Opinion
LLICV156011678S
11-12-2015
The Connecticut Light & Power Company dba Eversource v. Town of Goshen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, J.
Before the court is a motion for summary judgment (#119) and an objection (#125). Also pending is an objection (#127) to a request for leave to amend the complaint which is the subject of the motion for summary judgment. For the reasons given, the court will sustain the objection to the request for leave to amend and will grant the motion for summary judgment.
The plaintiff, Connecticut Light & Power Company (" CL& P") has brought this suit to recover for damages allegedly done to its Pad Mounted Transformer No. 586 located in the area of the intersection of Wellsford Drive and Sherbrook Drive in Goshen. The plaintiff alleges that on February 13, 2013 the transformer was damaged by a snow plow truck operated by an agent of the defendant, Town of Goshen (" Town"). Currently, the operative complaint is the revised complaint filed on March 6, 2015.
The revised complaint sets forth a common-law negligence claim alleging that the defendant: failed to operate the snow plow at a reasonable speed; failed to pay proper attention and keep a proper lookout; failed to reasonably pile the snow; failed to move the snow so as to avoid danger; and failed to operate the snow plow under proper and reasonable control.
On March 23, 2015, the defendant filed an answer and a special defense that the plaintiff's claim is barred by the defendant's common-law and/or statutory immunity pursuant to General Statutes § 52-557n(a)(2)(B). On April 20, 2015 the plaintiff filed a " no knowledge" response to this special defense, and filed a certificate of closed pleadings and a claim for trial by jury. Both parties engaged in written discovery which has been completed. On June 23, 2015, the parties met with Judge Moore in a scheduling conference. On that day, Judge Moore issued a scheduling order which set September 15, 2015 as the last day for filing dispositive motions and set April 5, 2016 as the first day of trial.
On July 8, 2015 the defendant filed a motion for summary judgment (#119) claiming that there is no genuine issue of material fact and that the plaintiff's claim is barred by governmental immunity as alleged in the special defense. The plaintiff has objected to this motion and it was argued at the short calendar on September 28, 2015.
The defendant's summary judgment motion is supported by two affidavits from employees of the Town. These affidavits allege that in February 2013 the Town had no mandatory policies or directives which required that snow on public streets be moved in any particular manner. The Director of Public Works and the individual snow plow operator would determine the manner of snow removal in the exercise of their respective judgment and discretion in light of the overall circumstances at the time. On February 8, 2013 the Town experienced snowfall from a storm named " Blizzard Charlotte" which lasted until February 9, 2013. The total snowfall in Goshen from this storm amounted to approximately 26 inches. Snow removal efforts were continuing on February 13, 2013 in the area Wellsford Drive and Sherbrook Drive. Robert Wood was operating a payloader to remove snow in this area and did not see a pad mounted transformer as the area was covered with deep snow. Mr. Wood could see no flags or other markings to provide notice of any structures, electrical or otherwise, under the snow adjacent to the street. Based upon the affidavits, the defendant argues that its snow plowing activities were discretionary in nature and are clothed in municipal immunity pursuant to General Statutes § 52-557n(a)(2)(B).
The plaintiff supports its opposition to the motion for summary judgment with an affidavit by David Quick, a claims analyst who works for the defendant. He alleges that the transformer is located on private property approximately 16 feet from the road. The transformer sits on a concrete pad, is filled with oil and is connected to underground electrical wires. When the transformer was damaged it was pushed off its concrete pad and its electric wires were pulled off causing oil to leak out, thereby destroying the transformer.
The plaintiff implicitly concedes that, based on the operative complaint, the motion for summary judgment would have to be granted because there is no genuine issue of material fact which would avoid the defendant's municipal immunity for discretionary acts. The plaintiff seeks to avoid this result by asking the court to permit it to amend its complaint before acting on the motion for summary judgment. It filed a request for leave to amend its complaint on July 22, 2015 to add new allegations setting forth three ways in which the Town allegedly failed to comply with mandatory statutory provisions. The defendant has filed a timely objection to this request. This objection was argued at the short calendar on September 28, 2015 along with the summary judgment motion.
The plaintiff proposes to add two new paragraph to the complaint to be numbered 9 and 10. These paragraphs read: 9. Defendant failed to comply with C.G.S. § 16-345 et seq. And the regulations incident thereto; a. IN THAT the Defendant failed to determine the precise location of plaintiff's transformer (which constitutes a " public utility underground facility" and/or " public utility facility") in violation of C.G.S. § 16-351 before snowplowing (which constitutes " excavation" pursuant to C.G.S. § 16-345(e)); b. IN THAT the Defendant failed to exercise reasonable care when snowplowing in the proximity of plaintiff's transformer in violation of § 16-345-4(a)(5) of the Regulations of the Connecticut Department of Public Utilities, and c. IN THAT the Defendant failed to notify the central clearinghouse prior to snowplowing at or near the location of plaintiff's transformer in violation of C.G.S. § 16-349 or, if this were an emergency, failed to notify the central clearinghouse as soon as reasonably possible pursuant to C.G.S. § 16-349 or, if this were an emergency, failed to notify the central clearinghouse as soon as reasonably possible pursuant to C.G.S. § 16-352(a). 10. As such, Defendant should be liable and not be able to claim immunity pursuant to C.G.S. 52-557n.
