Pramuka v. Town of Cromwell

160 Conn.App. 863

127 A.3d 320

Elissa PRAMUKA

v.TOWN OF CROMWELL et al.

No. 36688.

Appellate Court of Connecticut.

Argued April 7, 2015.

Decided Nov. 3, 2015.

Richard S. Sheeley, Middletown, with whom, on the brief, were Kelly S. Therrien and Jason J. Lewellyn, for the appellant (plaintiff).

Joseph M. Busher, Jr., Wethersfield, for the appellees (defendants).

ALVORD, MULLINS and SCHALLER, Js.

MULLINS, J.

The plaintiff, Elissa Pramuka, appeals from the summary judgment of the trial court rendered in favor of the defendants, the town of Cromwell (town) and the Board of Education of the Town of Cromwell (board), in an action brought pursuant to General Statutes § 13a–149, the municipal highway defect statute.¹ On appeal, the plaintiff claims that the court erred in rendering summary judgment because there was a question of material fact as to whether the paved walkway whereon the plaintiff fell was within the purview of § 13a–149.² On the face of the record before us, we agree that the court improperly rendered summary judgment on the ground that the walkway, as a matter of law, was not within the purview of § 13a–149. Accordingly, we reverse the judgment of the trial court.

The following facts inform our review. In her amended complaint,³ the plaintiff alleged that she sustained injuries on February 17, 2011, at approximately 8:30 a.m., when she tripped and fell while walking along an uneven and cracked portion of a walkway that went from the designated parking area to the entrance of Edna C. Stevens Elementary School in Cromwell (school). The plaintiff alleged that the defendants breached their duty to keep the walkway in repair pursuant to § 13a–149.⁴

The defendants filed a motion for summary judgment on the ground of governmental immunity, asserting, in part, that the plaintiff did not come within any recognized exception to the doctrine.⁵ The defendants submitted, inter alia, a diagram of the area and an affidavit from Michael Koshinsky, the head custodian at the school, who averred, in part, that the walkway does not extend to the public streets.

The plaintiff filed an objection to the defendants' motion, arguing in relevant part that "[t]he issue of whether the walkway on which the plaintiff was traveling at the time of her fall is within the physical boundaries of a ‘defective road or bridge’ under ... § 13a–149 is a genuine issue of material fact to be determined by the trier of fact...." The plaintiff contended that she "was traveling on the paved sidewalk that leads from the school parking lot to the entrance of the ... school and abutted a roadway from the town street to the school entrance.... At the time of the injury, the plaintiff was making use of the walkway to bring her two grandchildren to the school entrance.... Here, it is undisputed that the plaintiff was on the sidewalk ... [and that] she was on the ‘traveled path,’ the path that the public used to access the school. In addition, the pathway is adjacent to the roadway. The roadway through the public school property connects Orchard Road and Court Street, both public streets in the [town]." The plaintiff also submitted an affidavit in support of her objection, several photographs, and the same diagram of the area that the defendants had submitted with their motion for summary judgment. A copy of the diagram is appended to this opinion as an appendix.

The diagram depicts south at the top, and north at the bottom. The school is in the center of the diagram, with Court Street at the front of the school, running west to east, and with Orchard Road on the right side of the property, running south to north. Between Court Street and the school building is a road or driveway entrance (driveway)⁶ that runs through the property and connects to Orchard Road. Along this driveway, there are entrances to four parking areas; from left to right, they are denoted as D, C, and B, all of which are either directly in front of or near the front of the school, and A, which abuts Orchard Road and is to the right of the school.

It appears that one could enter the driveway from Court Street and drive through to Orchard Road, or vice versa, without entering any of the parking areas. Near Orchard Road, to the right side of parking lot A, which runs from south to north, there is a fence that appears to separate parking lot A from Orchard Road, but there is a driveway on either end of the fence that leads from Orchard Road onto the school property. Specifically, the southernmost driveway enters directly into parking lot A and proceeds through that parking lot, and the northernmost driveway connects to Court Street and the other parking areas. The northernmost driveway also allows for entry into or exit from parking lot A. Accordingly, it appears that one could drive into parking lot A from its southern entrance on Orchard Road, proceed through the entirety of that parking lot, and either turn left onto a driveway to exit the parking lot's northern driveway or turn right to proceed along the driveway toward the other parking areas at the front of the school and to Court Street. The record does not reveal whether there are any barriers to traveling through parking lot A or through the driveway.

The walkway on which the plaintiff alleges that she was injured runs adjacent to the east side, or left side, of parking lot A, running south to north, but then turns and runs along the driveway heading east toward the school. A fence also runs alongside the walkway, on the opposite side of the parking lot and the driveway, abutting a grassy area.

On February 28, 2014, the court granted the defendants' motion for summary judgment on the ground that the area on which the plaintiff fell was not covered by § 13a–149. Specifically, it held: "As a matter of law, a jury could not find that the walkway upon which the plaintiff allegedly fell had any relationship to the public roadway so as to bring it within the purview of § 13a–149." The plaintiff filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court erred in rendering summary judgment because there was a question of material fact as to whether the paved walkway whereon the plaintiff alleged that she had fallen was within the purview of § 13a–149. She contends that the walkway runs along a driveway that connects two public roads, and therefore, whether that driveway and the walkway alongside it are "in such proximity to the highway as to be considered in, upon or near the traveled path" is a factual question for the jury. On the basis of the record before us, we conclude that the court improperly rendered summary judgment.

We begin with our well established standard of review. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.... The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

"Historically ... municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control.... The [municipal] highway defect statute, § 13a–149 is a legislativeexception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed."⁷

Citation omitted; internal quotation marks omitted.) 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.... [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.... 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." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 812–13, 92 A.3d 1016 (2014).

In defining highway for purposes of § 13a–149, we recently explained: "According to General Statutes § 14–1 [40], a highway includes any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use.... Our Supreme Court has stated: The plain meaning of the word highway is [a] main road or thoroughfare; hence a road or way open to the use of the public.... It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that every traveler has an equal right in it with every other traveler.... [T]he term highway is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.... Certainly, the distinctive feature of a highway for which a claim may arise under § 13a–149 is that it is open to public use.... For an area to be open to public use it does not have to be open to everybody all the time.... The essential feature of a public use is...