Opinion
No. 125565
April 13, 2004
MEMORANDUM OF DECISION
On July 15, 2003, the plaintiffs, Theresa Gurguis, her husband, Gamal Gurguis, and their seven-year-old son, Meena Gurguis, filed an amended complaint against the defendants, Emil Frankel, the commissioner of transportation for the state of Connecticut ("commissioner"), and L.G. DeFelice (DeFelice), a general contractor, for damages that Theresa and Meena Gurguis sustained on November 19, 2000, as a result of a motor vehicle accident that occurred on Highway Interstate 395 ("I-395"). The parties presented evidence in a bench trial in October 2003, and filed bench briefs and presented oral arguments in November and December of the same year.
In November 2000, DeFelice was engaged in Project 72-76, a construction project on the relevant portion of I-395, pursuant to a contract with the state. On Saturday, November 17, 2000, DeFelice laid down three inches of new asphalt over the old layer of pavement on a portion of I-395. This resulted in a five-and-one-half-inch declivity between the traveled portion of the road and the median. At the end of the day, DeFelice spray-painted a broken white line on the pavement, but did not place any lines or signals on the pavement to warn drivers about the declivity.
On Sunday, November 19, 2000, Theresa Gurguis entered onto the southbound side of I-395 from entrance ramp 85. The evidence shows that an orange sign, legally closing the road, was posted on this ramp. Theresa Gurguis, however, testified that she did not see the sign. After driving onto I-395, she drove her vehicle in the left lane of the highway, headed in the southbound direction. She drove approximately three-tenths of a mile past entrance ramp 84, when a white truck, traveling in the same direction, proceeded past her vehicle in the right lane. She moved her vehicle to the left of her lane and a gust of wind created by the passing truck blew her vehicle over the left boundary of the left lane onto the shoulder of the highway. The tires of her vehicle fell into the declivity between the grass shoulder and the pavement. She subsequently lost control of her vehicle and collided with the median guardrail. She and her son were injured when the vehicle struck the guardrail.
At trial the parties presented evidence disputing the existence of the signs. The court is convinced, based on its assessment of the testimony, that a sign was placed at the entrance ramp.
The plaintiffs assert that the commissioner breached his statutory duty, established by General Statutes § 13a-144, to keep the highway reasonably safe. The plaintiffs also assert that DeFelice was negligent, under common law, by not creating any signals to warn drivers about the declivity.
The defendants argue that the plaintiffs have failed to prove that the highway defect was the "sole proximate cause" of their injuries. Consequently, the defendants argue, the plaintiffs have not established a prima facie case under § 13a-144. Furthermore, the defendants argue that the evidence presented at trial indicates that I-395 was legally closed, and § 13a-145 therefore prevents the commissioner from incurring any liability for this accident. The defendants also urge this court to apply § 13a-144 in its assessment of DeFelice's liability. Alternatively, the defendants argue that even under a common law negligence standard, the evidence does not support a finding that DeFelice was negligent.
DISCUSSION I. Commissioner's Liability Under § 13a-144
"It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain proscribed cases . . . and that since the state can act only through its officers and agents a suit against a state officer is in effect against the sovereign state . . . The state . . . enjoy[s] governmental immunity, in certain circumstances, from liability for [its] tortious acts . . . The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state . . . Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute. Therefore, because the state has permitted itself to be sued in certain circumstances, [the Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . Further, [the Supreme Court] has stated that the state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms." (Citations omitted, internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 312-13, 567 A.2d 1195 (1990). "The state, through § 13a-144, has waived its sovereign immunity in civil suits in which relief is sought for an injury allegedly caused by a defective highway, provided the commissioner of transportation had a duty to keep the highway at issue in repair." Oberlander v. Sullivan, 70 Conn. App. 741, 745, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002).
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 . . . which it is the duty of Commissioner of Transportation to keep in repair or part of such road which may be raised above the adjoining ground so as to be unsafe for travel . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court."