The first issue to be decided is the objection to the request for leave to amend the complaint. The defendant has two arguments in opposition to the request for leave to amend. First, the amendment sets forth a new cause of action which does not relate back to the original complaint and is barred by the applicable two-year statute of limitations. Second, the amendment is untimely, would cause unnecessary delays, and is a disingenuous attempt to avoid summary judgment. The court agrees with the defendant's first argument and will not address the second argument.
There is no doubt that the proposed amendment is barred by the applicable statute of limitations if it constitutes a new cause of action which does not relate back to the date of the original complaint. The " relation back doctrine" is easier to state than to apply. The Supreme Court recently restated the doctrine as follows: " [A] party may properly amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains the same . . . If a new cause of action is alleged in an amended complaint . . . it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Emphasis in the original.) Finkle v. Carroll, 315 Conn. 821, 838, 110 A.3d 387 (2015).
The plaintiff argues that the allegations set forth in the proposed amendment are an amplification of the facts set forth in the original complaint and do not constitute a new cause of action. The plaintiff cites the court to Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991) in which the Supreme Court affirmed the trial court's allowance of an amendment to the plaintiff's complaint after the statute of limitations had passed. The plaintiff sued for personal injuries resulting from a motor vehicle accident involving two members of the Stamford Police Department while they were both on duty. The plaintiff's original allegations were based on negligence. A confusing procedural battle took place during which it became clear that the original allegations would be deficient because the parties were fellow employees who are barred from suing each because of fellow employee immunity under General Statutes 7-465. After the two-year statute of limitations had expired, the court permitted the plaintiff to add the allegations that the defendant was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The defendant raised a special defense that the amended complaint was barred by the statute of limitations because it did not relate' back to the original complaint. The trial court struck this special defense on the ground that the amendment related back to the date of the original complaint and was, therefore, not barred by the statute of limitations. The Supreme Court affirmed the trial court on this issue after engaging in an analysis which distinguishes the earlier case of Sharp v. Mitchell, 209 Conn. 59, 546 A.2d 846 (1988). That analysis is as follows:
In Sharp v. Mitchell, supra, 72-73, the plaintiffs, in their first complaint, brought a wrongful death action against the defendant based on negligent supervision. The plaintiffs subsequently amended the complaint to allege that the defendant had negligently designed and constructed the underground storage area where their decedents suffocated. Id., 73. The court held that " [t]hese complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability . . . The defendants did not have fair notice of the claim of negligent construction and design of the underground storage area when the original complaint merely alleged that [the defendant] was negligent in ordering the employees to enter the area." Id.
The amendment that occurred in this case is distinguishable from that in Sharp v. Mitchell, supra . In Sharp, the change in the nature of the negligence action from one of negligent supervision to one of negligent construction was dramatic because the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim. In this case, however, the plaintiff's amendment reiterated the negligence claim based on Mayer's operation of a motor vehicle, but added that Mayer was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The new allegations did not inject " two different sets of circumstances and depend on different facts"; Sharp v. Mitchell, supra, 73; but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability. The fact that the new allegations had the potential effect of taking the claim outside the operation of the fellow employee immunity rule does not negate " the identity of the cause of action." Gallo v. G. Fox & Co., supra . Mayer had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident.
The plaintiff argues that the court should follow Sharp rather than Gurliacci when acting on the objection to the request for leave to amend. Two of the three proposed statutory violations contained in the proposed amendment to the complaint change the nature of the action from one involving the negligent operation of a snow plow by a driver to one involving administrative inaction by office staff to call the " central clearinghouse" and determine the location of a " public utility underground facility" and to notify the " central clearinghouse" prior to beginning to plow snow. Paragraph 9a provides that the defendant failed to determine the precise location of the plaintiff's transformer in violation of § 16-351 before snowplowing. Paragraph 9c provides that the defendant failed to notify the central clearing house prior to snowplowing at or near the location of the plaintiff's transformer in violation of § 16-349. There is no doubt that the proposed paragraphs 9a and 9c present an entirely new and different factual situation. The difference is dramatic and will require different facts, evidence and witnesses.
It must be noted that the defendant does not concede that the plaintiff's pad mounted transformer constitutes an " underground facility" or that snow plowing constitutes an " excavation" as those words are used in the Sec. 16-345 et seq. The court does not need to decide this issue in order to decide the pending motions.
Proposed paragraph 9b is different in that it relates to the act of plowing snow. It provides that the defendant failed to exercise reasonable care when snowplowing in the proximity of the plaintiff's transformer in violation of § 16-345-4(a)(5) of the Regulations of the Connecticut Department of Public Utilities. That section provides that an excavator " shall exercise reasonable care when working in proximity to the underground facilities of a public utility." This allegation relates to the same factual situation as that alleged in the original complaint. Therefore, it would relate back to the date of the original complaint. But, this avails the plaintiff nothing because this regulation does not create a mandatory ministerial duty by providing that the defendant must use reasonable care. It does not mandate that the snow be plowed in any prescribed manner. " The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, ministerial refers to a duty which is performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Comm'n, 275 Conn. 38, 48-49, 881 A.2d 194 (2005). The requirement that the defendant exercise reasonable care when plowing near a public utility facility necessarily involves the exercise of judgment. " Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature." Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928 (2002).
For the reasons set forth above, the objection to the request for leave to amend is granted, and the motion for summary judgment is granted.