ELLEN STOTLER, ADMINISTRATRIX (ESTATE OF PAUL A. STOTLER III) v. DEPARTMENT OF TRANSPORTATION
(SC 19177)
Supreme Court of Connecticut
Argued April 30—officially released August 19, 2014
Rogers, C. J., and Palmer, Zarella, Eveleigh, Robinson and Vertefeuille, Js.
Joel T. Faxon, with whom, on the brief, was Eric P. Smith, for the appellant (plaintiff).
Ronald D. Williams, Jr., for the appellee (defendant).
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. In no event will any such motions be accepted before the “officially released” date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************
ROGERS, C. J. The dispositive issue in this certified appeal is whether a defective highway claim based on the design of Route 44 across Avon Mountain falls within the purview of
The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff brought this defective highway action against the defendant alleging that, on July 29, 2005, the decedent “was operating his motor vehicle easterly along [Route] 44, a public highway in Avon . . . when a series of collisions occurred when a truck owned by American Crushing and Recycling, LLC, lost control as it traveled down Avon Mountain on Route 44 . . . result[ing] in the death of [the decedent].”
The plaintiff alleged that the decedent‘s injuries and death resulted from the neglect or default of the defendant, “by means of a defective road, in one or more of the following ways:
“(a) in that [the defendant] utilized a plan of design, construction and/or repair for the area of Route 44 described above, adopted by the state of Connecticut and/or its employees, which was totally inadmissible,4 in that it created an unsafe condition;
“(b) in that [the defendant] failed to provide adequate warnings and signage on the downhill grade on Route 44 before the intersection;
“(c) in that [the defendant] failed to construct a necessary runaway truck ramp;
“(d) in that [the defendant] failed to prohibit trucks on this roadway in the absence of other safeguards;
“(e) in that [the defendant] failеd to have, or failed to have adequate, procedures for maintaining the downhill slope in a safe condition;
“(f) in that [the defendant] failed to train, or properly train, personnel in inspection of, or maintenance of, the signage and grade;
“(g) in that [the defendant] failed to maintain, or properly maintain, the roadway for traffic upon it;
“(h) in that [the defendant] failed to inspect, or properly inspect, the roadway so that it could be maintained or properly maintained;
“(i) in that [the defendant] failed to train, or properly train, personnel to inspect the roadway so that it could be maintained or properly maintained;
“(j) in that [the defendant] failed to have, or failed to have adequate, procedures for inspecting and maintaining the roadway so as to be safe for vehicular traffic;
“(k) in that [the defendant] failed to have procedures in place so adequate notice could be given to correct unsafe conditions on the roadway or so that the roadway could be closed;
“(l) in that [the defendant] failed to follow рrocedures which were intended to give adequate notice so that unsafe conditions on the roadway could be corrected, or the roadway closed;
“(m) in that [the defendant] failed to provide adequate advance warning of said dangerous area to oncoming motorists so that they could avoid foreseeable out of control vehicles coming down the [Avon] [M]ountain;
“(n) in that [the defendant] failed to close the road until conditions could be made safe for travel;
“(o) in that [the defendant] failed to follow practices and procedures set forth in the state‘s Policy Manual;
“(p) in that [the defendant] failed to properly supervise state agents, servants or employees who were responsible for maintaining the roadway in a safe condition, and/or
“(q) in that [the defendant] failed to install visible street signage causing the truck to proceed down [Avon] [M]ountain missing the turn off.” (Footnote added.)
The defendant filed a motion to dismiss the action on the ground that the plaintiff‘s allegations were insuf-
The defendant appealed from the trial court‘s decision to the Appellate Court.7 The Appellate Court concluded that the plaintiff failed to allege an actionable highway defect under
We begin with the governing legal principles and standard of review. “[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . . Nevertheless, a plaintiff may surmount this bar against suit if, inter alia, he can demonstrate that the legislature, either expressly or by force of a necessary implication, statutorily waived the state‘s sovereign immunity. . . . Even when there is an express statutory waiver of immunity, however, the plaintiff‘s complaint must allege a claim falling within the scope of that waiver. . . .
“Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by а motion to dismiss. . . . 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. . . . [O]ur review of the court‘s ultimate legal conclusion and resulting [determination] of the motion to dismiss will
“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 649–51, 974 A.2d 669 (2009).
