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. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. 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 requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.

(1949 Rev., S. 2201; 1953, 1955, S. 1193d; 1958 Rev., S. 13-87; 1963, P.A. 226, S. 144; February, 1965, P.A. 574, S. 50; 1967, P.A. 246; 414; 1969, P.A. 768, S. 108; 1971, P.A. 38, S. 1; P.A. 74-183, S. 201, 291; P.A. 76-222, S. 1; 76-436, S. 172, 681.)

History: 1963 act replaced previous provisions: See title history; 1965 act changed highways included in this section from those in the state highway system to those which the commissioner must keep in repair; 1967 acts included reference to actions in circuit court and limited payments from highway fund to the amount which “exceeds any amount paid to the plaintiff ... under insurance liability policies held by the state”; 1969 act substituted commissioner of transportation for highway department; 1971 act changed deadline for bringing action from one to two years from date of injury and required that notice to commissioner be in writing; P.A. 74-183 deleted reference to actions in circuit courts; P.A. 76-222 changed deadline for notice to commissioner from 60 to 90 days after injury; P.A. 76-436 deleted reference to actions in court of common pleas, effective July 1, 1978.