Cuozzo v. Town of Orange ( 2017 )

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ARMAND CUOZZO v. TOWN OF ORANGE
(AC 39097)
Lavine, Elgo and Flynn, Js.
Syllabus
The plaintiff sought to recover damages from the defendant town of Orange
for personal injuries he allegedly sustained when his motor vehicle hit
a pothole while he was driving on a private entrance/exit driveway,
which abutted a public highway and led to a plaza in which S Co. was
located. The plaintiff alleged that, under the municipal liability statute
(§ 52-557n), the town was liable for his injuries and damages. Thereafter,
the city of West Haven was cited in as a defendant. The town filed a
motion to dismiss, claiming that the plaintiff’s complaint fell within the
purview of the municipal highway defect statute (§ 13a-149) and that
the plaintiff had failed to comply with the ninety day notice provision
contained in § 13a-149. After the trial court granted the town’s motion
to dismiss, the plaintiff appealed to this court, which reversed the trial
court’s judgment and remanded the case for further proceedings, and the
defendant appealed to the Supreme Court, which affirmed this court’s
judgment. On remand, the trial court granted the motions for summary
judgment filed by the town and the city, and rendered judgment thereon,
concluding that the plaintiff’s claims of negligence implicated the exer-
cise of discretionary, rather than ministerial, acts, and that, as a matter
of law, both defendants were entitled to governmental immunity, regard-
less of who owned the property. The court thereafter granted the plain-
tiff’s motions to reargue, but denied the relief requested, and the plaintiff
appealed to this court, claiming, inter alia, that the trial court improperly
granted the defendants’ motions for summary judgment because a genu-
ine issue of material fact existed as to the location of the pothole. Held
that the trial court properly determined that the defendants were entitled
to summary judgment, as the evidence supported that court’s conclusion
that there was no genuine issue of material fact as to whether the pothole
was located in the private driveway that led to S Co.; the plaintiff stated
in both his complaint and deposition testimony that the pothole was in
the entrance/exit driveway of S Co., the defendants presented affidavits
by licensed engineers stating that the pothole was within the property
of S Co. and, thus, that the pothole was not the responsibility of either
defendant, and the plaintiff failed to present evidence to dispute that
the defect was controlled by S Co. and not the defendants.
Argued September 19—officially released December 12, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
brought to the Superior Court in the judicial district of
Ansonia-Milford, where the court, Hiller, J., granted
the plaintiff’s motion to cite in the city of West Haven
as a party defendant; thereafter, the court, Keegan, J.,
granted the named defendant’s motion to dismiss and
rendered judgment thereon, and the plaintiff appealed
to this court, which reversed the judgment and
remanded the case for further proceedings; subse-
quently, the named defendant appealed to the Supreme
Court, which affirmed this court’s judgment; thereafter,
the court, Stevens, J., granted the defendants’ motions
for summary judgment and rendered judgment thereon;
subsequently, the court, Stevens, J., granted the plain-
tiff’s motions to reargue and denied the relief requested,
and the plaintiff appealed to this court. Affirmed.
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).
Opinion
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 mate-
rial fact as to the location of the pothole at issue and
(2) the acts performed by the defendants were not dis-
cretionary 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 rele-
vant to this appeal. The plaintiff commenced this action
in November, 2011, and subsequently filed an amended
complaint dated February 3, 2012. In the operative com-
plaint, the plaintiff alleged that the ‘‘property located
at #2 Boston Post Road in Orange, Connecticut,’’ con-
tained an ‘‘entrance/exit driveway’’ that had a ‘‘pothole
approximately two feet in diameter . . . .’’ The prop-
erty 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 ‘‘sud-
denly 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, main-
tained, 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 pur-
suant 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 memo-
randum 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 con-
tained 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 memo-
randum 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 jurisdic-
tional defect to justify the motion to dismiss, a claim
that notice was insufficient under § 13a-149 was prop-
erly 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 drive-
way. 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 juris-
diction 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 deter-
mination that the driveway at issue had a public charac-
ter 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 pro-
ceedings according to law. Cuozzo v. Orange, 315 Conn.
606, 109 A.3d 903 (2015).
