Montefusco v. Town of Monroe

• Decision Date: 07 June 2016
• Docket Number: CV156048658S
• Court: Connecticut Superior Court
• Parties: Richard Montefusco v. Town of Monroe et al

Richard Montefusco
v.
Town of Monroe et al

No. CV156048658S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

June 7, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Dale W. Radcliffe, J.

FACTS

The Plaintiff, Richard Montefusco, brings this claim against the Town of Monroe, following an incident which occurred on January 29, 2015, on Bagburn Road, near its intersection with Old Zoar Road.

At approximately 6:09 a.m., the Plaintiff was operating a motor vehicle northbound on Bagburn Road, when he struck a large rotted tree which had fallen across the road, blocking both lanes of travel.

As a consequence of the accident, Richard Montefusco claims to have sustained personal injuries and damages.

The allegations against the Town of Monroe are pled in three counts. Count One claims that the highway, Bagburn Road, was defective, and seeks recovery pursuant to the provisions of Section 13a-149^[1] of the General Statutes. Counts Two and Three are brought in negligence and nuisance respectively, and are pursued pursuant to the applicable provisions of S. 52-557n^[2] of the General Statutes.

In Count Two, the Plaintiff claims that the Monroe Tree Warden was under a duty to identify and remove trees which were damaged, and constituted a hazard. He maintains that the tree which fell across the highway had been tagged by the tree warden and was slated for removal due to its condition, prior to January 29, 2015.

The Plaintiff alleges that the failure of the Town of Monroe to remove the tree was negligent, and further that the failure involved a breach of a duty which was ministerial, and did not involve the exercise of judgment or discretion. He argues the Section 405-7 of the Monroe Town Code, an ordinance dealing with blighted property, places an affirmative obligation on the Town.

In paragraph 8 of Count Two, the Plaintiff cites provisions of the Monroe Town Code. Section 405-7 reads:

Any building or structure or parcel of land, proximate to other residential properties, commercial structures, or road in a state of disrepair, dilapidation or abandonment

A. " State of disrepair or dilapidation" shall mean a condition causing unsafe or unsanitary conditions and a nuisance to the general public and shall be evidenced by one or more of the following conditions

(8) Felled or damaged trees that may pose a significant safety risk

The Plaintiff contends that the tree which fell across Bagburn Road is not a " highway defect, " and that a viable cause of action exists, consisted with S. 52-557n, sounding in negligence.

In Count Three, Richard Montefusco claims that the rotted and dangerous tree constituted a nuisance.

MOTION TO STRIKE--STANDARD OF REVIEW

The purpose of a motion to strike is to test the legal sufficiency of a pleading. Faulkner v. United Technologies, 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book Section 10-39. The motion assumes all well pleaded facts to be true, and, if the facts as deemed proven would support a claim or defense, the motion to strike must be denied. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2000); Waters v. Autuori, 236 Conn. 820, 825-26, 676 A.2d 357 (1996). If facts, as deemed proven because properly pled in a complaint would support a cause of action, then the motion to strike must be denied. Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).

In ruling upon a motion to strike, the court is limited to the facts alleged in the pleading. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982). The allegations must be read broadly, rather than in a narrow or hyper technical manner. Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). All facts must be construed in the manner most favorable to sustaining the complaint. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). Although all facts as pled are deemed proven, conclusions of law are not. Maloney v. Conroy, 208 Conn. 392, 394, 545 A.2d 1059 (1998).

TREE ON HIGHWAY MEETING DEFINITION OF " HIGHWAY DEFECT" NOT FATAL TO PLAINTIFF'S NEGLIGENCE CLAIM

The Plaintiff maintains that the rotted tree, which he alleges blocked both lanes of travel on Bagburn Road, (par. 5) was not a " highway defect" at the time of the January 31, 2013 accident.

This claim is not well taken and ignores Connecticut case law spanning nearly one hundred fifty years.

Our courts have consistently defined a highway defect as an object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for purposes of travel, or which, from its nature and position, would likely produce that result. Hewison v. New Haven, 34 Conn. 136, 142 (1867). This definition has withstood the passage of time, and judicial scrutiny, since Hewison was decided. Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991); Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979); Pramuka v. Town of Cromwell, 160 Conn.App. 863, 870, 127 A.3d 320 (2015); Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 812-13, 92 A.3d 1016 (2014); Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 158, 7 A.3d 414 (2010).

It cannot be creditably argued, that a large rotted tree which has fallen across a municipal...