274 Conn. 262 | Conn. | 2005
Lead Opinion
Opinion
The plaintiff, Adalbert H. McIntosh, Sr., brought this highway defect action under General Statutes § 13a-144
The following facts and procedural history are relevant to our analysis of the commissioner’s claim. The plaintiff commenced this highway defect action against the commissioner alleging that, on March 1, 2000, the plaintiff was operating his automobile in the eastbound lane of a connector between exit 23 of Interstate 84 and Route 69 in Waterbury when his automobile “was struck by a large quantity of rocks, boulders, ice and dirt [that] had dislodged from an area adjacent to and above [the] highway,” causing the plaintiff serious injuries. The plaintiff further alleged that his injuries were the result of the commissioner’s failure to discharge his duties under the highway defect statute in one or more of the following ways: “(a) in that the highway was located dangerously close to raised rocky cliffs; (b) in that no attempt was made or inadequate attempts were made to stabilize the loose rocks; (c) in that the [commissioner] failed to erect barriers along the side of such roadway of sufficient height and strength to
The commissioner filed a motion to dismiss the action on the ground that the allegations of the complaint were insufficient, as a matter of law, to state a claim under § 13a-144. The trial court denied the motion without comment, and the commissioner filed a motion to reargue, which the court also denied, noting only that “the commissioner’s claim challenges liability, not the jurisdiction of the court.”
The commissioner appealed to the Appellate Court, claiming that the plaintiffs allegations fell outside the scope of § 13a-144. McIntosh v. Sullivan, supra, 77 Conn. App. 642. In rejecting the commissioner’s claim, the Appellate Court relied on its analysis and conclusion in Tyson v. Sullivan, 77 Conn. App. 597, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003), a
On appeal to this court, the commissioner renews his contention that, regardless of how the plaintiffs claim is characterized, the allegations of the complaint fail as a matter of law because the falling rocks and debris did not constitute a highway defect for purposes of § 13a-144. We agree with the commissioner.
We begin our review of the commissioner’s claim by setting forth the governing legal principles. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
“We have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would neces
Because the state is not an insurer of the safety of travelers on the highways, the “statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation. That is, the [commissioner’s] obligation under § 13a-144 is to remedy a highway defect once he: (1) has
Finally, with respect to the plaintiffs claim that the highway was defectively designed, it is well established that “a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the improvement or repair of its streets or highways and ordinarily will not be liable for consequential damages for injuries due to errors or defects in the plan adopted.” Donnelly v. Ives, 159 Conn. 163, 168, 268 A.2d 406 (1970). Thus, as we stated in Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897), “[a] defect in the plan upon which [a] highway [is] constructed . . . [does] not [come] within the [highway defect] statute. If such a defect naturally
Recognizing that an unduly rigid application of this rule could work an injustice in certain circumstances, however, the court in Hoyt also stated, in dictum, that, “[i]f ... a defect in the plan of construction should be so great as soon to require repairs in order to make the highway safe for travel, a neglect to make these repairs might [support] an action; but the plaintiffs case would be no stronger than if the road had been originally built in the best manner. So, were the plan of construction adopted one which was totally inadmissible . . . the highway would have been in such a defective condition as to have been out of repair from the beginning.” Id., 352; see also Donnelly v. Ives, supra, 159 Conn. 168 (recognizing “so-called Hoyt exception” to general rule of nonliability for error of judgment in plan of design when plan renders highway defective from beginning). Thus, notwithstanding the general rule that the state is not liable for damages sustained by a traveler due to a defect in a highway’s design, the state nevertheless may be liable if such a defect gave rise to a hazard that otherwise would be actionable under § 13a-144.
The commissioner maintains that the reasoning and conclusion of the Appellate Court are inconsistent with the foregoing principles. In particular, the commissioner claims that the Appellate Court’s holding violates
In Hewison, a case long relied on by this court in addressing claims materially similar to the claim raised in the present case, a driver was injured when an iron weight that was attached to a banner suspended over the roadway and affixed between buildings on either side of the roadway fell and struck him in the head. Hewison v. New Haven, supra, 34 Conn. 137. In rejecting the claim of the plaintiff, Clara Hewison, under the highway defect statute, we stated: “[0]bjects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective. For example, trees or walls of a building standing beside the road, and liable to fall by reason of age and decay, or from other cause; or any object suspended over the
We also observed in Hewison that “there may be objects off the road bed, yet so near it, either on one side or over it, as seriously to impede the public travel. That it was intended to make it the duty of [the commissioner] to keep the highway clear of such obstructions, seems hardly to admit of a doubt.
