Pellecchia v. Connecticut Light & Power Co.

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ANTHONY J. PELLECCHIA, ADMINISTRATOR
(ESTATE OF ANTHONY E. PELLECCHIA)
v. CONNECTICUT LIGHT AND
POWER COMPANY ET AL.
(AC 34610)
DiPentima, C. J., and Robinson and Sheldon, Js.*
Argued October 25, 2013—officially released January 21, 2014

(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Bright, J.)
Michael C. Deakin, for the appellant (defendant-third
party plaintiff Quinebaug Valley Emergency Communi-
cations, Inc.).
Scott R. Ouellette, for the appellees (third party defen-
dant Town of Killingly et al.).
Opinion

ROBINSON, J. The defendant and third party plaintiff
in the underlying wrongful death action, Quinebaug Val-
ley Emergency Communications, Inc. (QVEC), which
operates a 911 emergency notification and dispatch cen-
ter in northeastern Connecticut, appeals from the judg-
ment of the trial court rendered following the granting
of a motion to strike QVEC’s third party complaint.1
The motion to strike was filed by the third party defen-
dants, the Town of Killingly, David Sabourin, and
Anthony Shippee (town defendants). QVEC claims that
the court improperly granted the town defendants’
motion to strike based on the court’s erroneous determi-
nation that the factual allegations of the third party
complaint invoked the municipal highway defect stat-
ute, General Statutes § 13a-149. On the basis of that
determination, the court ultimately concluded that
QVEC could not state a proper cause of action because
QVEC had failed to allege that it complied with the
notice requirement of § 13a-149, QVEC had not alleged
that it was a ‘‘traveler’’ as required under § 13a-149, and
indemnification is not appropriate when the allegations
of third party negligence invoke § 13a-149. We agree
that QVEC cannot, as a matter of law, state a claim for
indemnification on the facts alleged and, accordingly,
we affirm the judgment of the court.
The following facts, as alleged in the third party com-
plaint, are relevant to our resolution of the present
appeal. On July 28, 2006, at approximately 6 p.m.,
Shippee, acting in his capacity as the assistant highway
superintendent for the Town of Killingly (town),
observed live, downed power lines on a section of Mas-
hentuck Road.2 Mashentuck Road is a public highway
located in the town, and the highway is maintained and
controlled by the town. Shippee notified Sabourin, the
town’s highway superintendent, of the downed power
lines, and the two placed orange cones on the highway
where Mashentuck Road intersected with the two near-
est crossroads. They then left the area. Thereafter,
Anthony E. Pellecchia was electrocuted and died when
the motorcycle he was driving came into contact with
the downed, energized power lines.
In June, 2008, the administrator of the decedent’s
estate commenced a wrongful death action alleging,
inter alia, that QVEC, which was notified of the downed
power lines at approximately 6:15 p.m. on July 28, 2006,
was negligent in failing to provide timely notice of the
downed lines to the utility defendants.3 In August, 2011,
QVEC filed a third party complaint seeking indemnifica-
tion from the town defendants. QVEC alleged in the
third party complaint that any negligence attributable
to QVEC due to its alleged failure to timely notify the
utility defendants of the downed power lines was pas-
sive in nature and that the direct and immediate cause
of the decedent’s electrocution was the active negli-
gence of the town defendants in failing to close properly
that section of Mashentuck Road over which the power
lines had fallen to vehicular traffic.
The town defendants filed a motion to strike the third
party complaint and accompanying memorandum of
law on September 7, 2011. The town defendants argued,
inter alia, that the third party complaint should be
stricken because a claim for indemnification could not
be brought against a municipality or its employees for
what constituted a defective highway claim under § 13a-
149.4 QVEC filed a memorandum of law in opposition
to the motion to strike the third party complaint, arguing
that the allegations in the third party complaint properly
set forth a claim for common-law indemnification on
an active/passive negligence theory.
