Pramuka v. Cromwell ( 2015 )


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    ELISSA PRAMUKA v. TOWN OF
    CROMWELL ET AL.
    (AC 36688)
    Alvord, Mullins and Schaller, Js.
    Argued April 7—officially released November 3, 2015
    (Appeal from Superior Court, judicial district of
    Middlesex, Aurigemma, J.)
    Richard S. Sheeley, with whom, on the brief, were
    Kelly S. Therrien and Jason J. Lewellyn, for the appel-
    lant (plaintiff).
    Joseph M. Busher, Jr., for the appellees (defendants).
    Opinion
    MULLINS, J. The plaintiff, Elissa Pramuka, appeals
    from the summary judgment of the trial court rendered
    in favor of the defendants, the town of Cromwell (town)
    and the Board of Education of the Town of Cromwell
    (board), in an action brought pursuant to General Stat-
    utes § 13a-149, the municipal highway defect statute.1
    On appeal, the plaintiff claims that the court erred in
    rendering summary judgment because there was a ques-
    tion of material fact as to whether the paved walkway
    whereon the plaintiff fell was within the purview of
    § 13a-149.2 On the face of the record before us, we agree
    that the court improperly rendered summary judgment
    on the ground that the walkway, as a matter of law,
    was not within the purview of § 13a-149. Accordingly,
    we reverse the judgment of the trial court.
    The following facts inform our review. In her
    amended complaint,3 the plaintiff alleged that she sus-
    tained injuries on February 17, 2011, at approximately
    8:30 a.m., when she tripped and fell while walking along
    an uneven and cracked portion of a walkway that went
    from the designated parking area to the entrance of
    Edna C. Stevens Elementary School in Cromwell
    (school). The plaintiff alleged that the defendants
    breached their duty to keep the walkway in repair pur-
    suant to § 13a-149.4
    The defendants filed a motion for summary judgment
    on the ground of governmental immunity, asserting, in
    part, that the plaintiff did not come within any recog-
    nized exception to the doctrine.5 The defendants sub-
    mitted, inter alia, a diagram of the area and an affidavit
    from Michael Koshinsky, the head custodian at the
    school, who averred, in part, that the walkway does
    not extend to the public streets.
    The plaintiff filed an objection to the defendants’
    motion, arguing in relevant part that ‘‘[t]he issue of
    whether the walkway on which the plaintiff was travel-
    ing at the time of her fall is within the physical bound-
    aries of a ‘defective road or bridge’ under . . . §13a-
    149 is a genuine issue of material fact to be determined
    by the trier of fact . . . .’’ The plaintiff contended that
    she ‘‘was traveling on the paved sidewalk that leads
    from the school parking lot to the entrance of the . . .
    school and abutted a roadway from the town street to
    the school entrance. . . . At the time of the injury, the
    plaintiff was making use of the walkway to bring her
    two grandchildren to the school entrance. . . . Here,
    it is undisputed that the plaintiff was on the sidewalk
    . . . [and that] she was on the ‘traveled path,’ the path
    that the public used to access the school. In addition,
    the pathway is adjacent to the roadway. The roadway
    through the public school property connects Orchard
    Road and Court Street, both public streets in the
    [town].’’ The plaintiff also submitted an affidavit in sup-
    port of her objection, several photographs, and the same
    diagram of the area that the defendants had submitted
    with their motion for summary judgment. A copy of the
    diagram is appended to this opinion as an appendix.
    The diagram depicts south at the top, and north at
    the bottom. The school is in the center of the diagram,
    with Court Street at the front of the school, running
    west to east, and with Orchard Road on the right side
    of the property, running south to north. Between Court
    Street and the school building is a road or driveway
    entrance (driveway)6 that runs through the property
    and connects to Orchard Road. Along this driveway,
    there are entrances to four parking areas; from left to
    right, they are denoted as D, C, and B, all of which are
    either directly in front of or near the front of the school,
    and A, which abuts Orchard Road and is to the right
    of the school.
    It appears that one could enter the driveway from
    Court Street and drive through to Orchard Road, or
    vice versa, without entering any of the parking areas.
