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Keough v. Dayton Construction Co.

Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
Feb 3, 2011
2011 Ct. Sup. 6138 (Conn. Super. Ct. 2011)

Opinion

No. X05CV095012675S

February 3, 2011


MEMORANDUM OF DECISION ON DEFENDANT TOWN OF TRUMBULL'S MOTION TO STRIKE (#182)


Introduction

This case arises out of a fatal 2007 motorcycle vs. motor vehicle collision at an intersection on Route 25, an intersection that at the time was the subject of a highway renovation project. On June 22, 2010, the plaintiffs Stephen Keough and Deborah Tassiello (the decedent's mother), commenced the present action on behalf of the plaintiff's decedent Robert Tassiello (Tassiello) against the operator of the motor vehicle, Zeshan A. Khan (Khan). Tassiello was operating his motorcycle when it collided with Khan's vehicle. As a result of the collision, Tassiello sustained severe injuries and later died. Also named are the Town of Trumbull (Town), the municipality where the intersection is located, and the State of Connecticut Department of Transportation (DOT), as Route 25 is a state road. A number of corporate defendants allegedly connected in one way or another with the highway project have also been named as defendants, as follows: Dayton Construction, Inc.; Charter Communications Entertainment I, LLC; KTM Electrical Construction, LLC; The United Illuminating Co.; AT T Corp./American Telephone and Telegraph Co. and/or SBC Communications/SNET America, Inc. The Southern Connecticut Telephone Company; Milone Macbroom, Inc.; Southern Connecticut Gas Co.; and Maguire Group. The plaintiffs' revised complaint sounds in a total of fifty-three counts. Four counts assert specific claims against the defendant Town, and before the court is the Town's motion to strike all but one of those counts. There is a defective highway claim against the Town in count forty-nine that is not the subject of this motion to strike and is unaffected by this ruling.

Specifically, the Town moves to strike counts fifty through fifty-three of the revised complaint. In counts fifty and fifty-one, the plaintiffs set forth claims against the Town of common law and/or statutory nuisance under General Statutes § 19a-335, and statutory negligence under §§ CT Page 6139 52-557n(a)(1)(A), (B) or (C). In counts fifty-two and fifty-three, the plaintiff Deborah Tassiello claims damages for incurred expenses, financial loss and loss of filial consortium, respectively. The Town moves to strike all four of these counts on the grounds that General Statutes § 13a-149, commonly referred to as the defective highway statute and which is pleaded in count forty-nine, constitutes the plaintiffs' sole and exclusive remedy against the Town. The Town claims that it is clear from the wording of the allegations in these other counts that Tassiello's injuries were claimed to be the result of an allegedly defective highway. Therefore, the plaintiffs' additional claims of nuisance and statutory negligence are barred. Additionally, with respect to count fifty, the Town contends that it is legally insufficient, in that the allegations fail to cite an authorizing statute abrogating the Town's governmental immunity to support the nuisance cause of action. With respect to count fifty-one, the Town contends that even if the court were to find that this count was not barred by the defective highway statute, it nonetheless fails to state a legally sufficient cause of action because Connecticut does not recognize a loss of filial consortium claim. The plaintiffs object to the motion to strike, contending that each of these challenged claims brought against the Town is legally sufficient, and ask that the motion be denied. The court will first set forth the legal standards applicable to motions to strike, followed by an analysis of the specific counts at issue.

Legal Standard — Motion to Strike

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial, district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) ( 26 Conn. L. Rptr. 547).

"A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Further, our Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be improper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 279267 (May 22, 1990, Schimelman, J.) ( 1 Conn. L. Rptr. 651). It is clear that "a court may determine, on a motion to strike, whether the facts alleged, if true, would amount to a highway defect as a matter of law." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201 (1991).

Discussion

The complaint alleges that on September 2, 2007, at approximately 5:30 pm, Tassiello was operating his motorcycle southbound on Route 25 near its intersection with Tashua Road in Trumbull. Tashua Road would have been on Tassiello's right as he approached the intersection. Khan was operating his motor vehicle on Tashua Road, and he attempted to turn left to travel northbound onto Route 25 from Tashua Road, crossing Tassiello's lane of travel on his motorcycle. At that moment a collision occurred in which Tassiello was thrown forcibly to the ground, resulting in severe personal injuries which proved to be fatal.

