Opinion
No. CV 10 6008785 S
December 14, 2010
MEMORANDUM OF DECISON RE MOTION TO STRIKE (#105)
PROCEDURAL HISTORY
The plaintiff, Brenda Zebelman, commenced this action against the defendants, the New Haven Parking Authority (the parking authority) and the city of New Haven (the city), on February 19, 2010. The six-count complaint stems from the plaintiff's slip and fall in a public parking garage, which is on a parcel of land owned by the State of Connecticut and leased to the defendants. That parcel of land contains a railroad station and a parking garage used in connection with the railroad station. In counts one and four, the plaintiff makes claims against the parking authority and the city, respectively, based upon the lease agreement. The plaintiff alleges the following. Pursuant to the terms of the lease, the defendants assumed possession, control and responsibility for the operation and maintenance of the premises, including snow removal and ice control. On the morning of February 22, 2008, the plaintiff parked her car in the parking garage and boarded a train. Later that evening, the plaintiff returned to the parking garage and slipped on an accumulation of ice and snow and fell to the ground as she was walking to her car. As a result of such fall, the plaintiff has suffered injuries and damages. The injuries and damages suffered by the plaintiff were the result of a breach of the statutory duty assumed by the defendants, pursuant to General Statutes § 13a-144. Specifically, they failed to: plow the parking garage or did so in a negligent or careless manner; properly inspect the parking garage and discover the dangerous and defective condition of the parking garage when it could have reasonably done so; properly sand or salt the parking garage; and warn the plaintiff of the dangerous and defective condition of the garage. In addition, the lighting in the garage was inadequate to reasonably allow members of the public to seek the condition of the parking area, including such accumulations of snow or ice.
In counts two and five, the plaintiff alleges that the parking authority and the city, respectively, have a duty to keep roads, streets, sidewalks and parking areas in a reasonably safe condition, pursuant to General Statutes § 13a-149. She further alleges that, as a result of the defendants' breach of that duty, she suffered injuries and sustained damages. In counts three and six, the plaintiff alleges that she has suffered injuries and damages as a result of the defendants' negligence.
On May 19, 2010, the defendants moved to strike counts one, three, four and six of the plaintiff's complaint on the ground that § 13a-149 is the sole remedy for injuries arising from a defective road. The plaintiff filed an objection to that motion on June 22, 2010. The matter was heard at short calendar on October 18, 2010.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted, or . . . the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not legally be awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
I COUNTS ONE AND FOUR
The defendants move to strike counts one and four on the ground that § 13a-149 is the plaintiff's sole remedy and § 13a-144 does not apply to the present circumstances. Specifically, they argue that claims brought pursuant to § 13a-144 must be based upon an alleged breach of the duty owed by the commissioner of transportation to maintain state roads. In response, the plaintiff asserts that the record title holder of the premises is the state department of transportation. She contends that, pursuant to the lease between the state and the defendants, the defendants assumed the state's responsibility for maintenance of the premises and thus, have assumed the state's liability under § 13a-144.
The liability of a political subdivision for a defective road or bridge is well settled. "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 . . . [The Supreme Court of Connecticut has] construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a-149] is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). "The statutory provisions of [General Statutes] § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998). Section 13a-144, meanwhile, is considered the state highway defect statute and "imposes the duty to keep the state highways in repair upon the highway commissioner . . ." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02, 876 A.2d 1148 (2005). "To the extent that their language and purpose overlap . . . §§ 13a-144 and 13a-149 have always been read in concert." Smith v. New Haven, 258 Conn. 56, 64 n. 6, 779 A.2d 104 (2001). "[T]here is no material difference in the obligation imposed on the state by [General Statutes §] 13a-144 and that imposed on municipalities by [§] 13a-149." Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970).
Section 13a-149 provides, in relevant part, that "[a]ny person injured . . . 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 . . . 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 . . . 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 clerk of such town, or to the clerk of such city or borough . . ."