“To define in general terms the precise limits of the duty of [the commissioner] in these cases is not an easy matter, as each case must depend very much upon its own peculiar circumstances. The following however may be an approximation to it. Any 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 position, would be likely to produce that result, would generally constitute a defect in the highway. For example, branches of a tree hanging over the road bed near the ground, necessarily obstruct the use of the way, and should be removed by the [commissioner] . . . .” Id., 142; see also Ferreira v. Pringle, supra, 255 Conn. 342; Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202; Comba v. Ridgefield, supra, 177
The Appellate Court in Tyson nevertheless relied on Hewison in support of its determination that the rocks and debris that struck the plaintiffs automobile while he was operating it constituted a highway defect. See Tyson v. Sullivan, supra, 77 Conn. App. 604-605. In reaching this conclusion, the court underscored the fact that the “ledge [from which the rocks and debris fell] was located directly alongside the highway, thus ‘near the traveled path’ ”; id., 604; and the fact that “[l]oose rocks and other debris situated on a rock ledge are objects that, by their very ‘nature and position,’ likely could dislodge and roll onto the lane of a highway thus obstructing or hindering travel.” Id. The Appellate Court’s reliance on Hewison is misplaced.
This court recognized in Hewison that, although § 13a-144 generally covers only those defective conditions that are in or part of the roadway itself, there may be circumstances in which an object or hindrance that is not part of the roadway, but that, from its nature and position in, upon, or near the roadway, could constitute a highway defect if that object or hindrance actually obstructs travel. The example of such a defect that we gave in Hewison was “a tree hanging over the road bed near the ground, necessarily obstructing] the use of the way . . . .” (Emphasis added.) Hewison v. New
Two other seminal highway defect cases, namely, Comba v. Ridgefield, supra, 177 Conn. 268, and Dyer v. Danbury, 85 Conn. 128, 81 A. 958 (1911), further illustrate this point. One of the plaintiffs in Comba was injured when a large tree limb extending over the traveled portion of the highway broke off and fell onto the vehicle in which she was riding. Comba v. Ridgefield, supra, 269. The trial court rendered judgment in favor of the defendants, the town of Ridgefield and the commissioner of transportation, on grounds of sovereign immunity; see id.; and we affirmed, stating: “The condition alleged . . . did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury, but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury.” Id., 271.
We reached the same conclusion in Dyer, in which the plaintiff was injured by a limb that had broken off a tree extending over the sidewalk on which he had been walking. Dyer v. Danbury, supra, 85 Conn. 130. Although the tree in that case “had existed in its dangerous condition for more than a year, and constituted a nuisance upon the highway”; id.; the overhanging tree limb “did not constitute a defect in the highway . . . [because] [i]t did not obstruct travel thereon . . . .” Id. Precisely the same reasoning applies to the rocks and debris that dislodged and struck the plaintiffs vehicle in the present case. Thus, as the commissioner aptly noted in his brief to this court, “[t]he necessary connection to the roadbed or travel means that, even though an object is not actually on the road’s surface, it still
In Tyson, the Appellate Court sought to distinguish falling rocks and debris from falling tree branches on public policy grounds, asserting, essentially, that it would be easier for the commissioner to prevent the former than it would be to prevent the latter. See Tyson v. Sullivan, supra, 77 Conn. App. 605-606. Although we do not necessarily find this assertion to be self-evident, it simply is beside the point. Our cases make it perfectly clear that § 13a-144 does not create a cause of action predicated on negligence; e.g., Prato v. New Haven, supra, 246 Conn. 645 (“[o]ur cases clearly hold that a cause of action [under the highway defect statute] is not based upon negligence”); and does not require the commissioner to abate all nuisances even though they may pose a potential danger to highway travel. See, e.g., Comba v. Ridgefield, supra, 177 Conn. 270 (objects such as “trees, walls of buildings standing beside the road, and objects suspended over the highway which are so high as to be entirely out of the way . . . may be a nuisance that the government unit may have an obligation to abate, but . . . are not defects in the highway”). Moreover, because the commissioner’s obligation under § 13a-144 is a reactive obligation rather than an anticipatoiy one, that obligation “does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur.” (Emphasis added.) Ormsby v. Frankel, supra, 255 Conn. 677. In other words, regardless of whether the commissioner reasonably should be required to inspect and to prevent certain conditions that pose a potential danger to highway travel, including
