Berger v. Bristol

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Beger v. Bristol

ARLEEN BEGER v. CITY OF BRISTOL ET AL.
(AC 47244)
Clark, Seeley and DiPentima, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment rendered after its
granting of the defendants’ motion for summary judgment on her complaint
asserting a claim pursuant to the municipal highway defect statute (§ 13a-
149), for personal injuries she sustained when she fell at the defendant city’s
transfer station. She claimed that the court improperly concluded that the
walkway where she fell did not constitute a public highway for the purposes
of § 13a-149. Held:

The trial court did not err in granting the defendants’ motion for summary
judgment, as, pursuant to Read v. Plymouth (110 Conn. App. 657), because
the transfer station was accessible only to the defendant’s residents who
had purchased a permit and, therefore, was confined to a group whose
eligibility was gauged by predetermined criteria, it lacked the essential
feature that would qualify it as open to public use and, thus, the plaintiff’s
claim did not fall within the purview of § 13a-149.
Argued April 16—officially released June 10, 2025

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of, inter alia, an allegedly defective
municipal highway, and for other relief, brought to the
Superior Court in the judicial district of New Britain,
where the court, Young, J., granted the defendants’
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Mark A. Balaban, for the appellant (plaintiff).
Thomas R. Gerarde, with whom was Tyler J. Carroll,
for the appellees (defendants).
Opinion

CLARK, J. In this personal injury action, the plaintiff,
Arleen Beger, appeals from the summary judgment ren-
dered by the trial court in favor of the defendants, the
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Beger v. Bristol

city of Bristol (city), Raymond Rogozinski, and Craig
Kasparian. On appeal, the plaintiff claims that the trial
court improperly granted the defendants’ motion for
summary judgment as to the first count of her com-
plaint, which asserted a claim against the city under
General Statutes § 13a-149,1 also known as the munici-
pal highway defect statute. We disagree and affirm the
judgment of the court.
The following procedural history is pertinent to this
appeal. The plaintiff commenced this action by way of
a three count complaint on September 27, 2022. In her
complaint, the plaintiff alleged that, on September 30,
2020, she traveled to the city’s transfer station to dispose
of certain waste materials and fell on the paved surface
of a walkway located directly in front of the transfer
station’s receptacle bin for cardboard and corrugated
waste. She claimed that she had fallen because of a
dangerous and defective condition in the walkway that
the defendants had failed to remedy. Count one of her
complaint asserted a claim against the city under § 13a-
149, count two asserted a negligence claim against the
city, and count three asserted a negligence claim against
Rogozinski and Kasparian, the city’s director of public
1
General Statutes § 13a-149 provides: ‘‘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 sustained
on or after October 1, 1982, shall be brought except within two years from
the date of such injury. 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 there-
after 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.
If the injury has been caused by a structure legally placed on such road by
a railroad company, it, and not the party bound to keep the road in repair,
shall be liable therefor. 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.’’
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Beger v. Bristol

works and streets superintendent, respectively. The
plaintiff attached to the complaint a copy of a written
notice describing her injury, which had been served on
the city on December 28, 2020, pursuant to the require-
ments of § 13a-149. The notice stated in relevant part:
‘‘[The plaintiff] was at the transfer station dropping off
cardboard. She fell after she put the cardboard into the
machine. There was a hole, and she lost her balance
and landed on her right side, rolling over onto her right
side. The area identified was located directly in front
of a cardboard waste receptacle.’’
On February 1, 2023, the defendants filed an answer
and special defenses in which they claimed, inter alia,
that count one of the complaint failed to state a claim
on which relief could be granted. Subsequently, on May
31, 2023, the defendants filed a motion for summary
judgment as to all counts of the complaint. In their
motion, the defendants argued in relevant part that, in
light of this court’s decision in Read v. Plymouth, 110
Conn. App. 657, 955 A.2d 1255, cert. denied, 289 Conn.
955, 961 A.2d 421 (2008), the plaintiff’s claim did not
fall within the purview of § 13a-149 because the area
where the plaintiff allegedly had fallen did not consti-
tute a public highway. In support of this claim, the
defendants attached to their motion an affidavit from
Rogozinski. Rogozinski’s affidavit stated in relevant
part that the area where the plaintiff claimed to have
fallen was located within the perimeter of the transfer
station; that the transfer station was only open Monday
through Friday from 7:15 a.m. to 2:15 p.m., and Saturday
from 7:30 a.m. to 1 p.m.; that outside of those hours,
the gates to the transfer station were shut and locked;
that only residents who purchased a transfer station
permit were allowed to enter or use the transfer station,
and that they must show their permit to be allowed
access; that permits were available for residents to pur-
chase for $40; and that residents with a permit were
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Beger v. Bristol

