Opinion
No. CV-09-5010981
November 9, 2009
MEMORANDUM OF DECISION
1. Nature of Proceeding
This is a personal injury action arising out of a tragic work-related accident as a result of which the plaintiff sustained severe, life-altering injuries, including paraplegia. The plaintiff was injured on December 11, 2006, while he was taking measurements for his employer, hired by the department of transportation of the state of Connecticut to perform a substantial part of the rehabilitation project on the Washington Bridge, which traverses the Housatonic River, connecting the towns Milford and Stratford. Further facts will be hereinafter developed.
There are two plaintiffs in this case, Darren Bye and his spouse, Claudine Bye. The court will refer to Darren as "the plaintiff" in light of the fact that the plaintiffs concede that the loss of consortium count (seventh), which the spouse brings against all defendants, does not apply to either the state or the commissioner. See Amore v. Frankel, 29 Conn.App. 565, 572-73, cert. granted on other grounds, 225 Conn. 904 (1992). Murray v. Commissioner of Transportation, 31 Conn.App. 752, 756-57 (1993).
The plaintiff has brought this action against his former employer, Ciambro Corp. (Ciambro), against whom he alleges willful, wanton and intentional misconduct; TSI, formerly known as Tri-State Painting, Inc. (Tri-State) which was the painting contractor hired by Ciambro; the state of Connecticut, and the commissioner of the department of transportation (DOT). Relevant to this memorandum are the counts leveled against the state and the DOT commissioner, each of which, those parties have moved to dismiss.
Specifically, the third and fourth counts involve a claim by the plaintiff against the state and the commissioner, respectively, based upon an alleged breach of statutory duty pursuant to General Statutes § 13a-144, commonly known as Connecticut's defective highway and bridge statute. In his initial memorandum, plaintiff's counsel conceded that, pursuant to said statute, an action based on an alleged defective highway or bridge is authorized to be filed against the DOT commissioner only, therefore, the plaintiff agreed that the third count against the state should be dismissed. The fifth and sixth counts are brought against the state and the commissioner, respectively, pursuant to General Statutes § 13a-152, which deals with state government's statutory obligation relative to the erection and maintenance of railings and fences on the side of bridges and raised roads.
The statute, in relevant part provides: "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 . . . 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." (Emphasis added.)
Section 13a-152 provides: "Any person who suffers damage in his person or property by reason of the want of any railing or fence required by § 13a-111 may recover damages from the party required to erect and maintain the same, but no action for damages for any such injury shall be maintained against any such party unless written 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, shall, within ninety days thereafter, be given to such party. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence if it appears that there was no intention to mislead or that such party was not misled thereby."
Section 13a-111 provides: "The party bound to maintain any bridge or highway shall erect and maintain a sufficient railing or fence on the sides of such bridge and on the sides of such parts of such road as are so made or raised above the ground as to be unsafe for travel. The specifications for railings or fences on state highways or bridges required to be erected and maintained pursuant to this section shall be constructed equal to, or better than, the current specifications and policies approved by the Commissioner of Transportation for the installation and maintenance of roadside appurtenances. A railing or fence that is reasonably maintained under said specifications shall be deemed sufficient under the provisions of this section." (Emphasis added.)
The state and the commissioner have filed a motion to dismiss (#105) all counts brought against them by the plaintiff. In deciding this motion, this court has reviewed the complaint in detail, has read the several memoranda filed by each of the parties and many of the cases cited therein. The court has read the supporting documents submitted by the parties and has considered the oral arguments made at short calendar on April 27, 2009. Based upon an extensive review, as hereinafter discussed, of the controlling case law and the statutory scheme relative to highways, bridges and railings in light of the facts and circumstances of this case, the court will grant the state and commissioner's motion and thereby dismiss the third (as noted), fourth, fifth and sixth counts. The seventh count is dismissed in so far as it is brought against the state or the DOT commissioner.
