Davit v. Town of Fairfield

Marianna Davit, Conservator of the Estate of Rubia Rodrigues v. Town of Fairfield et al

No. FBTCV166056909S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

August 3, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Richard E. Arnold, Judge.

The defendants have moved for summary judgment as to Counts Two and Three of the plaintiff's Amended Complaint dated July 5, 2016. Counts Two and Three allege recklessness pursuant to General Statutes § 52-557n(b)(8) and indemnification pursuant to General Statutes § § 7-101a and 7-465 respectively. The defendants argue that Count One, which alleges a violation of General Statutes § 13a-149 regarding a highway defect, is the plaintiff's exclusive remedy.^[1] The defendants have filed a memorandum of law dated January 19, 2017. The plaintiff has filed an objection and a memorandum of law, both dated March 13, 2017. The court heard oral argument on the motion for summary judgment on April 3, 2017.^[2]

Plaintiff alleges in her Amended Complaint that on September 7, 2015 Rubia Rodrigues, the conserved person, was riding her bicycle traveling down hill direction along the right side of the road known as Morehouse Highway in Fairfield, Connecticut, between Adley Road and the entrance to Lake Mohegan when the front tire of her bicycle became trapped in a catch basin grate on the right side of the road causing Rodrigues to fall off her bicycle and sustain serious injuries. As noted above, the plaintiff filed a three-count action, which was amended on July 5, 2016.

I Standard of Law: Summary Judgment

" 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 . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312-13, 77 A.3d 726 (2013).

On a motion for summary judgment, the moving party " 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 . . . A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute . . . The party opposing summary judgment must present a factual predicate for his [or her] argument to raise a genuine issue of fact . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate." Valente v. Securitas Security Services, USA, Inc., 152 Conn.App. 196, 202-03, 96 A.3d 1275 (2014).

" The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).

It is also well established that " [s]ummary judgment procedure is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975); see also Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); DiUlio v. Goulet, 2 Conn.App. 701, 703, 483 A.2d 1099 (1984). A determination of negligence is necessarily one of fact. Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79 (1967); Balboni v. Stonick, 2 Conn.App. 523, 527, 481 A.2d 82 (1984). As such, " [i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972); see also Amendola v. Geremia, 21 Conn.App. 35, 37, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990).

II Arguments of the Parties

The plaintiff has brought two claims against the defendants. Count One alleges a violation of General Statutes § 13a-149 against the Town of Fairfield. Count Two alleges recklessness against Tetreau, the First Selectman Michelangelo, the Director of Public Works and Monteiro, a town employee. Count Three claims indemnification pursuant to General Statutes § § 7-101a and 7-465.

The defendants argue that the court should grant summary judgment in favor of the defendants on Counts Two and Three of the amended complaint because section 13a-149 is the plaintiff's exclusive remedy." ^[3] [W]e construe § 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. It also, therefore, precludes a joint action seeking such damages against a municipality and its officer. The proviso in § 52-557n would be stripped of all meaning, for § 7-465(a) would permit a plaintiff to reach the result forbidden by § 52-557n: the imposition of tort liability on a municipality for a highway defect claim." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991).^[4]

The court questions if a motion for summary judgment is the proper procedural vehicle, as the defendants are apparently arguing that the plaintiff's allegations regarding causes of action pursuant to General Statutes § 52-557n(b)(8) and indemnification pursuant to General Statutes § § 7-101a and 7-465, are legally insufficient as a matter of law. A motion to strike may be the proper way to proceed. However, the court has reviewed the plaintiff's memorandum of law in which she objects to the motion for summary judgment and finds the plaintiff has not objected to the defendants' use of a motion for summary judgment in determining the issue briefed the parties, which is whether or not an action for highway defect, pursuant to § 13a-149 is the plaintiff's exclusive remedy.^[5] Therefore, in its analysis, court takes into consideration the standard of law relevant to a motion to strike.^[6]

The defendants argue that § 52-557n(b)(8) does not provide a cause of action against a municipality in a highway defect case brought pursuant to § 13a-149. Section 52-557n(b)(8) states:

(b) Notwithstanding the provisions of subsection (a) of this section, 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 . . .

(Emphasis added.)

" Although the legislature should have been clearer, the only sensible interpretation of the 'notwithstanding' clause that introduces paragraph (b) is to eliminate the cases in paragraph (a)(1) in which a town 'shall be liable' without also eliminating the immunities in paragraph (a)(2). This construction produces a consistent legislative scheme in which paragraph (a) describes cases in which a town " shall be liable" and paragraph (b) describes cases in which, '[n]otwithstanding the provisions of subsection (a) of this section, ' a town 'shall not be liable.' The alternative, upon which plaintiff relies, is to read 'shall not be liable' to mean 'shall be liable.' While our statutes arc not always models of clarity, the court will not indulge in the assumption that the legislature meant the polar opposite of what it said. Nor will it presume that the legislature intended to create liability by negative inference. Accordingly, the court concludes that § 52-557n(b)(8) does not create a cause of action." Curtin v. Town of Brookfield, Superior Court, judicial district of Waterbury, Nos. X02CV020178124S, X02CV020178123S (April 14 2005, Schuman, J.) 39 Conn.L.Rptr. 173,; see also, Niemitz v. Town of Barkhamsted, Superior Court, judicial district of Litchfield, No. LLI-CV-06-5000208-S, (Feb. 21, 2008, Pickard, J.) (" The plaintiff next makes a very brief argument that C.G.S. § 52-557n(b)(8)4 must be interpreted to mean that a municipality cannot claim immunity for failure to inspect its own property. The plaintiff cites no case law for this proposition because there is none. This subsection of the statute provides a municipality...