As previously stated, for the purposes of a motion to strike, the court must restrict itself to the allegations contained in the complaint, and must accept those allegations as true. Recognition of this principle of law avoids the repeated characterization of the allegations as allegations in this memorandum of decision.

At the time, this intersection on Route 25 was undergoing improvements in a project involving a number of different contractors and subcontractors all working pursuant to a Connecticut DOT contract. They have also been named as defendants. The site work included, among other things, design, removal, repair, installation, utilities, supervision, management, maintenance, renovations, paving, digging, and construction. The plaintiffs allege that at the time of the collision that ultimately took the life of the plaintiffs' decedent, a portion of this project had been delayed or was otherwise uncompleted, including the installation of a traffic light at the intersection. This was due to the acts or omissions of the Town and/or the other defendants. The Town knew or should have known that the intersection was in a dangerous or defective condition, including the usage and traffic conditions, and the need of control devices, signage, repair, site line maintenance or changes, traffic and/or design changes. The plaintiffs claim that the Town knew or in the exercise of care should have known that other defects existed such as overgrown grass, large trees and/or bushes in the paved or unpaved shoulder areas closely adjacent to the roadway. The Town permitted these defects to exist, or failed to properly trim, cut, remove, supervise, and/or maintain this area, and failed to warn members of the public like Tassiello.

The plaintiffs further claim that this unmaintained, overgrown or deteriorated tree/brush obstruction on the shoulder was a continuing one that had a natural tendency to create danger; and that these conditions were allowed to exist on a road heavily used by members of the traveling public like Tassiello. The plaintiffs further claim that the Town was aware of previous injuries at this intersection, and should have been aware that any failure to properly maintain it would likely subject persons and motorists traveling upon the road to imminent harm.

As previously stated, the plaintiffs set forth their claims against the Town in counts forty-nine through fifty-three of the revised complaint. In count fifty, the plaintiffs incorporate the facts recited above, which are also set forth in count forty-nine, brought pursuant to the highway defect statute. The plaintiffs further claim that the Town knew or should have known that the intersection and/or roadway area was in a dangerous or defective condition. Thus the Town had both a common law duty and a statutory obligation pursuant to General Statutes § 23-65 to maintain the trees, brush, and/or shrubs along the highway. As a result, the plaintiff contends that the Town is liable for either common-law nuisance and/or pursuant to § 19a-335.

The Town is not moving to strike count forty-nine, which sets forth a claim pursuant to the defective highway statute, General Statutes § 13a-149. This law provides: "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."

Further, in count fifty-one which incorporates these same allegations, the plaintiffs claim that the Town is liable for statutory negligence under General Statutes § 52-557n(a)(1)(A), (B), and/or (C), in that the Town failed to fulfill its duty to maintain a safe public roadway. The plaintiffs argue that because the Town was responsible for the maintenance of the paved and unpaved shoulder areas adjacent to the roadway, it was under a duty to maintain the intersection in a manner which was safe and appropriate for the public. Counts fifty-two and fifty-three, which also incorporate the allegations set forth in counts forty-nine through fifty-one, are brought by Tassiello's mother, the plaintiff Deborah Tassiello, for her expenses incurred, financial loss and damages, and loss of filial consortium.

The Town claims that the allegations set forth in counts fifty through fifty-three of the revised complaint, while worded somewhat differently, also invoke the defective highway statute as a matter of law. Therefore, under the holding of Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, the defective highway statute, § 13a-149, constitutes the plaintiffs' exclusive remedy against a municipality like the Town for any damages. In Sanzone, the plaintiffs alleged that the cause of the plaintiffs' injury, a malfunctioning traffic light, was the result of the defendants' failure to maintain and inspect the light as required by statute. The court analyzed the meaning and scope of the proviso contained within § 52-557n which provides that "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 [§ ]13a-149." It construed § 52-557n to provide that "an 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.'" (Emphasis added.) Id., 191. In granting the defendant's motion to strike, the court held that the malfunctioning traffic light was unquestionably a highway defect as a matter of law. Therefore, the highway defect statute was the plaintiffs' exclusive remedy.