II. Motion To Dismiss
Prior to addressing Connecticut case and statutory law relative to bridges, highways and railings, it is appropriate to set forth herein the standards governing the manner in which a court must approach a motion to dismiss. The state and the commissioner (hereinafter referred to as these defendants) have filed the motion to dismiss pursuant to § 10-31 of the Connecticut Practice Book, sub-paragraph (a), which provides as follows: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." The parties agree that the motion implicates an alleged lack of jurisdiction over the subject matter, as these defendants base their jurisdictional challenge on a claim that, unless the plaintiff is able to clearly bring himself within the statutes cited, the doctrine of sovereign immunity would apply and require dismissal of all counts against them. "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." (Internal quotation marks omitted.) "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007). A motion to dismiss should not be employed to test the legal sufficiency of a cause of action. That is the function of a motion to strike. "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, (2006), cert. denied, 281 Conn. 919 (2007).
"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." (Internal quotation marks omitted.) "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511 (2004). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002).
III. Relevant Facts
The court has followed the above principles in reading and interpreting the allegations of the plaintiff's seven-count complaint. The plaintiff correctly asserts that the department of transportation is responsible for the maintenance and preservation of the Washington Bridge, which is an historic steel bascule and concrete arch drawbridge across the Housatonic River. In pursuit of its project to rehabilitate the bridge, DOT awarded the general contract to Ciambro, a Maine corporation, which was the plaintiff's employer at the time of the incident giving rise to this action. The work commenced on the bridge in March 2005. Ultimately Tri-State, a New Hampshire corporation, was awarded the sub-contract for the painting of the bridge. The plaintiff alleges that on December 11, 2006, at approximately 11:35 a.m., while working for Ciambro as the engineer and project superintendent and taking quality control measurements on the bridge, he fell downward ten feet into the west bascule pit, thereby sustaining his serious injuries. He further alleges that his fall was due to a swing gate being left open in violation of OSHA regulations and the fact that, per instruction of his employer, he was not wearing fall protection. Apparently, the swing gate had been installed as a temporary safety measure across the pit opening, however, it was inexplicably secured in an open position and, according to the plaintiff, failed to prevent him from falling into the bascule pit, where his spine hit the cement floor resulting in his severe and paralyzing injuries. As to the remaining § 13a-144 count (the fourth count), the plaintiff claims that it was the duty of these defendants to maintain the bridge in a safe condition and that he was injured due to a breach of their statutory duties in that these defendants failed to make sure that the swing gate had been closed prior to permitting the plaintiff to perform his work, failed to inspect the bridge to make sure that the gate was closed, failed to remedy the dangerous and defective condition caused by the open gate and failed to take steps to close the gate. With regard to the claims pursuant to § 13a-152 (the fifth and sixth counts), the plaintiff alleges that it was the duty of these defendants to maintain in a reasonably safe condition all the railings and fences located on the bridge and that as a result of their breach of statutory duties, the swing gate was left unprotected and open. The plaintiff claims that at all times he was exercising due care. The plaintiff has provided the commissioner with the appropriate statutory notice.
The bascule pit is a mechanical room that houses the machinery used to raise and lower the drawbridge.
Noteworthy, but not material or relevant to this court's duties in addressing the motion to dismiss filed by these defendants, is the fact that, after investigating the matter, OSHA found that the plaintiff's employer violated, not for the first time, numerous safety regulations, including those related to the installation of the swing gate and the lack of fall protection. Appropriate fines were levied.
These defendants submitted along with their initial memorandum (#106) an affidavit authored by Eric Kunst, who was the DOT project manager for the Washington Bridge project. He stated that the bascule pit was located in an area below the roadway and at the side of the bridge in an area not accessible to the traveling public and that it is comprised of several levels. The plaintiff apparently fell from one level to another. In his affidavit Kunst affirmed that the area from which and into which the plaintiff fell was accessible by authorized personnel only and that the exclusive means by which said the area could be entered into or exited from was by a locked manhole located on the sidewalk of the bridge.