"To prove a breach of duty under § 13a-144, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed . . . It is the plaintiff's burden to prove each of those elements, and failure to prove any element will preclude a finding of liability under the statute." (Citations omitted; internal quotation marks omitted.) L'Homme v. Dept. of Transportation, 72 Conn. App. 64, 72, 805 A.2d 728 (2002).
The declivity between the pavement and the shoulder of the highway falls within the scope of defects for which § 13a-144 allows recovery. "[W]hether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances." (Internal quotation marks omitted.) Tyson v. Sullivan, 77 Conn. App. 597, 604, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). In this case, the alleged defect constitutes the border of the traveled portion of the highway. "Recovery under § 13a-144 is not limited to injuries caused by defects in the traveled portion of the highway . . . A defect within the scope of the statute includes a condition located near the traveled path that, from its nature and position, would be likely to obstruct or to hinder one's use of the highway for traveling." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. The alleged defect in this case, the declivity, is so close to the traveled portion of the highway and actually defines the end of the traveled portion, that it could easily hinder a motorist's usual use of the highway. "If in the use of the traveled portion of the highway and, as incidental thereto, the use of the shoulders for the purposes for which they are there, a condition exists which makes travel not reasonably safe for the public, the highway is defective. The test as to liability is whether or not the [c]ommissioner has exercised reasonable care to keep the highway — which includes the shoulders — in a reasonably safe condition." Rusch v. Cox, 10 Conn. Sup. 521, 526 (1942), aff'd, 130 Conn. 26, 31 A.2d 457 (1943).
"To recover under General Statutes 13a-144, it [is] necessary for the plaintiff to prove either that the defendant had actual notice of the defect or that the defect had existed for such a length of time that it would have been known in the exercise of reasonable care and a reasonable opportunity would have been afforded in which to remedy it." Irish v. Ives, 158 Conn. 116, 117, 256 A.2d 245 (1969). "Whether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact . . . and unless the period of time is such that but one conclusion could be found, its determination should be left to the trier . . . The defendant can be charged with having constructive notice of a defect when it is of such a nature and duration that a reasonable inspection would have disclosed the risk." (Citation omitted; emphasis in original; internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 110-11, 734 A.2d 575, (1999), aff'd, 255 Conn. 670, 768 A.2d 441. The evidence presented at trial indicates that the state inspector was present at the paving site on the day before the accident. The defect was not hidden, but open and obvious. A reasonable inspection would have revealed the defect. Moreover, over the course of the day, the inspector, along with the contractor, could have repaired the defect, protected motorists against it, or warned them about it.
"Even if a defect exists on a state highway and the defendant received actual or constructive notice and had a reasonable opportunity to remedy the defect, liability arises and is thereby imposed on the defendant only if the `defective highway' is the sole proximate cause of the claimed injuries." Hall v. Burns, 213 Conn. 446, 462, 569 A.2d 10 (1990). In White v. Burns, 213 Conn. 307, 567 A.2d 1195 (1990), the Supreme Court discussed the history of the "sole proximate cause" standard as applied to highway defect statutes, and held that the courts have historically applied this standard to establishing liability under § 13a-144. Accordingly, this court applies the sole proximate cause standard to the plaintiffs' claims against the state under § 13a-144.
Looking at early caselaw on liability under the municipal highway statute, the Supreme Court determined that "a plaintiff injured by his own negligence even if [the] defect were a concurring cause is not injured by means of or through a defect in the highway, under the statute." (Internal quotation marks omitted.) White v. Burns, supra, 213 Conn. 316, discussing, Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899). The Supreme Court then highlighted that since its decision in Perotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), applying the standards of municipal highway statute liability to state statutory liability, "[the courts] have consistently applied the sole proximate cause standard to actions brought under 13a-144." White v. Burns, supra, 213 Conn. 318.
The defendants assert that the plaintiffs have not carried their burden of proving that the highway defect was the sole proximate cause of their injuries. Theresa Gurguis testified that immediately preceding the accident, she moved her vehicle to the left of her lane in order to avoid a collision with the truck; moreover, the speed and proximity of the passing truck "pushed" her vehicle over the boundary of the left lane, into the declivity.