Connecticut Highway Defect Statute

Section 52-557n(a)(1) states in relevant part that "a political subdivision of the state shall be liable for damages to person or property . . . (C) 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 [§ ]13a-149." The cross-referenced highway defect statute, § 13a-149, allows "any person injured in person or property by means of a defective road or bridge [to] recover damages from the party bound to keep it in repair." As in Sanzone, supra, the Connecticut Supreme Court held that "an action brought under § 13a-149 is a plaintiff's exclusive remedy." Ferreira v. Pringle, 255 Conn. 330 (2001).

It has also been held that "there is no material difference in obligation imposed on the state by defective highway statute [§ 13a-144] and that imposed on municipality by this Section [§ 52-557n] in providing for damages for injuries from defective roads and bridges." Donnelly v. Ives, 159 Conn. 163 (1970).

In Ferreira, the plaintiff sought recovery for injuries sustained when he fell into the roadway and was run over by a public bus. The plaintiff tripped over a remnant of a severed steel signpost embedded in the grassy highway shoulder, a shoulder which was being used as a bus stop. The defendants filed a motion to strike claiming that based on the facts alleged, the plaintiff's exclusive remedy was under § 13a-149. The court held that "the plaintiff's claims, coupled with the uncontested facts in the record, invoke § 13a-149 because they contemplate that the plaintiff's injury occurred as a result of a defective road that the town was `bound to keep . . . in repair.'" Id., 343. The court noted that the plaintiff "expressly stated that the nature and location of the defect was such that it necessarily presented a public hazard to himself, pedestrians, and other disembarking bus travelers." Id., 352. The court stated that the initial inquiry must be whether or not the plaintiffs' injuries arise from an alleged `highway defect' and that the determination of the existence of a highway defect is a question of law for the trial court to resolve. Having found that the plaintiff's injuries resulted from a highway defect, the court concluded that "the plaintiff's exclusive remedy against the defendants is pursuant to § 13a-149." Id., 354.

"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." Ferreira v. Pringle, supra, 255 Conn. 341, 342 (2001).

In Malin v. Connecticut Zoological Society, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 0440022585 (April 3, 2007, Robinson, J.), the court affirmed the reasoning of Ferreira, stating that "while conceding that . . . § 13a-149 limits a plaintiff's remedies, this court agrees that . . . alternative pleading of defective highway claims is permissible in the absence of a determination by the court or fact finder that the cause of the alleged harm is a `highway defect' invoking the benefits and limitations of the statute . . ." Id., 7. The plaintiff in Malin alleged that a metal gate next to the driveway from the Beardsley Zoo into the adjacent park swung out and crashed into the plaintiff's car, causing her to sustain injuries. The plaintiff alleged multiple claims against the defendant city sounding in negligence pursuant to § 52-557n; nuisance pursuant to § 19a-335; and violation of the highway defect statute, § 13a-149. The city moved for summary judgment, claiming that it could not be held liable under the municipal highway defect statute, because the location of the incident did not qualify as a highway for the purposes of the statute. However, the court found that questions of fact existed as to whether the gate was located in the city's right of way, and therefore, it could not determine whether the plaintiff's injuries were caused by a highway defect. As a result, summary judgment was denied in that case, and the plaintiff was allowed to plead in the alternative.

The court in Malin v. Connecticut Zoological Society, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 0440022585 (April 3, 2007, Robinson, J.), noted that although the Connecticut Supreme Court "frowned upon alternative pleading when a highway defect is apparent" in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, 592 A.2d 912 (1991), the Supreme Court declined to decide what the impact of § 52-572n would be "in another case in which the statutory status of an accident's cause could not be established prior to trial." Id., 203.

