HIMMELSTEIN v. Town of Windsor
39 A.3d 1065
Conn.2012Background
- Plaintiff Himmelstein was injured on Palisado Avenue (Route 159) in Windsor when colliding with a radar trailer placed in the travel portion of the road.
- Plaintiff filed a seven-count complaint alleging, among others, a breach of statutory duty under § 13a-149, and a nuisance claim against the town for the radar trailer’s placement.
- Trial court struck the nuisance claim, holding the radar trailer created a highway defect subject to § 13a-149.
- Plaintiff amended to preserve the nuisance count for appellate review while pursuing summary judgment on the statutory claim against the town.
- The trial court later granted summary judgment for the town, finding Route 159 a state highway maintained by the state DOT, not the town.
- Appellate Court affirmed, concluding § 13a-149 was the exclusive remedy for a highway defect against a town and the nuisance claim was precluded; plaintiff sought Supreme Court review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 52-557n exclusive remedy bar the nuisance claim against the town when § 13a-149 proof fails? | Himmelstein argues nuisance may proceed in the alternative and § 52-557n preclusion should wait until fact-finding determines duty. | Town contends nuisance is precluded by § 52-557n when § 13a-149 applies as the exclusive remedy, and the court may strike the nuisance claim. | Yes; nuisance precluded under exclusivity, and summary judgment on statutory claim may follow. |
Key Cases Cited
- Kozlowski v. Commissioner of Transportation, 274 Conn. 497 (2005) (definition of highway defect and shoulders within traveled path)
- White v. Burns, 213 Conn. 307 (1990) (sole proximate cause and immunity concepts in highway defects)
- Machado v. Hartford, 292 Conn. 364 (2009) (sole proximate cause doctrine clarified; intervening factors with defect)
- Hewison v. New Haven, 34 Conn. 136 (1867) (highway defects include obstruction in traveled path)