Section 52-557n(a)(1)(A) provides, in relevant part, that "a political subdivision of the state shall be liable for damages to person . . . caused by . . . 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; provided no cause of action shall be maintained for damages resulting from injury to any person . . . by means of a defective road . . . except pursuant to section 13a-149."
General Statutes § 13a-144 provides in relevant part: "Any person injured . . . through the neglect or default of the state . . . by means of any defective highway . . . which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court . . ."
"Ownership of the property does not establish liability under § 13a-149 or . . . § 13a-144. Rather, it is the governmental entity charged with the duty . . . to keep [the property] in repair . . . or the party bound to keep [the property] in repair . . . on which the statutes impose liability under certain circumstances." (Internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn.App. 310, 314-15, 763 A.2d 1058 (2001). In other words, "ownership of property is not dispositive of liability . . . the party charged with the duty to maintain the property is potentially liable." Id., 315.
In the present case, a review of the plaintiff's complaint demonstrates that the plaintiff has alleged that the defendants were the parties bound to maintain the premises in a safe condition and, via the lease agreement, relieved the commissioner of transportation of such duty. In fact, the plaintiff alleges that, pursuant to a lease agreement between the state and the defendants, the defendants: "assumed responsibility for the operation and maintenance of the leased premises, including snow removal and ice control and further agreed to indemnify and save harmless the [s]tate . . . from any liability arising therefrom . . ." and assumed "the duty to keep and maintain highways, bridges and sidewalks owned and/or controlled by the [s]tate, and parking areas used in conjunction with the same, in reasonably safe . . . condition." Thus, the plaintiff has not alleged that the state or the commissioner of transportation had a duty to maintain the parking garage in which she allegedly fell and sustained injuries. As a result, the plaintiff has not placed her claim within the purview of § 13a-144. Consequently, the defendants' motion to strike counts one and four is granted.
II COUNTS THREE AND SIX
In support of their motion to strike counts three and six from the plaintiff's complaint, the defendants argue that the plaintiff's negligence claims should be stricken because § 13a-149 is the plaintiff's exclusive remedy for injuries arising from a defective highway. In opposition, the plaintiff argues that she should be allowed to maintain her negligence claim. She contends that the defendants have not conceded that the premises fall within the ambit of § 13a-149, and thus, she has pleaded her negligence claims in counts three and six as an alternative form of relief. In addition, the plaintiff asserts that Connecticut courts have not addressed whether a municipal garage that is not adjacent to a roadway is within the purview of § 13a-149.
The plaintiff correctly notes that, generally, a plaintiff is able to seek recovery under alternate and even inconsistent theories of law. See Practice Book § 10-25. However, as discussed in part I, supra, it is well established that § 13a-149 is a plaintiff's exclusive remedy in an action against the municipality for damages resulting from a highway defect. See Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). Thus, if, as a matter of law, allegations contained in a complaint invoke § 13a-149, other counts which set forth alternative theories of recovery are insufficient and not viable unless a plaintiff has alleged a separate factual predicate that does not fall within the statute. Himmelstein v. Windsor, 116 Conn.App. 28, 40 n. 9, 974 A.2d 820, cert. granted, 293 Conn. 927, 980 A.2d 910 (2009); see Pesce v. Goshen, Superior Court, judicial' district of Litchfield, Docket No. CV 09 5007030S (May 27, 2010, Roche, J.); Dawson v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 08 5016831 (October 26, 2009; Wilson, J.) ("The rules of pleading permit a plaintiff to plead in the alternative against a municipal defendant and a private landowner where there is uncertainty as to whether the area where an injury occurred was part of a public highway").
