condition and denied that it failed to perform its statutory duties in a proper manner.
On May 27, 2005, the defendant filed a Motion For Summary Judgment, pursuant to Practice Book Sec. 17-44. The town claims that there is no genuine issue as to any material fact and that, therefore, it is entitled to judgment as a matter of law. The defendant filed its brief, simultaneously with said motion. The defendant asserts that it is entitled to summary judgment on two grounds, to wit: that the town did not have any knowledge as to the icy condition of the road, prior to the plaintiff's accident, and that said condition was not the sole proximate cause of the accident, as the plaintiff was operating his vehicle too fast for the conditions. At oral argument on the motion, however, the defendant, for the purposes of this motion only, abandoned the latter ground and conceded that the plaintiff was operating his motor vehicle in a reasonable manner.
Sec. 17-44. Summary Judgments; Scope of Remedy In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.
P.B. Sec. 17-49 provides that:
The judgment sought 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.
Accompanying the defendant's brief were three exhibits: (1) the plaintiff's response to the defendant's Request For Production, dated March 31, 2005, wherein the plaintiff asserts that the town was aware of the beaver dam and had removed it in the past; (2) the investigating officer's report of the accident; and (3) an affidavit from the town's supervisor of public works, attesting to the town's lack of knowledge of the "water and/or ice," until after it was informed by police of the plaintiff's accident.
On June 17, 2005, the plaintiff filed his objection to the motion for summary judgment, in which he asserted that there are genuine issues of material fact to be considered. Accompanying said objection was plaintiff's brief and an affidavit authored by the plaintiff, wherein the plaintiff claimed that he regularly traversed Brooks Road, and that the flooding condition prevailed for ten days prior to his accident. The plaintiff further avers that, in the past, the town took action on many occasions in response to that condition, caused by the busy beavers, a condition which, the plaintiff has observed, on and off, for ten years. The plaintiff stated that the town "generally comes to Brooks Road and puts a cage around the drain, so that the beavers can't clog the drain."
On June 17, 2005, the defendant filed its reply to the plaintiff's objection. The court heard arguments on the motion at the short calendar on June 21, 2005. For reasons hereinafter stated, the defendant's motion is DENIED.
As a preliminary procedural matter, in its reply, the town correctly pointed out that it received the plaintiff's objection to its motion on June 17, 2005, three days prior to the short calendar assignment. Thus, the defendant argued that the court should not consider the objection, as it was not filed five days prior thereto, as required by Practice Book Sec. 17-45. After hearing from the parties on the procedural issue, the court heard the arguments on matters of substance. There was no claim by the defendant that the court lacked the discretion to do so, nor was there any showing that the defendant was in any manner prejudiced by the plaintiff's late filing. Martinez v. Zovich, CT Page 11984 87 Conn.App. 766 (2005).
II. APPLICABLE LAW A. Summary Judgment
Our Appellate Court, in the case of Woolen v. Heisler, 82 Conn.App. 815, CT Page 11977 819-20 (2004), has explained the nature of summary judgment and the court's duty when considering a motion seeking such remedy as follows:
The pathway to our analysis is well trodden. Summary judgment is appropriate where 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 . . . Because the court's decision on a motion for summary judgment is a legal determination, our renew on appeal is plenary. (Citation omitted; internal quotation marks omitted.) Caffery v. Stillman, 79 Conn.App. 192, 195, 829 A.2d 881 (2003).
Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment] . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book [§ 17-46]. (Internal quotation marks omitted.) Bebry v. Zanauskas, 81 Conn.App. 586, 589, 841 A.2d 282 (2004).
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 may be 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. (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
B. The Defective Highway Statute
In a very recent case, our Appellate Court re-stated the elements necessary for a plaintiff to establish a viable cause of action under Sec. 13a-149 as follows:
Next, we set forth general precepts relating to commencing an action under Sec 13a-149. To bring a successful claim under section 13a-149, "the plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 642; 717 A.2d. 1216 (1998); Lucas v. New Haven, 184 Conn. 205, 207; 439 A.2d. 949 (1981).
The court then discussed the term "constructive notice" as that term has been interpreted by our Supreme Court, as applicable to section 13a-149:
In Tirendi v. Waterbury, 128 Conn. 464, 468-70; 23 A.2d. 919 (1942), our Supreme Court set out the general rule defining constructive notice in reference to the municipal defective highway statute. The court stated that "to charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it . . . The test is, not would the defect have been discovered had the particular portion of the street in question been examined, but would it have been discovered had the municipality exercised reasonable supervision over its streets as a whole." (Citations omitted; internal quotation marks omitted.) Id., 468. A municipality "is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose." Mausch v. Hartford, 184 Conn. 467, 469; 440 A.2d. 157 (1981).
DeMatteo v. City of New Haven, 90 Conn.App. 305, 308 (2005).
The notice required, however, is notice to the municipality of the defect that caused the plaintiff's injury or property damage; notice of certain conditions that might naturally produce the alleged causative defect is not sufficient. The municipality, in order to be chargeable with the requisite notice, must have had "notice of the defect itself." Prado v. City of New Haven, supra, 246 Conn. 642. "[C]onditions that are likely to produce a defect and the defect itself are distinguishable . . ." Jainchill v. Schwartz, 116 Conn. 522, 525 (1933); also see McIntosh v. Sullivan, 274 Conn. 262 (2005). "We have repeatedly held that liability under the statute arises only when there is notice of a defective condition which is the proximate cause of the injury; and that notice of underlying circumstances which, as a result of natural forces, may and do produce that condition does not impose liability." Pajor v. Town of Wallingford, 47 Conn.App. 365 (1997); cert. den'd, 244 Conn. 917 (1998). "A city may not be liable for failing to discover that which does not exist." Prado, supra, 246 Conn. 646.
