Montefusco v. Town of Monroe

Richard Montefusco v. Town of Monroe et al

No. CV156048658S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

June 7, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Dale W. Radcliffe, J.

FACTS

The Plaintiff, Richard Montefusco, brings this claim against the Town of Monroe, following an incident which occurred on January 29, 2015, on Bagburn Road, near its intersection with Old Zoar Road.

At approximately 6:09 a.m., the Plaintiff was operating a motor vehicle northbound on Bagburn Road, when he struck a large rotted tree which had fallen across the road, blocking both lanes of travel.

As a consequence of the accident, Richard Montefusco claims to have sustained personal injuries and damages.

The allegations against the Town of Monroe are pled in three counts. Count One claims that the highway, Bagburn Road, was defective, and seeks recovery pursuant to the provisions of Section 13a-149^[1] of the General Statutes. Counts Two and Three are brought in negligence and nuisance respectively, and are pursued pursuant to the applicable provisions of S. 52-557n^[2] of the General Statutes.

In Count Two, the Plaintiff claims that the Monroe Tree Warden was under a duty to identify and remove trees which were damaged, and constituted a hazard. He maintains that the tree which fell across the highway had been tagged by the tree warden and was slated for removal due to its condition, prior to January 29, 2015.

The Plaintiff alleges that the failure of the Town of Monroe to remove the tree was negligent, and further that the failure involved a breach of a duty which was ministerial, and did not involve the exercise of judgment or discretion. He argues the Section 405-7 of the Monroe Town Code, an ordinance dealing with blighted property, places an affirmative obligation on the Town.

In paragraph 8 of Count Two, the Plaintiff cites provisions of the Monroe Town Code. Section 405-7 reads:

Any building or structure or parcel of land, proximate to other residential properties, commercial structures, or road in a state of disrepair, dilapidation or abandonment.

A. " State of disrepair or dilapidation" shall mean a condition causing unsafe or unsanitary conditions and a nuisance to the general public and shall be evidenced by one or more of the following conditions:

(8) Felled or damaged trees that may pose a significant safety risk;

The Plaintiff contends that the tree which fell across Bagburn Road is not a " highway defect, " and that a viable cause of action exists, consisted with S. 52-557n, sounding in negligence.

In Count Three, Richard Montefusco claims that the rotted and dangerous tree constituted a nuisance.

MOTION TO STRIKE--STANDARD OF REVIEW

The purpose of a motion to strike is to test the legal sufficiency of a pleading. Faulkner v. United Technologies, 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book Section 10-39. The motion assumes all well pleaded facts to be true, and, if the facts as deemed proven would support a claim or defense, the motion to strike must be denied. Fort Trumbull Conservancy, LLC v Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2000); Waters v. Autuori, 236 Conn. 820, 825-26, 676 A.2d 357 (1996). If facts, as deemed proven because properly pled in a complaint would support a cause of action, then the motion to strike must be denied. Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).

In ruling upon a motion to strike, the court is limited to the facts alleged in the pleading. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982). The allegations must be read broadly, rather than in a narrow or hyper technical manner. Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). All facts must be construed in the manner most favorable to sustaining the complaint. Novametrix Medical Systems Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). Although all facts as pled are deemed proven conclusions of law are not. Maloney v. Conroy, 208 Conn. 392, 394, 545 A.2d 1059 (1998).

TREE ON HIGHWAY MEETING DEFINITION OF " HIGHWAY DEFECT" NOT FATAL TO PLAINTIFF'S NEGLIGENCE CLAIM

The Plaintiff maintains that the rotted tree, which he alleges blocked both lanes of travel on Bagburn Road, (par. 5) was not a " highway defect" at the time of the January 31, 2013 accident.

This claim is not well taken and ignores Connecticut case law spanning nearly one hundred fifty years.

Our courts have consistently defined a highway defect as an object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for purposes of travel, or which, from its nature and position, would likely produce that result. Hewison v. New Haven, 34 Conn. 136, 142 (1867). This definition has withstood the passage of time, and judicial scrutiny, since Hewison was decided. Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991); Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979); Pramuka v. Town of Cromwell, 160 Conn.App. 863, 870, 127 A.3d 320 (2015); Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 812-13, 92 A.3d 1016 (2014); Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 158, 7 A.3d 414 (2010).

It cannot be creditably argued, that a large rotted tree which has fallen across a municipal roadway, fails to satisfy the criteria for a " highway defect, " which may give rise to liability pursuant to General Statutes Section 13a-149. Liability, under the highway defect statute, depends upon the existence of a defect, not the underlying causes which contributed to produce the defect. Rivers v. New Britain, 288 Conn. 1, 3, 950 A.2d 1247 (2008); Machado v. Hartford, 292 Conn. 364, 378, 972 A.2d 724 (2009); Agriesto v. Fairfield, 130 Conn. 410, 417, 35 A.2d 15 (1943).

When a highway defect is created, the municipality is not liable for the negligence which created the defect, but rather, under the statute, for its failure to guard or remove the defect once it receives actual or constructive notice of the defect, regardless of its cause. This rule applies to defects or obstructions caused by the acts of abutting landowners, occupants of property bordering a public way, and independent contractors, Machado v. Hartford, supra, 378.

The fact that the Plaintiff, Richard Montefusco, is unable to maintain a claim against the Town of Monroe pursuant to S. 13a-149, due to his failure to provide the mandated written notice to the Town of Monroe, does not transform the rotted tree lying on the highway into something other than a " highway defect."

Nor can the Plaintiff prevail in his nuisance claim, as set forth in Count Three. Section 52-557n(a)(1)(C) bars recovery for a public nuisance which constitutes a defective highway, and, in addition, no official or employee of the Town of Monroe is alleged to have committed a positive act resulting in the creation of a nuisance. Picco v. Town of Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).

However, the fact that the fallen tree can be characterized as a " highway defect" is not necessarily fatal to the Plaintiff's negligence claim as pled in Count Two. He maintains that a cause of action exists based upon the negligence of municipal employees, which acts are ministerial in character. He maintains that, pursuant to the municipal ordinance, the failure of the Monroe Tree Warden to remove the damaged or rotted tree was negligent, and that the negligence was a substantial factor in causing the accident of January 29, 2015, in which he suffered personal injuries.

The Town of Monroe concedes that it owned, maintained and controlled the right of way on which the rotted tree was situated. The Plaintiff maintains that the tree was marked for removal sometime prior to the date of the accident, but was allowed to remain in place, even though it constituted a significant health and safety risk to those in the vicinity, and those using the public way.

The question presented, therefore, is whether the Town of Monroe, as the party in control of property abutting the municipal highway, owes the same duty to travelers on the highway, as that owed by private parties.

Courts have consistently recognized, that the statutory responsibility of a municipality to keep a highway in repair, is separate and distinct from the liability of an abutting property owner whose actions, in the use of his property, render the traveled way unsafe. Hanlon v. Waterbury, 108 Conn. 197, 200, 142 A. 681 (1928); Calway v. William Schaal & Son, Inc., 113 Conn. 586, 593, 155 A. 813 (1931); Perkins v. Weibel, 132 Conn. 50, 52, 42 A.2d 360 (1945).

Hanlon involved a gasoline pump located on private property near a sidewalk. The Plaintiff, while walking on the sidewalk, tripped and fell as a result of gasoline from the pumps.

Calway concerned ice which formed on a sidewalk due to water dripping from a building, while Perkins dealt with grease which had seeped on to a sidewalk, from a restaurant. (See also Kelcey v. Great Atlantic & Pacific Tea Co., 4 Conn.Supp. 298 (1936) (P....