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Graham v. Commissioner of Transportation

Court of Appeals of Connecticut

October 4, 2016

BARRY GRAHAM
v.
COMMISSIONER OF TRANSPORTATION

          Argued May 23, 2016

         Appeal from Superior Court, judicial district of New London, Devine, J. [motions to dismiss; judgment; motion to reargue, set aside judgment]; Cole-Chu, J. [summary judgment motion; judgment; articulation].

          Ralph J. Monaco, with whom, on the brief, was Eric J. Garofano, for the appellant (plaintiff).

          Lorinda S. Coon, for the appellee (defendant).

          Sheldon, Prescott and West, Js.

          OPINION

          SHELDON, J.

         The plaintiff, Barry Graham, appeals from the summary judgment rendered by the trial court in favor of the defendant, the Commissioner of Transportation, in this action to recover damages under the state defective highway statute, General Statutes § 13a-144.[1] The plaintiff commenced this action on July 9, 2012, to recover for injuries he claims to have suffered on December 12, 2011, in a motor vehicle accident allegedly caused by the sliding of the vehicle that he was then operating on untreated black ice in the northbound lanes of Interstate 95 as it crosses the Thames River between New London and Groton on the Gold Star Memorial Bridge. The trial court granted the defendant's motion for summary judgment on the ground that because his statutory duty to keep the bridge in a reasonably safe condition is purely reactive rather than anticipatory, he did not breach that duty to the plaintiff by failing to treat or otherwise remedy the icing condition that caused the plaintiff's accident because he had no actual notice of the specific patch of ice before the accident occurred, and even if he had constructive notice of that ice patch based upon prior reports to the Department of Transportation (department) from the state police about earlier ice related accidents on the bridge that morning, he had insufficient time after receiving such notice to remedy that ice patch before it caused the plaintiff's accident.

         On appeal, the plaintiff claims that the trial court erred in rendering summary judgment in favor of the defendant because the evidence before it on the defendant's motion, when considered in the light most favorable to the plaintiff, gave rise to a genuine issue of material fact as to whether the defendant had sufficient time, after receiving actual or constructive notice of the dangerous icing condition that caused his accident, to remedy that condition before the accident occurred.

         The defendant opposes this claim in two ways. First, he argues that the trial court ruled correctly, on the undisputed facts before it, that he had insufficient time, after receiving notice of the icing condition that later caused the plaintiff's accident, to remedy that condition before the accident occurred. Second, as an alternative ground for affirming the trial court's ruling, the defendant argues, as he did both in his summary judgment motion and in his prior, unsuccessful motion to dismiss, that the trial court lacked subject matter jurisdiction over this action because the plaintiff's written notice of intent to sue failed to satisfy the requirements of § 13a-144, upon which the state's statutory waiver of its sovereign immunity depends, insofar as the statute required him to disclose the location of his accident and resulting injuries. The plaintiff disputes the defendant's challenge to the legal sufficiency of his written notice of intent to sue insofar as it describes the location of his accident and resulting injuries.

         We agree with the plaintiff that the trial court erred in rendering summary judgment in favor of the defendant because the evidence before it on the defendant's motion gave rise to a genuine issue of material fact as to whether the defendant had sufficient time, after receiving notice of the icing condition that caused the plaintiff's accident, to treat or otherwise remedy that condition before the accident occurred. Therefore, because we also agree with the plaintiff that the adequacy of his written notice of intent to sue to apprise the defendant of the location of his accident and injuries cannot be decided on this record as a matter of law, we reverse the trial court's judgment and remand this case for further proceedings.

         The following procedural history is relevant to our disposition of this appeal. In the plaintiff's original complaint dated July 5, 2012, as later revised on May 29, 2014, without substantive alteration as to the issues now before us, he alleged that the defendant has a statutory duty to keep and maintain all highways and bridges within the state highway system in a reasonably safe condition, and that that duty extends to Interstate 95, a public highway in that system. He further alleged that, in the early morning hours of December 12, 2011, employees, representatives and agents of the department became aware that the surface of Interstate 95 on the Gold Star Memorial Bridge had become icy and unreasonably dangerous, based upon reports they had received from the state police of numerous ice related accidents on the bridge that morning. The plaintiff alleged that later that morning, at 6:38 a.m., as he was driving his pickup truck in the northbound lanes of the bridge about one-tenth of one mile south of the New London-Groton town line, it slid on black ice, rolled over on its side and collided with a bridge structure, causing him serious injuries. The plaintiff alleged that the cause of his accident and resulting injuries was the defendant's breach of his statutory duty to keep the bridge in a reasonably safe condition by failing to take adequate measures, in response to the notice he had received of its dangerous condition, either by treating its icy surface, placing or utilizing warning signs in the area to warn travelers of that dangerous condition, or closing the bridge entirely until that dangerous condition could be remedied. Finally, the plaintiff alleged that he had provided timely written notice to the defendant of his intent to sue in connection with his accident and injuries within ninety days of their occurrence, as required by § 13a-144.[2]