As we have explained, a defect in the design of a highway generally is not actionable under § 13a-144. E.g., Donnelly v. Ives, supra, 159 Conn. 168. In Hoyt v. Danbury, supra, 69 Conn. 352, we recognized a limited exception to that general rule. In Hoyt, the plaintiff, Henry W. Hoyt, brought an action against the city of Danbury after he slipped and fell on stairs that were built into the side of a hill that formed part of a municipal sidewalk. See id., 347. After a trial to the court, the court found that the stairs were defective because they were too steep and rendered judgment for the plaintiff. See id., 349-50. On appeal, we reversed the judgment of the trial court; see id., 354; explaining that “[a] defect in the plan upon which [a] highway [is] constructed . . . [does] not [come] within the [highway defect] stat
The hypothetical design claim that the court in Iloyl used to illustrate what an actionable design claim might resemble reveals the true nature and limitation of the “exception.” Specifically, the court described a sidewalk that “had been left with its grade broken simply by a four foot wall, without the provision of steps . . . .’’Id. According to the court, such a sidewalk “would have been in such a defective condition as to have been out of repair from the beginning.” Id. Thus, the cognizable design defect claim that the court hypothesized in Hoyt essentially would consist of an allegation that the plan of design called for a four foot drop or hole in the road. Indeed, the court in Hoyl immediately went on to state that, under its hypothetical, the plaintiffs claim would be “no stronger than if the road had been originally built in the best manner”;
This was precisely the case in Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), the only case in which this court ever has acknowledged that the “so-called Hoyt exception”; Donnelly v. Ives, supra, 159 Conn. 168; properly had been raised to defeat a defense of sovereign immunity. In Perrotti, the town of Hamden had installed a drain pipe twelve inches below the surface of a highway “in accordance with [a] plan adopted for the construction used in improving [the] highway.” Perrotti v. Bennett, supra, 534. Pursuant to the plan of design, twelve inches of sand and gravel were placed between the drain pipe and the surface of the road. Id.,
On appeal, we reversed the judgment of the trial court. Id., 542. We explained, first, that the plaintiff had the legal right “to operate a truck the combined weight of which, with that of the load, did not exceed 25,000 pounds”; id., 536; and that “proper construction and proper material in this case [required] a drain that would support [25,000 pounds].” (Internal quotation marks omitted.) Id., 536-37. We further stated that, although “[t]he principle of nonliability for error in the adoption of [a] plan for a municipal improvement is fully established . . . [w]henever the plan in its execution creates a nuisance, or causes direct injury to another, liability follows for the damage done. . . . The execution of the plan . . . [and] the operation of the improvement in accordance with the plan . . . are ministerial acts, and if the plan [is to] be executed or
Hoyt and Perrotti, therefore, establish the unremarkable principle that a defect in a plan of construction of a highway may, upon execution of that plan, render the highway “out of repair from the beginning”; Hoyt v. Danbury, supra, 69 Conn. 352; such that, if a person were to be injured as a result of the disrepair, he or she would have a cause of action under the highway defect statute. Thus, the exception to the general rule barring liability under § 13a-144 for design defects is premised on the notion that certain design defects also may constitute highway defects within the meaning of § 13a-144. In other words, Hoyt stands for the limited proposition that, when a plaintiff pleads an otherwise actionable claim under § 13a-144—that is, a claim that otherwise comports with all of the statutory requirements—the state may not avoid liability merely by dem
In the present case, we already have concluded that the plaintiffs allegations are insufficient to establish an actionable claim under § 13a-144 because the rocks and debris located above the highway did not impede or obstruct travel thereon. A fortiori, the plaintiffs allegations are insufficient to fall within the limited exception to the general rule precluding liability for design defects.
The dissent rejects our conclusion as “based [on] an unduly narrow construction of . . . our case law” and as “counterintuitive to the public policy underlying the state’s waiver of immunity for defective highway claims.”