    Near Orchard Road, to the right side of parking lot A,
    which runs from south to north, there is a fence that
    appears to separate parking lot A from Orchard Road,
    but there is a driveway on either end of the fence that
    leads from Orchard Road onto the school property.
    Specifically, the southernmost driveway enters directly
    into parking lot A and proceeds through that parking
    lot, and the northernmost driveway connects to Court
    Street and the other parking areas. The northernmost
    driveway also allows for entry into or exit from parking
    lot A. Accordingly, it appears that one could drive into
    parking lot A from its southern entrance on Orchard
    Road, proceed through the entirety of that parking lot,
    and either turn left onto a driveway to exit the parking
    lot’s northern driveway or turn right to proceed along
    the driveway toward the other parking areas at the front
    of the school and to Court Street. The record does
    not reveal whether there are any barriers to traveling
    through parking lot A or through the driveway.
    The walkway on which the plaintiff alleges that she
    was injured runs adjacent to the east side, or left side,
    of parking lot A, running south to north, but then turns
    and runs along the driveway heading east toward the
    school. A fence also runs alongside the walkway, on
    the opposite side of the parking lot and the driveway,
    abutting a grassy area.
    On February 28, 2014, the court granted the defen-
    dants’ motion for summary judgment on the ground
    that the area on which the plaintiff fell was not covered
    by § 13a-149. Specifically, it held: ‘‘As a matter of law,
    a jury could not find that the walkway upon which the
    plaintiff allegedly fell had any relationship to the public
    roadway so as to bring it within the purview of § 13a-
    149.’’ The plaintiff filed a motion to reargue, which the
    court denied. This appeal followed. Additional facts will
    be set forth as necessary.
    The plaintiff claims that the court erred in rendering
    summary judgment because there was a question of
    material fact as to whether the paved walkway whereon
    the plaintiff alleged that she had fallen was within the
    purview of § 13a-149. She contends that the walkway
    runs along a driveway that connects two public roads,
    and therefore, whether that driveway and the walkway
    alongside it are ‘‘in such proximity to the highway as
    to be considered in, upon or near the traveled path’’ is
    a factual question for the jury. On the basis of the
    record before us, we conclude that the court improperly
    rendered summary judgment.
    We begin with our well established standard of
    review. ‘‘Summary judgment shall be rendered forth-
    with if the pleadings, affidavits and other proof submit-
    ted 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. . . . The scope of our
    appellate review depends upon the proper characteriza-
    tion of the rulings made by the trial court. . . . When
    . . . the trial court draws conclusions of law, our
    review is plenary and we must decide whether its con-
    clusions are legally and logically correct and find sup-
    port in the facts that appear in the record.’’ (Internal
    quotation marks omitted.) Vendrella v. Astriab Family
    Ltd. Partnership, 
    311 Conn. 301
    , 313, 
    87 A.3d 546
    (2014).
    ‘‘Historically . . . municipalities enjoyed immunity
    for injuries caused by defective highways under com-
    mon law, due in good part to the miles of streets and
    highways under their control. . . . The [municipal]
    highway defect statute, § 13a-149 is a legislative excep-
    tion to the immunity that municipalities enjoyed at com-
    mon law and, as such, must be strictly construed.’’7
    (Citation omitted; internal quotation marks omitted.)
    Read v. Plymouth, 
    110 Conn. App. 657
    , 663, 
    955 A.2d 1255
    , cert. denied, 
    289 Conn. 955
    , 
    961 A.2d 421
    (2008).
    ‘‘Section 13a-149 provides in relevant part: Any per-
    son injured in person or property by means of a defec-
    tive road or bridge may recover damages from the party
    bound to keep it in repair. . . . [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. . . . Furthermore, a highway is defective
    within the meaning of § 13a-149 when it is not reason-
    ably 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.’’ (Citations omitted; footnotes omitted; internal
    quotation marks omitted.) Escourse v. 100 Taylor Ave-
    nue, LLC, 
    150 Conn. App. 805
    , 812–13, 
    92 A.3d 1016
    (2014).
