4 Conn. Cir. Ct. 116 | Conn. App. Ct. | 1966
This action was originally instituted in small claims and thereafter, upon appropriate motion by the defendant, was transferred to the regular civil docket. Practice Book § 912.
The plaintiff, a layman appearing pro se, seeks to recover of the state of Connecticut for property damage incurred as a result of a road sanding operation by a state highway department motor vehicle and a sanding machine attached thereto. The facts have been stipulated and may be summarized as follows:
The plaintiff was driving his automobile in a generally northerly direction on route 17 in the town of Middletown on December 22, 1964, at approximately 7:45 a.m. He observed a state highway truck coming from the opposite direction and, from that point, drove his car as far to the right as practicable. As the state highway truck passed him, the windshield and side of his car were struck by pieces of gravel, causing the damage alleged. The amount of damage is stipulated to be $44.58. At this point, the plaintiff turned around, followed the state highway truck and caused the truck to pull over to the side, at which time both drivers got out and looked at plaintiff’s ear.
At the time of the incident, the plaintiff was driving at a normal speed, estimated to he approximately forty miles per hour. The defendant’s vehicle, driven by Raymond Tremblay, an employee of the state highway department for approximately ten years, started that morning at approximately 4:30 a.m. to sand the state highways in the Middle-town area. The sand in the truck had been purchased from Shadow Lane Sand and Gravel Com
It is a claim of the plaintiff that the sand in question was unsuitable for the use it was being put to at the time, inasmuch as it contained stones or other material of sufficient size to cause dents in an automobile body and to crack a windshield when used in the aforementioned manner. It is conceded that the defendant is insured.
In essence the action was instituted under the provisions of § 52-556 of the General Statutes, which provides in pertinent part that any person injured in property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against property damage shall have a right of action against the state to recover damages for the injury. Under this statute, and upon the agreed upon facts, the plaintiff had the right to sue the state. Dobin v. State, 22 Conn. Sup. 212. The question of sovereign immunity is not pertinent once the question whether or not the damage was caused by a motor vehicle owned by the. state and operated by one of its employees
The pleadings indicate that the defendant has made much of the argument that the sanding machine was not a motor vehicle and particularly that the jet sander on the back of the truck is a device which is set in the rear of the truck body and is equipped with a hopper and a belt which feeds sand onto a spinner which spreads it on the road. If this be so, then of course the plaintiff would at least be required to present this claim as required by law and additionally to obtain consent of the state to institute this type of litigation. See § 4-165, providing that such claims be presented to the commission on claims, and Fitzpatrick v. Hill, supra. This argument, however, falls in view of the stipulated facts as to this particular piece of machinery and under the provisions of § 14-1 (26), as amended by Public Acts 1965, No. 448 § 1, particularly that portion thereof which specifically states that “‘[mjotor vehicle’ means any vehicle propelled or drawn by any power other than muscular,” with certain exceptions not pertinent to the case at bar. It is conceded that the sanding machine in question was affixed to and operated by the motor or motors of the state highway truck.
It is held, therefore, that the plaintiff had and has a right of action, based on the stipulated facts, against the state of Connecticut under the provisions of § 52-556.
It does not, however, appear anywhere in the record that negligence of any state official or employee when operating this particular motor vehicle was either alleged or proved, or admitted. By the very terms of the statute, negligence is a condition precedent to recovery for damage, and the
If we assume arguendo that negligence may reasonably be inferred from some of the facts indicated, to wit that the sand used in the particular operation contained stones or gravel large enough to bounce off the road and strike and injure the plaintiff’s motor vehicle, or stones or gravel large enough when thrown from the sanding machine directly at the plaintiff’s motor vehicle to strike and injure it, then the question arises whether the defendant had actual or constructive notice of this particular defect in the sand being used in a perfectly legitimate and necessary operation. Not a scintilla of evidence in the record indicates that the state highway department knew, or should have known, of this potentially dangerous substance in the particular sand being used. Our law requires a defendant in this position to guard against probable dangers but does not require such a defendant to anticipate and guard against all possibility of danger. Attardo v. Ambriscoe, 147 Conn. 708; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491; Worden v. Francis, 148 Conn. 459, 465, and cases cited; Hale v. Crestline Realty, Inc., 148 Conn. 643.
In the instant situation, the burden was on the plaintiff to prove a breach of duty by the defendant in order to establish a basis for recovery. The
Judgment may accordingly enter for the defendant.