With respect to the dissent’s first contention, our case law makes clear that objects that fall into the roadway are not defects within the meaning of the highway defect statute unless and until: (1) they actually have fallen into the roadway; (2) they actually obstruct traffic; and (3) the commissioner has reasonable notice of the obstruction. We have applied this principle to different kinds of potentially dangerous objects, including tree limbs; Comba v. Ridgefield, supra, 177 Conn. 271; Dyer v. Danbury, supra, 85 Conn. 130; objects suspended over a roadway; Hewison v. New Haven, supra, 34 Conn. 142-43; and traffic guideposts. Aaron-
In an attempt to distinguish these cases from the present case, the dissent seizes upon certain language in our prior cases explaining that, with respect to objects that are located off the roadway, a person may be injured by those objects regardless of whether he or she is in the roadway. The dissent then asserts that we rejected the highway defect claims in those prior cases because the plaintiffs in those cases had failed to demonstrate that they would have been injured only while traveling upon the highway and not while off the highway. Finally, the dissent asserts that this case is distinguishable from those prior cases because it is “highly improbable . . . that the falling rocks and other debris could have injured anyone other than someone traveling on the highway.” (Internal quotation marks omitted.) The dissent’s logic and conclusion are fatally flawed.
First, the dissent’s argument is built upon the proverbial straw man. Although this court has explained that conditions off the highway, such as rotting tree limbs, “could cause injury, but that injury could result even to one who [is] not a traveler on the highway”; Comba v. Ridgefield, supra, 177 Conn. 271; that observation was merely illustrative of the court’s fundamental point, namely, that such objects are not defects within the meaning of the highway defect statute because they simply “[do] not obstruct, hinder or operate as a menace to travel.” Id.; see also Hewison v. New Haven, supra, 34 Conn. 143 (“any object suspended over the highway so high as to be entirely out of the way of travelers
More fundamentally, however, the dissent ignores the principle, firmly established in our law, that the highway defect statute does not give rise to a cause of action sounding in general negligence. E.g., Ormsby v. Frankel, supra, 255 Conn. 676. Although the rocks and debris that struck the plaintiffs automobile in the present case may have posed an unreasonable danger to travelers on the road, such that the commissioner’s failure to remove them arguably was negligent, any
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to grant the commissioner’s motion to dismiss and to render judgment for the commissioner.
General Statutes § 13a-144 provides in relevant part: “Any person ii\jured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”
We note that, although interlocutory rulings generally are not immediately appealable, the denial of a motion to dismiss based on a colorable claim of sovereign immunity is an exception to this general rule. E.g., Gordon v. H.N.S. Management Co., 272 Conn. 81, 91 n.12, 861 A.2d 1160 (2004). Because § 13a-144 “serves as a waiver of the state’s sovereign immunity for claims arising out of certain highway defects”; Filippi v. Sullivan, 273 Conn. 1, 3 n.l, 866 A.2d 599 (2005); the commissioner was entitled to, and did, appeal from the trial court’s adverse ruling on his motion to dismiss.
As the Appellate Court stated, “the record does not contain a memorandum of decision or a signed transcript of an oral decision [by the trial court]. Nevertheless, because the essential facts are undisputed and the claim involves a question of law, the record is adequate for review. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000) ([when] de novo review applies and facts are not disputed, precise legal analysis undertaken by trial court not essential to reviewing court’s review of issue on appeal).” McIntosh v. Sullivan, supra, 77 Conn. App. 643 n.4.
The plaintiffs in Comba brought their action pursuant to § 13a-144, the state highway defect statute, and § 13a-149, the municipal highway defect statute. See Comba v. Ridgefield, supra, 177 Conn. 269. “In interpreting [§ 13a-144] we have on many occasions looked to and applied the rationale in cases involving statutory actions against municipalities under ... § 13a-149 since there is no material difference in the obligation imposed on the [commissioner] by § 13a-144 and that imposed on municipalities by § 13a-149.” Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); see also Smith v. New Haven, 258 Conn. 56, 64 n.6, 779 A.2d 104 (2001) (noting that case law interpreting §§ 13a-144 and 13a-149 can be applied interchangeably). Because “[t]here is no substantial difference in the duties imposed by those statutes”; Comba v. Ridgefield, supra, 269-70; we treat them as identical for purposes of this appeal.