    In defining highway for purposes of § 13a-149, we
    recently explained: ‘‘According to General Statutes § 14-
    1 [40], a highway includes any state or other public
    highway, road, street, avenue, alley, driveway, parkway
    or place, under the control of the state or any political
    subdivision of the state, dedicated, appropriated or
    opened to public travel or other use . . . . Our
    Supreme Court has stated: The plain meaning of the
    word highway is [a] main road or thoroughfare; hence
    a road or way open to the use of the public. . . . It is
    thus that this court has customarily understood the
    word. We have stated, for example, that the essential
    feature of a highway is that every traveler has an equal
    right in it with every other traveler. . . . [T]he term
    highway is ordinarily used in contradistinction to a pri-
    vate way, over which only a limited number of persons
    have the right to pass. . . . Certainly, the distinctive
    feature of a highway for which a claim may arise under
    § 13a-149 is that it is open to public use. . . . For an
    area to be open to public use it does not have to be open
    to everybody all the time. . . . The essential feature of
    a public use is that it is not confined to privileged
    individuals or groups whose fitness or eligibility is
    gauged by some predetermined criteria, but is open to
    the indefinite public. It is the indefiniteness or
    unrestricted quality of potential users that gives a use its
    public character.’’ (Citations omitted; internal quotation
    marks omitted.) Cuozzo v. Orange, 
    147 Conn. App. 148
    ,
    158, 
    82 A.3d 647
    (2013), aff’d, 
    315 Conn. 606
    , 
    109 A.3d 903
    (2015); see also Read v. 
    Plymouth, supra
    , 110 Conn.
    App. 665.
    Furthermore, ‘‘[t]he duty of the municipality to use
    reasonable care for the reasonably prudent traveler
    . . . extends to pedestrian travel as well as to vehicular
    traffic . . . . Bellman v. West Hartford, 
    96 Conn. App. 387
    , 394, 
    900 A.2d 82
    (2006); see also Himmelstein v.
    Windsor, 
    116 Conn. App. 28
    , 37, 
    974 A.2d 820
    (2009)
    (to fall within the ambit of § 13a-149, a person must
    simply be on the highway for a legitimate purpose con-
    nected with travel and the defect need not be on the
    actual traveled portion of the highway), aff’d, 
    304 Conn. 298
    , 
    39 A.3d 1065
    (2012). Our Supreme Court has con-
    strued the word road or highway, as used in § 13a-149,
    to include the shoulders of the roadway as well as
    sidewalks. Bellman v. West 
    Hartford, supra
    , 395 ([t]he
    term sidewalk is meant to apply to those areas that the
    public uses for travel . . .); Himmelstein v. 
    Windsor, supra
    , 
    304 Conn. 309
    (term highway also extends to
    [t]he shoulders of a highway, [which] while not
    designed for ordinary . . . traffic, are intended for use
    when need arises . . .).’’ (Internal quotation marks
    omitted.) Escourse v. 100 Taylor Avenue, 
    LLC, supra
    ,
    
    150 Conn. App. 813
    –14.
    ‘‘Whether a parking lot is included or excluded from
    coverage under the defective highway statute, however,
    is a question for the fact finder.’’ Bellman v. West Hart-
    
    ford, supra
    , 
    96 Conn. App. 395
    , citing Serrano v. Burns,
    
    248 Conn. 419
    , 427–29, 
    727 A.2d 1276
    (1999). ‘‘The Con-
    necticut Supreme Court has declined to decide whether
    a parking lot is or is not a ‘road’ as a matter of law
    for purposes of the state’s defective highway laws, but
    instead has focused the analysis on the location of the
    defect to determine whether an injury occurring in a
    parking lot is covered under the statute. See Serrano
    v. Burns, [supra, 427]; Baker v. Ives, 
    162 Conn. 295
    ,
    299–301, 
    294 A.2d 290
    (1972).’’ Klein v. Norwalk, 305
    Fed. Appx. 745, 746–47 (2d Cir. 2009) (applying Con-
    necticut law in affirming judgment of District Court
    dismissing plaintiff’s negligence claim for lack of sub-
    ject matter jurisdiction on ground that municipal park-
    ing lot where plaintiff was injured is covered by § 13a-
    149 and plaintiff failed to comply with notice
    requirements).