         On September 12, 2012, the defendant moved to dismiss the plaintiff's original complaint on the ground that the location of the accident specified in the plaintiff's written notice of intent to sue described an area so large that it failed to satisfy the requirements of § 13a- 144, in violation of the sovereign immunity doctrine.[3]This motion was initially granted by the trial court, Devine, J. Thereafter, however, upon reconsideration of its ruling, the court determined that the language of the plaintiff's written notice was subject to at least one reasonable interpretation that could be found to satisfy the requirements of § 13a-144. Concluding, on that basis, that the adequacy of the plaintiff's written notice to apprise the defendant of the location of his accident and injuries was a disputed issue of fact that should be decided by the finder of fact at trial, the court vacated its initial ruling and denied the defendant's motion to dismiss.[4]

         Thereafter, on May 8, 2014, the defendant moved for summary judgment on three grounds: (1) that he did not breach his statutory duty to keep and maintain the bridge in a reasonably safe condition on the morning of the plaintiff's accident because he lacked actual notice of the specific ice patch that caused that accident, and even if he had constructive notice of that ice patch, he lacked sufficient time after receiving such notice to remedy that ice patch before the plaintiff's accident occurred; (2) insofar as the plaintiff's written notice of intent to sue described the location of his accident, it failed to satisfy the requirements of § 13a-144; and (3) that the plaintiff could not prove that the defendant's breach of statutory duty under § 13a-144, if any, was the sole proximate cause of his accident and resulting injuries.

         The defendant supported his motion with a memorandum of law and several attached exhibits, including: sworn affidavits from four employees of his department, Peter Silva, James F. Wilson, Jay D'Antonio and Theodore Engel;an excerpt from the certified transcript of the deposition of state police Trooper Robert D. Pierce, who responded to and investigated the plaintiff's accident; and copies of the plaintiff's written notice of intent to sue in connection with his accident, Trooper Pierce's police report concerning the accident, and the department's work log for the day of the accident.

         The main thrust of the defendant's argument on the first of his three grounds for seeking summary judgment, to which the trial court ultimately limited its decision on his motion, was that he did not breach his statutory duty to remedy the ice patch that caused the plaintiff's accident and injuries because, although his employees responded promptly to the first report they received of an ice related accident on the bridge that morning, they could not have reached the bridge with the necessary equipment and materials to treat its icy surface and make it reasonably safe for travel before the plaintiff's accident occurred. The department's call log showed, more particularly, that the department first was notified of icing on the bridge at 5:49 a.m. that morning, in a call from the state police to its Bridgeport operations center, of which Silva was the supervisor. That call reported that an ice related accident had occurred on the bridge at 5:40 a.m. The operations center responded to the call by implementing its standard protocol for responding to off-hour calls for service by calling D'Antonio, the supervisor of the department's maintenance garage in Waterford, which services the Gold Star Memorial Bridge, with instructions to call out a crew to salt the bridge. The Waterford garage, which was then closed, routinely dispatched two man work crews, with one crew leader and one helper, to respond to off-hour calls for service. When crew members were called out to salt an icy bridge or highway, they had to drive in their own nonemergency vehicles to the garage, where the department's deicing equipment and materials were stored, open the garage with the crew leader's key, start and load the salting truck, then drive to the location where salting was to be performed. The garage had two crew leaders in December, 2011: Engel, who lived in Madison, approximately thirty to thirty-five minutes away from the garage when there was no traffic, and another unnamed person whose town of residence was not disclosed. D'Antonio assigned Engel to salt the bridge after the 5:40 a.m. accident was reported to him pursuant to his general practice of alternating off-hour call-outs between crew leaders so as not to ‘‘unduly burden'' either one of them in the busy winter season.

         After being called out at about 5:51 a.m. on December 12, 2011, Engel and his helper, William Grant, needed more than one hour to get to and open the garage, prepare and load a truck for salting operations and drive the truck to the bridge. By the time they reached the bridge, the plaintiff's accident had already occurred, and the state police, who had been on the bridge since before 6 a.m. responding to other accidents, had closed the bridge. On the basis of this evidence, the defendant argued that he could not be held liable for the plaintiff's accident or injuries because he lacked sufficient time after receiving constructive notice of ice on the bridge at 5:49 a.m. to reach and treat the bridge before the plaintiff's accident occurred.