The court issued a decision granting the motion to
strike on January 25, 2012. The court first determined
that the allegations in the third party complaint could
only reasonably be read as stating a claim against the
town for failing to properly maintain a public road. The
court reasoned that because such a claim could only
be brought pursuant to § 13a-149, QVEC was obligated
to comply with all of the requirements of § 13a-149. The
court concluded that QVEC failed to allege in the third
party complaint that it had provided the town defen-
dants with the statutorily required notice; that the stat-
ute permitted recovery only by an injured traveler, but
QVEC’s claims were based on injuries sustained by the
decedent and not upon injuries of its own; and that
QVEC was not entitled to indemnification because such
a claim requires multiple tortfeasors and is therefore
inconsistent with the requirement of § 13a-149 that the
municipality’s negligence be the sole proximate cause
of the injuries. On March 7, 2012, the court rendered
judgment against QVEC on the stricken complaint. This
appeal followed.
QVEC claims on appeal that the court improperly
granted the town defendants’ motion to strike its third
party complaint on the basis of its erroneous determina-
tion that the factual allegations of the third party com-
plaint invoked the municipal highway defect statute,
§ 13a-149. We disagree.
‘‘A motion to strike challenges the legal sufficiency
of a pleading, and, consequently, requires no factual
findings by the trial court. As a result, our review of
the court’s ruling is plenary. . . . We take the facts to
be those alleged in the [pleading] that has been stricken
and we construe the [pleading] in the manner most
favorable to sustaining its legal sufficiency.’’ (Internal
quotation marks omitted.) Kastancuk v. East Haven,
120 Conn. App. 282, 286, 991 A.2d 681 (2010).
QVEC contends that its third party complaint prop-
erly states a cause of action for common-law indemnity
against the town defendants. ‘‘Ordinarily there is no
right of indemnity or contribution between joint tort-
feasors. . . . Where, however, one of the defendants
is in control of the situation and his negligence alone
is the direct immediate cause of the injury and the other
defendant does not know of the fault, has no reason
to anticipate it and may reasonably rely upon the former
not to commit a wrong, it is only justice that the former
should bear the burden of damages due to the injury.
. . . Under the circumstances described, we have dis-
tinguished between ’active or primary negligence,’ and
’passive or secondary negligence.’ . . . Indemnity
shifts the impact of liability from passive joint tortfea-
sors to active ones.’’ (Internal quotation marks omitted.)
Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697,
694 A.2d 788 (1997).
‘‘A plaintiff in an action for indemnification not based
on statute or express contract, who had been a codefen-
dant in a prior action with a joint tortfeasor, can recover
indemnity from that codefendant only by establishing
four separate elements: (1) that the other tortfeasor
was negligent; (2) that his negligence, rather than the
plaintiff’s, was the direct, immediate cause of the acci-
dent and injuries; (3) that he was in control of the
situation to the exclusion of the plaintiff; and (4) that
the plaintiff did not know of such negligence, had no
reason to anticipate it, and could reasonably rely on
the other tortfeasor not to be negligent.’’ Kyrtatas v.
Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357
(1988). Accordingly, to survive a motion to strike, QVEC
had the burden of alleging facts that, if proven, estab-
lished each of those elements. See Skuzinski v. Bouch-
ard Fuels, Inc., supra, 240 Conn. 698.
Before turning to the specific allegations raised by
QVEC in the third party complaint and deciding
whether, on the basis of our plenary review, those alle-
gations are sufficient to state a cause of action for
indemnification, a brief discussion regarding claims of
liability against municipal defendants is necessary. Gen-
eral Statutes § 52-557n both codifies and limits the com-
mon-law doctrine of governmental immunity. See
Kumah v. Brown, 307 Conn. 620, 627, 58 A.3d 247
(2013). Section 52-557n (a) provides in relevant part that
‘‘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 [§] 13a-149.’’ (Emphasis added.) An action in accor-
dance with the provisions of § 13a-149 has been held
to provide the exclusive remedy for all claims directed
toward a municipality or its agents for damages
resulting from a highway defect. See Ferreira v. Pringle,
255 Conn. 330, 341, 766 A.2d 400 (2001); Sanzone v.
Board of Police Commissioners, 219 Conn. 179, 192,
592 A.2d 912 (1991).
A highway defect is ‘‘any object or condition 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.’’