While the question of "whether a highway is defective may involve issues of fact . . . whether the facts alleged, if true, amount to a highway defect according to the statute is a question of law which may be determined on a motion to strike." Himmelstein v. Windsor, supra, 116 Conn.App. 38; see Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991). Thus, the issue before this court is whether, as a matter of law, the plaintiff's allegations fall within § 13a-149. For the purposes of § 13a-149, "a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . ." (Emphasis added; internal quotation marks omitted.) Himmelstein v. Windsor, supra, 116 Conn.App. 38. "The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . To fall within the statute, a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway . . . rather, a person must simply be on the highway for some legitimate purpose connected with travel thereon . . . Nor does the defect have to be on actual traveled portion of the highway . . . Reasonable latitude is allowed to meet the exigencies of travel . . . The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel." (Citation omitted; internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 394-95, 900 A.2d 82 (2006). If a defective condition "is not in the roadway, it must be so direct a menace to travel over the way; and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." (Internal quotation marks omitted.) Kozlowki v. Commissioner of Transportation, 274 Conn. 497, 506, 876 A.2d 1148 (2005).
Snow and ice can create a defective condition within the purview of § 13a-149. Serrano v. Burns, 248 Conn. 419, 426-27, 727 A.2d 1276 (1999) ("for purposes of recovery under § 13a-149 . . . a highway can be considered defective . . . by reason of ice or snow, depending, of course, on the circumstances and conditions").
Our Supreme Court has not established whether a parking lot is, as a matter of law, a highway for the purposes of § 13a-149. Rather, it has "set out a fact-based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway . . ." Serrano v. Burns, 248 Conn. 419, 427, 727 A.2d 1276 (1999). In Serrano, the Court reversed the trial court decision granting summary judgment to the defendant on the plaintiff's § 13a-144 claim, based upon an alleged slip and fall in the parking lot of a public rest area on Interstate 91. In that case, the Court held that summary judgment was inappropriate because the parking lot in question was part of the state highway system since the parking lot was within the state right-of-way line and travelers on the state highway were invited to use such parking lot in conjunction with the rest area. Id. 429. In reaching that decision, the Court relied on its decision in Baker v. Ives, 162 Conn. 295, 301, 294 A.2d 290 (1972). In Baker, the plaintiff alleged that she slipped and fell on an accumulation of ice in a public parking area located between a state highway and a sidewalk. Id. 297. At the conclusion of the trial, the state moved for a directed verdict, which was denied by the trial court. The Court upheld that decision and held, inter alia, that the jury could have reasonably found that the parking lot at issue fell within the ambit of § 13a-144 because the "proximity of the defect to the paved portion of the highway in conjunction with the fact that the locus of the fall was in an area where occupants of vehicles were invited by the state to park their cars for the purpose of walking from their cars to the stores in the vicinity warrants the conclusion that this defect was in, upon, or near the traveled path so as to obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . thereby allowing recovery . . ." (Citation omitted; internal quotation marks omitted.) Id. 302 n. 3.
In the present case, the plaintiff alleges that the defendants "operated the [parking garage] for use by members of the general public in return for the payment of a fee . . ." and that the defendants have a "duty to keep roads, streets, sidewalks, and parking areas used in conjunction with the same, in a reasonably safe condition." She further alleges that she fell while "walking toward her car on the fifth floor parking area of the parking garage . . ." and that the fall was "in an area where . . . members of the general public . . . would have to walk to reach their parked vehicles . . ." These allegations are sufficient to bring the plaintiff's claims within § 13a-149. In fact, it is clear to this court that the plaintiff intended to place her claim within the purview of the statute when she alleged that the parking garage is used in conjunction with roads, streets and sidewalks that the municipal defendants had a duty to maintain. Moreover, the plaintiff's argument that the parking garage was not used in conjunction with a roadway is without merit and contradicts the allegations in her complaint. By its very nature, a parking garage is used in conjunction with a roadway. Thus, the plaintiff's claim is, as a matter of law, based upon the defective highway statute.