Because the plaintiffs' burden of proof under § 13-144 is to prove, by a preponderance of the evidence, that the highway defect, the declivity, was the sole proximate cause of their injuries, the court finds that the plaintiffs' claim must fail. The plaintiffs have not convinced this court that the only cause of the accident was the existence of the declivity.
This court recognizes that the "sole proximate cause" standard in this statutory action differs from the "proximate cause" standard applied in an ordinary negligence action. See Blancato v. Randino, supra, 30 Conn. App., 813 n. 2, 622 A.2d 1032, rev'd on other grounds, 226 Conn. 914, 628 A.2d 983 (1993). "Sole" is defined "as one only," "single," "not joint," and "exclusive." Ballentine's Law Dictionary (3d Ed. 1969). "Sole," as an adjective, modifies a noun by clarifying that it is "being the only one." The American Heritage Dictionary of the English Language (4th Ed. 2000). The Supreme Court had defined proximate cause "as [a]n actual cause that is a substantial factor in the resulting harm." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 441, 820 A.2d 258 (2003). As modified by the adjective "sole," a proximate cause must be more than just a substantial factor, it must be the only factor. The court takes this distinction seriously and while it agrees that the declivity may have been a substantial factor contributing to the plaintiffs' injuries, it was not the sole substantial factor.
Accordingly, the plaintiffs have not met their burden of proving all the elements of their claim under § 13a-144.
II. Statutory Bar to State's Liability Under § 13a-145
General Statutes § 13a-145 provides: "Any person using a state highway or bridge which has been designated as closed or restricted under the provisions of section 13a-115 shall do so at his own risk except with respect to any injury or loss not traceable to a defect caused in the process of construction, reconstruction or repair."
General Statutes § 13a-115 provides: "Closing highways under construction, maintenance or repair. (a) The Commissioner of Transportation may close or restrict traffic over any section of any state highway or bridge for the purpose of construction, reconstruction, maintenance or repair by posting notices at each end of such section of highway or at each end of such bridge. Any person who, without a permit from the commissioner, closes any state highway or bridge shall be fined not more than one hundred dollars. (b) If in the course of construction, reconstruction, maintenance or repair of any state highway, the commissioner finds it necessary to close a highway or bridge of any town, city, borough or municipal corporation, he shall have the authority to do so in the manner provided in subsection (a) of this section and the provisions of said subsection and section 13a-145 shall be applicable thereto."
The construction project superintendent testified that his job required him to check for the signs that legally close the road. He further testified that he saw such a sign located at the entrance of the ramp where Theresa Gurguis entered onto I-395 on the day before and day after the accident. The court finds that the road was closed in accordance with the statutory scheme for legally closing the roads. Accordingly, § 13a-145 applies to this case and bars the commissioner's liability under § 13a-144.
General Statutes § 13a-116 provides: "Warning signs. On any road or bridge maintained by the state where repairs or construction are under way or on any road or bridge being constructed or reconstructed under supervision of the commissioner, the display of reflectorized signs erected under the provisions of sections 13a-115 and 13a-119 shall be deemed adequate warning, provided there are no openings or obstructions within the traveled portion of the road or adjacent thereto."
Even though Theresa Gurguis testified that she did not see the sign, this court must still apply § 13a-145, which does not require that a plaintiff has notice of the sign, but just requires that a sign be erected according to the relevant statutory scheme.
This court, however, cannot impute the immunity established by § 13a-145 to DeFelice because this would defy the legislature's express direction. General Statutes § 13a-257 provides: "The immunity of the state from liability for damage or injuries incurred on a highway or bridge closed under the provisions of sections 13a-115 and 13a-145 shall not extend to any contractor performing work for the state on such highway or bridge."
III. Contractor's Liability
The defendants urge this court to examine their respective liabilities in this case under § 13a-144. This court, however, must treat each defendant's liability separately. The state's potential liability in this case is created by a statutory duty under § 13a-144, which carves out an exception to the state's sovereign immunity. This court must construe and subsequently apply this statute in a strict, disciplined fashion. The liability established by § 13a-144 applies only to the state, and not to the contractor. The defendants, however, would like this court to apply the § 13a-144 standard broadly, making it applicable to DeFelice as well, by increasing the plaintiffs' burden of proving DeFelice's liability under common-law negligence in a highway defect case.