We reiterated this same point more recently in Comba v. Ridgefield, supra, 177 Conn. 268: “This court in Hewison recognized that the defect need not be a part of the roadbed itself. It gave, among other examples, tree limbs overhanging the roadway near the ground which necessarily obstructed the use of the road. On the other hand, the case pointed out that those objects which have no necessary connection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective. This court listed trees, walls of buildings standing beside the road, and objects suspended over the highway which are so high as to be entirely out of the way of travelers, as examples of the latter. It further pointed out that a person could be injured by them, but the use of the highway, as such, does not necessarily bring about the injury. Such objects may be a nuisance that the government unit may have an obligation to abate, but they are not defects in the highway.” Id., 270; see also Dyer v. Danbury, 85 Conn. 128, 130-31, 81 A. 958 (1911) (“The overhanging limb did not constitute a defect in the highway. It did not obstruct travel thereon, and the city was not bound to remove it as a part of its duty ‘to build and repair’ the highways within its limits. ... If the overhanging limb, by reason of its liability to fall upon the traveled pari, of the highway, constituted a nuisance, as alleged, it ought to have been removed. If it endangered travel upon the highway it was a public nuisance and the city could and should have caused its removal. But this duty of the city was a public governmental one, for the neglect of which no liability at common law ensued to the city, and no statute imposes any.” [Citation omitted.]).
As the commissioner notes, we held, in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 181, 203, that a malfunctioning traffic light that simultaneously signaled green to traffic traveling north and traffic traveling west, thereby causing an accident, constitutes a highway defect for purposes of the municipal highway defect statute. We explained our conclusion in Sanzone as follows: “We have held that 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 position, would be likely to produce that result .... Hewison v. New Haven, [supra, 34 Conn. 142]; see Hickey v. Newtown, 150 Conn. 514, 518, 192 A.2d 199 (1963). In Hewison, we distinguished such highway defects from those objects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway .... Hewison v. New Haven, supra, 143. We explored this distinction more recently in Comba v. Ridgefield, [supra, 177 Conn. 268]. In that case, rejecting the . . . assertion that an overhanging tree limb, which subsequently fell on a traveling automobile, could be a highway defect, we explained: [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. Id., 271.
“Unquestionably, a malfunctioning traffic light, although not a physical impediment at street level, is, as a matter of law, such a highway defect, or in the language of the statute, part of a defective road. ” (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202-203. In contrast to the reasoning and conclusion of the Appellate Court in Tyson v. Sullivan, supra, 77 Conn. App. 597, the rationale and conclusion of Sanzone are entirely consistent with our prior cases construing the highway defect statutes. In particular, the hazardous condition in San-zone, namely, the malfunctioning traffic light, actually existed in or so near the highway when the plaintiff in Sanzone arrived at the intersection so as to constitute a highway delect for purposes of the municipal highway defect statute because it necessarily hindered and imperiled travelers in the use of the road. See Hewison v. New Haven, supra, 34 Conn. 142. By contrast, the hazardous condition in the present case, namely, the raised rocky ledge, simply is not a highway defect for purposes of § 13a-144 because the ledge did not actually obstruct or hinder highway traffic until the rocks and debris
We made a similar point in Aaronson v. New Haven, 94 Conn. 690, 110 A. 872 (1920). As we explained in Prato v. New Haven, supra, 246 Conn. 638: “In Aaronson ... a silent policeman was placed in the roadway to regulate traffic. [Aaronson v. New Haven, supra], 692. The silent policeman had toppled over into the lanes of travel on numerous occasions. Id., 693. It was dislodged and rolled into the travel lanes at approximately 6:30 p.m. one evening, and someone had notified the police by 7 p.m. Id. It, nevertheless, still remained in the travel lanes at 7:30 p.m., when ... [a] car [driven by the plaintiff, Abraham Aaronson] collided with it. The plaintiff sued the city of New Haven. We held that the city could be held liable because its officials had actual notice of the highway defect and ample time to remedy it. Id. This court was careful to point out, however, that its decision rested on the one-half hour lapse between the notice and the accident, and not on the fact that the silent policeman had