“The state highway liability statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory. . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign at common law, a plaintiff, in order to recover, must bring himself within
In order for a plaintiff to recover under
We have defined a highway defect as “any object or condition 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.” Hickey v. Newtown, 150 Conn. 514, 518–19, 192 A.2d 199 (1963); accord McIntosh v. Sullivan, supra, 274 Conn. 268–69 (“[w]e have held that a highway defect
Moreover, “[w]e have consistently held that [t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.” (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 462–63, 569 A.2d 10 (1990); accord Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970) (“[t]he duty imposed on the state by the provision of the defective highway statute is not such as to make the state an insurer for people using those highways which the defendant must keep in repair but is rather a duty to exercise reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler“); Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961) (“a [state] is not an insurer against accidents occurring on its highways; its duty is not to make the streets absolutely safe for the users thereof but only to exercise reasonable care to keep them in a reasonably safe condition for travel“).
With these governing legal principles in mind, we turn to the plaintiff‘s allegations in the present case. In her complaint, the plaintiff alleges that the defendant “utilized a plan of design, construction and/or repair . . . which was totally inadmissible, in that it created an unsafe condition . . . .” See footnote 4 of this opinion. Specifically, the plaintiff alleges that the absence of tangible safety measures, including a runaway truck ramp and adequate signage warning of the steep downhill grade, as well as the failure to prohibit trucks on the roadway in the absence of these and other safeguards, rendered the roadway defective.10
Although the plaintiff does not specifically allege that the downhill grade of the roadway constituted part of the claimed design defect, we are mindful that “[t]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the
We note, however, that the plaintiff has conceded both in her appellate brief and at oral argument before this court that she has not alleged that the steep downhill grade of Route 44 alone constitutes an actionable highway defect.11 See footnote 8 of this opinion. Indeed, by her own account, the plaintiff alleges that the defect in the present case consists of the “dangerously steep road surface that channels descending traffic into a major crossing intersection immediately at the bottom of the slope, together with the absence of an escape ramp to divert and contain vehicles encountering runaway сonditions, and the absence of adequate warning signs to alert drivers to the severity of the conditions they were about to encounter before they were irrevocably committed to the descent.” (Emphasis added.) Put simply, the plaintiff‘s complaint alleges that the design of the roadway consisting of the steep downhill grade, in the absence of certain identified safety measures, rendered it unsafe for public travel and thus defective within the meaning of
The question then becomes whether the complaint, so construed, states a cause of action under the defective highway statute. We begin our analysis with an overview of the parameters of the right of action afforded under
“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 plaintiff‘s 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 . . . .” (Citations omitted; footnote added; internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 270–71.
“The hypothetical design claim that the court in Hoyt 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 . . . .’ [Hoyt v. Danbury, supra, 69 Conn. 352]. 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 Hoyt immediately went on to state that, under its hypothetical, the plaintiff‘s claim would be ‘no stronger than if the road had been originally built in the best manner‘; id.; because, logically, the highway defect statute covers four foot holes in the middle of the roadbed irrespective of how they came to be there. In other words, a design defect clаim can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway‘s plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear. In all other respects, however, a design defect claim is indistinguishable from any other highway defect claim and, accordingly, it is subject to all the same statutory requirements, including the requirement that the alleged defect actually be in the roadbed or so near to it as to ‘necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . .’ Hewison v. New Haven, [34 Conn. 136, 142 (1867)]. [That is], Hoyt merely precludes the state from raising sovereign immunity as a defense when the plan of design, as implemented, creates the very type of hazardous condition for which the highway defect statute abrogated governmental immunity in the first place and for which the govern-
Thus, the issue we must decide in the present case is whether the plaintiff‘s allegations, if true, would amount to an actionable highway defect claim within the narrow exception in Hoyt to the general rule precluding liability for design defects. The plaintiff argues that the plan pursuant to which the highway was constructed was “totally inadmissible” because the highway was “inherently dangerous when put to the use for which it was intended and for which it [was] lawfully open.” Specifically, the plaintiff claims that the roadway‘s steep grade and layout, combined with the absence of tangible safety measures, constituted a condition intrinsic to the roadway that rendered it defective within the meaning of the highway defect statute.13 In response, the defendant claims that the steep downhill grade, together with the lack of safety measures, dоes not constitute an actionable highway defect because it is not a hazardous object or condition in or near the roadbed that necessarily obstructed travel thereon. Furthermore, the defendant argues that the plaintiff‘s claim is materially indistinguishable from the design defect claim in McIntosh that this court held was not actionable under
