Opinion
No. CV 00 0070833
April 4, 2003
MEMORANDUM OF DECISION
Plaintiff has filed a two-count complaint against the City of Derby and 106 Main L.L.C. alleging that she sustained injury after falling over a defective water main cover located in a sidewalk alongside Main Street. She claims that the City is statutorily liable pursuant to General Statutes § 13a-149 and that the defendant property-owner of 106 Main L.L.C. is liable because it negligently failed to repair the dangerous and defective water main cover.
General Statutes § 13a-149 states in relevant part: "[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 . . ." Our Supreme Court has "repeatedly . . . stated that § 13a-149 is the exclusive remedy against a municipality for damages resulting from a defective road." (Internal quotation marks omitted.) Brennan v. Fairfield, 255 Conn. 693, 701-02 (2001).
"The word road or highway as used in [§ 13a-149] has usually been construed to include sidewalks. The term sidewalk is meant to apply to those areas that the public uses for travel. Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Citations omitted.) Novicki v. New Haven, 47 Conn. App. 734, 740 (1998).
106 Main L.L.C. failed to plead and has been defaulted. The City seeks summary judgment, claiming that they are not liable for the plaintiff's injuries under § 13a-149 because they are not now, nor have they ever been, responsible for maintenance or repairs of water main covers and as a result they did not have any "control" over said water main cover.
The City claims that both Hanlon v. Waterbury, 108 Conn. 197 (1928) and Alston v. New Haven, 134 Conn. 686 (1948) are controlling. In these cases, the Supreme Court indicated that one who creates and maintains a particular defect or nuisance in or upon a sidewalk actually has "control" over that particular defect or nuisance, such that that party should be held liable in the event that said defect or nuisance injures one. In an effort to show the court that the municipality had no "control" over the defective water main cover, the City submitted the affidavit of Gary Park, a public works employee, stating that "[t]he Public Works Department does not and has not ever had the responsibility to inspect, maintain or repair water main covers located in the sidewalks of the City of Derby."
In Hanlon, the plaintiff slipped and fell on a gasoline spill on a sidewalk and sued the abutting gas station owner in addition to the city of Waterbury. The facts indicated that a regular customer at the gas station had actually created the spill and had informed the owner of the station, however, before the owner was able to clean up the spill, the plaintiff fell and was injured. The gas station argued that "the city of Waterbury had exclusive jurisdiction over the sidewalks of that city [and consequently] there was no duty resting upon [the station] to keep the sidewalk in a reasonably safe condition." Hanlon v. Waterbury, supra, 108 Conn. 199. The court concluded that "responsibility for [a] nuisance is imposed upon the person creating or maintaining it"; Id., 200; and held that the defendant gas station owner was liable for the plaintiff's injuries. Notwithstanding, however, the court suggested that the city could also be held liable, noting that "whether the city would also be liable under its statutory duty would not affect the liability of [the defendant gas station owner] . . . due to its conduct of its business through which this sidewalk became unsafe for public travel, and also due to its failure to remedy the dangerous condition after its agent had had ample opportunity to do so." (Emphasis added.) Hanlon v. Waterbury, supra, 108 Conn. 200.
The plaintiff in Alston sued both the city of New Haven and the State of Connecticut after he tripped in one of two flagpole holes which had been drilled into a city sidewalk by state employees. Following a verdict against the city, it appealed, arguing that the damage award was exorbitant and that it was not responsible for the creation or maintenance of the flagpole hole and therefore, could not be held liable for the plaintiff's injuries. Alston v. New Haven, supra, 134 Conn. 687. Noting that "possession and control are decisive factors" in assessing liability in these types of cases, the court stated that "[t]he constant use of one of the flagpole holes by the state and the construction of both by it show beyond question that it exercised control over them." Id., 689. Consequently, the court held that the city was not liable and the original verdict in favor of the plaintiff should be set aside because while the defendant city "could have repaired the defect . . . that [did] not alter the relationship of the state to the hole [and the] failure of the defendant to repair was not the sole cause of the plaintiff's injuries." (Emphasis added.) Id., 689-90.
This court does not necessarily disagree with the defendant's basic interpretation of either Hanlon or Alston in the sense that one who creates and maintains a defect or nuisance could be said to have "control" over that defect or nuisance sufficient for liability to attach in the event that a third party is harmed by that defect or nuisance. Nevertheless, this does not change the fact merely denying that one has "control" over a particular defect or nuisance is not sufficient for summary judgment purposes. Instead, at least some scintilla of evidence that another party maintains "control" over a particular defect or nuisance should be submitted for consideration.
The motion for summary judgment is denied, albeit without prejudice to possible renewal. The court cannot simply rely upon personally attested lack of responsibility (phrased as a quasi-legal conclusion) and a historical de facto absence of city maintenance as governing. If, however, a timely new motion shows an acknowledgment of maintenance and/or control by another entity, such as the installing water company, then the court will entertain that information.
Of course, this might still leave open the potential concurrent liability of the city, as may be suggested by Hanlon and Novicki, supra.
BY THE COURT,
Nadeau, J.