permitted to use the transfer station only during its
hours of operation.
The plaintiff filed a memorandum in opposition to
the defendants’ motion for summary judgment on Sep-
tember 8, 2023. In her memorandum, the plaintiff argued
generally that whether the area where she had fallen
constituted a public highway presented a question of
fact that ‘‘could not be determined on the basis of the
record submitted . . . [and would] more appropriately
[be] answered by a jury after the presentation of evi-
dence’’; she did not, however, dispute the specific fac-
tual assertions in Rogozinski’s affidavit described
herein. Instead, she contended that the various access
restrictions on the use of the transfer station were de
minimis and that ‘‘these minor restrictions . . . under
the facts and circumstances herein ought not defeat
an otherwise viable personal injury claim . . . on the
somewhat dubious notion that all roads or walkways
at [the] transfer station are not public and within the
ambit of the defective highway statute.’’ The plaintiff
attached several exhibits to her memorandum, includ-
ing a map of the transfer station marked with various
arrows delineating a route through the transfer station
that was published on the city’s website. This map, she
argued, showed that the city ‘‘invited, encouraged, and/
or should have reasonably anticipated’’ that members
of the public would pass through the transfer station
to dispose of their refuse.
The defendants filed a reply to the plaintiff’s memo-
randum on September 19, 2023. On December 22, 2023,
the court, Young, J., issued a memorandum of decision
granting the defendants’ motion for summary judgment
as to all counts of the complaint. With respect to count
one,2 the court concluded that, under this court’s hold-
ing in Read—which, the court noted, presented ‘‘a
2
On appeal, the plaintiff does not challenge the court’s granting of the
defendants’ motion for summary judgment as to counts two or three of her
complaint.
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Beger v. Bristol

remarkably similar fact pattern’’ to the present case—
the access restrictions on the transfer station placed
the plaintiff’s claim outside the purview of § 13a-149.
The court explained that the transfer station did not
qualify as a ‘‘highway’’ under § 13a-149 because, according
to the undisputed facts in the record, the transfer station
‘‘was not open to the indefinite public, nor open at all
times,’’ but, rather, was ‘‘restricted in accessibility both
in limitation of users and limitation of hours.’’ This
appeal followed.
On appeal, the plaintiff claims that the court improp-
erly concluded that the walkway in the transfer station
where she fell did not constitute a public highway for
the purposes of § 13a-149. We disagree.3
The following standard of review and legal principles
are relevant to our review of the plaintiff’s claim. ‘‘Prac-
tice 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. A party
moving for summary judgment is held to a strict stan-
dard. . . . To satisfy [its] burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact.’’ (Internal quotation
marks omitted.) Carty v. Merchant 99-111 Founders,
LLC, 227 Conn. App. 683, 690, 323 A.3d 414 (2024).
‘‘The standard of review of a trial court’s decision to
[render] summary judgment is well established. [W]e
The defendants argue, as an alternative ground for affirming the court’s
3

judgment, that the court also properly rendered summary judgment against
the plaintiff on her § 13a-149 claim because she was not using the area
where she fell as a traveler. We do not reach the merits of this argument
because, for the reasons we discuss herein, we agree with the court that
the area where the plaintiff fell was not a public highway for purposes of
§ 13a-149.
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must decide whether the trial court erred in determining
that there was 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
test is whether a party would be entitled to a directed
verdict on the same facts. . . . This court’s review of
the trial court’s decision to [render] summary judgment
in favor of the defendants is plenary. . . .

‘‘Once the moving party has presented evidence in
support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the [trial]
court under Practice Book § [17-45]. . . . The movant
has the burden of showing the nonexistence of such
issues but the evidence thus presented, if otherwise
sufficient, is not rebutted by the bald statement that an
issue of fact does exist. . . . To oppose a motion for
summary judgment successfully, the nonmovant must
recite specific facts . . . [that] contradict those stated
in the movant’s affidavits and documents.’’ (Citation
omitted; internal quotation marks omitted.) Cazenovia
Creek Funding I, LLC v. White Eagle Society of Broth-
erly Help, Inc., Group 315, Polish National Alliance,
351 Conn. 722, 730–31, 333 A.3d 508 (2025).