    Additionally, ‘‘[o]ur Supreme Court has recognized
    that, when the state [or municipal subdivision] either
    invites or reasonably should expect the public to use
    a particular area that is not directly in the roadway but
    that is a necessary incident to travel on the roadway, a
    defective condition therein may give rise to a cognizable
    action under the [applicable highway defect] statute.
    . . . [D]efective conditions located near the roadway,
    but in areas unintended for travel, are not highway
    defects within the ambit of the highway defect statute.’’
    (Citation omitted; emphasis in original; internal quota-
    tion marks omitted.) Cuozzo v. 
    Orange, supra
    , 
    147 Conn. App. 159
    .
    ‘‘[W]hether there is a defect in such proximity to the
    highway so as to be considered in, upon, or near the
    traveled path of the highway must be determined on a
    case-by-case basis after a proper analysis of its own
    particular circumstances, and is generally a question of
    fact . . . .’’ (Internal quotation marks omitted.) Cuozzo
    v. Orange, 
    315 Conn. 606
    , 617–18, 
    109 A.3d 903
    (2015).
    In the present case, the question decided by the trial
    court in ruling on the defendant’s motion for summary
    judgment was whether the situs of the plaintiff’s fall
    was upon or near the traveled path of a highway as
    that term has been construed in applying § 13a-149. The
    court held that it was not. The plaintiff contends that the
    court improperly rendered summary judgment because
    there is a material issue of fact as to whether the walk-
    way was upon or near the traveled path. She argues
    that she was bringing her grandchildren to school and
    that she had to take the walkway, which runs alongside
    parking lot A, which is where she alleges the defendants
    directed and invited her to park. She further argues that
    the walkway also runs alongside part of the driveway,
    which runs from Orchard Road to Court Street, before
    she could get to the school building, which was her
    destination. She contends that whether the walkway is
    ‘‘upon or near the traveled path . . . is a question of
    fact for the jury . . . .’’ The defendants argue that the
    walkway was not part of the public street, namely, Court
    Street or Orchard Road, that it did not originate at the
    public street, that it is not used in connection with the
    public street, and that, therefore, the court properly
    determined, as a matter of law, that the walkway is not
    covered under § 13a-149.8 On the basis of the record
    before us, we conclude that there remain issues of mate-
    rial fact as to whether the walkway is upon or near the
    traveled path for purposes of § 13a-149 because the
    record does not contain enough information to deter-
    mine whether the driveway or the parking lot is part
    of the public road.
    In Baker v. 
    Ives, supra
    , 
    162 Conn. 295
    , the plaintiff
    had been injured by an alleged defect in a grassy area,
    which was used for parking, that was thirty-two feet
    from the edge of the paved highway, within the state
    right-of-way, but not within the traveled path of the
    highway. 
    Id., 297. The
    plaintiff brought an action under
    the state highway defect statute, General Statutes § 13a-
    144, and the jury returned a verdict in her favor. 
    Id., 296. The
    state filed a motion to set aside the verdict,
    and the trial court denied that motion. On appeal, the
    Supreme Court affirmed the trial court’s ruling, con-
    cluding that it was proper for the jury to have found
    that the plaintiff’s injuries had been caused by a highway
    defect within the meaning of § 13a-144. The court noted
    that, ‘‘it was reasonably to be expected that after park-
    ing her car the plaintiff would cross the dirt and grass
    area to reach the sidewalk. The fact that the defective
    condition was in an area which an occupant of an auto-
    mobile was likely, and in fact encouraged, to use [for
    purposes of parking] is an important consideration.’’
    
    Id., 301–302. The
    court concluded that, in addition to
    the fact that the plaintiff had fallen in an area ‘‘within
    the boundaries of the state right-of-way line . . . the
    proximity of the defect to the paved portion of the
    highway in conjunction with the fact that the locus of
    the fall was in an area where occupants of vehicles
    were invited by the state to park their cars for the
    purpose of walking from their cars to the stores in the
    vicinity warrant[ed] the conclusion that [the] defect
    was in, upon, or near the traveled path so as to obstruct
    or hinder one in the use of the road for the purpose
    of traveling thereon . . . .’’ (Citation omitted; internal
    quotation marks omitted.) 
