Cuozzo v. Town of Orange
Decision Date | 12 December 2017 |
Docket Number | AC 39097 |
Citation | 178 Conn.App. 647,176 A.3d 586 |
Court | Connecticut Court of Appeals |
Parties | Armand CUOZZO v. TOWN OF ORANGE |
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.
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
(Internal quotation marks omitted.) Id., at 151–53, 82 A.3d 647. 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., at 164–65, 82 A.3d 647. 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 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 demonstrated that the defect was in the driveway of the Sam's Club, over which it had no possession, ownership, 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 complaint, the plaintiff's deposition and the defendant's submissions, the evidence establishes that there is no factual dispute that the alleged defect was in the driveway 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...
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