‘‘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]
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Beger v. Bristol

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. . . .
‘‘[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 posi-
tion, would be likely to produce that result. . . . Fur-
thermore, 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. . . .
‘‘According to General Statutes [§ 14-1 (46)], a high-
way includes any state or other public highway, road,
street, avenue, alley, driveway, parkway . . . place [or
dedicated roadway for bus rapid transit service], under
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 custom-
arily 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 contradis-
tinction to a private way, over which only a limited
number of persons have the right to pass. . . . 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. . . .
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‘‘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 stat-
ute. . . .
‘‘[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 . . . .’’ (Citations omitted; emphasis omitted; foot-
note omitted; internal quotation marks omitted.) Pra-
muka v. Cromwell, 160 Conn. App. 863, 869–73, 127
A.3d 320, cert. denied, 320 Conn. 908, 128 A.3d 952
(2015). It is also true, however, that, although ‘‘whether
a highway is defective may involve issues of fact . . .
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.)
Cuozzo v. Orange, 147 Conn. App. 148, 159, 82 A.3d
647 (2013), aff’d, 315 Conn. 606, 109 A.3d 903 (2015).
In Read, this court affirmed the rendering of summary
judgment in favor of the defendant town with respect
to a § 13a-149 claim under circumstances, as the trial
court in this case noted, that were nearly identical to
those in the present case. The plaintiff in Read brought
an action against the town of Plymouth and two employ-
ees of its department of public works, alleging that
he had sustained injuries when he fell into a movable
dumpster while attempting to dispose of waste at the
town’s transfer station. Read v. Plymouth, supra, 110
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Beger v. Bristol

Conn. App. 659. He further alleged that he had tripped
and fallen as a result of a broken or separated concrete
block that formed a platform or wall above the dumps-
ter. Id. The second count of his complaint asserted a
claim against the town under § 13a-149. Id. The trial
court granted the town’s motion for summary judgment
as to the second count, concluding that the area where
the plaintiff fell did not constitute a public highway
because it was within the town transfer station, access
to which was limited to residents of the town who had
permits. Id., 660–61. On appeal, this court affirmed that
portion of the trial court’s judgment. This court
explained that the undisputed facts, as set forth in an
affidavit of the town’s former director of public works,
established that the transfer station was a restricted
access facility, limited to town residents who held per-
mits and had registered their vehicles with the town,
and that the transfer station was open during limited
hours and, when closed, was restricted by means of a
locked gate. Id., 665–66. Accordingly, this court held
that, ‘‘[b]ecause there was no factual dispute that access
to the transfer station was restricted and was, therefore,
not open to the public, the court properly determined
that the plaintiff’s claim did not fall within the purview
of . . . § 13a-149.’’4 Id., 666.
Read is dispositive of this appeal. In the present case,
as in Read, the plaintiff alleged that she suffered injuries
as a result of a defective walkway located within a
municipal transfer station. As in Read, it is undisputed
that this transfer station is accessible only to city resi-
dents who have permits; that it is open only during
limited hours; and that, when closed, its gates are shut
4
Judge Lavery dissented. He contended that ‘‘[t]he fact that the [transfer]
station has limited use and requires a local permit does not diminish its
public use character’’ because residents of the town were required to use
it as the disposal site for their solid waste, and ‘‘[e]very citizen of Connecticut
has to have access to such a place.’’ Read v. Plymouth, supra, 110 Conn.
App. 667 (Lavery, J., dissenting).
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and locked. Therefore, under Read, the plaintiff’s claim
does not fall within the purview of § 13a-149, and the
trial court did not err in granting the defendants’ motion
for summary judgment as to count one of the complaint.
We are not persuaded by the plaintiff’s arguments
to the contrary. The plaintiff argues that to deem the
transfer station, and the walkways located therein, not
open to public use, ‘‘especially where the access restric-
tions thereto are indisputably de minimis,’’ is to read
§ 13a-149 in an unduly harsh and restrictive manner.
To the extent that the plaintiff asks us to overrule Read,
however, it is the well settled policy of this court that
we must follow this court’s precedent unless en banc
review is granted. See, e.g., State v. Gonzalez, 214 Conn.
App. 511, 524, 281 A.3d 501 (‘‘It is well established . . .
that one panel of this court cannot overrule the prece-
dent established by a previous panel’s holding. . . . As
we often have stated, this court’s policy dictates that
one panel should not, on its own, reverse the ruling of
a previous panel. The reversal may be accomplished
only if the appeal is heard en banc.’’ (Internal quotation
marks omitted.)), cert. denied, 345 Conn. 967, 285 A.3d
736 (2022). The plaintiff also emphasizes what she
describes as the ‘‘trivial’’ nature of the restrictions on
accessing the transfer station—namely, the allegedly
low cost of the permits and the fact that the transfer
station is open six days and more than forty hours per
week—but there is nothing in this court’s opinion in
Read to suggest that the holding in that case turned
on the transfer station’s precise number of hours of
operation or the precise cost of the permits required
to access it.5 Moreover, although the plaintiff correctly
5
In support of her argument that the transfer station should be considered
a public place, the plaintiff further asserts in her brief that ‘‘she was required
to use the transfer station to dispose of solid trash.’’ The defendants dispute
this assertion in their principal appellate brief, and we are unable to find
any support for it in the affidavits or other documentary exhibits submitted
by the parties in connection with the defendants’ motion for summary
judgment. Even if it were true, however, that the plaintiff was required to
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Beger v. Bristol

