Opinion
No. CV05-4006711S
March 6, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is an action for damages brought against a construction company, the Town of Watertown and a Watertown police officer. The plaintiff alleges that he sustained injuries as a result of the defendants' negligence when he was operating his motor vehicle on a road in Watertown, Connecticut. The defendant Town and the defendant police officer move for summary judgment as to counts three and four of the plaintiff's complaint on the ground that the counts are barred by General Statutes § 13a-149.
FACTS
In his amended complaint dated October 4, 2005, the plaintiff, John Ryan, alleges that, on July 17, 2003, he was operating his motor vehicle on a roadway in Watertown, Connecticut, where construction work was being performed by Birm I Construction Company, LLC. He claims that, as he approached the construction area, he was waved on to proceed by Office Curt Molnar, acting in his capacity as a Watertown Police Officer. The plaintiff alleges that as he drove through the area, his vehicle dropped into an excavation hole causing him to sustain various injuries and damages. In the first count, the plaintiff alleges that his injuries and losses were caused by the negligence of Birm I Construction. In the second count, the plaintiff alleges a § 13a-149 claim against the Town of Watertown. In the third count, the plaintiff alleges a common-law negligence claim against Officer Molnar, contending that he waved the plaintiff into a dangerous site when he knew or should have known it was unsafe to do so. In the fourth count, the plaintiff alleges that the defendant Town of Watertown is obligated to indemnify Officer Molnar for any judgment rendered against him pursuant to § 7-465.
The plaintiff filed an initial complaint on July 26, 2005, in two counts. In the first count, the plaintiff alleged negligence as to Birm I Construction. In the second count, the plaintiff alleged negligence as to the Town of Watertown and Officer Curt Molnar. On August 2, 2005, the defendant, Birm I Construction, filed an answer and special defenses in response to the plaintiff's initial complaint. On August 28, 2005, the Town of Watertown and Curt Molnar filed a motion to dismiss the plaintiff's initial complaint on the ground that the court lacked jurisdiction over the subject matter because the highway defect statute, General Statutes § 13a-149, is the plaintiff's exclusive remedy. The plaintiff then filed the amended complaint on October 4, 2005, referenced above. The plaintiff then filed a memorandum of law in opposition to the defendant's motion to dismiss on October 4, 2005, arguing that he filed an amended complaint that contains the allegations necessary to sustain the complaint. On October 17, 2005, this court denied the defendant's motion to dismiss on the ground that the plaintiff filed an amended complaint as of right.
Section 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 . . . 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."
Section 7-465(a) provides in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
The Town of Watertown and Officer Curt Molnar move for summary judgment as to counts three and four of the plaintiff's amended complaint on the ground that the highway defect statute is the sole remedy available to the plaintiff. The plaintiff argues, in opposition to the defendant's motion, that the plaintiff's allegations in counts three and four are alternative pleadings that address the possibility that a jury could find that the officer's actions, and not the highway defect, caused the plaintiff's injury.
DISCUSSION
"[S]ummary 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 the moving party is entitled to judgment as a matter of law." Hanks v. Powder Ridge Restaurant, 276 Conn. 314, 321, (2005) (citing Practice Book § 17-49). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 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 . . ." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
The defendants contend that the highway defect statute is the plaintiff's exclusive remedy and, accordingly, that the third and fourth counts of the plaintiff's complaint must fail as a matter of law. They argue that count three must fail as a matter of law on the ground that § 52-557n precludes a joint action against a municipality and its officers for damages claimed pursuant to a § 13a-149 cause of action. They argue that count four must fail as a matter of law on the ground that § 52-557n removes highway defect claims from the class of torts which a municipal employee may be indemnified pursuant to § 7-465.
Section § 52-557n(a)(1) provides in relevant part: "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."
The plaintiff contends that he is allowed to plead in the alternative and present alternative theories of liability to the jury. He argues that the jury should decide whether the cause of injury was the defective highway or the officer's alleged negligence.