This court notes that the facts alleged by the plaintiff sufficiently distinguish the present case from Read v. Plymouth, 110 Conn.App. 657, 955 A.2d 1255, cert. denied, 289 Conn. 955 (2008), in which the Appellate Court reversed a trial court decision granting the defendants' motion to strike and preventing the plaintiff from pleading in the alternative on the ground that § 13a-149 was the plaintiff's exclusive remedy. In that case, the plaintiff alleged that he fell into a dumpster at a waste transfer station. The trial court found that, as a matter of law, the waste transfer station fell within the ambit of the statute because the area where the plaintiff fell was akin to a public walkway and, in addition, other courts had ruled that a town dump or landfill fell within the purview of § 13a-149. Read v. Plymouth, Superior Court, judicial district of New Britain, Docket No. CV 05 5000158 (January 9, 2006, Shapiro, J.) [ 40 Conn. L. Rptr. 607]. The Appellate Court held, inter alia, that the plaintiff should have been permitted to plead in the alternative because, at the time of pleading, it was unclear whether the location in question fell within the purview of the statute. Read v. Plymouth, supra, 110 Conn.App. 662 (stating trial court improperly granted motion to strike on "basis of yet undetermined facts regarding the applicability of the defective highway statute"). In the present case, the plaintiff does not allege that there are yet to be determined facts regarding the location of her fall. In fact, her negligence claims include allegations that the fall was sustained in a parking garage operated and maintained by the defendants for use by the members of the general public and in an area where the defendants knew or should have known that members of the public would have to walk in order to reach their parked vehicles.
In addition, this court takes note of other trial court decisions denying similar motions to strike and allowing plaintiffs to plead in the alternative when the location of the alleged fall is not a road or highway. In Norlander v New Milford, Superior Court, judicial district of New Haven, Docket No. CV 04 0093313 (July 14, 2005, Trombley, J.) ( 39 Conn. L. Rptr. 689, 691), the trial court applied the reasoning in Serrano v. Burns, supra, 248 Conn. 419, and denied the motion to strike on the ground that the question of "whether the facts in this case would establish that the plaintiff's fall was in an area in the parking lot that was so close or so related to the municipal road as to be considered in, upon or near the traveled path is a question of fact and an issue yet to be determined; it should not be disposed of by way of a motion to strike." In reaching his decision, it appears that Judge Trombley either did not consider, or rejected the Supreme Court precedent regarding the authority of a trial court to decide, as a matter of law, whether the facts alleged by a plaintiff amount to a highway defect in the context of a motion to strike. See Sanzone v. Board of Police Commissioners, supra, 219 Conn. 201. This court, however, is compelled to follow the Appellate Court's directive in Himmelstein v. Windsor, supra, 116 Conn.App. 28. Moreover, this court is mindful that in deciding motions to strike, trial courts are limited to the facts as pleaded by the plaintiff, and must assume such facts to be true.
In Lafferty v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 93 0349805 (November 3, 1994, Martin, J.), in which the plaintiff alleged a slip and fall at Tweed Airport in New Haven, the court took notice of the general rule that "[w]hether a highway is defective may involve issues of fact but whether the facts alleged would if true, amount to a highway defect according to statute is a question of law which may be determined on a motion to strike . . ." but proceeded to deny the defendant's motion to strike and allow the plaintiff to plead in the alternative because it regarded the issue before the court to be "whether the property at issue is a road or bridge as contemplated by the [§ 13a-149]." (Internal quotation marks omitted.) The court stated: "By arguing that the plaintiff's exclusive remedy is General Statutes § 13a-149, the defendant's motion to strike is based upon law and facts which require a legal determination that is outside the scope of a motion to strike. The legal status of [the property at issue] is dependent upon underlying facts which are not alleged, such as the ownership and control of the property." Id. However, the present case is clearly distinguishable from Lafferty because the plaintiff has alleged that the defendants were responsible for the maintenance of the parking garage, "including snow removal and ice control . . ." thereby placing the parking garage at issue within the ambit of § 13a-149.
This court finds that the allegations pleaded by the plaintiff in her complaint necessarily invoke § 13a-149. Thus, the plaintiff's exclusive remedy for her injuries is under § 13a-149. As a result, the defendants' motion to strike counts three and six of the plaintiff's complaint is granted.
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motion to strike counts one, three, four and six is granted.