(Internal quotation marks omitted.) Horrigan v. Wash-
ington, 144 Conn. App. 536, 542, 72 A.3d 1265, cert.
denied, 310 Conn. 939, A.3d (2013). ‘‘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 . . . .’’ (Internal quotation marks omitted.) Fer-
reira v. Pringle, supra, 255 Conn. 341–42.
The fact that a party fails to reference § 13a-149 in
the allegations of a complaint does not preclude a court
from construing, on the basis of the facts alleged in the
pleading, that the complaint invokes § 13a-149. See id.,
337; see also Himmelstein v. Windsor, 116 Conn. App.
28, 39, 974 A.2d 820 (2009) (complaint may contain
allegations sufficient to invoke § 13a-149 despite
absence of citation to statute), aff’d, 304 Conn. 298, 39
A.3d 1065 (2012); Bellman v. West Hartford, 96 Conn.
App. 387, 393–94, 900 A.2d 82 (2006) (‘‘[e]ven if a plain-
tiff does not plead § 13a-149 as a means for recovery,
if the allegations in the complaint and any affidavits or
other uncontroverted evidence necessarily invoke the
defective highway statute, the plaintiff’s exclusive rem-
edy is § 13a-149’’).
Perhaps most germane to the discussion now before
us, ‘‘[o]ur cases clearly hold that a cause of action under
§ 13a-149 is not based upon negligence. It is settled law
in this state that the liability of the defendant under
§ 13a-149 is purely for breach of statutory duty and does
not arise from negligence.’’ (Internal quotation marks
omitted.) Prato v. New Haven, 246 Conn. 638, 645, 717
A.2d 1216 (1998). It is also well settled that ‘‘[b]oth the
state and the municipal highway defect statutes require
that the highway defect is the sole proximate cause of
the plaintiff’s injuries, which precludes recovery against
the state or a municipality in the event that the injury
was caused by a combination of the defect and negli-
gence on the part of the injured party or a third party.’’
Himmelstein v. Windsor, 304 Conn. 298, 313, 39 A.3d
1065 (2012). In other words, ‘‘if the negligence of a third
party is also responsible for the plaintiff’s injuries, the
municipality will be completely exonerated.’’ Smith v.
New Haven, 258 Conn. 56, 65, 779 A.2d 104 (2001).
In its third party complaint, QVEC alleges that Mas-
hentuck Road is a public highway that is maintained
and controlled by the town defendants. QVEC further
alleges that the decedent was electrocuted by downed
power lines ‘‘on’’ Mashentuck Road. Electrified power
lines lying on a roadway necessarily would obstruct or
hinder safe travel and, thus, properly are construed as
alleging a highway defect. On the basis of our review
of all the allegations in its third party complaint, we
agree with the court that allegations to the effect that
‘‘the town defendants were responsible for maintaining
a road upon which travel had become unsafe due to
downed electrical wires’’ necessarily invoke § 13a-149,
because a claim under that statute is the only means
by which a town can be held liable for damages resulting
from injury to a person by means of a defective road.
See General Statutes § 52-557n. QVEC’s arguments to
the contrary are unpersuasive.
As set forth previously in this opinion, to state a
proper cause of action for indemnification, QVEC
needed to allege sufficient facts to show that the town
defendants were negligent. Because, as a matter of law,
the allegations regarding the actions of the town defen-
dants legally can only be construed as allegations that
the town defendants breached their statutory duty pur-
suant to § 13a-149 and not as allegations of negligence;
see Prato v. New Haven, supra, 246 Conn. 645; the third
party complaint necessarily fails to state a proper cause
of action for common-law indemnification.
Additionally, we agree with the trial court that a cause
of action for indemnification is inconsistent with, and
thus vitiated by, allegations of acts or omissions that
necessarily invoke § 13a-149. This court, by memoran-
dum decision, previously has affirmed a trial court’s
decision to strike an apportionment complaint in which
the court held that a municipality could not be an appor-
tionment defendant based on allegations of injuries
caused by a defective highway. The court in that case
reasoned that ‘‘in order for apportionment of liability
to apply, the apportionment plaintiffs would need to
be found partly responsible for the plaintiff’s injuries,
and thus, the highway defect could not be the sole
proximate cause of the accident. Bradley v. Randall,
Superior Court, judicial district of Windham, Docket
No. CV XX-XXXXXXX (April 8, 1996) (18 Conn. L. Rptr.