On remand, each defendant filed a motion for sum-
mary judgment, arguing that it did not own, control, or
possess the property on which the plaintiff was alleg-
edly injured and that it was entitled to governmental
immunity. The plaintiff filed an objection to both sum-
mary 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 discretion-
ary in nature. On February 1, 2016, the trial court
granted the town’s motion for summary judgment, stat-
ing that ‘‘as a matter of law, the claims of negligence
alleged in the complaint implicate the exercise of discre-
tionary, rather than ministerial, acts.’’ The court rea-
soned that ‘‘[t]he allegations of negligence on their face
necessarily involve the exercise of judgment. For exam-
ple, the complaint contains no allegations that the town
was required to perform the alleged duties either
unequivocally or in a prescribe[d] manner.’’ On Febru-
ary 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 immu-
nity 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 negli-
gence 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 negli-
gence are considered discretionary. Also in its objec-
tion, 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
demonstrated that the defect was in the driveway of
the Sam’s Club, over which it had no possession, owner-
ship, or control. The city filed a similar objection to the
plaintiff’s motion to reargue.
The court granted the plaintiff’s motions to reargue
and, after hearing and reconsideration, denied the
requested relief. The court issued identical orders for
each defendant and stated that ‘‘(1) based on the com-
plaint, the plaintiff’s deposition and the defendant’s sub-
missions, the evidence establishes that there is no
factual dispute that the alleged defect was in the drive-
way of the Sam’s Club, an area owned by Sam’s Club
that the defendant neither possessed nor controlled;
and (2) the allegations of negligence as described in the
complaint clearly implicate discretionary, rather than
proprietary, acts precluding liability under [§] 52-557n
(a) (2) (B).’’ The plaintiff now appeals from that
judgment.
The plaintiff first claims that because there is a genu-
ine issue of material fact as to the location of the defect,
the court improperly granted the defendants’ motions
for summary judgment.2 We address this claim first
because if the plaintiff fails to prevail with respect to
this claim, we need not address the remaining claim.
We disagree with the plaintiff and affirm the court’s
judgment.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
Our review of the decision to grant a motion for sum-
mary judgment is plenary. . . . We therefore must
decide whether the court’s conclusions were legally
and logically correct and find support in the record.’’
(Internal quotation marks omitted.) DiMiceli v. Chesh-
ire, 162 Conn. App. 216, 221–22, 131 A.3d 771 (2016).
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . If a plaintiff cannot
prove all of those elements, the cause of action fails.
. . . The status of an entrant on another’s land, be it
trespasser, licensee or invitee, determines the duty that
is owed to the entrant while he or she is on a landown-
er’s property.’’ (Citations omitted; internal quotation
marks omitted.) Grignano v. Milford, 106 Conn. App.
648, 651–52, 943 A.2d 507 (2008). ‘‘[T]he dispositive
issue in deciding whether a duty exists is whether the
[defendant] has any right to possession and control of
the property. . . . Retention of control is essentially a
matter of intention to be determined in the light of all
the significant circumstances. . . . The word control
has no legal or technical meaning distinct from that
given in its popular acceptation . . . and refers to the
power or authority to manage, superintend, direct or
oversee.’’ (Internal quotation marks omitted.) Sweeney
v. Friends of Hammonasset, 140 Conn. App. 40, 50, 58
A.3d 293 (2013).
The evidence in the record supports the court’s con-
clusion that there was no genuine issue of material fact
as to whether the alleged defect was in the driveway
of Sam’s Club. In the operative complaint, the plaintiff
alleged that the defective condition, the pothole, was
located some three feet in from the entrance/exit drive-
way’s intersection with Meloy Road. The plaintiff’s
deposition testimony detailed the location of the pot-
hole as being in the driveway of Sam’s Club.3 During
that deposition, the plaintiff marked an ‘‘x’’ and a circle
on a photograph of the driveway, exhibit 5, where he
believed the pothole was located. The mark was located
on the entrance/exit driveway to Sam’s Club. The plain-
tiff’s affidavit, dated May 18, 2012, stated that he was
injured when his ‘‘motor vehicle hit a pot hole in the
driveway of #2 Boston Post Road in Orange, Connecti-
cut . . . [and] this is the private driveway that exclu-
sively leads to the Wal-Mart Plaza, which includes
Sam’s Club.’’
The town presented a signed affidavit by the town
engineer, Robert J. Hiza, who is a licensed engineer
and surveyor. Hiza’s affidavit described his review of
the deed to the property known as #2 Boston Post Road,
the Sam’s Club site layout plan, and his inspection of
the area where the plaintiff indicated the pothole was
located. Ultimately, Hiza concluded that ‘‘[t]he alleged
pothole was either located within the property lines for
#2 Boston Post Road, and therefore the responsibility
of Sam’s Real Estate Business Trust, the property
owner, or within the City of West Haven’s right of way
for Meloy Road.’’
