Opinion
No. CV 04-0830923-S
April 7, 2006
MEMORANDUM OF DECISION RE DEFENDANT METROPOLITAN DISTRICT COMMISSION'S MOTION FOR SUMMARY JUDGMENT ( # 116)
In the Second Count of his complaint, the Plaintiff, Salvatore Visicale, alleges that the Defendant, Metropolitan District Commission (MDC), is a Connecticut municipal corporation and that on or about August 3, 2002 he was walking on the grassy median between the sidewalk and the road near the driveway apron of 16-18 Dover Street in Hartford when the ground caved in and he fell into a two-foot-deep hole causing him severe injuries. The Plaintiff claims that his fall and injuries and losses were caused by the negligence and carelessness of the Defendant MDC in a number of ways. The Defendant MDC has moved for summary judgment as to this count on the grounds that it did not owe a duty to the Plaintiff as it did not have actual or constructive notice of the defective condition and that it has qualified immunity pursuant to General Statutes § 52-557n(b)(8). The Plaintiff objects to the motion on the grounds that there are genuine issues of material fact as to whether the MDC had actual or constructive notice of the alleged defect and that the MDC is not afforded the protection of immunity under the statute.
The standards for granting summary judgment are well settled. "Practice Book § 17-49, provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. The test is whether a party would be entitled to a directed verdict on the same facts." (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006). "`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 . . . 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] . . .' Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005)." Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47 (2005).
In support of its motion for summary judgment the MDC submitted the affidavit of its Administrator of Customer Accounting and Risk Services. He states that the MDC is responsible for operating and maintaining thousands of miles of sewer and water mains that run under the streets of Hartford and the surrounding areas. Prior to August 13, 2002 the MDC did not receive any complaints or any form of notice about any problems or defects in the ground under the grassy meridian between the sidewalk and the street in front of or in the area around 16-18 Dover Street in the City of Hartford. In opposition to the motion, the Plaintiff submitted his own affidavit in which he states that approximately three months prior to the accident he noticed that the ground in the grassy median had become noticeably uneven and that there was an area located within the grassy median that was considerably lower than the rest of the area. He also states that the location in which the accident eventually took place is the exact location where his landlord placed his garbage bins each week for the city public works pick-up on garbage collection day.
The Plaintiff cites Mausch v. Hartford, 184 Conn. 467, 469-70 (1981) in support of his position that the MDC had constructive notice regarding the alleged defective condition. There the Court stated: "A municipality is not charged with the responsibility of keeping its streets and sidewalks in an absolutely safe condition. Its responsibility is limited to using reasonable care to keep them in a reasonably safe condition for travel. Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961); Older v. Old Lyme, 124 Conn. 283, 284, 199 A. 434 (1938). In discharging this responsibility it is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose. Whether the municipality is chargeable with notice of a particular defect depends not on whether a reasonable inspection of a particular street would have disclosed it but rather whether the defect would have been disclosed by a reasonable inspection of the streets as a whole. Tirendi v. Waterbury, 128 Conn. 464, 468, 23 A.2d 919 (1942); Meallady v. New London, 116 Conn. 205, 209, 164 A. 391 (1933); Ritter v. Shelton, 105 Conn. 447, 450-51, 135 A. 535 (1927) . . . In applying the standard to any given case, the character of the defect and the length of time it has existed become important. The question of fact to be determined by the trier is whether the particular defect has existed long enough and is so conspicuous that it would attract the attention of the municipality in the exercise of a reasonable supervision of its streets. Crony v. Danbury, 79 Conn. 379, 386, 65 A. 147 (1906)." In DeMatteo v. New Haven, 90 Conn.App. 305, 308-09 (2005) the court noted: "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.' CT Page 6761 Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981)."
Here the evidence submitted by the Plaintiff indicates only that the ground was becoming uneven and noticeably lower for some time, yet there was no indication that it was in imminent danger of collapse. In fact the Plaintiff states that it was the exact location where his landlord placed his garbage bins for pick up each week. The Plaintiff also states in his affidavit that "[a]t no time did I have knowledge that a defect existed in this uneven area or that it would collapse by walking on it, nor did I have knowledge that the ground would eventually cave in and form a dangerous hole." Therefore it is unlikely that the condition of the ground would have been discovered even upon inspection. The Plaintiff himself did not discover the weakness in the ground until he walked over it and the alleged accident occurred. In addition, there had been no complaints made to the MDC regarding the unevenness of the ground. Without more, the alleged notice to the Hartford municipal employees who picked up the garbage cannot be assumed to be notice to the MDC. Lastly, the MDC had no notice of the alleged problem with the lateral sewer line running from the house at 16-18 Dover Street which, after the accident, was discovered to have caused the condition complained of. "The notice which a municipality must receive as a condition precedent of liability for injuries received by reason of a defective highway, must be notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it." (Internal citations omitted.) Jainchill v. Schwartz, 116 Conn. 522, 525 (1933).
The essence of the Plaintiff's constructive notice claim is that the "defect was of such a condition that it would have been discoverable had the City of Hartford Public Works Department along with Defendant MDC inspectors exercised a reasonable inspection over the property and over Dover Street." Plaintiff's Memorandum of Law in Support of His Objection to Defendant Metropolitan District Commission's Motion for Summary Judgment. Yet General Statutes § 52-577n(b)(8) provides the MDC with immunity from a claim based on a failure to inspect. That statute provides: "a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ." Thus the MDC is immune from a claim based on a failure to inspect. The Plaintiff argues, however, that his claim comes within the exception to the statute for a claim where "such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances." In describing conduct which would be considered wanton, wilful or malicious in the context of the state employee immunity statute, General Statutes § 4-165, the Appellate Court observed that "[I]t is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks and citation omitted.) Tuchman v. State, 89 Conn.App. 745, 764 (2005). Thus, analogizing this language to the language of General Statutes § 52-577n(b)(8), in order to come within the exception of the statute the alleged conduct must "take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." The facts as claimed here do not meet this standard.
Therefore the Defendant MDC's motion for summary judgment is granted.