The plaintiffs' claims against the Town here sound in common law nuisance and/or § 19a-335; and statutory negligence pursuant to § 52-557n(a)(1)(A), (B), and/or (C), as a result of the Town's failure to maintain the roadway, causing dangerous conditions which effectively amount to a highway defect. The plaintiff asserts that at the time of the collision, a portion of the project had been delayed or otherwise uncompleted by the acts or omissions of the defendants, including the Town. This delay resulted in a failure to install a traffic light and/or traffic control signs prior to the collision. According to the plaintiff, the Town should have known that the area of the intersection was in a dangerous or defective condition, including the usage and traffic conditions thereon, and including the need of a control device(s) signage, repair, site line maintenance or changes, traffic and/or design changes. These conditions, unmaintained, overgrown or deteriorated, including the tree/brush obstruction on the shoulder of the roadway, were continuing ones, and had a natural tendency to create danger. Further, the conditions were allowed to exist on those areas along the roadway which were used by members of the public.

In Ferreira v. Pringle, supra, 255 Conn. 330, the Connecticut Supreme Court defined a `highway defect' as "any 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 . . ." Id., 342, citing Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202. The scope of a `highway defect' is "not limited solely to defects in the road, and thus can include defects in areas incidental thereto, including, for example, shoulders." Metzermacher v. National Road Passenger Corp., 472 F.Sup.2d 236 (2007), citing Ferreira v. Pringle, supra, 255 Conn. 344. Therefore, in order for a claim to come within the scope of the highway defect statute when the defective condition is not in the roadway itself, 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." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 503 (2005).

The parties are not disputing that the intersection at issue in the present matter, Route 25 and Tashua Road, constitutes a public roadway within the meaning of § 13a-149. Further, the plaintiffs admit in their revised complaint that at all times relevant, portions of the area in question including but not limited to the roadways and paved and unpaved areas abutting the roadway, some of which had trees and/or brush, were owned or in possession by the Town, or had otherwise been sold to/been taken by the State, pursuant to the powers of eminent domain; and the Town managed and supervised the project at issue.

A determination as to whether a condition is considered a `highway defect' is made on a case by case basis. Id., 503, citing Chazen v. New Britain, 148 Conn. 349, 353 (1961) (holding that whether a condition in a highway constitutes a defect under the highway defect statute must be determined in each case on its own particular circumstances). In the present matter, the plaintiffs state that the defective condition of overgrown and unmaintained brush which caused the sight line of the roadway to remain unclear is located along the roadway and shoulder areas. As previously noted, it is clear that an obstruction or condition affecting the shoulder of the highway comes within the purview of the definition of a `highway defect' pursuant to § 13a-149. See Id., 505 (holding that "[t]he shoulders of a highway, while not designed for ordinary vehicular traffic, are intended for use when need arises . . . They are a part of the wrought portion of the highway . . ."). Additionally, the plaintiffs affirm that the location and nature of this alleged defective condition posed a danger to public safety as it affected public travel.

Similarly, in Ferreira v. Pringle, supra, 255 Conn. 347, the plaintiff claimed that the defective condition at issue, a sign post protruding in the grassy area next to a bus stop, was "located in the road shoulder which "necessarily presented a public hazard to himself pedestrians and other disembarking passengers." Id., 352. The court concluded that the condition constituted a highway defect as "the alleged defective condition was, by the plaintiff's own admissions, located in the road shoulder, which had been used knowingly and intentionally by departing bus passengers as part of the road." Id. Therefore, in following the Ferreira court's reasoning, the plaintiffs' previously mentioned allegations in the present matter of the existence, location and nature of the brush along the roadway and road shoulder areas allow the court to conclude in this case that this condition constitutes a `highway defect' as a matter of law.

Factual allegations "contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." Ferreira v. Pringle, supra, 255 Conn. 345.