toppled over in the past and had a propensity to topple over in the future. See generally id., 695-96. Despite the other occasions on which it had toppled over into the travel lanes, we indicated that the city did not receive actual or constructive notice of the defect until the police officer in charge was notified of the condition at 7 p.m. See id., 696 . . . ." (Citation omitted.) Prato v. New Haven, supra, 643-44. Indeed, we stated in Aaronson that the trial court “erred in charging that the mere placing of a silent policeman at the intersection of the streets with knowledge that it was liable to be displaced so as to become a dangerous obstruction to traffic, and without fastening or anchoring it so as to prevent or minimize such liability, was a breach of the legal duty which the [city of New Haven] owed to travelers on its streets.” Aaronson v. New Haven, supra, 694. In Aaronson, we held that “[t]he jury should have been charged that the city was not liable unless it [had] failed to use reasonable care in discovering the obstruction after it existed, or [had] failed to use reasonable care in removing it after notice.” Id., 696. Thus, even though it would have been reasonable to require the city of New Haven to take steps to prevent the silent policeman from toppling into the
We also disagree with the plaintiff’s characterization of the breadth of the exception to the general rule precluding liability for design defects. In support of that characterization, the plaintiff relies primarily on dictum in Langton v. Westport, 38 Conn. App. 14, 658 A.2d 602 (1995), in which the Appellate Court stated that the “exception to the general rule . . . has almost consumed the rule.” Id., 18. Although it is true that we recognized the exception to the general rule more than 100 years ago; see Hoyt v. Danbury, supra, 69 Conn. 352, we have found the exception to be applicable only once. See Perrotti v. Bennett, 94 Conn. 533, 541-42, 109 A. 890 (1920). More importantly, as we explain more fully hereinafter, the exception is a relatively narrow one; to the extent that the dictum of the Appellate Court in Langton suggests otherwise, it is incorrect.
The dissent also contends that our conclusion is based on an unduly narrow construction of the highway defect statute itself. Neither our construction of the statute nor the dissent’s construction of the statute, however, relies upon the language of the statute; both interpretations are predicated on this court’s interpretive case law that dates back approximately 150 years. Consequently, Ihe dissent’s assertion that our construction of the highway defect statute is unduly narrow is subsumed by its identical assertion regarding our interpretation of the case law.
Indeed, even if the distinction drawn by the dissent were a legitimate one, it would not avail the plaintiff in the present case. Although the dissent asserts that “it is ‘highly improbable . . . that the falling rocks and other debris could have injured anyone other than someone traveling on the highway,’ ” that assertion—which the dissent fails entirely to explain—is wholly unfounded; there simply is no reason why a person worldng or climbing in the area between the rock ledge and the roadway also would not have been injured by the falling rocks.
Indeed, as we have explained, the commissioner or municipality also may have been negligent in failing to secure or to remove the overhanging tree limbs in Comba v. Ridgefield, supra, 177 Conn. 269, and Dyer v. Danbury, supra, 85 Conn. 130, the suspended iron weight in Hewison v. New Haven, supra, 34 Conn. 136, and the traffic guidepost in Aaronson v. New Haven, supra, 94 Conn. 692. We nevertheless concluded in those cases that the commissioner or municipality was not liable under the applicable highway defect statute, despite any such negligence, because the alleged defect was not actually obstructing highway travel. See Comba v. Ridgefield,, supra, 271; Aaronson v. New Haven, supra, 695-96; Dyer v. Danbury, supra, 130; Hewison v. New Haven, supra, 143. We hold the same today.
We note, furthermore, that, although the dissent would hold the commissioner to a negligence standard in the present case—even though we consistently have rejected that standard in construing the highway defect statute— the dissent fails to articulate any principled rule or standard for deciding future highway defect cases that involve falling objects. Under the dissent’s approach, some objects that are off the roadway, such as the falling rocks and debris in the present case, are highway defects before they actually fall into the road and obstruct travel thereon, whereas other objects, such as falling tree limbs, traffic guideposts and suspended iron weights, are not highway defects before they fall into the road and obstruct travel. Under the analysis employed by the dissent, it simply is impossible to ascertain whether a particular falling object is a defect within the meaning of the highway defect statute.
