Escourse v. 100 Taylor Ave., LLC

150 Conn.App. 805

92 A.3d 1016

Teanna ESCOURSE et al.

v.100 TAYLOR AVENUE, LLC, et al.

No. 35054.

Appellate Court of Connecticut.

Argued Jan. 9, 2014.

Decided June 10, 2014.

Paul L. Brozdowski, Bridgeport, for the appellants (plaintiffs).

M. Jeffry Spahr, deputy corporation counsel, and Scott R. Ouellette, North Haven, for the appellee (defendant city of Norwalk).

DiPENTIMA, C.J., and GRUENDEL and BEACH, Js.

BEACH, J.

The plaintiffs, Teanna Escourse, through her parents and next friends, and her parents, Gillian Escourse and Christopher Fearon, individually, appeal from the judgment of the trial court rendered in favor of the defendant city of Norwalk (city).¹ The plaintiffs claim that the court improperly granted the city's motion to strike their public nuisance claim. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs' claims. The plaintiffs commenced the present action on June 22, 2011. This action arises from an incident that allegedly took place at approximately 12:30 a.m. on January 1, 2011, when Teanna Escourse, then sixteen years old, was struck by a hit and run driver while she was walking along the shoulder of Taylor Avenue in the southbound lane of travel in front of 100 Taylor Avenue in Norwalk.

The operative complaint is the plaintiffs' fourth amended complaint. It alleged that on January 1, 2011, Teanna Escourse “was forced to enter the southbound lane of traffic because the sidewalk area and the shoulder of the roadway were obstructed with snow due to a severe storm that ended more than four days before on December 27, 2010, and the actions and omission of the [city]....” The fourth count, the subject of this appeal, asserted a claim of public nuisance against the city.²

As against the city, the plaintiffs alleged the following: “The incident and resulting injuries alleged herein were due to the intentional acts of the [city] ... its agents, servants and employees, in creating a public nuisance pursuant to [General Statutes §] 52–557n (a)(1), in one or more of the following ways:

(a) In that the [city] plowed the snow that had accumulated on Taylor Avenue onto the sidewalk abutting 100 Taylor Avenue, thereby rendering the sidewalk impassible to pedestrians;

(b) In that the [city] removed and/or plowed the snow that had accumulated on Taylor Avenue in such a manner as to obstruct, impede and endanger public use of the sidewalk abutting 100 Taylor Avenue;

(c) In that the [city] removed and/or plowed the snow that had accumulated on Taylor Avenue in such a manner as to render the sidewalk abutting 100 Taylor Avenue impassible to pedestrians;

(d) In that the [city] failed to properly and safely remove and/or plow the snow that had accumulated on Taylor Avenue without obstructing, impeding and/or endangering public use of the sidewalk abutting 100 Taylor Avenue; and

e) In that the [city] failed to properly and safely remove and/or plow the snow that had accumulated on Taylor Avenue without rendering the sidewalk abutting 100 Taylor Avenue impassible to pedestrians.” The complaint also alleged causation, damages, and notice pursuant to General Statutes § 7–465. ³

The city moved to strike the plaintiffs' public nuisance claim, ⁴ arguing that the plaintiffs' exclusive remedy as to the city was an action pursuant to General Statutes § 13a–149. By way of an order and memorandum of decision dated May 31, 2012, the court, S. Richards, J., relying on Himmelstein v. Windsor, 304 Conn. 298, 39 A.3d 1065 (2012), granted the city's motion to strike and subsequently renderedjudgment in favor of the city on the stricken claim.⁵ This appeal followed.

The plaintiffs contend that the court improperly concluded that their exclusive remedy against the city was an action pursuant to § 13a–149 and improperly granted the city's motion to strike their nuisance claim. The plaintiffs argue that their “nuisance claim is not about the condition of the highway due to the negligence or neglect by the city, but rather, it alleges an intentional affirmative act by the city which contributed to the condition of the sidewalk abutting 100 Taylor Avenue and created a public nuisance.” The city maintains that the plaintiffs' exclusive remedy for personal injury related to a sidewalk blocked by snow is a defective highway claim under § 13a–149. The city further contends that § 52–557n (a)(1)(C) bars the plaintiffs' nuisance claim because that section expressly provides that § 13a–149 is the plaintiffs' exclusive remedy for injuries resulting from a defective road or bridge, and Teanna Escourse's injuries are alleged to have been caused by a defective road and/or sidewalk. The city's argument is that the plaintiffs' claim functionally alleges a defective sidewalk, and, therefore, no action may be maintained except pursuant to § 13a–149, subject to its sole proximate cause limitation, regardless of whether the defect was a public nuisance created by an affirmative act of the city.

“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). “In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action.... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.... Moreover, [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 the statute is a question of law [which may be determined on a motion to strike].... Because a motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court, our review of the court's ruling [on a motion to strike] is plenary.” ⁶ (Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).

In reviewing the plaintiffs' claims, we consider principles of state and municipal immunity and liability as they relate to injuries caused on or near a roadway. “It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases.... The state legislature ... possessesthe authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities.... Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a–144]. Therefore, because the state has permitted itself to be sued in certain circumstances, [our Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed.... Accordingly, the only avenue through which a plaintiff, injured by means of a highway defect on a state road, may seek recovery from the state is through an action brought pursuant to § 13a–144.” (Citation omitted; internal quotation marks omitted.) Himmelstein v. Windsor, supra, 304 Conn. at 307, 39 A.3d 1065.

“Furthermore, our legislature has established general principles of municipal liability and immunity, providing that political subdivisions of the state may be sued for creating or participating in the creation of a nuisance. General Statutes § 52–557n (a)(1)(C).⁷ The municipal liability statute also specifically provides, however, that ‘ no cause of action [in nuisance] shall be maintained [against a municipality] for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149.’ ... General Statutes § 52–557n (a)(1)(C). Therefore, although ‘[l]iability in nuisance can be imposed on a municipality ... if the condition constituting the nuisance was created by the positive act of the municipality’; Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975); if the injury complained of was caused by a highway defect on a town road, the plaintiff's only recourse against the town is to pursue a claim under § 13a–149.” (Emphasis in original; footnote added.) Himmelstein v. Windsor, supra, 304 Conn. at 308, 39 A.3d 1065; see also Kumah v. Brown, supra, 307 Conn. at 627, 58 A.3d 247. Additionally, because “[t]he highway defect statute, § 13a–149, is a legislative exception to the immunity that municipalities enjoyed at common law ... as such, [it] must be strictly construed.” Read v. Plymouth, 110 Conn.App. 657, 663, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

Section 13a–149 provides in relevant part: “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....” ⁸ “[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.” ⁹ (Internal quotation marks omitted.) Himmelstein v. Windsor, supra, 304 Conn. at 309, 39 A.3d 1065. Furthermore, “a highway is defective within the meaning of § 13a–149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” (Internal quotation marks omitted.) Cuozzo v. Orange, ...