Machado v. City of Hartford

• Decision Date: 07 July 2009
• Docket Number: No. 18224.,18224.
• Citation: 292 Conn. 364,972 A.2d 724
• Court: Connecticut Supreme Court
• Parties: Heather K. MACHADO v. CITY OF HARTFORD.

972 A.2d 724

292 Conn. 364

Heather K. MACHADO v. CITY OF HARTFORD.

No. 18224.

Supreme Court of Connecticut.

Argued December 4, 2008.

Decided July 7, 2009.

Lori Mizerak, assistant corporation counsel, with whom was Jonathan H. Beamon, assistant corporation counsel, for the appellant (defendant).

Neil Johnson, Hartford, for the appellee (plaintiff).

Richard A. Bieder, Cynthia C. Bott and Joram Hirsch, Bridgeport, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

In this appeal, we consider whether a municipality may be held liable under General Statutes § 13a-149¹ for injuries caused by a highway defect created by the negligence of a third party contractor hired by the municipality to repair the highway. The defendant, the city of Hartford, appeals² from the judgment of the trial court awarding damages to the plaintiff, Heather K. Machado, for injuries and property damage sustained in a car accident caused by a defective roadway at the intersection of Park Street and Hudson Street in Hartford. On appeal, the defendant claims that the trial court improperly concluded that the defendant was liable under § 13a-149 because: (1) the defendant was not the party bound to keep the roadway in repair; and (2) the plaintiff's injuries were caused by the negligence of USA Contractors, Inc. (USA), an independent contractor, and, therefore, any negligence on the part of the defendant was not the sole proximate cause of the plaintiff's injuries. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On the night of October 7, 2006, the plaintiff was driving home from Hartford Hospital, where she was employed as a nurse. As she approached the intersection of Park Street and Hudson Street in Hartford, the plaintiff hit a large depression in the roadway that had developed as a result of road repair work being performed by USA. The collision caused the plaintiff's car to become airborne and land on an exposed manhole cover projecting six to eight inches above the roadway surface. The resulting impact caused significant damage to the plaintiff's car and injuries to her arms and upper body.

The plaintiff brought the present action against the defendant in small claims court, and the defendant thereafter transferred the matter to the regular docket of the Superior Court. The plaintiff subsequently filed a revised complaint alleging that, pursuant to § 13a-149, the defendant was liable for the plaintiff's injuries because the defendant, its employees or agents negligently had failed to: (1) smooth the roadway during construction; (2) warn of the construction; (3) light the construction area; and (4) reroute traffic. The defendant filed an answer and special defense, asserting that USA was the party responsible for the defective road, and that USA was a proper party to the action and had to defend and indemnify the defendant.³ Despite submitting this special defense, however, the defendant did not join USA as a third party defendant on the basis of its belief that it was precluded from doing so by this court's decision in Smith v. New Haven, 258 Conn. 56, 60, 779 A.2d 104 (2001).

The case subsequently was tried to the court on December 19, 2007. Following the plaintiff's submission of evidence, the defendant moved to dismiss the case on the grounds, inter alia, that: (1) the plaintiff was required to prove that the defendant was the party bound to keep the construction site in repair in order to proceed under § 13a-149, and she had neither alleged that that was the case in her complaint nor presented any evidence to that effect at trial; and (2) the plaintiff was contributorily negligent for failing to avoid the depression in the roadway and, therefore, the defendant's negligence could not have been the sole proximate cause of the plaintiff's injuries. The trial court denied the defendant's motion, taking judicial notice of the fact that the defendant owned the streets and was charged with their repair and maintenance. The court also concluded that, unless the defendant's evidence was to the contrary, the defendant was solely responsible for the plaintiff's injuries because "the negligence was committed by [USA], which is an agent of the [defendant]."