Most notably and crucial to this court's decision, the plaintiff does not appear to dispute the claims made by these defendants on page 3 of their reply brief (#122) filed March 30, 2009, that (1) the plaintiff's injury occurred in an area underneath the travel portion of the bridge and sidewalk; (2) the plaintiff's fall occurred in a mechanical room accessible only through a locked manhole; and (3) the area from which and into which the plaintiff fell is off limits to the general public.
CT Page 18273
IV. Claims of the Parties A. Defendant's Position
The commissioner argues that the plaintiff cannot bring himself within the defective highway/bridge statute, as he was not, at the time of his injury a traveler on the roadway. Additionally, the commissioner argues that the alleged dangerous and defective condition created by the open swing gate across the bascule pit of the bridge was not a "highway defect" within the meaning of § 13a-144. The commissioner cites Novicki v. New Haven, 47 Conn.App. 734, 740 (1998), wherein our Supreme Court defined the term "defective" as used in the statute as being not reasonably safe for public travel in the sense that a member of the public would ordinarily anticipate during the course of travel. Referring to the area of the bridge from which and into which the plaintiff fell, which, as noted herein, is an undisputed fact, the commissioner asserts that it was that portion of the bridge that is under the roadway and not open to or accessible by members of the public; therefore, the plaintiff, at the time of his injury, was not a "traveler." In fact, as the commissioner points out, the plaintiff was engaged in the duties of his employment in the non-public bascule pit. The commissioner argues that if this court were to allow the plaintiff to extend the protection of the statute to those who are working in a nonpublic, restricted area of the bridge under the roadway, such would be contrary to the purpose of the statute, which is to protect the traveling public. The commissioner cautions that to broaden the meaning of "traveler" to include persons such as the plaintiff would be contrary to the rule established in White v. Burns, 213 Conn. 307, 312 (1990), which mandates that courts strictly construe statutes in derogation of the common law and would extend the scope of § 13a-144 well beyond "the intent of the protections that it was meant to afford."The commissioner cites McIntosh v. Sullivan, 274 Conn. 262 (2005) as standing for the proposition that it is a question of law as to whether the facts pleaded by the plaintiff and accepted as true, would constitute a highway defect under the statute. The commissioner points to the Supreme Court's ruling that, per the statute, if the alleged defect was not actually in the roadway, it must so directly present a menace to travel so as to be susceptible to protection by way of remedial measures, such that the lack of those measures would be regarded as a lack of reasonable repair. Id., 269. The commissioner asserts that any danger to which the plaintiff was allegedly exposed by the open swing gate on the bridge had no connection with the roadway or the use of the bridge, sidewalk or roadway by the traveling public. The bridge, therefore, was not a defect within the meaning and purpose of the statute, as the alleged defective and dangerous condition was in an area which the public was forbidden to enter and, therefore did not impact or obstruct travel on the bridge. Thus, the commissioner argues, since the plaintiff cannot establish that the open swing gate was a "defect," the exception to the state's sovereign immunity created by § 13a-144 does not apply to the facts and circumstances of this case. The commissioner, therefore, moves for the dismissal of the fourth count.
As to the fifth and sixth counts, which have been brought pursuant to General Statutes § 13a-152, the railing and fence statute, the commissioner and the state employ arguments substantially similar to those applicable to the defective highway and bridge statute. These defendants assert that the statute precludes the plaintiff from recovery as the plaintiff, at the time of his injury, was not a "traveler" on the bridge. The commissioner claims that in order for the plaintiff to recover, he must prove that his injury was due to the want of a railing or fence that would be mandated by § 13a-111, however, that statute requires the commissioner's response only to those conditions relative to a bridge or a raised road that would make it "unsafe for travel." Citing Horton v. MacDonald, 105 Conn. 356 (1926), the commissioner argues that both statutes pertaining to railings and fences are for the protection of public travelers and that any duties imposed upon the commissioner by those statutes involve remedial action only when conditions make it unsafe for public travel. The commissioner, once again, stresses the fact that at the time of his injury the plaintiff was not a public traveler, thus the plaintiff is unable to place himself under the protection of these statutes. The commissioner, therefore, concludes that sovereign immunity applies and asks the court to dismiss the fifth and sixth counts.