    Id., 302 n.3.
    The court also
    emphasized that ‘‘[w]hether there is a defect in such
    proximity to the highway so as to be considered ‘in,
    upon, or near the traveled path’ of the highway must
    be determined on a case-by-case basis after a proper
    analysis of its own particular circumstances, and is
    generally a question of fact for the jury, which will not
    be disturbed by this court unless the conclusion is one
    which could not be reasonably reached by the trier.’’
    
    Id., 300. In
    the present case, the plaintiff alleges that she was
    directed to park in parking lot A, which is adjacent to
    Orchard Road and open to Orchard Road by means of
    two driveways, in order to enter the school building to
    drop off her grandchildren, who attended the school.
    In order to get from parking lot A to the school, she
    had to walk on the walkway. Although the walkway
    does not abut Orchard Road, it appears to abut the
    driveway that runs from Orchard Road to Court Street,
    which, pursuant to § 14-1 (40) could be part of the public
    highway,9 depending upon the nature of the driveway. It
    also appears that the southernmost driveway on
    Orchard Road proceeds through the parking lot and
    allows a driver to either take a left to go toward Orchard
    Road and to exit the school property or to go right to
    proceed to the other parking areas and to Court Street.
    If either of these driveways reasonably could be consid-
    ered public driveways, then the walkway that abuts
    them reasonably could be considered on or near the
    traveled path.
    Additionally, the parking lot appears to be adjacent
    to Orchard Road and open to that road by means of
    the two driveways previously discussed. The plaintiff
    alleges that she was invited and directed to park there
    by the school. See Baker v. 
    Ives, supra
    , 
    162 Conn. 301
    –
    302 (injury caused in parking area on state right-of-
    way, where state directed and invited public to park,
    reasonably could be considered to have happened on
    or near traveled path for purposes of state highway
    defect statute). After viewing the record before the trial
    court in this case, we conclude that there simply is not
    enough information in the record to determine whether
    the walkway was upon or near the traveled path, and,
    in fact, this may be a question that can be answered
    only after all of the evidence has been presented to
    the jury.
    Our conclusion is also supported by Cuozzo v.
    
    Orange, supra
    , 
    315 Conn. 606
    . In Cuozzo, the plaintiff
    alleged that he had been a business invitee on certain
    property located at 2 Boston Post Road in Orange. 
    Id., 609. This
    property allegedly was owned and controlled
    by the town, but contained private retail stores. 
    Id. The property
    abutted Meloy Road, which was a public
    highway, and allegedly was connected to Meloy Road
    by a driveway, which also was owned by the town. 
    Id. The plaintiff
    alleged that his vehicle hit a pothole in the
    driveway, causing him to suffer personal injury and
    damages. 
    Id., 610. The
    plaintiff brought his claim pursu-
    ant to General Statutes § 52-557n, rather than § 13a-
    149. 
    Id. The town
    filed a motion to dismiss for lack of
    sufficient statutory notice, claiming that § 13a-149 was
    the exclusive remedy because the plaintiff was alleging
    a municipal highway defect. 
    Id. The plaintiff
    disagreed,
    asserting that the driveway was a private way and not
    part of the public road. 
    Id., 611. The
    trial court granted
    the defendant’s motion to dismiss, holding that, ‘‘based
    on the plaintiff’s own allegations, the driveway where
    the alleged accident occurred was on property owned
    by the defendant town, connecting a public road to
    another town owned property. Based on these claims,
    it is reasonable to anticipate that the public would make
    use of the driveway. As a matter of law, therefore, the
    facts alleged in the plaintiff’s complaint amount to a
    highway defect, and necessarily invoke . . . § 13a-149
    as the exclusive remedy.’’ (Internal quotation marks
    omitted.) 
