Priore v. Longo-McLean

• Decision Date: 11 June 2013
• Docket Number: Nos. 33779,33796.,s. 33779
• Citation: 70 A.3d 147,143 Conn.App. 249
• Parties: Raffaele PRIORE, Coadministrator (Estate of Tyler Priore), et al. v. Rose LONGO–McLEAN, Coadministrator (Estate of George Lucas McLean), et al.
• Court: Connecticut Court of Appeals

143 Conn.App. 249

70 A.3d 147

Raffaele PRIORE, Coadministrator (Estate of Tyler Priore), et al.

v.Rose LONGO–McLEAN, Coadministrator (Estate of George Lucas McLean), et al.

Nos. 33779, 33796.

Appellate Court of Connecticut.

Argued March 14, 2013.

Decided June 11, 2013.

Francis J. Drumm III, New Haven, with whom was Anita M. Varunes, for the appellants (named defendant et al.).

Jay T. DonFrancisco, Hartford, for the appellees (apportionment defendant town of Wallingford et al.).

GRUENDEL, SHELDON and DUPONT, Js.

DUPONT, J.

The primary issue in this appeal is whether the liability of the alleged tortfeasors in the underlying action for damages arising out of a motor vehicle accident may be apportioned with a municipality and its employees. The defendants in the underlying action, George A. McLean and Rose Longo–McLean, in their capacity as coadministrators of the estate of George Lucas McLean, and George A. McLean, individually, appeal from the summary judgment rendered by the trial court in favor of the apportionment defendants, the town of Wallingford (town) and various town employees.¹ The trial court determined that the apportionment action was governed by the municipal highway defect statute, General Statutes § 13a–149,² and that, therefore, liability of the defendants could not be apportioned. The defendants claim that the court erred when it (1) construed the facts and allegations in their two similar apportionment complaints as raising a claim exclusively within the scope of § 13a–149, and (2) determined that the apportionment defendants were entitled to summary judgment because it improperly concluded that apportionment was not permitted under that statute. We affirm the judgment of the trial court.

A resolution of these issues requires a brief review of the pleadings filed in this case prior to the filing of the two apportionment complaints, and of the facts alleged in those pleadings. On December 16, 2009, the plaintiffs, Raffaele Priore and Cheryl Priore, both individually and as coadministrators of the estate of their son, Tyler Priore, commenced the underlying action against the defendants. The underlying complaint sought damages arising from a single automobile accident in which Tyler Priore, a passenger in the car, and George Lucas McLean, the sixteen year old driver of the car, were both killed. ³ The underlying complaint alleged that on January 20, 2008, George Lucas McLean lost control of the vehicle while driving and caused the car to crash in the vicinity of 592 Williams Road in Wallingford, and alleged various claims for damages arising from negligence, recklessness, negligent entrustment of a motor vehicle and bystander emotional distress. The underlying complaint does not name the town or any town employees as defendants in that action, and the action has yet to be resolved.

Subsequently, in lieu of filing an answer, the defendants filed two separate apportionment complaints ⁴ against the apportionment defendants in which they sought an apportionment of liability with the town and the six named town employees.⁵ In these apportionment complaints, the defendants alleged acts of negligence by the individual town employees in connection with a town construction project to install a drainage system in the road on which the fatal accident had occurred, and alleged that if the plaintiffs had suffered injuries, damages and losses, it was due to that negligence. They also alleged that the named town employees were negligent in designing and supervising the construction project and failing to warn drivers of its hazards. Further, they claimed that the town was required to indemnify these employees for their negligent conduct, and could be held liable for a proportionate share of any damages awarded. The defendants claimed relief pursuant to General Statutes §§ 52–572h and 52–557n.⁶

On April 26, 2011, the apportionment defendants filed a motion for summary judgment as to both apportionment complaints, claiming that there was no material issue of fact in dispute because the undisputed facts as alleged required application of § 13a–149, the municipal highway defect statute, and apportionment of liability is prohibited in causes of action created by that statute. The defendants objected to the motion, contending that the claims in their two apportionment complaints were not highway defect claims. Following oral argument, the trial court agreed with the apportionment defendants, concluding that the undisputed facts were necessarily considered as a claim governed by § 13a–149, and, as such, liability could not be apportioned. The court therefore granted the apportionment defendants' motion for summary judgment. This appeal followed.⁷

“Our standard of review is well established. Practice Book § 17–49 provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant [a] ... motion for summary judgment is plenary....

“An appellate court's review of a trial court decision is circumscribed by the appropriate standard of review.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bridgeport v. White Eagle's Society of Brotherly Help, Inc., 140 Conn.App. 663, 667–68, 59 A.3d 859 (2013).

I

The defendants first claim that the trial court erred when it concluded that the apportionment complaints were highway defect claims. They contend that the apportionment complaints were brought pursuant to §§ 52–572h and 52–557n, which govern negligence actions against municipalities, and, thus, liability could be apportioned pursuant to General Statutes § 52–102b.⁸They further contend that the apportionment complaints could not properly be considered as highway defect claims because they did not adequately allege facts necessary to construe them as actions governed by § 13a–149. ⁹ We are not persuaded.

The question we must resolve in this case is whether the defendants' apportionment claims are sustainable in light of § 13a–149. The absence of a citation to that statute in the apportionment complaints is not controlling if, as a matter of law, the specific allegations of a pleading are sufficient to invoke § 13a–149. Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001). “[T]he absence of citation to § 13a–149 ... is of no importance, as a complaint may still contain allegations sufficient to invoke that statute.” Himmelstein v. Windsor, 116 Conn.App. 28, 39, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012). Accordingly, although the defendants did not allege that their claims are highway defect claims, § 13a–149 may nonetheless govern the outcome of this dispute.

“Whether 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.... [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.... [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair....

“To fall within the statute ... a person must [simply] be on the highway for some legitimate purpose connected with travel thereon.... Nor does the defect have to be on the actual traveled portion of the highway.... Reasonable latitude is allowed to meet the exigencies of travel.... Furthermore, a highway is defective within the meaning of § 13a–149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” (Citation omitted; internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 394–95, 900 A.2d 82 (2006).

The apportionment complaints specifically allege that “a construction project [resulted] in a narrowing of Williams Road, producing an uneven road surface, permitting the existence of a raised and exposed catch basin and which was left unlit in the area where the motor vehicle accident alleged by the plaintiffs occurred.... The construction project in and around the accident failed to have any signs, cones, barrels, markings, lights or warnings whatsoever that would have alerted drivers of the impending construction area.... On January 20, 2008, George Lucas McLean was driving on Williams Road when he suddenly came upon the unsigned and unmarked construction area, causing him to lose control of his vehicle and collide with a tree causing his death and the death of Tyler Priore.”

These pleadings clearly raise a claim that is properly governed by § 13a–149. The defendants allege that a municipal road was unsafe for public travel because of the condition of...