636), aff’d, 45 Conn. App. 924, 696 A.2d 1323, cert.
denied, 243 Conn. 923, 701 A.2d 339 (1997).’’ Priore
v. Longo-McLean, 143 Conn. App. 249, 262, 70 A.3d
147 (2013).
That same rationale applies equally to defeat QVEC’s
indemnification cause of action against the town defen-
dants. As with apportionment, indemnification requires
the existence of two tortfeasors. See Smith v. New
Haven, supra, 258 Conn. 60; Skuzinski v. Bouchard
Fuels, Inc., supra, 240 Conn. 697. In Smith, the defen-
dant city sought to implead a third party whose active
negligence the city alleged had caused the plaintiff’s
injuries. Smith v. New Haven, supra, 58. The trial court
granted summary judgment in favor of the third party,
noting that two tortfeasors are necessary to state a
claim of indemnity. Id., 66. Our Supreme Court affirmed
the trial court’s decision, concluding: ‘‘A finding of two
culpable tortfeasors . . . is logically inconsistent with
our definition of sole proximate cause because a deter-
mination that the defect in question is the sole proxi-
mate cause of the plaintiff’s injuries implicitly relieves
any third parties from liability. . . . Put another way,
the presence of third party negligence necessarily
results in a finding that the defect was not the sole
proximate cause of a plaintiff’s injuries. Such a determi-
nation would relieve the municipality of all liability,
thereby vitiating the basis for indemnification.
Because § 13a-149 either renders the municipality, and
the municipality alone, liable to the plaintiff, or excul-
pates the municipality entirely, the equitable obligation
to indemnify a municipality . . . does not exist in
actions brought under § 13a-149.’’ (Emphasis added.)
Id., 66–67. The very same rationale that precludes a
municipality from seeking indemnity from a third party
necessarily would also preclude the reverse. Although
QVEC argues to the contrary, its arguments are unsup-
ported and unavailing.
In order to recover under a theory of indemnification,
QVEC must allege and later be found to have engaged
in negligent conduct separate from that of the town
defendants. Because the town defendants can only be
held liable pursuant to § 13a-149, and § 13a-149 requires
that the town defendants’ conduct be the sole proximate
cause of the damages alleged in order for liability to
attach, any negligence on the part of QVEC negates
the possibility of relief from the town defendants on a
theory of common-law indemnification.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The named plaintiff, Anthony J. Pellecchia, acting in his capacity as the
administrator of the estate of the decedent, Anthony E. Pellecchia, and the
defendants Connecticut Light and Power Company, Northeast Utilities and
Northeast Utilities Services Company (utility defendants) are not parties to
the third party complaint and did not participate in this appeal.
2
Although not alleged in the third party complaint, it is undisputed that,
prior to the discovery of the downed power lines, a severe thunder and
lightning storm had moved through the area.
3
In addition to QVEC, the administrator also brought allegations of wrong-
ful death against the town defendants and the utility defendants. The trial
court rendered judgments of nonsuit against the plaintiff on his claims
against the town defendants and the utility defendants, which judgments
were affirmed by this court. See Pellecchia v. Connecticut Light & Power
Co., 126 Conn. App. 903, 12 A.3d 641 (2011). The administrator later com-
menced new actions against the utility defendants and the town defendants,
but those subsequent actions were dismissed. See Pellecchia v. Connecticut
Light & Power Co., 139 Conn. App. 88, 54 A.3d 658 (2012) (affirming judgment
dismissing new action brought against utility defendants because action
filed outside statute of limitation period and not saved by accidental failure
of suit statute), cert. denied, 307 Conn. 950, 60 A.3d 740 (2013); Pellecchia
v. Killingly, 147 Conn. App. 299, A.3d. (2013) (same as to new action
against town defendants).
4
Alternatively, the town defendants argued that the claims against them
were barred by governmental immunity pursuant to General Statutes § 52-
557n. Because the court agreed that QVEC could not maintain its indemnifi-
cation action, it did not address the alternative jurisdictional claim.