notes that, under this court’s precedent, ‘‘[f]or an area
to be open to public use it does not have to be open
to everybody all the time’’; (internal quotation marks
omitted) Cuozzo v. Orange, supra, 147 Conn. App. 158;
it is equally well established that ‘‘[t]he 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.’’ (Emphasis added; internal quota-
tion marks omitted.) Id. Because it is undisputed that
the transfer station in the present case is, like the trans-
fer station in Read, accessible only to city residents
who have purchased a permit—that is, to a group whose
eligibility is gauged by predetermined criteria—it lacks
the ‘‘ ‘essential feature’ ’’ that would qualify it as open
to public use for purposes of § 13a-149. Id.
The plaintiff also cites this court’s decision in Pra-
muka v. Cromwell, supra, 160 Conn. App. 872–76, for
the proposition that ‘‘a determination of whether a road
is open to the public, or whether there are ‘sufficient’
restrictions that would limit its public availability,
involves questions of fact that are more appropriately
answered by a jury at trial, and ought not be decided
by summary judgment.’’ In Pramuka, this court deter-
mined that the trial court improperly rendered summary
judgment in favor of the defendants, the town of Crom-
well and the town’s board of education, in a § 13a-
149 action in which the plaintiff alleged that she had
sustained injuries while walking on a walkway from a
use the transfer station to dispose of her waste, to conclude on that basis
that the transfer station was public would be to adopt as the law the reasoning
of Judge Lavery’s dissenting opinion in Read—which argued that the transfer
station in that case should be deemed public for the same reason. See
footnote 4 of this opinion. We decline to do so because ‘‘[i]t is axiomatic
that a dissenting opinion, by its very nature, represents a minority of the
court’s disagreement with the law as established by the majority opinion
and, therefore, is not an authoritative ruling . . . .’’ (Emphasis in original.)
Reville v. Reville, 312 Conn. 428, 459 n.29, 93 A.3d 1076 (2014).
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designated parking area to the entrance of a public
elementary school. Pramuka v. Cromwell, supra, 865–
66. ‘‘On the face of the record before [it]’’; id., 865; this
court concluded that there were material issues of fact
because the record did not contain sufficient informa-
tion as to whether the parking lot or the driveway(s)
abutted by the walkway on which the plaintiff had
fallen, which were on the property of the school, were
open to the public or contained sufficient restrictions
that would limit their public availability. Id., 878.
This court in Pramuka did not hold, however, that
the question of whether a particular area is open to
public use for purposes of § 13a-149 is categorically
incapable of resolution on a motion for summary judg-
ment. To the contrary, this court and our Supreme Court
repeatedly have concluded that a plaintiff’s claims fall
outside the purview of our highway defect statutes
when, prior to trial, the undisputed facts clearly estab-
lished that an alleged injury occurred in an area that
was not open to public use under Connecticut case
law interpreting and applying those statutes. See, e.g.,
Kozlowski v. Commissioner of Transportation, 274
Conn. 497, 505–506, 876 A.2d 1148 (2005) (remanding
with direction to grant motion to dismiss in action predi-
cated on state highway defect statute, General Statutes
§ 13-144, when undisputed facts established that ‘‘the
public is neither invited nor expected to traverse’’ area
where plaintiff’s alleged injury occurred); Read v. Plym-
outh, supra, 110 Conn. App. 666 (trial court properly
rendered summary judgment in favor of defendant with
respect to § 13a-149 claim because undisputed facts
showed that transfer station was not open to public).6
6
The plaintiff also directs our attention to a trial court decision, Covello
v. Darien, Superior Court, judicial district of Stamford-Norwalk, Docket No.
CV-XX-XXXXXXX-S (October 22, 2010) (51 Conn. L. Rptr. 40, 44), in which
the court denied the defendant town’s motion for summary judgment with
respect to a § 13a-149 claim arising from a fall on a municipal road in the
town’s transfer station, notwithstanding the existence of access restrictions
on the transfer station analogous to those in Read and the present case.
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Beger v. Bristol

The plaintiff’s reliance on Pramuka is therefore mis-
placed.
The judgment is affirmed.
In this opinion the other judges concurred.

The court in Covello purported to distinguish Read on the basis that the
plaintiff in Read had not fallen on a sidewalk or highway where vehicles
traveled, but rather on a path near a dumpster, whereas the plaintiff in
Covello had fallen on a road within the transfer station along which vehicles
traveled. Id., 43–44. Our research does not reveal that Covello has been cited
in any decisions of this court or our Supreme Court, and its reasoning does
not bind us. We note, however, that it is undisputed that the plaintiff in the
present case fell, not on a road, but on a walkway directly in front of a
cardboard waste receptacle. Therefore, even if we were to endorse the
court’s attempt in Covello to distinguish Read, the present case clearly is
more factually similar to Read than to Covello.