Cuozzo v. Town of Orange, 176 A.3d 586

Plaintiff Armand Cuozzo sued the Town of Orange and later City of West Haven after his car hit a pothole while driving in the entrance/exit driveway serving the Sam’s Club/Wal‑Mart plaza at 2 Boston Post Road.
Plaintiff alleged the pothole was about three feet from the intersection with Meloy Road and asserted municipal liability under Conn. Gen. Stat. § 52-557n (negligence).
Town moved to dismiss invoking the highway defect statute (§ 13a‑149) for lack of timely notice; this court and the Connecticut Supreme Court previously rejected dismissal because the driveway’s public character was not established on the record and remanded.
On remand both defendants moved for summary judgment, submitting licensed engineers’ affidavits concluding the pothole lay within the Sam’s Club property (private), not under defendants’ control; plaintiff relied on his complaint, deposition, affidavit and correspondence showing town involvement in traffic/landscaping matters.
Trial court found no genuine issue of material fact on location: the record showed the defect was on Sam’s Club property, not controlled by the town or city, and granted summary judgment on governmental immunity grounds; appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a genuine issue of material fact as to the pothole’s location (public vs. private property)?	Cuozzo argued his pleadings, deposition marks and affidavit showed the defect was in the driveway and raised an ownership/control dispute.	Town and City submitted engineer affidavits and deed/layout review showing the pothole within Sam’s Club property (private), not under municipal possession or control.	Held: No genuine issue—evidence established the pothole was on Sam’s Club property; plaintiff failed to raise admissible conflicting evidence.
Did defendants perform discretionary acts (entitling them to governmental immunity) rather than ministerial/proprietary acts?	Cuozzo contended the allegations were proprietary or alleged failure to perform functions, not discretionary decisions.	Defendants argued alleged negligence implicated discretionary judgment, so governmental immunity applies.	Court did not reach merits because location resolved liability; it also concluded acts were discretionary as an alternative basis.

DiMiceli v. Cheshire, 162 Conn. App. 216 (summary judgment standard and plenary review)
Grignano v. Milford, 106 Conn. App. 648 (duty depends on entrant status and landowner control)
Sweeney v. Friends of Hammonasset, 140 Conn. App. 40 (control/possession determines duty)
Cuozzo v. Orange, 147 Conn. App. 148 (prior appellate decision on § 13a‑149 public/highway character)
Cuozzo v. Orange, 315 Conn. 606 (Supreme Court affirming appellate court remand)