Beebe v. Town of East Haddam

• Decision Date: 10 March 1998
• Docket Number: No. 16943,16943
• Citation: 708 A.2d 231,48 Conn.App. 60
• Court: Connecticut Court of Appeals
• Parties: Earl BEEBE v. TOWN OF EAST HADDAM.

Page 231

708 A.2d 231

48 Conn.App. 60

Earl BEEBE v.TOWN OF EAST HADDAM.

No. 16943.

Appellate Court of Connecticut.

Submitted on Briefs Nov. 13, 1997.

Decided March 10, 1998.

Bruce W. Diamond, Waterbury, filed a brief for appellant(plaintiff).

David J. Mathis, Hartford, filed a brief for appellee(defendant).

Before LAVERY, LANDAU and FRANCIS X. HENNESSY, JJ.

LAVERY, Judge.

The plaintiff, Earl Beebe, appeals from the summary judgment rendered by the trial court in favor of the defendanttown of East Haddam(town).The sole issue on appeal is whether the statute of limitations was tolled during the time the plaintiff was incapacitated due to illness.We hold that the statute of limitations was not tolled during the plaintiff's illness and affirm the summary judgment of the trial court.

The following facts are relevant to this appeal.On September 11, 1993, the plaintiff was walking on the sidewalk adjacent to East Lane in the town.The plaintiff alleges that defects in the sidewalk caused him to fall and sustain certain personal injuries.By letter dated October 19, 1993, the plaintiff's attorney ¹ gave notice of the defects and the plaintiff's injury to the town clerk, pursuant to General Statutes § 13a-149.²On May 19, 1995, the plaintiff was stricken with a life threatening illness and was hospitalized from that date until June 21, 1995, when he was transferred to a rehabilitation facility where he remained as an inpatient until some date in July, 1995.³The plaintiff claims that from May 19 until July 5, 1995, he was incompetent to confer with his attorney and to make decisions for himself.During that time, the plaintiff's wife made all decisions for him.

Prior to his becoming ill, the plaintiff, his attorney, and a representative of the town's insurance carrier had scheduled a meeting to discuss settlement of the plaintiff's claims against the town.The meeting was canceled due to the plaintiff's illness.The record reveals that the plaintiff's attorney sent the insurance carrier a demand letter dated August 28, 1995, which was modified by letter dated August 29, 1995.The insurance carrier apparently did not respond to the demand letter because the plaintiff's attorney sent a letter of inquiry dated October 9, 1995.By letter dated October 18, 1995, a representative of the insurance carrier informed plaintiff's attorney that no settlement offer would be made because the statute of limitations had expired and the plaintiff had not commenced a lawsuit against the town.

The plaintiff commenced this lawsuit on October 25, 1995, when a deputy sheriff served the summons and complaint on the town clerk.The single count complaint is based on § 13a-149.It does not allege that the plaintiff was incompetent at any time.The town filed an answer and two special defenses to the complaint.The first special defense alleges that the plaintiff's claim is barred by "the applicable statute of limitations," and the second special defense alleges that the plaintiff's injuries and loss were due to his own carelessness and negligence.By motion dated July 29, 1996, the town moved for summary judgment based on the statute of limitations defense.The plaintiff filed both an objection to the motion for summary judgment on September 6, 1996, and a single general denial in response to the town's special defenses on November 18, 1996.On February 10, 1997, after hearing oral arguments at short calendar, the trial court granted the town's motion for summary judgment.This appeal followed.

On appeal, the plaintiff claims that the statute of limitations was tolled for forty-seven days from May 19 until July 5, 1995, because he was incompetent during that time.Because of his claimed incompetence, the plaintiff argues that the statute of limitations should be extended forty-seven days from the anniversary date of his injury, September 11, until October 28, 1995.The plaintiff also claims that the trial court should have denied the town's motion for summary judgment because the question of his competency is a genuine issue of material fact.We disagree.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established."Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805(1987).Practice Book§ 384 requires that "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."A "material fact" is a fact that will make a difference in the result of the case.SeeHammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699(1990).The facts at issue are those alleged in the pleadings.SeePlouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359(1971).The party seeking summary judgment "has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law."D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908(1980).The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.SeePractice Book§§ 380 and 381."In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party....The test is whether a party would be entitled to a directed verdict on the same facts."(Citations omitted; internal quotation marks omitted.)Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116(1990).A motion for summary judgment"is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact."Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555(1985).

I

Before we address the issue regarding the tolling of the statute of limitations, we examine the question of the applicable statute of limitations.The complaint is in one count alleging in part that, pursuant to § 13a-149, the town is liable for the injuries the plaintiff sustained.In its first special defense, the town alleges only that the plaintiff's cause of action "is barred by the applicable statute of limitations."⁴The town's motion for summary judgment also does not identify by number the statute on which the town relies in claiming that the plaintiff's action is time barred.The memorandum of law accompanying the town's motion for summary judgment, however, does identify General Statutes § 52-584⁵ as the applicable statute of limitations.The trial court granted the town's motion for summary judgment pursuant to Lopez v. United Nurseries, Inc., 3 Conn.App. 602, 605-606, 490 A.2d 1027(1985).The statute of limitations at issue in Lopez is § 52-584.

In his brief to this court, the plaintiff notes for the first time that § 52-584 does not apply to a cause of action brought pursuant to § 13a-149 because § 13a-149 contains its own limitation of action provision.In its reply brief, the town agrees that § 13a-149 is the controlling statute, but points out that both statutes require a cause of action to be brought within two years.

"[W]here a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right...."DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765(1916).Section 13a-149 is in derogation of the common law, and the limitation of time contained in the statute is controlling." 'The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.'... Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 124, 357 A.2d 910[1975]."(Emphasis in original.)Morris v. Costa, 174 Conn. 592, 597, 392 A.2d 468(1978).

"Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it."Id., at 597-98, 392 A.2d 468.For the reasons given in part II, the case before us falls within the ambit of this rule of law.

II

We now turn to the central issue on this appeal: whether the illness that befell the plaintiff on May 19, 1995, and rendered him incapable of conducting his affairs until July 5, 1995, tolled the statute of limitations for the intervening forty-seven days.

The relevant portion of § 13a-149 provides: "No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury...."A lawsuit commences when a proper officer serves the plaintiff's summons and complaint on the defendant.SeeLacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357(1990).The plaintiff sustained injuries on September 11, 1993.To state a valid cause of action, the plaintiff had to commence his suit on or before September 10, 1995, unless the statute of limitations were tolled for some reason.Because we find no reason, in fact or law, for the statute of limitations to have been tolled, the plaintiff's claims against the town are time barred.

The purpose of the statute of limitations is well settled in our law."There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability ... and (2) to avoid the difficulty in proof and...