The defendant subsequently presented its case, primarily consisting of the testimony of James Paggioli, a survey supervisor employed by the defendant, who testified that the repair work had been performed by USA, that USA had had control over the manner and means of performing that work, and that, pursuant to the construction contract between USA and the defendant, USA had the duty to protect the public and maintain a safe work site during the construction process. Thereafter, the trial court rendered an oral decision in favor of the plaintiff, concluding that the roadway was defective, the defendant had actual notice of that defect,⁴ the defendant had failed to remedy the defect in a timely manner by placing additional warning signs or lighting, and the defendant's negligence was the sole proximate cause of the plaintiff's injuries. More specifically, with regard to the sole proximate cause issue, the court concluded that the plaintiff had not been negligent in any way and that, although USA's negligence caused the creation of the defective roadway, the defendant was 100 percent liable for the plaintiff's injuries because USA was the defendant's agent, and "its negligence is imputed to the [defendant]." This appeal followed.

On appeal, the defendant claims that the trial court improperly took judicial notice that the defendant was the party bound to keep the defective roadway in repair and that, contrary to the trial court's conclusion, that obligation had been delegated by contract to USA during the construction process. The defendant also claims that the trial court improperly determined that the defendant's negligence was the sole proximate cause of the plaintiff's injuries on the basis of its improper conclusion that USA was the defendant's agent rather than an independent contractor for whose negligence the defendant was not responsible. Following oral argument before this court, we requested supplemental briefing from the parties⁵ on the following issues: "(1) Does General Statutes § 13a-99⁶ impose a [nondelegable] duty upon a municipality to maintain the roadways within its city limits, such that it is the party bound to keep the roadways in question under repair? (2) If the answer to the first question is yes, does the sole proximate cause requirement under § 13a-149, namely, that `the defect must have been the sole proximate cause' of the plaintiff's injuries, preclude municipal liability when a third party to whom the municipality delegated the performance of its duty to maintain its roadways negligently created the defect, but when the defect caused the accident in the absence of any other intervening factors?" (Emphasis in original.) Having considered the parties' responses to these questions, we now conclude that the trial court properly determined that the defendant was the party bound to maintain the roads under § 13a-149 because the defendant had a nondelegable duty to maintain those roads pursuant to § 13a-99. In addition, although for different reasons than did the trial court, we further conclude that the defect in the present case was the sole proximate cause of the plaintiff's injuries. Accordingly, we affirm the judgment of the trial court.

I

The defendant first claims that the trial court improperly took judicial notice that the defendant was "the party bound to keep [the defective road] in repair" under § 13a-149 because the contract between the defendant and USA placed that obligation on USA for the duration of the construction process.⁷ The defendant concedes that this claim was not preserved at trial, but nevertheless seeks review under the plain error doctrine.⁸ We conclude that there was no plain error because the defendant had a nondelegable duty to maintain the road in a reasonably safe condition.

It is well established that, "[u]nder the general rule, an employer is not liable for the negligence of its independent contractors. Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915); W. Prosser & W. Keeton, Torts (5th Ed.1984) § 71, p. 509; 41 Am.Jur.2d, Independent Contractors § 29 (1995). One exception to this general rule, however, is [when] the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 256-57, 765 A.2d 505 (2001). Nondelegable duties generally are imposed, most often by statute, contract or common law, in recognition of "the policy judgment that certain obligations are of such importance that employers should not be able to escape liability merely by hiring others to perform them." 41 Am.Jur.2d, Independent Contractors § 43, p. 518 (2005). In such circumstances, "the nondelegable duty doctrine means that [the employer] may contract out the performance of [its] nondelegable duty, but may not contract out [its] ultimate legal responsibility." (Emphasis in original.) Gazo v. Stamford, supra, at 255, 765 A.2d 505. Thus, the non-delegable duty doctrine creates a form of vicarious liability, whereby the employer remains vicariously liable for the negligence of its independent contractors in their performance of the employer's nondelegable duty. Id., at 255-56, 765 A.2d 505.

With respect to the duty to maintain and repair public highways, it has long been recognized that "[t]he establishment and maintenance of public highways is a function of the state.... The state may, however, impose the duty of establishing or maintaining highways upon any agency which it chooses." (Citations omitted.) DeCapua v. New...