In Jainchill, the plaintiff slipped on fish oil that accumulated on a Hartford sidewalk at a location where city officials knew that a fishmonger, an additional defendant, unpacked fish. The court held that the city was not liable under the statute because, although city employees were aware of the commercial venture, the city did not know that the sidewalk was slippery on the morning that the plaintiff fell. In Prato, the plaintiff was injured by an exploding bonfire on July 3rd, that had been routinely ignited by residents at a New Haven intersection. The court held that the city was, statutorily, not liable because, even though city officials were aware of the manner in which the neighborhood residents celebrated Independence Day, the city had no notice that the fire was ignited until ninety seconds prior to the plaintiff's injury therefrom. Notably, however, the Appellate Court cautioned that: "The situation would be quite different if the bonfire had burned for some period of time before the plaintiff was injured." Id., at page 644. Emphasis added.
Although McIntosh dealt with Sec. 13a-144, the state defective highway statute, the legal principles and procedures equally apply to Sec. 13a-149 actions against municipalities. Baker v. Ives, 162 Conn. 295, 298-99 (1972). In McIntosh, rocks and debris from ledge that abutted and overhung the highway, fell on the plaintiff's vehicle with resultant injuries to the plaintiff. The Supreme Court held that the commissioner of the department of transportation's responsibility under the statute was to appropriately react to defective highway conditions, not to anticipate conditions that had not occurred. The court noted that the rocks that fell on the plaintiff's vehicle did not constitute a statutorily actionable defect until they actually fell upon the highway, thus obstructing travel.
III. CLAIMS OF THE PARTIES
Relying on the legal principles established and employed in the cited cases, the defendant argues that, even assuming arguendo, that the town was aware of the beaver dam and knew that, on occasion, it caused the area of Brooks Road, that abutted the stream, to flood, that knowledge did not provide the town with notice of the specific defect that caused the plaintiff's accident, i.e., the black ice that formed on the roadway. Since the town had no knowledge of the icy condition of the roadway until after the plaintiff's accident, it had no opportunity to correct the condition until crews were dispatched to sand the area, after police informed the public works department of said icy condition. Thus, the defendant argues that the town cannot be held responsible for the damage to the plaintiff's vehicle under Sec. 13a-149. In its brief, the defendant asserts: "The defect is not that a beaver dam may cause ponding water on the road, which may give rise to an icy condition, but the icy condition itself."
The plaintiff responds that the town violated its statutory duty to reasonably supervise its roads in that it knew or should have known that Brooks Road was flooding in the area of the beaver dam, and that this defective condition existed for ten days prior to the evening of the plaintiff's accident. The plaintiff claims that since the town had dealt with this condition numerous times in the past, it should have taken the actions that it took in the past to alleviate the defective condition before the condition, caused by the water, became more hazardous via the water changing to ice. The plaintiff asserts that the town should have employed reasonable measures to alleviate the flooding condition, in view of all of the circumstances and conditions, then and there prevailing. Ritter v. Shelton, 105 Conn. 447, 449 (1927). The plaintiff argues that whether the town acted reasonably in this regard, in light of the ten-day flooding condition and the temperatures prevailing on November 29th is an issue of material fact that ought to be decided at a trial by a judge or a jury.
IV. CONCLUSION
In its reply brief, the defendant concedes the following:
that the beaver dam blocked the drain and flooded Brooks Road for ten days; that the town took action in the past to prevent the flooding; that the plaintiff operated his vehicle on that portion of the road to and from home and work for several years; that the plaintiff operated his vehicle on the flooded portion of Brooks Road earlier on the evening of his accident without incident; that during his second passage over the flooded portion of the road on November 29, 2003, the plaintiff slowed down, drove through the water, accelerated, skidded and rolled his truck; and that the town was aware of the existence of the beaver dam and its propensity to cause the flooding of the roadway. The defendant argues, however, that neither the beaver dam, nor the flooding was the defect that caused the plaintiff's truck to skid and overturn; the defect that was the proximate cause of the plaintiff's accident was the icy condition, of which the town had no knowledge until after the plaintiff's accident had occurred.
The defendant, however, fails to recognize the crucial difference between the facts in this case, and those in the cases discussed herein. Unpacking fish may result in the accumulation of a slippery substance on the sidewalk; a bonfire ignited by neighborhood residents in the past to celebrate a holiday may be ignited once again, when that same holiday arrives and may explode and injure a bystander; ledge abutting and hanging over a highway may break apart and spew rocks and debris thereon. When, however, one examines the facts in this case, it is a law of nature than at 32°F water will form ice. Anyone who resides in northwest Connecticut is well aware of the likelihood of freezing temperatures in late November. Certainly, officials and public works employees of the town of Litchfield, are or ought to be cognizant of these facts, and ought to consider the same in the overall supervision of the streets and roads of the town. Certainly, by November 29th, the public works department is prepared for the onset of winter, as evidenced by the spreading of sand on the roadway immediately after being notified of the plaintiff's accident. What the town knew or should have known relative to the beaver dam and its impact on Brooks Road, and what action, if any, the town should have taken under all of the prevailing circumstances and conditions are questions that need to be answered by a trier of fact.
In this court's view, the town should have known that the defective condition due to the water would inevitably become a dangerous condition due to the ice, once the temperature reached 32°F. It is for a judge or jury to determine whether the town acted reasonably under the circumstances in not taking the actions, that it had taken in the past, to alleviate the accumulation of water on the roadway, before the water transformed into ice.
The motion for summary judgment is, therefore, denied.
Wilson J. Trombley, Judge