In addition, the plaintiffs contend that the Town's failure to timely install control devises or signage, including a traffic light and/or traffic signals, were conditions which caused the intersection to be unsafe and dangerous for the public. Although no Connecticut court has addressed the issue of whether the failure to install a traffic light and/or traffic signals is in fact a `highway defect,' the Connecticut Supreme Court held in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, that a traffic light in itself faulty does constitute a `highway defect' within the meaning of § 13a-149. The plaintiffs in Sanzone claimed that a traffic light malfunction was caused by the defendant city's failure to maintain and inspect the traffic light. The court's reasoning in Sanzone has been utilized by other courts to expand the types of conditions which qualify as `highway defects'. These types of conditions may be said to be within the penumbra of liability arising out of the concept of highway defects, and the need to allow sovereign immunity to be breached in those limited instances where recovery should lie against a municipality. In Sousa v. Town of Brookfield, Superior Court, judicial district of Danbury, Docket No. 307588 (May 27, 1992, Fuller, J.), the plaintiff alleged that the absence of a stop sign at the intersection at issue caused a collision between the vehicle operated by the plaintiff and a school bus. The trial court adopted the reasoning in Sanzone and stated that "there is no material difference between a traffic light and a stop sign." Id. The court held that the failure to install a stop sign at the intersection at issue would be treated as a highway defect for purposes of a suit against the town.

It has been held that "whether or not [a] accident was caused by [a] defective traffic light, the plaintiffs' claim that it was caused by the defective traffic light is, as a matter of law, a claim based upon a `defective road.'" Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202.

The court in Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 505, noted that "although the faulty traffic light in Sanzone was above and thus near but not in the roadway, its defective condition necessarily hindered travel irrespective of the fact that it was not a physical impediment in the road itself." Id., 506.

In following this line of reasoning, it naturally follows that if there is no material difference between a traffic light and a stop sign, both constituting `highway defects'; and the failure to install a stop sign at an intersection qualifies as a `highway defect'; then the failure to install a traffic light also constitutes a `highway defect' as a matter of law. Therefore, this court finds that the Town's failure to timely install control devices or signage, including a traffic light and/or traffic signals, as alleged in the plaintiffs' revised complaint, constitutes a `highway defect' as a matter of law.

In conclusion, the court finds that in light of the pleadings and controlling precedents, the dangerous conditions alleged by the plaintiff in counts fifty and fifty-one, including the brush along the shoulder of the road and the timely failure to install a traffic light and/or signal, are held to be `highway defects' as a matter of law. Thus, the plaintiffs are precluded from bringing claims against the Town under count fifty for common law and/or statutory nuisance pursuant to § 19a-335; and count fifty-one for statutory negligence under § 52-557n(a)(1)(A), (B) or (C). This is because the plaintiff's exclusive remedy is under § 13a-149, the highway defect statute alleged in count forty-nine, which stands.

Accordingly, the motion to strike count fifty and county fifty-one is granted.

Even if the court were not to find that these claims fell under the highway defect statute, the plaintiffs have also failed to plead the level of intent required by this court in both a common law nuisance cause of action and/or pursuant to § 19a-335. Municipal defendants such as the town of Trumbull have the privilege of governmental immunity. In order to overcome this immunity, "the plaintiff must prove that the defendant[s], by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliot v. City of Waterbury, 245 Conn. 385, 421 (1998), citing Keeney v. Old Saybrook, 237 Conn. 135, 165-66 (1996). Determination of whether a nuisance was intentionally created is determined by the standard set forth by the Connecticut Supreme Court in Keeney v. Old Saybrook, supra, 237 Conn. 135: "an interference with the public right is intentional if the municipality . . . knows that it is resulting or is substantially certain to result from its conduct." Collins v. Olin Corp., 418 F.Sup.2d 34, 53 (2006), citing Keeney v. Old Saybrook, supra, 164. The plaintiffs have not alleged a positive act done by the Town. There are no factual allegations set forth that the Town acted "intentionally" with the purpose of causing the nuisance, or knew with substantial certainty that the alleged nuisance would be created. Therefore, the plaintiffs fail to allege facts to overcome the Town's governmental immunity with respect to both their common law and statutory claims of nuisance.