Moreover, the commissioner argues that the fifth count against the state should be dismissed, as actions, for want of a railing or fence must be brought exclusively against the DOT commissioner, citing Dunn v. MacDonald, 110 Conn. 68, 76-77 (1929), for the proposition that it is clear from the predecessors to § 13a-111 and § 13a-152, as well as § 13a-144, that the responsibility of the erection and maintenance of state highways and bridges, including railings and fences, is statutorily imposed on the commissioner and that any claims against the state arising out of those statutes must be addressed to the commissioner. The state, therefore, is not the proper party.
B. The Plaintiff's Response
In his memorandum opposing the motion to dismiss the fourth, fifth and sixth counts, the plaintiff urges this court to make a distinction between those defects relating to highways and those related to bridges. The plaintiff claims that the General Assembly has made such a distinction in the statutory scheme that it created. The plaintiff urges this court to, in effect, ignore, not only those cases cited by these defendants, but numerous other appellate cases read by this court, all of which relate any claim for a defective highway to the traveling public. The plaintiff claims that, since the applicable precedent, by and large, deals with the roadways and not bridges, those seminal cases should be ignored, even though they clearly hold that the plaintiff, in order to prevail, must have been on the alleged defective Washington Bridge for purposes connected to travel. In other words, the plaintiff asks this court to find that, despite the statutory scheme created by the legislature long ago, and consistently interpreted by the courts, the legislature intended to impose a substantially more expansive duty on the DOT commissioner relative to the maintenance of the state's bridges.
Specifically, the plaintiff claims that the swing gate, a component of the Washington Bridge, the purpose of which was to prevent falls, was a bridge defect as it was allowed to remain open when it should have been closed so as to prevent the plaintiff from falling. The plaintiff, therefore, argues that none of the cases cited by these defendants dealt with alleged bridge defects and that the defendants have not cited a single case that relates claims of a defective bridge to the traveling public only. Notably, the plaintiff has failed to cite such a case as well and claims that this case is a case of first impression.
The plaintiff, lacking any legal precedent for his novel and creative argument, instead, relies on some basic principles of statutory construction. The plaintiff cites American Promotional Events v. Blumenthal, 285 Conn. 192, 203 (2008), a fireworks case, for the proposition that the court cannot interpret a statute in a manner that would render some of its language superfluous. The plaintiff asserts that the position taken by these defendants, in effect, renders superfluous the use of the word "bridge" in each of the three statutes invoked in this case, as all other portions of the bridge, according to these defendants would be excluded, except for the highway. This, according to the plaintiff, ignores another tenet of statutory interpretation, i.e., every word and phrase of a statute is presumed to have meaning. Id., 203. The plaintiff argues that if the legislature wanted to limit its waiver of sovereign immunity to injuries involving bridge defects only if also a highway defect, it would have omitted the word "bridge" from the statutes. The plaintiff cites Baker v. Ives, 162 Conn. 295, 303 (1992), a defective highway case, for the principle that a court does not determine the intent of the legislature by what it meant to say, but by what it actually said. Thus, the plaintiff argues that the second to the last sentence in § 13a-144 which uses the phrase "traveled portion" to refer to the "state highway" without adding any reference to a bridge, hints at limiting highway defect cases to only those involving the travel portion, but does not even remotely hint that such limitation would apply to bridges. From this omission, the plaintiff concludes and asks this court to find that the legislature intended to waive sovereign immunity for actions, such as the instant one, involving bridge defects even though they might not also qualify as highway defects.