Dissenting Opinion
dissenting. The majority concludes that the doctrine of sovereign immunity bars the claim brought by the plaintiff, Adalbert H. McIntosh, Sr., against the defendant, James F. Sullivan, the commissioner of transportation (commissioner), under General Statutes § lSa-144,
The majority bases its decision on the following principles. First, the majority determines that a condition or hazard cannot be considered a highway defect,
I begin with certain well established principles. The defective highway statute expressly imposes liability on the state for injuries sustained “by means of any defective highway,” through the state’s fault or neglect, as a result of its failure to keep the highway in repair. General Statutes § 13a-144. We have recognized that “ [t]he policy of § 13a-144 is to compensate those injured [by a highway defect] and to penalize the commissioner . . . for his neglect and default in carrying out his statutory duty to repair and maintain the state highways.” Hall v. Burns, 213 Conn. 446, 460-61, 569 A.2d 10 (1990). Although the state has waived its sovereign immunity
This court has defined a highway defect that gives rise to liability under § 13a-144 as “ ‘[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 position, would be likely to produce that result.’ Hewison v. New Haven, [supra, 34 Conn. 142].” Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). The court further has determined that a defective design may, under certain circumstances, constitute an actionable highway defect. Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897); see, e.g., Federman v. Stamford, 118 Conn. 427, 429-30, 172 A. 853 (1934) (affirming judgment in favor of plaintiff on design defect claim); Perrotti v. Bennett, 94 Conn. 533, 541, 109 A.2d 890 (1920) (reversing judgment in favor of defendant state highway commissioner on plaintiffs design defect claim); see also Bovat v. Waterbury, 258 Conn. 574, 585-86, 589, 783 A.2d 1001 (2001) (recognizing that either of plaintiffs alternative claims of highway defect for failure to repair or maintain or design defect legally could sustain verdict). Thus, although the commissioner is not hable for the state’s choices regarding its plan of construction for a roadway, the defective implementation of that plan does fall within the ambit of the statute if “the plan of construction adopted [is] one which was totally inadmissible . . . [so] as to [ren
Consistent with the principle, however, that we narrowly construe statutes waiving sovereign immunity; Prato v. New Haven, 246 Conn. 638, 647, 717 A.2d 1216 (1998); this court has prescribed certain limits on defective highway claims. First, the state must have actual or constructive notice of the defective condition. Ormsby v. Frankel, supra, 255 Conn. 676-77. Second, the danger posed must be specific to travelers on the highways, not to those who similarly might be injured when engaged in acts other than highway travel. See Hewison v. New Haven, supra, 34 Conn. 143; see also Hoyt v. Danbury, supra, 69 Conn. 352 (“[f]or consequential damage thus occasioned to members of the general public, the common law never gave a remedy; nor has the statute changed the rule”). Thus, “objects which have no necessary connection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective.” Comba v. Ridgefield, supra, 177 Conn. 270. Finally, the state will not be liable when the object properly serves its function of facilitat
In my view, all of these elements could be satisfied in the present case, thereby simply permitting the plaintiff to avoid a motion to dismiss and to have an opportunity to meet the burden of proving his allegations. The plaintiff alleges that a highway defect arose when the state constructed the highway dangerously close to the rock ledge, knowing that rocks and debris were likely to fall onto the highway, and made no effort to stabilize the rock ledge, to erect sufficient barriers so as to prevent rocks falling from the ledge into the highway or to post signs warning of the danger, and, as a result of these actions, the plaintiff was injured by such an occurrence when traveling on the highway. It is clear that, because the plaintiffs allegations are consistent with a claim of design defect, the notice requirement is satisfied as the commissioner is deemed to have constructive notice of a condition the state has created.
Undeniably, in maintaining our state highways, the commissioner has placed numerous signs and barriers along the roadside to warn of, and protect travelers from, the potential danger of rocks and debris failing
The majority relies nonetheless on this court’s holdings in Hewison v. New Haven, supra, 34 Conn. 142-43, Dyer v. Danbury, 85 Conn. 128, 130, 81 A. 958 (1911), and Comba v. Ridgefield, supra, 177 Conn. 270, for the proposition that hazards that fall onto the roadway from an object near or suspended above the roadway never can be a highway defect. I disagree that these cases compel the majority’s conclusion.
A brief discussion of these cases is helpful. The plaintiff in Hewison alleged that some unknown persons
Comba v. Ridgefield, supra, 177 Conn. 268, and Dyer v. Danbury, supra, 85 Conn. 128, both involved injuries
Thus, it is clear that, in the aforementioned cases, the court rejected the claims because the risk of injury was not limited to only those persons traveling on the highway. In the present case, however, for the reasons I already have discussed, the crumbling rock ledge posed a threat to highway travelers only. Indeed, I also surmise that, in light of its rejection of liability for nuisances created by persons other than the city, the court in Hewison reached its conclusion in part because the plaintiff did not allege that the dangerous condition was created in any way through the fault or neglect of the city. See Hewison v. New Haven, supra, 34 Conn. 136-37; see also Aaronson v. New Haven, supra, 94 Conn. 695-96 (rejecting highway defect claim wherein plaintiff was injured when his car struck otherwise conspicuous and properly functioning guidepost knocked into road by third party).