Claim for Incurred Expenses, Financial Loss and Loss of Filial Consortium

The Town moves to strike counts fifty-two and fifty-three of the revised complaint in which the plaintiff Deborah Tassiello claims damages for her incurred expenses, financial losses, and loss of filial consortium. The Town contends that the plaintiffs' claims under count fifty-two and fifty-three are barred by the reasoning of Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179. In Sanzone, the court stated that "in providing that no cause of action shall be maintained in nuisance or negligence that might be brought under the highway defect statute, the legislature eliminated the victim's spouse's right to recover for loss of consortium. An action for loss of consortium is derivative of the injured spouse's cause of action, the consortium claim would be barred when the suit brought by the injured spouse is barred. Section 13a-149 does not permit damages for loss of consortium, but permits recovery only by the injured `traveler.'" Id., 198-99. The Town argues that since the plaintiff, Deborah Tassiello, is not the injured `traveler' in the present action, she is not entitled to these derivative claims of damages for her incurred expenses or the loss of filial consortium.

In Sanzone, supra, the Connecticut Supreme Court stated that the highway defect statute permits recovery only by the injured `traveler.' As this court previously articulated, it finds the plaintiffs' claims in the present matter to arise from conditions which constitute a `highway defect' as a matter of law. Therefore, the plaintiffs' exclusive remedy is and must be a remedy pursuant to § 13a-149. Because she is not the `injured traveler,' the law dictates that Deborah Tassiello is barred from seeking redress from the Town for these additional claims in count fifty-two.

The court in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 189, held that § 13a-149 did not unconstitutionally deprive the plaintiffs a right to redress, reasoning that "[a] plaintiffs right to redress under § 13a-149 is not, of course, coextensive with his rights in a common law tort action . . . it is true that some plaintiffs who are limited to their recourse under § 13a-149 may be deprived of a remedy."

The Town further argues that the plaintiffs' claim under count fifty-three is barred as Connecticut does not recognize a cause of action for filial consortium. Mirjavadi v. Vakilzadeh, Superior Court, judicial district of Norwalk-Stamford at Stamford, Docket No. CV 980166632 (April 15, 2002, Adams, J.) ( 31 Conn. L. Rptr. 738). In response, the plaintiffs argue that Connecticut courts have not conclusively ruled on the viability of filial consortium, and there remains a split of authority on the matter, citing to some trial court opinions that have allowed such claims. "The Supreme Court first recognized a . . . claim for loss of spousal consortium in Hopson v. St. Mary's Hospital, 176 Conn. 485 (1979). Therein, [the court] defined consortium as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." Fischer v. Dunn, Superior Court, judicial district of Waterbury, Docket No. CV 000160378, (August 14, 2001, Rogers, J.) . . .

"With respect to a claim for loss of filial consortium, no Connecticut appellate courts have addressed the specific issue." (Internal quotation marks omitted.) Pedro v. St. Mary's Hospital, Superior Court, judicial disirict of Waterbury, Docket No. 01 0163145 (November 13, 2001, Rogers, J.). Although there are no Connecticut Appellate Court opinions that have directly decided the specific issue of filial consortium, the majority of Superior Court cases hold that Connecticut does not recognize a cause of action for loss of filial consortium.

Superior Court cases that have rejected loss of filial consortium claims include: Diteresi v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001340 (March 6, 2007, Tobin, J.); Fischer v. Dunn, Superior Court, judicial district of Waterbury, Docket No. CV 000160378 (August 14, 2001, Rogers, J.); Ward v. Greene, Superior Court, complex litigation docket at Norwich, Docket No. X04 CV 990120118 (March 22, 2001, Koletsky, J.); Mercede v. Kessler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172682 (February 13, 2001, Karazin, J.) ( 29 Conn. L. Rptr. 246); Mirjavadi v. Vakilzadeh, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 980166632 (Nov. 13, 2000, Lewis, J.T.R.) ( 28 Conn. L. Rptr. 524); Blanchette v. Desper, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144050 (October 19, 1998, Shortall, J.) ( 23 Conn. L. Rptr. 321).

"In Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), however, the Connecticut Supreme Court declined to extend the claim for loss of spousal consortium to include claims brought by minor children for loss of parental consortium. The Mendillo court determined that the balance of policy considerations fails to establish the additional justifications necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with parent . . . The court reached its conclusion "primarily on the basis of: the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial authority.