    Id., 612. On
    appeal, we reversed the trial court’s judgment,
    opining that ‘‘[a]lthough common sense assumptions
    regarding certain retail outlets might appear to dictate
    that the driveway at issue, connecting a municipal high-
    way to a shopping center on municipally owned prop-
    erty, typically is open for public travel generally, we
    must confine our analysis to the facts in the record
    and interpret them in the light most favorable to the
    plaintiff’s cause of action. Here, the driveway leads to
    a shopping center with private retail outlets; it does not
    lead to a municipal building that one may reasonably
    anticipate is open to all, such as a town hall or a school.
    Nothing is known about the defendant’s agreement with
    these retail outlets regarding the use of the driveway
    or the parking area to which it leads. Not every driveway
    that leads to and from a shopping center welcomes all
    travelers; a myriad of restrictions of use may limit travel
    to certain persons, certain types of use or certain types
    of vehicles.’’ Cuozzo v. 
    Orange, supra
    , 
    147 Conn. App. 163
    –64. Thus, we concluded, ‘‘the facts, as alleged in
    the complaint and found in the affidavits submitted by
    the parties, [were] insufficient to support the necessary
    determination that the public would normally or reason-
    ably be expected to make use of the . . . driveway
    in the ordinary course of travel.’’10 (Internal quotation
    marks omitted.) 
    Id., 162. The
    Supreme Court, after granting the defendant’s
    petition for certification to appeal, affirmed our judg-
    ment, concluding that ‘‘a factual dispute remains as to
    whether the driveway is indeed public, thereby invoking
    § 13a-149 and its procedural requirements, or whether
    it is a private thoroughfare on which the public is neither
    encouraged nor anticipated to traverse . . . in which
    case § 52-557n is the governing statute.’’ (Citations omit-
    ted.) Cuozzo v. 
    Orange, supra
    , 
    315 Conn. 617
    .
    In the present case, the parking lot and the drive-
    way(s) are on the property of a public school. Whether
    they are open to the public or contain sufficient restric-
    tions that would limit their public availability cannot
    be determined on the basis of the record submitted to
    the trial court, and, in fact, may be questions more
    appropriately answered by a jury after the presentation
    of evidence. Accordingly, we conclude that there
    remain material issues of fact and that the court, there-
    fore, improperly rendered summary judgment.
    The judgment is reversed and the case is remanded
    with direction to deny the defendants’ motion for sum-
    mary judgment and for further proceedings according
    to law.
    In this opinion the other judges concurred.
    APPENDIX
    1
    General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
    in person or property by means of a defective road or bridge may recover
    damages from the party bound to keep it in repair. . . . No action for
    any such injury shall be maintained against any town, city, corporation or
    borough, unless written notice of such injury and a general description of
    the same, and of the cause thereof and of the time and place of its occurrence,
    shall, within ninety days thereafter be given to a selectman or the clerk of
    such town, or to the clerk of such city or borough, or to the secretary or
    treasurer of such corporation. . . . No notice given under the provisions
    of this section shall be held invalid or insufficient by reason of an inaccuracy
    in describing the injury or in stating the time, place or cause of its occurrence,
    if it appears that there was no intention to mislead or that such town, city,
    corporation or borough was not in fact misled thereby.’’
    2
    Because we agree with this claim and reverse the judgment of the trial
    court, we need not recite nor address the plaintiff’s additional claims.
    3
    The plaintiff’s amended complaint was brought in two counts pursuant
    to § 13a-149, one against the town and one against the board.
    4
    ‘‘The statutory provisions of § 13a-149 have two components that must
    be met in order to trigger its application: (1) the plaintiff must have sustained
    an injury by means of a defective road or bridge and (2) the party whom
    the plaintiff is suing must be the party bound to keep [the location where
    the injury was sustained] in repair.’’ (Internal quotation marks omitted.)
    Novicki v. New Haven, 
    47 Conn. App. 734
    , 739–40, 
    709 A.2d 2
    (1998). ‘‘Owner-
    ship of the property does not establish liability under § 13a-149. . . . Rather,
    it is the governmental entity charged with the duty . . . to keep [the prop-
    erty] in repair . . . or the party bound to keep [the property] in repair . . .
    on which the [statute] impose[s] liability under certain circumstances.’’