         Finally, the defendant presented evidence, through Silva's sworn affidavit, that in addition to attempting to treat the bridge with salt on the morning of the plaintiff's accident, his employees attempted, at 6:23 a.m., to warn motorists approaching the bridge of its dangerous condition by illuminating electronic signboards positioned about one-tenth of one mile before the start of the bridge in both directions, which read: ‘‘Slippery Conditions. Use Caution.'' The plaintiff, he contended, had to drive by one such illuminated signboard when he drove his truck onto the bridge approximately fifteen minutes later.

         The plaintiff opposed the defendant's motion for summary judgment with his own memorandum of law and accompanying exhibits, including: an excerpt from the certified transcript of the deposition of Diana Dean, the driver who had been involved in the first ice related accident reported to the defendant on the morning of the plaintiff's accident; the police report concerning the Dean accident, which was written by state police Trooper Christopher Sottile, who had responded to and investigated that accident before the plaintiff's accident that morning; an excerpt from the certified transcript of the deposition of Engel, the crew leader who had been called out to treat the bridge after the Dean accident; the sworn affidavit of Silva, the supervisor of the department's operations center in Bridgeport, who described the department's standard protocol for responding to off-hour calls and averred that the previously described electronic signboards had been illuminated before the plaintiff's accident; the plaintiff's own sworn affidavit describing his accident and the events leading up to it; another excerpt from the certified transcript of the deposition of Trooper Pierce, as to his investigation of the plaintiff's accident; the police report of Trooper Pierce concerning the plaintiff's accident; and work logs for the Waterford garage on the day of Dean's and the plaintiff's accidents.

         The plaintiff relied on these submissions to raise issues of fact as to several aspects of the defendant's initial ground for seeking summary judgment. First, Dean testified and Sottile wrote in his police report that when her accident occurred at 5:40 a.m. on the morning of the plaintiff's accident, the entire surface of the roadway on the northbound side of the bridge was covered with black ice, which caused her vehicle to spin out of control in the right lane of the five lane bridge and continue spinning all the way across the bridge until it crashed into the cement barrier on the opposite side of the roadway. Second, the plaintiff averred in his affidavit and Trooper Pierce confirmed in his police report that when the plaintiff's accident occurred almost one hour after the Dean accident, the entire surface of the roadway on the northbound side of the bridge was still completely covered with black ice. Third, Engel testified, based upon his three years of experience working at the Waterford garage in the winter, that when the outside temperature falls below freezing, the surface of the Gold Star Memorial Bridge, unlike those of other nearby bridges, is prone to freezing over completely, with black ice of the kind he saw on the morning of December 12, 2011, due to the recurring presence of ice fog in the area. The department's work logs confirmed that the air temperature at 6 a.m. on that date was 27 degrees Fahrenheit, and the surface temperature of the roadway was 24 degrees Fahrenheit. Fourth, although Silva averred in his affidavit that electronic signboards warning of slippery conditions on the bridge had been illuminated before the plaintiff drove onto the bridge on the morning of his accident, both the plaintiff and Engel swore that they had not seen any such warning signs when they drove onto the northbound lanes of the bridge several minutes later. Fifth, shortly after the plaintiff's accident took place, the state police closed the northbound lanes of the bridge entirely until its icy surface could be treated by department personnel.

         In light of the foregoing evidence, the plaintiff claimed that the defendant was not entitled to summary judgment on the first ground raised in his motion because the reasonableness of a defendant's response to notice he receives of ice on a bridge or highway is a multifactorial factual issue that must typically be decided by the finder of fact at trial. Here, in particular, the plaintiff claimed that he had presented evidence raising several genuine issues of material fact about factors upon which the ultimate resolution of that issue in this case depends. Those issues included: whether the defendant had actual notice of the dangerous icing condition that caused his accident and injuries based upon the reported observations by the state police of black ice covering the entire northbound surface of the bridge from almost one hour before the plaintiff's accident until the state police responded to it well after it occurred; whether, in light of the magnitude of the danger presented by the pervasive icing condition of which the defendant had notice, as evidenced by the numerous ice related accidents it had caused in sub-freezing weather conditions known to cause icing due to ice fog, it was reasonable for the defendant to call out a work crew that predictably could not reach the bridge and treat it until more than one hour after they were first called out; whether, if a work crew called out to treat the bridge could not reasonably be expected to treat it for more than one hour after they were first called out, adequate measures were taken in the interim to warn motorists still using it of its dangerous icing condition before that condition was remedied; and whether, if the bridge could not be treated more quickly and the motoring public could not be warned more effectively of its dangerous condition before it was treated, the bridge should have been closed to all traffic before, not after, the plaintiff's accident. In light of those open, contested issues, the plaintiff insisted that the reasonableness of the defendant's response to the black ice condition reported to the department before the plaintiff's accident presented a genuine issue of material fact that should be decided by the finder of fact at trial.

