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Cuozzo v. Town of Orange

Court of Appeals of Connecticut

December 12, 2017


          Argued September 19

          Karen E. Souza, for the appellant (plaintiff).

          Logan E. Carducci, with whom, on the brief, was Mark L. Perkins, for the appellee (named defendant).

          Jerome A. Lacobelle, Jr., deputy corporation counsel, with whom, on the brief, was Aimee L. Mahon, for the appellee (defendant city of West Haven).

          Lavine, Elgo and Flynn, Js.


          ELGO, J.

         In this personal injury action, the plaintiff, Armand Cuozzo, appeals from the summary judgment rendered in favor of the defendants, the town of Orange (town) and the city of West Haven (city). The plaintiff claims that the trial court improperly granted summary judgment because (1) there is a genuine issue of material fact as to the location of the pothole at issue and (2) the acts performed by the defendants were not discretionary in nature. Because we conclude that there is no genuine issue of material fact as to the location of the pothole, we need not reach the plaintiff's second claim. Accordingly, we affirm the judgment of the court.

         The following facts and procedural history are relevant to this appeal. The plaintiff commenced this action in November, 2011, and subsequently filed an amended complaint dated February 3, 2012. In the operative complaint, the plaintiff alleged that the ‘‘property located at #2 Boston Post Road in Orange, Connecticut, '' contained an ‘‘entrance/exit driveway'' that had a ‘‘pothole approximately two feet in diameter . . . .'' The property abutted Meloy Road, a public highway in Orange, and was connected to Meloy Road by ‘‘an entrance/exit driveway'' that intersected Meloy Road. The plaintiff alleged that ‘‘at approximately 4:30 p.m. on July 31, 2008, the plaintiff . . . was operating [his] 1990 Volvo motor vehicle in a general northerly direction on such entrance/exit driveway'' when his motor vehicle ‘‘suddenly and without warning came into contact'' with the pothole. The plaintiff alleged that he was ‘‘a business invitee'' at the time he was operating his vehicle and that the pothole was located ‘‘some three feet in from [the entrance/exit driveway's] intersection with Meloy Road.'' The plaintiff alleged that, at all times relevant, the property was owned by and was ‘‘controlled, maintained, managed, operated and/or supervised'' by the defendants, their ‘‘agents, servants and/or employees . . . .''

         As this court noted in a previous appeal involving the plaintiff, Cuozzo v. Orange, 147 Conn.App. 148, 82 A.3d 647 (2013), aff'd, 315 Conn. 606, 109 A.3d 903 (2015), his complaint alleged that ‘‘[t]he collision led to personal injury and damages that were caused by the negligence and carelessness of the [town] . . . its agents, servants and/or employees in that, among other things, they allowed and permitted the condition to exist, failed to take steps to remedy it, and failed to take reasonable measures to prevent motor vehicles from coming into contact with it. The plaintiff further alleged that, pursuant to General Statutes § 52-557n, the [town] was liable for his injuries and damages.[1]

         ‘‘Thereafter, the [town] filed a motion to dismiss pursuant to Practice Book § 10-33 on the ground that the court lacked subject matter jurisdiction. Specifically, the [town] argued that the plaintiff's claim fell within the purview of the municipal highway defect statute, [General Statutes] § 13a-149, and that the plaintiff failed to comply with the notice requirement of the statute. In support of its motion, the [town] submitted a memorandum of law as well as an affidavit of Pat O'Sullivan, the town clerk for the [town]. O'Sullivan averred, in relevant part, that the [town] had not been given notice of the present action until October 21, 2011, when it was served with the plaintiff's complaint, and well after the ninety day notice requirement set forth in § 13a-149. The [town] did not submit an affidavit that contained facts indicating that the typical and expected use of the driveway at issue rendered it open to the traveling public. Additionally, the [town] asserted that the action was not brought within the applicable statute of limitations.