Further, the city presented an affidavit by the city
engineer, Abdul Quadir, who is a licensed engineer. On
the basis of the review of the deed, the Sam’s Club site
layout plan, and an inspection of the area where the
plaintiff indicated that the pothole was located, Quadir
concluded that ‘‘the alleged pothole was within the
property lines for #2 Boston Post Road, Orange, Con-
necticut and therefore is not the responsibility of the
City of West Haven.’’ The plaintiff failed to present
any evidence to dispute that the defect was on Sam’s
Club property.
The plaintiff argues that even if the pothole was
located as depicted in exhibit 5, there still is a genuine
issue of material fact as to whether the town controlled
the area. To provide evidence of the town’s control of
the entrance/exit driveway, the plaintiff references his
exhibits attached to his objection to the defendants’
summary judgment motions. The exhibits referenced
include three letters from Paul Dinice, the zoning
administrator and enforcement officer for the town of
Orange, addressed to Sam’s Club regarding landscaping
and traffic concerns along Meloy Road. The plaintiff
also references a traffic study performed by the town
as to the plaza located on the property at #2 Boston
Post Road to show that the town had control of the
defective area. The traffic study and the letters, how-
ever, merely demonstrate the town’s relaying of infor-
mation and evaluation of traffic patterns; they do not
provide evidence of the town’s power or authority to
manage, superintend, direct or oversee the allegedly
defective area of the entrance/exit driveway. Therefore,
the plaintiff failed to present evidence to dispute that
the defect was controlled by Sam’s Club and not the
town.
On the basis of our plenary review of the pleadings
and submissions of the parties, we conclude that the
plaintiff has failed to provide an evidentiary foundation
to demonstrate the existence of a genuine issue of mate-
rial fact. Because it was legally and logically correct
for the trial court to conclude that there was no genuine
issue that the alleged defect was in the driveway of
Sam’s Club, an area owned by Sam’s Club that the
defendants neither possessed nor controlled, the court
properly determined that the defendants were entitled
to summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s operative, amended revised complaint was brought in two
counts, one of which was brought against the town of Orange and the other
of which was brought against the city of West Haven. The subject of the
previous appeal was the motion to dismiss filed by the town of Orange. The
city of West Haven was not a party to that appeal.
2
In a separate claim of error, the plaintiff contends that the trial court
improperly decided on reconsideration that there was no genuine issue of
material fact as to the ownership of the property because the plaintiff did
not specifically request reargument of that issue in his motion to reargue.
We do not agree. The issue was briefed by both parties in the underlying
summary judgment motion. In its objection to the plaintiff’s motion for
reargument and at the hearing, the town asked the court to also determine
whether there was a genuine issue of material fact as to the location of the
defect, which the court previously found unnecessary in light of its ruling
on the governmental immunity claim. When granting the plaintiff’s motion,
the court stated: ‘‘I’m going to review on the basis of submissions of the
parties, both issues, or all of the issues, which involve both argument regard-
ing governmental immunity, and more specifically the issues of discretionary
versus ministerial function as applicable here, as well as the issue of responsi-
bility, which, in turn, is related to the location of the defect.’’ At that time,
there was no request or apparent need to further brief the issue. Following
reconsideration, the court determined that there was no genuine issue of
material fact as to the ownership of the property. Because the parties were
provided with adequate notice and a full opportunity to be heard on the issue,
this court does not find an abuse of discretion or prejudice. Accordingly,
the issue was properly before the trial court.
3
The following colloquy occurred during the plaintiff’s deposition:
‘‘[The Town’s Counsel]: Sir, I want to be clear. While you can’t remember
exactly where this pothole was, are you certain that it was somewhere in
this area of the driveway?
‘‘[The Plaintiff]: Yes.
‘‘[The Town’s Counsel]: It was not on [Meloy] Road?
‘‘[The Plaintiff]: No.
‘‘[The Town’s Counsel]: And do you know what town you are in when
you’re on that driveway? . . .
‘‘[The Plaintiff]: But in the driveway, it’s Orange.
‘‘[The Town’s Counsel]: How do you know it’s Orange?
‘‘[The Plaintiff]: Because Sam’s Club is in Orange. If you look on the
address, it doesn’t say West Haven, it says Orange. Doesn’t it?’’