First, we are not persuaded by the plaintiff‘s attempt to distinguish her claim in the present case from the claim raised in McIntosh that this court held was barred by sovereign immunity. In McIntosh, the plaintiff, Adalbert H. McIntosh, Sr., brought a highway defect claim under
On appeal, this court reversed the judgment of the Appellate Court. McIntosh v. Sullivan, supra, 274 Conn. 264. We concluded that “[McIntosh‘s] allegations [were] insufficient to establish an actionable claim under
Similarly, in the present сase, we conclude that the plan of design providing for the steep downhill grade of the highway, in combination with the absence of adequate warning signs and tangible safety measures, did not render the highway defective within the meaning of
The plaintiff further claims that McIntosh is distinguishable from the present case because the steep downhill grade of Route 44, unlike the rocky ledge abutting the highway in McIntosh, is a condition intrinsic to the highway that rendered the road defective.15 Although we acknowledge this limited distinction, we are not persuaded that it compels a different result in the present case. The steep downhill grade, albeit a natural condition inherent to the roadway by virtue of its location across Avon Mountain, is no more cognizable a defect than the rocky ledge located adjacent to the roadway in McIntosh. Neither are objects or conditions in or near the road “which would necessarily
Furthermore, the present case is distinguishable from the handful of cases in which this court has recognized a cognizable highway design defect claim. For instance, in Perrotti v. Bennett, 94 Conn. 533, 534–35, 109 A. 890 (1920), the municipality installed a drain pipe below the surface of the highway and, in accordance with the plan adopted, covered it with twelve inches of sand and gravel. The plaintiff brought a highway defect claim against the municipality after he was injured when the highway above the pipe collapsed under the weight of his vehicle. Id., 535. The trial court found that the plaintiff‘s injuries were “due to a defect in the original plan of construction of said drain,” and rendered judgment for the municipality. Id., 535–36. On appeal, we reversed the trial court‘s judgment, concluding that the plaintiff‘s claim fell within the limited exception to the general rule barring liability for design defect claims pursuant to
In Perrotti, unlike in the present case, the plaintiff alleged an otherwise actionable highway defect, namely, the poorly constructed drain under the surface of the highway that collapsed under the weight of a vehicle traveling thereon. See id., 535. The poorly constructed drain constituted a condition “in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . .” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 282; see Perrotti v. Bennett, supra, 94 Conn. 541 (“from the time the drain was laid it constituted a defect in the highway, whether this was due to the want of adequate covering, or to the character of the pipe, or both“). The municipality could not escape liability merely because the drain was constructed pursuant to a plan of design that the municipality adopted in its “quasi-judicial or legislative capacity“; Donnelly v. Ives, supra, 159 Conn. 168; because the plan, as implemented, created a defect “for which the government otherwise would be liable had the dangerous conditiоn originated through means other than the plan of design.” McIntosh v. Sullivan,supra, 282; see id. (Hoyt exception “precludes the state from raising sovereign immunity as a defense when the plan of design, as implemented, creates the very type of hazardous condition for which the highway defect statute abrogated governmental immunity in the first place“). The municipality was therefore liable for injuries caused by the defective plan of design “after it had reasonable notice of the defect and of the imminence of the injury.” Perrotti v. Bennett, supra, 541.
In the present case, by contrast, the plan of design providing for the steep downhill grade, together with the absence of tangible safety measures, as implemented, did not create an otherwise actionable highway defect as defined by our case law. As discussed previously in this opinion, a highway defect is “[a]ny object [or condition] 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 . . . .” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 273; Hickey v. Newtown, supra, 150 Conn. 518–19. A рroperly constructed road on a 10 percent downhill grade, together with the absence of certain tangible safety measures, does not constitute a condition or object in the traveled path that would necessarily obstruct travel thereon. Indeed, the plaintiff does not claim that the road itself was in poor condition, either “in material or manner of construction . . . .” Hoyt v. Danbury, supra, 69 Conn. 352. Instead, the plaintiff seeks to hold the defendant liable for its decision to construct a highway across a steep downhill grade, without including certain identified safety measures. This is precisely the nature of the claim that is precluded by virtue of Hoyt and its progeny. See Donnelly v. Ives, supra, 159 Conn. 168 (“a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the [construction] of its streets or highways and ordinarily will not be liable for consequential damages for injuries due to error or defects in the plan adopted“); Hoyt v. Danbury, supra, 351 (“[a] defect in the plan upon which [a] highway [is] constructed . . . [does] not [come] within the [highway defect] statute“).