As to the fifth and sixth counts, pertaining to railings and fences, the plaintiff points out that the portion of § 13a-111 that uses the phrase "unsafe for travel" applies only to the placement of railings or fences with respect to roads, not bridges. The portion of said statute that applies to bridges is lacking of such qualification. According to the plaintiff, § 13a-111 must be interpreted as having two distinct parts, the first part dealing with railings and fences required on the sides of bridges and the second portion dealing with railings and fences required on the sides of parts of roads that are so raised above the ground as to be unsafe for travel. The plaintiff argues those cases cited by these defendants that relate the railings and fences statutes to the traveling public apply to roads only. According to the plaintiff's theory, those seminal cases do not apply to railings and fences on bridges and should, therefore, be ignored by this court.
In justifying the bringing of his lack of railing or fence claim against both the state and the commissioner, the plaintiff points out that, while § 13a-144 declares the commissioner as the proper defendant, § 13a-152 makes no reference to the entity against which an action thereunder should be brought. The plaintiff claims that this is a significant difference, because the legislature is presumed to be aware of all statutes and the effect that its own action or inaction may have on them citing Miller v. Eighth Utilities District, 179 Conn. 589, 593-94 (1980).
V. DISCUSSION A. Section 13a-144
As noted, the commissioner asserts that since the plaintiff, at the time of his injury, was not using the Washington Bridge for the purposes of travel and was not working in an area to which the public was allowed access, his injury did not result from a defective bridge within the meaning of § 13a-144, therefore, these defendants argue that since the plaintiff has not and cannot allege facts that would place him among those persons protected by said statute as an exception to sovereign immunity, the fourth count against the commissioner should be dismissed.
It is well established that the state of Connecticut is immune from suit unless it consents to be sued. White v. Burns, supra, 213 Conn. 312; and that "[s]overeign immunity may be waived only through a statute." Struckman v. Burns, 205 Conn. 542, 558, (1987). General Statutes § 13a-144, which is known as the state highway liability statute or state highway defect statute, "is a legislative exception to the common law doctrine of sovereign immunity . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command." (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 268. Because the statute is in derogation of the common law, it "is to be strictly construed in favor of the state . . . Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." (Internal quotation marks omitted.) Id., 268.
"The 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." Donnelly v. Ives, 159 Conn. 163, 167 (1970). "This duty of reasonable care extends to pedestrian travel as well as to vehicular traffic . . . A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute." (Citation omitted; internal quotation marks omitted.) Baker v. Ives, supra, 162 Conn. 299. (Emphasis added.)
"[W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . ." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02 (2005).
[W]e 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 . . . [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 . . . [T]he 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 . . . Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances. (Citations omitted; internal quotation marks omitted; emphasis added.)
Id., 502-03.
As these defendants have argued and as the plaintiff, as noted, has conceded, "the [DOT] commissioner, as a representative of the state, is the party upon whom the legislature intended to impose legal responsibility under § 13a-144." Lussier v. Dept. of Transportation, 798 Conn. 343, 351 (1994). As such, the commissioner is the exclusive party to be served with a suit under the statute.
In McIntosh v. Sullivan, supra, 274 Conn. 262, our Supreme Court undertook an in depth historical review of the defective highway/bridge statute. That case involved a § 13a-144 action brought by the plaintiff whose motor vehicle was struck by rocks and debris that had fallen from a ledge suspended above and adjacent to the Interstate 84 — Route 69 connector in Waterbury. The trial court had denied the DOT commissioner's motion to dismiss. The appellate court affirmed the trial court's action. The commissioner appealed to the Supreme Court arguing that, as a matter of law, the plaintiff's complaint failed as the falling rocks and debris did not constitute a highway defect within the meaning and purpose of the statute. The court agreed with the commissioner. The majority opinion was written by Justice Palmer, which prompted a dissenting opinion by Justice Katz. Although both opinions specifically addressed the issue of what constitutes a highway defect, the majority opinion contains an excellent, case-by-case history of the evolution of § 13a-144, its purpose and its scope. In addressing four previous opinions by the court, which spanned a century and a quarter, Justice Palmer observed:
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 . . . In Hewison [ v. New Haven, 34 Conn. 136, 143 (1867)], 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 . . . We explored this distinction more recently in Comba v. Ridgefield, [ supra, 177 Conn. 268]. In that case, [we] reject[ed] the assertion that an overhanging tree limb, which subsequently fell on a traveling automobile, could be a highway defect, [explaining]: [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. (Citations omitted; internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202. We consistently have held, moreover, 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). (Emphasis added.)