The court further noted a parallel between loss of parental consortium and loss of filial consortium, stating that "there is nothing in reason to differentiate the parent's loss of the joy and comfort of his child from that suffered by the child . . ." (Citations omitted; internal quotation marks omitted.) Jacobs v. Kirshenbaum, Superior Court, judicial district of Hartford, Docket No. CV 020818386 (February 2, 2004, Hennessey, J.), citing Mendillo v. Board of Education, supra, 246 Conn. 485.

"The court's overwhelming concern with placing arbitrary limitations on the scope of such a cause of action is evidenced by the court's statements that: "In the constellation of family relationships — e.g., siblings, grandparent and grandchild, and aunt or uncle and nephew or niece — and others, less formally recognized but nonetheless just as real in an emotional sense . . . that could well, depending on the case, present equally strong claims of loss of consortium." . . . The court goes on to note that: [T]here is nothing in reason to differentiate, as a categorical matter, the emotional loss by a stepchild from that of his or her stepsibling whose natural parent was injured, and there is nothing in reason to differentiate the parent's loss of the joy and comfort of his child from that suffered by the child . . ." (Citations omitted; internal quotation marks omitted.) Reardon v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 07 6000950 (April 18, 2008, Robinson, J.).

The majority of trial courts that have had to face this issue have relied on the reasoning in Mendillo to reject the legal sufficiency of loss of filial consortium claims, because there are cogent policy reasons for such a rule. The court agrees. The Supreme Court in ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 935 A.2d 115 (2007), and Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998), acknowledge that the Supreme Court has the authority to create a new cause of action. There is no case law that grants such authority to the Superior Court.

Much like the problem in evidence of "double layer hearsay," even if this court were to buck the majority trend and recognize a claim for filial consortium, the plaintiff would still be barred from bringing this claim on the secondary ground that she is not an "injured traveler." Thus she is precluded by § 13a-149 from bringing such a claim against the Town.

Based on the foregoing analysis, the motion to strike count fifty-two and count fifty-three is granted.

Conclusion

The facts alleged in the plaintiffs' complaint against the Town constitute `highway defects' as a matter of law. It is important to note that in so finding, the plaintiffs are by no means being denied a potential remedy here. There are a plethora of counts pleaded here — some fifty-three in total. Here, however in the case of the Town, it is a legal remedy only available pursuant to statute, because this named defendant is a municipality within the meaning of the statutes. A party who seeks to litigate a disputed claim against a municipality arising under a defective highway claim bears the burden of proving that the claim fits precisely within the narrowly drawn reach of the statute. The plaintiff may not expand the scope of liability beyond what is allowed by statute. That is a job for the legislature. With tax dollars both at public work on the project and at public risk in this lawsuit, the Town therefore stands on different footing than the private contractor co-defendants on this road project at the heart of this lawsuit. The Town is correct in that a different set of rules are applicable to pleadings against it. The motion to strike is entirely appropriate, and if the Town is found to have any liability when all the evidence is in, the plaintiffs' exclusive claim will be the highway defect statute, the § 13a-149 allegations found in count forty-nine.

See, e.g., a case involving a public works contract dispute with the State Department of Transportation. There the Supreme Court analyzed sovereign immunity, concluding, "Thus, a party who seeks to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of [the statute]." Dept. of Transportation v. White Oak Corp., 287 Conn. 1, 9, 946 A.2d 1219 (2008).

The defendant Town of Trumbull's motion to strike count fifty, count fifty-one, count fifty-two and count fifty-three of the revised complaint is hereby GRANTED.

IT IS SO ORDERED,


Summaries of

Keough v. Dayton Construction Co.

Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
Feb 3, 2011
2011 Ct. Sup. 6138 (Conn. Super. Ct. 2011)
Case details for

Keough v. Dayton Construction Co.

Case Details

Full title:STEPHEN KEOUGH ET AL. v. DAYTON CONSTRUCTION CO., INC. ET AL

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford

Date published: Feb 3, 2011

Citations

2011 Ct. Sup. 6138 (Conn. Super. Ct. 2011)