    (Citations omitted; internal quotation marks omitted.) 
    Id., 742. 5
         The defendants also asserted that the town is not the party bound to
    maintain and repair the walkway. The court, however, found that this ground
    ‘‘may present an issue of fact.’’ It further determined that this issue was not
    material to its ruling because the walkway was not part of the ‘‘road’’ as
    that term is used in § 13a-149.
    6
    The plaintiff refers to this road or driveway as a roadway or a throughway.
    On the basis of the record before us, it is unclear exactly what the proper
    term should be for this area. For convenience, we refer to it as a driveway.
    7
    Our Supreme Court has explained: ‘‘In interpreting [the state highway
    defect statute, General Statutes § 13a-144] we have on many occasions
    looked to and applied the rationale in cases involving statutory actions
    against municipalities under . . . § 13a-149 since there is no material differ-
    ence in the obligation imposed on the [commissioner] by § 13a-144 and that
    imposed on municipalities by § 13a-149. Donnelly v. Ives, 
    159 Conn. 163
    ,
    167, 
    268 A.2d 406
    (1970); see also Smith v. New Haven, 
    258 Conn. 56
    , 64
    n.6, 
    779 A.2d 104
    (2001) (noting that case law interpreting §§ 13a-144 and 13a-
    149 can be applied interchangeably).’’ (Internal quotation marks omitted.)
    McIntosh v. Sullivan, 
    274 Conn. 262
    , 266 n.4, 
    875 A.2d 459
    (2005).
    8
    The defendants argue, in part: ‘‘The plaintiff was not a traveler making
    passage through an area. She had pulled off the public street and had parked
    her car at her destination in a parking lot. By definition, a parking lot is
    not properly a throughway; it is a destination. One does not properly travel
    through a parking lot. Parking is not traveling. A parking lot user is not a
    ‘traveler’ making passage through a public road.’’ For the defendants’ posi-
    tion to be an accurate statement of the law, any person who parked his or
    her vehicle in a parking space on the street or in a parking lot and then
    proceeded to walk on the public sidewalk to a building down the road would
    not be walking on or near the traveled path because he or she would have
    reached the destination of the parking area. Clearly, this is not a proper
    interpretation of our law. See Ferreira v. Pringle, 
    255 Conn. 330
    , 344, 
    766 A.2d 400
    (2001) (‘‘To hold that a defect . . . must exist in the traveled
    portion of the highway would run counter to our decisions and lead to
    results bordering on the ridiculous. . . . If in the use of the traveled portion
    of the highway and, as incidental thereto, the use of the shoulders for the
    purposes for which they are there, a condition exists which makes travel not
    reasonably safe for the public, the highway is defective.’’ [Internal quotation
    marks omitted.]).
    9
    See footnote 7 of this opinion.
    10
    We also explained: ‘‘The concept of what constitutes a ‘road or bridge’
    under §§ 13a-144 and 13a-149 has expanded over the years such that clarity
    is now somewhat lacking. Now, of course, a sidewalk adjacent to a road is
    a road, as are areas near a highway that the traveling public might be
    expected to use. See Serrano v. Burns, [supra, 
    248 Conn. 429
    ]; Ferreira v.
    Pringle, [
    255 Conn. 330
    , 357, 
    766 A.2d 400
    (2001)]. Driveways and walkways
    to buildings sometimes are roads, depending on who maintains them and
    whether the public, without exclusion, reasonably can be expected to use
    them. Compare Novicki v. New Haven, [
    47 Conn. App. 734
    , 742, 
    709 A.2d 2
    (1998)], with Bellman v. West 
    Hartford, supra
    , 
    96 Conn. App. 395
    –96; see
    also Read v. 
    Plymouth, supra
    , 
    110 Conn. App. 666
    ; but see General Statutes
    § 14-1 (40).’’ Cuozzo v. 
    Orange, supra
    , 
    147 Conn. App. 159
    –60 n.4.
    

Document Info

Docket Number: AC36688

Filed Date: 11/3/2015

Precedential Status: Precedential

Modified Date: 10/27/2015