Id., 268-69.
Justice Palmer conceded that defining the precise duty of the highway commissioner implicated by § 13a-144, "is not an easy matter, as each case must depend on its own peculiar circumstances, however, the Court does deem a highway defect 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." Id., 273. In finding that the overhanging rock ledge did not constitute a highway defect and in addressing a public policy argument offered by the dissent, Justice Palmer concluded:
However strongly the dissent may feel that, as a matter of public policy, the [commissioner] should have a duty to [alleviate that danger];" (internal quotation marks omitted); that public policy is not embodied in the highway defect statute. Rather, as this court's many highway defect cases indicate, 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 has reasonable notice thereof. (Emphasis added.)
Id., 289.
B. Statutory Construction
There can be no doubt, based upon the numerous Supreme Court opinions cited herein and those reviewed by the court in McIntosh that any personal injury claim brought against the DOT commissioner, that is based upon an alleged defective highway pursuant to § 13a-144, must be brought by one who alleges an injury sustained while the claimant was a member of the traveling public using the highway for the purpose of traveling thereon. Moreover, the alleged defect must be an obstruction to travel.
The plaintiff however, argues that the historical precedent applies to highways only and that, somehow, a different set of rules should be applied to bridges. The plaintiff makes this argument, without citing one case from Connecticut or any other jurisdiction to support his position. The plaintiff makes this argument without the ability to quote language from any of the cited Supreme Court opinions, which span the years 1867 to 2005, wherein the Court states, or even implies, that the legislature intended to afford less protection to those who use the state's highways than that provided to those who cross the state's bridges. The plaintiff asks this court to find this substantial distinction based upon certain rules of statutory construction, apparently ignoring that cited in McIntosh, supra, 274 Conn. 768 that any statute that is in their derogation of the common law must be strictly construed in favor of the state, i.e., in favor of the preservation of sovereign immunity.
Not only is this court bound by that directive, but the court is also obligated to follow that directive of the legislature, known as the plain meaning rule and codified in General Statutes § 1-2z, which was created by Public Act 03-154. The statute provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
In examining the text of § 13a-144, the words, "highway, bridge and sidewalk," all of which have a clear meaning, distinct from each other, are lumped together in so far as the DOT commissioner's duty to repair is concerned. Those items are also lumped together relative to the right of one injured by a defective highway, bridge or sidewalk to bring an action against the commissioner for failing to perform his statutory duties. There is nothing in the statutory text that is vague or confusing to this court. Further, when § 13a-144 is read in conjunction with § 13a-87 (maintenance of bridges); § 13a-88 (load capacities for bridges); § 13a-91 (sidewalks on bridges); § 13a-111 and 152 (the railings and fences statutes) and § 13a-149 (the municipal defective road and bridge statutes); there is nothing ambiguous, confusing, contradictory or unworkable. The cited statutes represent a cohesive collection of legislative mandates to those responsible for the maintenance of state and local roads, bridges and sidewalks. In addition, the legislature has permitted, as an exception to sovereign and governmental immunity, respectively, one whose person or property is injured by a neglect of these statutory duties to obtain redress through the courts under those circumstances and limitations, as defined by the courts over the years, a clear indication that, through the years, the legislature intended to place highways (roads), sidewalks, bridges, railings and fences under the same statutory umbrella.
