DocketNumber: No. CV93 0131151
Citation Numbers: 1994 Conn. Super. Ct. 371, 9 Conn. Super. Ct. 139
Judges: LEWIS, JUDGE.
Filed Date: 1/20/1994
Status: Non-Precedential
Modified Date: 4/18/2021
The Housing Authority filed two special defenses which allege that the minor plaintiff was contributorily negligent and that the action against it is barred due to plaintiffs' failure to comply with the notice regulations in General Statutes
The Housing Authority has now filed a motion (#129) to strike the cross claim on the grounds that, as a matter of law, the Town is not entitled to indemnification under a theory of active/passive negligence when it has been found liable under the defective highway statute, as such statute requires a finding that the Town's conduct was the sole proximate cause of the injury. CT Page 372
"The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted." Gordon v. Bridgeport Housing Authority,
The Housing Authority argues that the Town's cross claim should fail as a matter of law because it would preclude a finding that the Housing Authority's conduct was the sole and direct cause of the minor plaintiff's injuries as required under an active/passive negligence theory. In response, the Town argues that under a defective highway claim, the plaintiffs must prove that the defect or dangerous condition of a highway was the sole proximate cause of the minor plaintiff's injury. The Town claims that proof of sole proximate cause of the injury will not resolve the issue of what caused the defect.
To recover for a claim under the defective highway statute, General Statutes
"(1) that the highway was defective as claimed; (2) that the [town] actually knew of the particular defect or that, in the exercise of its supervision of highways in the [town], it should have known of that defect; (3) that the [town], 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."
Szachon v. Windsor,
There is a split in the Superior Court regarding whether a municipality which is a defendant in an action under the defective highway statute may assert an indemnification claim against a third party. See Watkins v. City of Hartford,
Since what the plaintiff must prove in order to prevail on a defective highway claim is "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;" (emphasis added), Szachon v. Windsor, supra, 797; the plaintiff might in theory be able to recover from both the Housing Authority and the Town for the defect. Furthermore, the Appellate Courts have not addressed this issue, and this court would not rule as a matter of law in the context of a motion to strike that municipalities may not bring indemnification claims against third parties in defective highway actions. Accordingly, the Housing Authority's motion to strike the Town's cross claim is denied.
Rubenstein Ury for plaintiff.
Greenwich Town Attorney for defendant. CT Page 374