I agree with the majority that these cases could be read so as to bar the plaintiffs claim. I disagree, however, that these cases compel us to conclude, in the absence of such a limitation in § 13a-144, that a highway defect is limited to objects that actually are in the roadway and necessarily obstructing or impeding travel. As support for this proposition, the majority relies in large measure on an example of a potential highway defect
Thus, in my view, the majority reaches its conclusion based on an unduly narrow construction of the statute, one that our case law does not compel and one that is
Finally, it is important to remember the procedural posture in which this case comes before us, specifically a motion to dismiss on grounds of sovereign immunity. In the present case, reading the facts as alleged in the light most favorable to the plaintiff; see Miller v. Egan, 265 Conn. 301, 305, 828 A.2d 549 (2003); the state is charged with being able both to foresee and to alleviate the harm. The plaintiff, therefore, should at least be given the opportunity to prove these elements at trial.
Accordingly, I respectfully dissent.
General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . . The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. . . .”
The plain meaning of the tern “repair” would suggest a defective condition that arises subsequent to construction; yet, this court has recognized that liability could arise from a claim for a defect from the highway’s inception. See, e.g., Hoyt v. Danbury, supra, 69 Conn. 352. Similarly, we have construed the statute to imply a cognizable action for the commissioner’s failure to “maintain” a highway, although that term is not stated expressly in the statute. See, e.g., Amore v. Frankel, 228 Conn. 358, 367, 636 A.2d 786 (1994) (discussing commissioner’s duty under statute “to repair or maintain”).
If the state builds a highway next to a rock ledge, it is almost certain that the architect of the highway must have been aware of the rock ledge and its proximity to the planned highway. Indeed, it is common knowledge that, in many instances, the state actually creates rock ledges by blasting hillsides during the course of constructing highways. In the present case, the deliberate positioning of the roadway near the rock ledges, such that loose rocks and other debris situated thereon'—objects that, by their very nature and position, reasonably were at risk of dislodging and rolling onto the highway thereby obstructing or hindering travel—could fall, constitutes a defect that existed from the roadway’s inception and thus gave rise to constructive notice.
The commissioner claims that, because the plaintiff specifically alleged that there were no warning signs present at the accident site; see McIntosh v. Sullivan, 77 Conn. App. 641, 642 n.3, 825 A.2d 207 (2003); the Appellate Court improperly considered the presence of warning signs and barriers along the highway in concluding that rockslides are a likely occurrence. See Tyson v. Sullivan, supra, 77 Conn. App. 604-605. This allegation has no bearing on the fact that it is common knowledge that such warning signs and barriers exist along Interstate 84, the site of the plaintiffs accident, and many other state roadways.
Indeed, although the commissioner’s obligation does not sound in general negligence, such negligence principles are nonetheless relevant to the defective highway statute; see Prato v. New Haven, supra, 246 Conn. 645; and public policy concerns have influenced the limits of recovery under the statute. See Hall v. Burns, supra, 213 Conn. 460-61 (discussing policy underlying § 13a-144); Prato v. New Haven, supra, 646-47 (discussing policy underlying municipal defective highway statute, General Statutes § 13a-149); Prato v. New Haven, supra, 651 (Berdon, J., dissenting) (asserting that “finding that constructive notice existed in this situation would advance the public policy underlying § 13a-149 of encouraging municipalities to use reasonable care in maintaining safe conditions on their highways”).
Thus, the present case presents different public policy concerns underlying the cases relied on by the majority, as discussed further in this dissenting opinion, in which this court has rejected highway defect claims for injuries sustained when tree branches fell onto pedestrians and automobiles. There are critical differences between trees that grow alongside the roadway and rock ledges next to which a roadway is laid. It is axiomatic that rock ledges do not grow spontaneously, nor are they planted, or placed there by a third party. Whereas trees are numerous and have an ever changing condition, there are far fewer rock ledges and their condition is far less mutable,