In Shirlock v. MacDonald, 121 Conn. 611 (1936) our Supreme Court, in a case that dealt with an allegedly defective state bridge, did the same. While the plaintiff was operating his truck over a bridge, which is located on a state highway in Canton, the truck broke through the bridge causing injury to the plaintiff. The plaintiff was unable to produce any evidence as to the cause of the incident or as to any specific act or omission of the highway commissioner that was a substantial factor in the bridge's collapse. Instead, the plaintiff pursued the action on the theory of res ipsa loquitur. In affirming the trial court's rejection of the plaintiff's theory, the Supreme Court held that the predecessor to § 13a-144 did not make the commissioner an insurer of the safety of the state's highways and bridges. In this bridge case, the court equated the duties imposed upon the state highway commissioner relative to defective highways by the predecessor to § 13a-144 to those imposed upon municipalities by the predecessor to § 13a-149. The Court stated:
"The doctrine of res ipsa loquitur is applicable in negligence actions when the concurrence of specified conditions, justifies the inference, from proof of injury, that it could not in the general experience have happened, unless there had been a want of due care." Id., 614. Citations omitted. Internal quotation marks omitted.
This action is specifically, and necessarily, brought under 1481 of the General Statutes which affords a right of recovery from the State, through the highway commissioner as its representative, similar to that given by another statute (1420) against municipal corporations for damages from defective highways, and is subject to like limitations. A cause of action under either of these statutes is not really one to recover damages for an injury arising from negligence but for breach of a statutory duty. (Citations omitted.)
Id., 613.
In concluding, in this bridge case, that the defective highway statute, the predecessor to § 13a-144, does not obligate the commissioner to oversee at all times the over three thousand bridges then under his jurisdiction, and that the statutory obligation is the exercise of reasonable care, the Court stated:
In general the limit of duty imposed on those having control of highways "falls far short of making [them] absolutely safe under all circumstances, even for those who use them properly." Wilson v. Granby, supra, p. 73. Our statutes have long provided that towns shall build and repair necessary highways and bridges and that any person injured by means of a defective road or bridge may recover damages therefor. General Statutes, 1411, 1420. In addition to this general provision, the statutes have for many years provided that the party bound to maintain any bridge or road "shall erect and maintain a sufficient railing or fence" on the side of such bridge or such part of the road as is so raised above the adjoining ground as to be unsafe for travel and that any person suffering damage by reason of the want of such a railing or fence may recover damages. General Statutes, 1419. The test of liability under these statutes is whether or not the party bound to maintain the highway or bridge has exercised reasonable care to make it reasonably safe. (Citations omitted. Internal quotation marks omitted; emphasis added.)
Id., 616.
Thus, in 1936, our Supreme Court applied equally and without distinction the standards by which the duties of the highway commissioner and the breach of those duties would be measured to claims based upon defective highways, the lack of railings or fences and defective bridges. In all the cases surveyed, there is not one that attempts to distinguish between the duty owed by the DOT commissioner to those who travel the state highways and those who make use of the state's bridges. This court, therefore, finds that the requirement annunciated in McIntosh and its predecessors, that any § 13a-144 action must be brought by one whose injury was connected to his or her use of the state highway for purposes related to travel, applies equally to claims based on a defective bridge. In this case, as these defendants claim, the undisputed facts are that the plaintiff was not using the Washington Bridge for the purposes of travel and was injured in an area of that bridge to which public access was not permitted. These undisputed facts clearly establish that the plaintiff's claims are beyond the purview of the statute as enacted by the legislature and interpreted by the Supreme Court. The plaintiff's action as set forth in the fourth count of his complaint is, therefore, barred by the doctrine of sovereign immunity.
C. Section 13a-152 — The Fifth Count
The plaintiff argues that since § 13a-152, unlike § 13a-144, makes no specific mention of the entity against whom a lack of railing or fence claim may be brought, other than "the party required to erect and maintain [the railing or fence]," he has the right to bring his action against the state (the fifth count) and the DOT commissioner (the sixth count). The plaintiff, however, ignores the plain language of § 13a-144, which provides in pertinent part, that:
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 ground so as to be unsafe for travel or, in case of the death of any person by reason of an 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. (Emphasis added.)