In the absence of an actionable hazard in the road that necessarily obstructed trаvel thereon, the defendant‘s decision in the present case regarding the location of the highway across a steep downhill grade, and the extent of warning signs necessary to alert motorists thereto, is not subject to collateral review by this court. “[I]t has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review [the] determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the [s]tate or one of its subdivisions
Under the theory of liability the plaintiff advocates in the present case, virtually every design defect claim pertaining directly to the layout of the road would be actionable under the defective highway statute.19 That is, if we were to decide that a highway‘s layout across a 10 percent downhill grade, in the absence of tangible safety measures, constitutes a “condition in, upon or near the traveled path which would necessarily obstruct or hinder . . . traveling thereon“; Hickey v. Newtown, supra, 150 Conn. 518; then conceivably any highway design could be described as a defective “condition” intrinsic to the highway. This result would hamstring states and municipalities in discharging their respective “duty to plan highways for the safety of the traveling public.” (Internal quotation marks omitted.) Donnelly v. Ives, supra, 159 Conn. 168. We simply cannot construe the defective highway statute in a manner that would eviscerate the general rule precluding liability for design defect claims under Hoyt and its progeny. See White v. Burns, supra, 213 Conn. 321 (“[t]he state highway liability statute . . . is to be strictly construed in favor of the state“).
For the reasons set forth herein, we conclude that the Appellate Court properly determined that the plaintiff‘s complaint fails to state a claim under
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA, ROBINSON and VERTEFEUILLE, Js., concurred.
Notes
The trial court, Sheldon, J., denied the defendant‘s motion for summary judgment and the defendant appealed from that decision to the Appellate Court. The Appellate Court, however, declined to review the defendant‘s summary judgment claim in light of its threshold determination that the plaintiff‘s cоmplaint should have been dismissed for failure to state a claim under
After we granted the plaintiff‘s petition for certification, the defendant raised as an alternative ground for affirmance that “the claimed highway defects were not, as a matter of law, the sole proximate causes of the subject accident.” See Practice Book § 84-11. Because we conclude that the Appellate Court properly reversed the judgment of the trial court on the ground that the plaintiff‘s complaint failed to state a claim under
During oral argument before this court, the plaintiff averred that the alleged defect is comprised of a combination of factors, rather than the downhill grade standing alone:
“The Court: What is the highway defect?
“The Plaintiff‘s Counsel: A combination of things. Number one is Route 44 has a 10 percent grade.
“The Court: Is that a defect?
“The Plaintiff‘s Counsel: In part.
“The Court: How?
“The Plaintiff‘s Counsel: Because it does not incorporate the intrinsic portions of the defect with proper safety applications . . . including a runaway ramp. . . .
“The Court: So it‘s not the 10 percent grade; it‘s something in addition to the 10 percent grade?
“The Plaintiff‘s Counsel: Right, it‘s a package of facts that lead to the defect in this case. It‘s not one thing.”
The court rеasoned that if the plan of construction were so inadequate that the sidewalk was “out of repair from the beginning“—for instance, if the sidewalk “had been left with its grade broken simply by a four foot wall, without the provision of steps, or had the steps provided been insecure, or unguarded by a proper railing,” then the plaintiff might have a viable claim. Id., 352. The trial court had found, however, that “the steps leading from one grade to the other were not defective, either in material or manner of construction, nor out of repair, at the time of the plaintiff‘s injury.” Id. We concluded that, because the stairs were properly constructed and in good repair, the municipality‘s decision regarding the design of the walkway “was not subject to review by the courts.” Id.; see id., 351 (“the Superior Court had the right to determine whether [the stairs] were properly constructed and in good repair, but not to pronounce the walk defective because [they were] not built on an unbroken grade“); id., 352 (“The use of steps in a city . . . sidewalk is one of several permissible means of overcoming a steep grade. . . . It was for the municipal authorities to decide whether it was the best means of constructing this particular walk; and their decision was not subject to review by the courts.” [Citation omitted.]).