         ‘‘By way of objection, the plaintiff submitted a memorandum of law in which he argued that the [town's] claims were not a proper subject of a motion to dismiss. He asserted that the [town] failed to set forth a jurisdictional defect to justify the motion to dismiss, a claim that notice was insufficient under § 13a-149 was properly raised by means of a motion to strike, and any statute of limitations claim should be addressed in a motion for summary judgment. The plaintiff argued that, if the [town's] claims were a proper subject of a motion to dismiss, the motion should be denied on its merits because the action did not fall within the purview of the highway defect statute insofar as the accident did not occur on a public highway, but a private driveway. Also, addressing the [town's] statute of limitations claim, the plaintiff argued that the action was timely under General Statutes § 52-593 because it was brought within the one year time limit codified therein. Attached to his memorandum of law in opposition to the [town's] motion was the plaintiff's affidavit, in which he averred in relevant part that the collision involving the pothole occurred in [a] private driveway that exclusively leads to the Wal-Mart Plaza, which includes Sam's Club.

         ‘‘Following a hearing related to the motion to dismiss, during which the court heard argument concerning the motion but was not presented with evidence, the court issued a memorandum of decision. Initially, the court concluded that the [town's] claim concerning notice pursuant to § 13a-149 implicated subject matter jurisdiction and, therefore, was a proper subject of a motion to dismiss. Next, the court examined the allegations in the plaintiff's complaint as well as relevant principles of law. The court concluded: In the present case, based on the plaintiff's own allegations, the driveway where the alleged accident occurred was on property owned by the [town], connecting a public road to another town owned property. Based on these claims, it is reasonable to anticipate that the public would make use of the driveway. As a matter of law, therefore, the facts alleged in the plaintiff's complaint amount to a highway defect, and necessarily invoke . . . § 13a-149 as the exclusive remedy. Because the plaintiff failed to provide proper notice to the [town] within ninety days of the alleged accident, this court lacks subject matter jurisdiction over this action.'' (Internal quotation marks omitted.) Id., 151-53. The trial court granted the town's motion to dismiss. From that judgment, the plaintiff appealed to this court, which reversed the judgment on the ground that the facts in the record, viewed in the light most favorable to the plaintiff, did not support a determination that the driveway at issue had a public character such that it fell within the ambit of § 13a-149. Id., 164-65. The Supreme Court affirmed the judgment of this court, and the case was remanded for further proceedings according to law. Cuozzo v. Orange, 315 Conn. 606, 109 A.3d 903 (2015).

         On remand, each defendant filed a motion for summary judgment, arguing that it did not own, control, or possess the property on which the plaintiff was allegedly injured and that it was entitled to governmental immunity. The plaintiff filed an objection to both summary judgment motions, claiming that there is a genuine issue of fact as to who owns the driveway and that the acts performed by the defendants were not discretionary in nature. On February 1, 2016, the trial court granted the town's motion for summary judgment, stating that ‘‘as a matter of law, the claims of negligence alleged in the complaint implicate the exercise of discretionary, rather than ministerial, acts.'' The court reasoned that ‘‘[t]he allegations of negligence on their face necessarily involve the exercise of judgment. For example, the complaint contains no allegations that the town was required to perform the alleged duties either unequivocally or in a prescribe[d] manner.'' On February 2, 2016, the court granted the city's motion for the same reasons. As a result, the court determined that both defendants were entitled to governmental immunity regardless of who owned the property.

         On February 22, 2016, the plaintiff filed motions to reargue, claiming that the defendants were not entitled to governmental immunity because the allegations in the complaint were proprietary in nature and the negligence alleged was that the defendants did not perform the functions at all. In response, the town objected to the plaintiff's motion to reargue and claimed that the allegations of negligence were not proprietary in nature and that the town was protected by governmental immunity because the acts alleged to constitute negligence are considered discretionary. Also in its objection, the town requested reconsideration of whether there was a genuine dispute of a material fact as to the location of the defect because the uncontested evidence ...

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