The highlighted language clearly refers to any action filed against the state based upon an alleged lack of a railing or fence on a bridge. The directive to file against the commissioner, therefore, clearly applies, not only to a § 13a-144 action based upon an alleged highway and or bridge defect, as conceded by the plaintiff, but an action pursuant to § 13a-152, based upon the lack of any railing or fence allegedly required by § 13a-111. The fifth count is, therefore, dismissed, as not being brought against the proper party.
D. Section 13a-152 — The Sixth Count
For the reasons stated herein relative to the plaintiff's § 13a-144 claim, the sixth count, which alleges a claim against the DOT commissioner pursuant to § 13a-152, must likewise be dismissed. As noted herein, in Shirlock, our Supreme Court in 1936 considered any action based upon a defective railing or fence or the lack thereof, in the same vein and applied the same legal principles that govern its decisions in defective highway and bridge cases. Shirlock v. MacDonald, supra, 121 Conn. 616. In fact, seven years prior to deciding Shirlock, the court, in Dunn v. MacDonald, 110 Conn. 68 (1929), actually dealt with a claim made pursuant to the predecessor of § 13a-152. The Court discussed the 1925 public act that vested exclusive jurisdiction in the highway commissioner of state highways, including any railings or fences, the erection of which was required by § 1413, the predecessor to § 13a-111. The court stated that, "[t]he intent and effect of the [1925 Act] was to impose upon the highway commissioner, as the representative of the state, as respects highways taken over by it, the same duties and burdens theretofore laid upon the towns." The Court held that this included the duties concerning railings and fences on roads and bridges. Id., 77.
Thus, the Supreme Court from 1929 to the present, without qualification or exception, applied the same rules and legal principles to cases arising out of an alleged lack of a railing or fence on a bridge as applied to claims of defective highways and bridges. Therefore, the requirement annunciated in McIntosh and its predecessors, that any § 13a-144 action must be, in some manner, connected to the claimant's use of a highway or bridge for the purposes of travel, applies equally to any claim brought pursuant to § 13a-152 based upon the want of any railing or fence. Since the plaintiff was not at the time of his injuries using the Washington Bridge for the purposes of travel and his injury was sustained in a non-public area of the bridge, his § 13a-152 claim is barred by the doctrine of sovereign immunity, as the statute does not apply to the plaintiff under the facts and circumstances of this case. The sixth count must, therefore, be dismissed.
CT Page 18285
VI. CONCLUSION
Based upon the foregoing, the court will dismiss all of the counts brought by the plaintiffs against the state of Connecticut and the DOT commissioner. Specifically:As to the third count brought against the state pursuant to § 13a-144, the plaintiff, Darren Bye, has conceded that such a claim may be brought only against the commissioner.
As to the fourth count, which is a § 13a-144 claim brought against the commissioner, it is dismissed based upon the doctrine of sovereign immunity, as the facts of this case place the plaintiff, Darren Bye, beyond the purview of the statute.
As to the fifth count, which is a § 13a-152 claim brought by the plaintiff, Darren Bye, against the state, it is dismissed as such a claim may be brought against the DOT commissioner only.
As to the sixth count, a § 13a-152 claim brought by the plaintiff, Darren Bye, against the commissioner, it is dismissed based upon the doctrine of sovereign immunity, as the facts of this case place said plaintiff beyond the purview of the statute.
As to the seventh count, a loss of consortium count brought by the plaintiff, Claudine Bye, against, inter alia, the state and the DOT commissioner, as conceded by plaintiff's counsel, it is dismissed as a loss of consortium claim cannot be part of a statutory defective highway/bridge action under § 13a-144 or an action based upon the lack of a railing or fence brought pursuant to § 13a-152.