Himmelstein v. Bernard
2012 Conn. App. LEXIS 562
Conn. App. Ct.2012Background
- Plaintiff injured July 20, 2004 when bicycle collided with a radar trailer placed in Route 159's travel portion.
- 2005 complaint asserted nuisance against town and statutory duties claims; also alleged negligence and related claims against state/Transportation Department personnel.
- Sept. 23, 2005, trial court struck the nuisance claim against the town as the exclusive remedy under § 13a-149.
- Plaintiff amended complaint removing most claims against town but preserved nuisance counts; town moved for summary judgment on remaining § 13a-149 issue.
- Appeals court and Supreme Court upheld that § 13a-149 provides the exclusive remedy for a highway defect, and Himmelstein v. Windsor later limited liability to the state, guiding later rulings.
- July 19, 2007, plaintiff filed the present nuisance action against Bernard (in his official capacity) and the town; case later consolidated; defendants moved for summary judgment on res judicata and collateral estoppel grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars nuisance claim | Savvidis; prior nuisance claim struck on merits | res judicata bars relitigation | Yes; res judicata bars nuisance claim against town |
| Whether Bernard in official capacity is in privity with the town for res judicata | Bernard sued in official capacity; argued distinction | official-capacity suits are against the entity; privity applies | Yes; Bernard is one with the town; action barred |
| Whether the prior motion to strike was a merits decision for res judicata purposes | strike was procedural, not on merits | strike constitutes merits decision | Strike was a merits decision; res judicata applies |
| Whether collateral estoppel applies | not addressed if res judicata applies | could bar related issues | Not reached; res judicata controls |
Key Cases Cited
- Himmelstein v. Windsor, 304 Conn. 298 (2012) (exclusive remedy issue under § 13a-149; state bears liability)
- Savvidis v. Norwalk, 129 Conn. App. 406 (2011) (define res judicata and breadth of claim preclusion)
- Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680 (1998) (scope of preclusion depends on former adjudication)
- DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583 (2010) (res judicata applies to parties and privies; transaction-based test)
- Santorso v. Bristol Hospital, 127 Conn. App. 606 (2011) (judgment on merits via motion to strike is binding)
- Kelly v. New Haven, 275 Conn. 580 (2005) (official capacity suits are suits against the municipality)
- State v. Aillon, 189 Conn. 416 (1983) (finality of judgment includes matters that might have been offered)