While it is true that the court in Hoyt intimated that a sidewalk “unguarded by a proper railing” might be defective by design; id.; we do not agree with the dissent that “[a] road with an extremely steep downhill grade that is traversed by large trucks, without warning signs and with no truck runoff is defective in the same way that a staircase with no railing is defective.” Whereas
In this regard, we find the court‘s analysis in Hewison v. New Haven, 34 Conn. 136, 141–42 (1867), instructive: “It seems to have been a matter of doubt whether a bridge, or a part of the highway raised above the adjoining ground, although dangerous, was defective; and hence a railing was expressly required at such places, for the purpose of protecting the ‘safety of travelers.’ Here then was one danger specially provided for. The legislature must have been aware that other dangers existed, or might exist, and yet they made no provision for them. What is the inference? Not only that they did not suppose that the language used was broad enough to embrace every possible danger, but also that they did not intend to make [the state] liable in cases not expressly provided for. We ought not therefore to extend this statute by construction.” (Emphasis in original.) Because this court has expressly repudiated the notion that “everything which renders a highway unsafe makes it defective within the meaning of [
In the dissent‘s view, the allegations in the present case are similar to those in Filippi v. Sullivan, supra, 273 Conn. 4–5 n.3, wherein the claimed defect was insufficient warning signs alerting motorists to a lane closure along a stretch of highway with a graded blind curve that concealed stopped traffic. The issue in Filippi, however, was whether the Appellate Court had improperly concluded that the plaintiff‘s notice to the Commissioner of Transportation describing where the injury had occurred, as required by
We find the trial court‘s analysis misguided in light of the governing legal principles. This court has consistently held that “[t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 269; see also Hewison v. New Haven, supra, 34 Conn. 141 (“[w]e are not prepared to establish the doctrine that everything which renders the highway unsafe makes it defective within the meaning of this [highway defect] act“).
The trial court‘s observation that the downhill grade built into the roadway “may be shown by the [plaintiff] to constitute such an intrinsic defect, which . . . create[d] an unacceptable risk of brake failure” ignores that the defect must actually be in, upon, or near the roadbed so as to necessarily obstruct travel thereon. Indeed, as we stated in McIntosh v. Sullivan, supra, 274 Conn. 289, “the legislature has elected to waive sovereign immunity with respect to the repair and maintenance of the state‘s highways only when the defective condition is in or so near the roadway that it actually obstructs travel and the Commissioner of Transportation has reasonable notice thereof.”
Apart from the design of the road, that is, the steep downhill grade and lack of adequate safety measures, the plaintiff does not allege an actionable hazard in or near the road that necessarily obstructed travel thereon. Rather, the plaintiff claims that the state is liable for damages because it constructed a road across a steep mountain without certain identified safety measures and, in so doing, created an unreasonable risk of catastrophic brake failure. The plaintiff‘s claim falls squarely within our analysis in McIntosh barring such a claim. See id., 288–89 (“[T]he highway defect statute does not give rise to a cause of action sounding in general negligence. . . . Although the rocks and debris that struck the plaintiff‘s automobile in the present case may have pоsed an unreasonable danger to travelers on the road, such that the [defendant Commissioner of Transportation‘s] failure to remove them arguably was negligent, any such negligence was manifestly insufficient to support a claim under the highway defect statute.” [Citation omitted.]).
In Bovat, the plaintiff brought an action against the city of Waterbury under the municipal defective highway statute,
In Federman, the plaintiff brought a highway defect claim for injuries she sustained when a sewer manhole cover in the street became unseated and struck the wheels of her car, causing her to crash into a telephone pole. Federman v. Stamford, supra, 118 Conn. 428. The plaintiff alleged that the cover was defectively designed because “the cover was lower than the frame, which was set flush with the street [and] it fitted so loosely in the frame that it was easily dislodged . . . .” Id. The jury rendered a verdict for the plaintiff, and the trial court denied the defendant city‘s motion to set aside the verdict. Id., 430. This court affirmed the judgment of the trial court, concluding “the jury might have reasonably concluded that the cover created, from the moment of its installation, a condition rendering the street not reasonably safe fоr public travel and that from that moment the street was defective within the meaning of the statute.” Id., 429.
Bovat and Federman are distinguishable from the present case because the alleged defect in each case—the utility pole placed at the apex of the curve in Bovat, and the loosely fitting sewer manhole cover in Federman—was an object in or near the roadway that necessarily impeded travel thereon. In the present case, by contrast, the steep downhill grade, together with the absence of tangible safety measures, does not constitute an object or condition in or near the roadway that necessarily obstructed travel thereon. Accordingly, the plaintiff‘s claim must fail.
“The Court: What design defect that applies directly to the road; a hairpin turn, an exit ramp that is too close to the entrance ramp coming the other way; what kind of design defect would not be actionable [under your theory] when [it] pertains directly to the road?
“The Plaintiff‘s Counsel: Maybe none, Your Honor.”