         On January 12, 2015, the trial court, Cole-Chu, J., heard oral argument on the defendant's motion for summary judgment, at which the foregoing arguments were presented. Thereafter, on May 12, 2015, the trial court granted the defendant's motion for summary judgment. In its memorandum of decision, the trial court held that ‘‘despite . . . the drawing of inferences in the light most favorable to the nonmoving party . . . the court concludes that the defendant is entitled to judgment as a matter of law. The court cannot conclude that the defendant had actual notice of the black ice condition which caused the plaintiff's accident before the report of that accident. Even treating the black ice on the bridge in general as the defect which caused the plaintiff's accident and treating the black ice accident on the same bridge fifty minutes before the plaintiff's accident as constructive notice to the defendant of that defect, the court finds as a matter of law that the defendant's response time was reasonable. Indeed, the plaintiff does not contend otherwise, other than by claiming that the defendant should have anticipated the black ice condition.''[5] (Citation omitted.) Thereafter, the plaintiff filed this appeal.

         I

         We begin by noting that our standard of review as to a trial court's decision to grant a motion for summary judgment is plenary. ‘‘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.'' (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). ‘‘In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant 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. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].'' (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).

         ‘‘To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.'' (Footnote omitted; internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 675-76, 768 A.2d 441 (2001). In granting the defendant's motion for summary judgment, the trial court predicated its decision on a finding that the plaintiff could not establish the third element of his cause of action, namely, that the state failed to remedy the icing condition on the bridge after having had a reasonable time to remedy such condition after receiving notice thereof. In addition to this finding, the trial court made a necessary subordinate finding that the defendant had received constructive notice of the defective icing condition, which triggered the defendant's duty to remedy that condition within a reasonable period of time.

         On appeal, the plaintiff challenges the propriety of the trial court's conclusion that the defendant responded reasonably, as a matter of law, to the notice he received of the black ice that caused the plaintiff's accident and resulting injuries. Specifically, the plaintiff argues that the trial court erroneously determined that the defendant's response to the icing condition on the bridge was reasonable as a matter of law because, under Connecticut law, the question of whether the defendant reasonably responded to a highway defect of which he had notice is a question of fact that must be decided by the finder of fact at trial. In response, the defendant contends that any issue of fact, including what constitutes a reasonable amount of time in particular circumstances for the defendant to respond to notice he receives of a highway defect, may be resolved by summary judgment when the evidence supports only one fair and reasonable conclusion. The defendant asserts that, on the undisputed facts of this case, the only rational conclusion to be drawn is that he acted reasonably because he had no more than forty-nine minutes to remedy the defect at issue, the department followed its standard protocol in responding to the defect, and under the circumstances then existing, it had insufficient time to reach and treat the bridge before the plaintiff's accident occurred.

         We agree with the plaintiff that, as a general matter, Connecticut case law dictates that the question of whether the defendant reasonably responded to the report of a highway defect is a multifactorial determination that must be made by the finder of fact at trial. See id., 693 (holding that ‘‘[t]he response time of the defendant to react to a dangerous condition is a fact-specific determination''). Here, however, even if we accept the defendant's argument that summary judgment may appropriately be rendered in particular circumstances where the only rational conclusion to be drawn from the evidence before the trial court is that the defendant had insufficient time to remedy the com-plained-of defect after receiving notice of it before it caused the plaintiff's injuries, we conclude that the record before the trial court in this case gave rise to several genuine issues of material fact that precluded the rendering of summary judgment on that ground.

         A

         Reasonableness of Defendant's Response to Notice of Highway Defect is Fact-Specific Determination That Must Typically Be Made By Trier of Fact

         Under the state defective highway statute, it is well established that ‘‘[t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.'' (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 462-63, 569 A.2d 10 (1990). The defendant's ‘‘statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation.'' Ormsby v. Frankel, supra, 255 Conn. 676. Thus, ‘‘[l]iability imposed on the defendant under § 13a-144 for a defective highway is based on proof of the existence of a defect and on the defendant's failure to remedy the defect within a reasonable time after receiving actual or constructive notice of the defect where that defect is the sole proximate cause of a plaintiff's injury.'' (Emphasis in original; internal quotation marks omitted.) Hall v. Burns, supra, 462.

         Although the present case involves a claim under § 13a-144, our courts have held that the defendant's duty to maintain the safety of state bridges and highways under § 13a-144 mirrors a municipality's duty to maintain the safety of municipal sidewalks, bridges and highways under the parallel provisions of General Statutes § 13a-149. Therefore, our courts frequently have relied on case law under one of those statutes to resolve common issues arising under the other, such as whether the defendant or the municipality owed the plaintiff a duty of care under particular circumstances, whether the defendant received either actual or constructive notice in ...


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