Kumah v. Brown

• Decision Date: 22 January 2013
• Docket Number: No. 18777.,18777.
• Citation: 307 Conn. 620,58 A.3d 247
• Parties: William KUMAH et al. v. Leo G. BROWN et al.
• Court: Connecticut Supreme Court

307 Conn. 620

58 A.3d 247

William KUMAH et al.

v.Leo G. BROWN et al.

No. 18777.

Supreme Court of Connecticut.

Argued Sept. 25, 2012.

Decided Jan. 22, 2013.

Aamina Ahmad, assistant town attorney, for the appellant (defendant town of Greenwich).

Kathleen Eldergill, Manchester, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, HARPER and VERTEFEUILLE, Js.^*

PALMER, J.

The defendant town of Greenwich (town) ¹ appeals from the judgment of the Appellate Court, which reversed the judgment of the trial court after that court granted the town's motion to strike the nuisance claims of the plaintiffs, William Kumah and Keziah Kumah.² On appeal, the town contends that the Appellate Court incorrectly concluded that the plaintiffs' claims are not barred by General Statutes § 52–557n (a)(1), ³ which provides in relevant part that no claim for damages arising out of a defective road or bridge may be brought against a municipality except pursuant to General Statutes § 13a–149,⁴ the municipal highway defect statute. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The following relevant factual allegations and procedural history are set forth in the opinion of the Appellate Court. “In the early morning of September 3, 2006, Leo G. Brown was operating a tractor trailer in a westerly direction on Interstate 95 in [the town of] Greenwich.... Brown lost control of the tractor trailer, struck a jersey barrier and bridge railing, and eventually came to a stop in the right and center lanes of [the roadway]. Following the accident, Robert Lucas, a member of the Cos Cob fire police patrol, a volunteer organization operating in conjunction with the Greenwich fire department, responded to the scene. While assisting with the accident cleanup, Lucas parked a ... fire truck diagonally across the center and right lanes ... and also placed safety cones along the road to alert oncoming vehicles of the accident. Shortly thereafter, William Kumah, who also was driving his automobile ... on Interstate 95 in Greenwich, collided with the parked fire truck, sustaining serious physical injuries....

“Subsequently, the plaintiffs commenced this action against the town [among others] based on Lucas' conduct in responding to the accident. In support of their claims, the plaintiffs maintained, inter alia, that the town was negligent and careless in that the fire truck and lane closures were marked inadequately and the positioning of the fire truck constituted a nuisance. On September 19, 2008, the town filed a motion to strike the [plaintiffs'] negligence and nuisance counts.... The town argued that, with respect to [the] negligence counts, the plaintiffs' claims were barred by the doctrineof governmental immunity and [that], with respect to their nuisance counts, the plaintiffs had failed to allege facts sufficient to state a claim. On January 7, 2009, the court ... grant[ed] the town's motion to strike the plaintiffs' negligence counts on the basis of governmental immunity but den[ied] the town's motion to strike the plaintiffs' nuisance counts. Then, on September 4, 2009, after the plaintiff[s] filed an amended complaint, the town renewed its motion to strike the plaintiffs' nuisance counts in light of [the Appellate Court's] decision in Himmelstein v. Windsor [116 Conn.App. 28, 40, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012) ]. ⁵ On January 27, 2010, the court granted the town's renewed motion to strike the plaintiffs' nuisance counts [on the basis of Himmelstein ] and, thereafter, granted the plaintiffs' motion for judgment in favor of the town.” Kumah v. Brown, 127 Conn.App. 254, 256–57, 14 A.3d 1012 (2011).

The plaintiffs appealed to the Appellate Court from the judgment of the trial court, arguing, inter alia, that the trial court improperly had determined that their nuisance claims must be stricken in light of the Appellate Court's decision in Himmelstein.Id., at 262, 14 A.3d 1012. The Appellate Court agreed, concluding that its decision in Himmelstein did not bar the plaintiffs' nuisance claims in the present case because Himmelstein involved materially different factual allegations from those of the present case that render it distinguishable. Id., at 262–63, 14 A.3d 1012. Specifically, the Appellate Court concluded that Himmelstein does not control the plaintiffs' nuisance claims because the plaintiff in Himmelstein, in contrast to the plaintiffs in the present case, had alleged, in support of his nuisance claim, that the defendant municipality was the party responsible for maintaining the road on which the injury occurred, thereby bringing his nuisance claim squarely within the ambit of § 13a–149. See id.