"[A]n action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). "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 . . . We have construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy . . . In addition, because § 7-465(a) requires a municipality to indemnify its officers for their negligent acts, § 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
To bring a successful claim under § 13a-149, the plaintiff must prove "that the highway was defective as claimed [and] . . . that the defect [was] the sole proximate cause of the injuries and damages claimed . . ." (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005). "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 . . ." Sanzone v. Board of Police Commissioners, supra, 219 Conn. 201.
In Sanzone, the court found that a malfunctioning traffic light was a highway defect within the meaning of the statute, but the court acknowledged that the cause of an accident may not be discernible as a matter of law. "Unquestionably, a malfunctioning traffic light, although not a physical impediment at street level, is, as a matter of law, such a highway defect, or in the language of the statute, part of a defective road. We need not consider, therefore, the impact 52-557n would have in another case in which the statutory status of an accident's cause could not be established prior to trial." (Internal quotation marks omitted.) Sanzone, supra, 219 Conn. 203. Further, "a plaintiff may prevail under § 13a-149 only if the jury determines that the highway defect was the sole proximate cause of the plaintiff's injuries." Bovat v. Waterbury, 258 Conn. 574, 600, 783 A.2d 1001 (2001). "The focus with respect to the element of sole proximate cause is whether any factors other than the municipality's breach of its statutory duty caused the plaintiff's injuries." (Emphasis in original.) Bovat v. Waterbury, supra, 258 Conn. 587.
The defendants have not produced evidence showing that as a matter of law the plaintiff's injuries were caused solely by the excavation hole. "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." (Internal quotation marks omitted.) Danko v. Redway Enterprises, Inc., 254 Conn. 369, 379, 757 A.2d 1064 (2000). Although an action under the highway defect statute is the plaintiff's exclusive remedy for damages resulting from a highway defect, the courts have allowed alternative pleading when the cause of damages is unclear. In Whitfield, PPA v. Town of Enfield, Superior Court, judicial district of Hartford, Docket No. CV 97-0572428 (March 10, 1998, Teller, J.) the court allowed the plaintiff to plead alternative theories of liability in a case involving a highway defect on the ground that the location of the accident presented an issue of fact. Further, in Sandoval v. Rafferty, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 97 0159400 (August 16, 1999, D'Andrea, J.), the defendants argued that the plaintiff could not assert a claim for relief under the highway defect statute simultaneously with a claim in common-law negligence. The defendant argued that the plaintiff's multiple allegations, which included an allegation under § 13a-149, negated the § 13a-149 claim because any possible defect could not be the sole cause of the plaintiff's injuries if the plaintiff had set forth multiple causes of action. The court held that the "[t]he plaintiff may claim alternative relief, based upon an alternative construction of the cause of action. As such, the defendant's argument that the plaintiffs' complaint, as a whole, negates the claim that the highway defect was the sole proximate cause of their injuries is not valid." Sandoval v. Rafferty, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 97 0159400 (August 16, 1999, D'Andrea, J.).
In the present case, the plaintiff alleges that the excavation hole, Officer Molnar's actions, or a combination of both was the proximate cause of his injuries. The defendants have not submitted evidence that, as a matter of law, the plaintiff's injuries were solely caused by the alleged highway defect. Accordingly, the plaintiff may set forth alternative constructions of the cause of action. The cause of the plaintiff's injuries present an issue of fact.
The present case is unlike many highway defect cases in Connecticut since a highway defect cause of action is often apparent as a matter of law. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991) (a malfunctioning traffic light is a highway defect); Dunbar v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 94 310727 (May 5, 1994, Fuller, J.) ( 11 Conn. L. Rptr. 448) (failure to maintain a stop sign is a highway defect); Estate of Robishaw v. New England Central Railroad, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 99 0071617 (September 20, 2001, Bishop, J.) ( 27 Conn. L. Rptr. 586) (abnormally dangerous railroad crossing was a highway defect). The present case does not present a clear picture of whether the plaintiff's injuries were caused solely by the alleged highway defect, Officer Molnar's actions, or a combination of both.
A genuine issue of material fact still exists as to whether the sole proximate cause of the plaintiff's injuries was the highway defect; thus, the plaintiff may set forth alternative theories of liability. Accordingly, the defendant's motion for summary judgment is denied.