On appeal to this court following our granting of certification,⁶ the town contends that the Appellate Court improperly determined that the plaintiffs' nuisance claims do not fall within the purview of § 13a–149 and, therefore, are not barred by § 52–557n (a)(1), which provides that § 13a–149 shall be the exclusive remedy against a municipality for damages arising out of injuries to person or property caused by a “defective road of bridge....” General Statutes § 52–557n (a)(1). The town maintains that, as a matter of law, the plaintiffs' allegation that William Kumah was injured by an object on or near the traveled portion of a public road automatically triggers the exclusivity provision of § 13a–149, irrespective of whether the town is the party responsible for keeping Interstate 95 in repair. According to the town, there is nothing in the exclusivity language of § 52–557n (a)(1) to suggest that the legislature intended to limit the reach of the provision to municipal roads and bridges. Under the town's reading of § 52–557n (a)(1), all roads and bridges, including state roads and bridges, come within the ambit of the exclusivity provision, so that, even if a municipality creates a nuisance on a road or bridge that the state, rather than the municipality, is bound to keep in repair, an injured plaintiff's sole remedy is an action against the state pursuant to General Statutes § 13a–144, the state highway defect statute. The town further asserts that both this court and the Appellate Court adopted this interpretation of § 52–557n (a)(1) in their respective decisions in Himmelstein. We reject the construction of § 52–557n (a)(1) that the town urges because it leads to the untenable and, we believe, wholly unintended result of relieving a municipality of liability for damages when the municipality creates a public nuisance on a state highway. We also conclude that the town's interpretation was not previously adopted either by this court or by the Appellate Court in Himmelstein.

Before discussing the merits of the town's claim, we set forth certain principles that guide our analysis. “A motion to strike attacks the legal sufficiency of the allegations in a pleading.... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action.... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.... Moreover, [w]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law.... Because a motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court, our review of the court's ruling [on a motion to strike] is plenary.” (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, supra, 304 Conn. at 307, 39 A.3d 1065. In addition, whether § 52–557n (a)(1) relieves the town of liability for damages caused by its creation of a nuisance on a state highway presents a question of statutory interpretation over which our review is plenary.⁷ See, e.g., Considine v. Waterbury, 279 Conn. 830, 836, 905 A.2d 70 (2006).

With these principles in mind, we commence our analysis of § 52–557n (a)(1), which provides in relevant part that a municipality is liable for damages caused by certain acts of negligence by its agents and employees and for any nuisance that the municipality creates, “provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149.” General Statutes § 52–557n (a)(1). This court previously has stated that “§ 52–557n, enacted as part of tort reform in 1986; Public Act 1986, No. 86–338, § 13; was ‘intended, in a general sense, both to codify and to limit municipal liability....’ ” Conway v. Wilton, 238 Conn. 653, 672, 680 A.2d 242 (1996), quoting Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991); see also Grady v. Somers, 294 Conn. 324, 345, 984 A.2d 684 (2009) (“[Section] 52–557n codifies the standards of municipal liability and immunity from suit. The section brings together and revises a large body of pre-existing common law concerning municipal responsibilities.” [Internal quotation marks omitted.] ).

The town maintains that § 52–557n (a)(1) bars the plaintiffs' nuisance claims because the statute expressly provides that § 13a–149 is a plaintiff's exclusive remedy for injuries resulting from a “defective road or bridge,” and William Kumah's injuries are alleged to have been caused by a defective road. In the town's view, the fact that the William Kumah's alleged injuries were sustained on Interstate 95, a state highway—a fact that shields the town from liability under § 13a–149—is irrelevant to our analysis because the language of § 52–557n (a)(1) evinces an intent by the legislature to encompass all roads and...