The defendants' brief argues that the policy discussion in Belhumuer v. Bristol, 121 Conn. 475, 479, 185 A. 421 (1936), citation, applies to DeFelice's potential liability in this case. Not only does this case apply to the predecessor of 13a-145, not 13a-144, but the policy discussed in the case was expressly rejected by the legislature with the enactment of 13a-257.
The court disagrees with the defendants' arguments and understands the discussion of the subrogation provision of § 13a-144 in White v. Burns, supra, 213 Conn. 323-26, as contemplating the existence of distinct bases for a contractor's liability and the commissioner's liability in a highway defect case. Even though the plaintiffs have not met their burden of proving the commissioner's liability under § 13a-144, the plaintiffs have met their burden of proof as to the elements of a common-law negligence action against DeFelice.
"[E]ven though some neglect or default of `any contractor or other person' may occasion a condition in a state highway that may ultimately bring about an injury, that condition on the highway cannot be the basis of a cause of action under § 13a-144 unless and until that highway condition becomes a `defective highway.'" (Emphasis added.) White v. Burns, supra, 213 Conn. 327.
The plaintiffs assert that DeFelice's liability is independent from the commissioner's liability, and results from DeFelice's failure to place warning lines or signs at the edge of the pavement. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).
"A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). Ordinary prudence counsels against leaving an unmarked declivity on the side of the highway. Given the nature of the work, DeFelice knew or should have known, that the unmarked declivity posed a serious risk to motorists driving in the left lane. Moreover, the contract outlining DeFelice's obligations with respect to the maintenance and protection of traffic during Project 72-76 construction indicate that pavement markings were to be placed by the end of the "workday/night." While the workers spray painted a broken white line, there was testimony that the line was not of the type intended to protect traffic under the relevant contract provisions. Based on DeFelice's experience and the guidelines DeFelice had for the maintenance and protection of traffic, DeFelice should have anticipated that an accident, such as the one that occurred in this case, could easily occur if motorists were not sufficiently warned about the declivity. Therefore, by not placing proper pavement markings warning motorists about the declivity, DeFelice breached its duty to warn motorists about the defect.
"In order to prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury." Craig v. Driscoll, 262 Conn. 312, 330, 813 A.2d 1003 (2003). "The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury. The substantial factor test asks, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Citations omitted; internal quotation marks omitted.) Id., 331.
The plaintiffs claim that DeFelice's failure to warn motorists of the declivity by placing a warning marking, such as a line, on the pavement caused Theresa Gurguis to misperceive the actual road condition. Moreover, if she were aware of the declivity or had an indication of where the left border of the pavement actually ended, she would not have moved her vehicle slightly to the left, a normally safe and reasonable driving maneuver.
By failing to warn Theresa Gurguis about the declivity, DeFelice breached its duty under the standards of ordinary prudence, which were reinforced by the Project 72-76 contract that provided guidelines for the maintenance and protection of traffic.
Damages
The plaintiff, Theresa Gurguis, age 47, and her son, Meena Gurguis, age 10, were injured when their car went off the road and crashed into a guardrail. Gamal Gurguis, Theresa's husband claimed loss of consortium and various expenses.
Theresa, as a result of the collision, suffered forehead lacerations, facial cuts and bruises, traumatic brain injury, post-concussion syndrome and chipped and fractured teeth. She was hospitalized for two days and required sutures to repair her lacerations. She also required dental work to repair her damaged teeth. Her last medical exam was on February 11, 2003. She suffers from jaw clicking and pain and difficulty chewing certain foods. There was medical testimony that the cognitive dysfunction will be permanent, which causes her to be depressed. She has no permanent disability rating. She lost time from work at Mohegan Sun where she is employed as a dealer from November 19, 2000 to October 10, 2003.
She has medical bills in the amount of $23,460.95. She also produced evidence of loss of earning capacity in the amount of $14,156.16 for a total economic loss of $37,617.11.
In view of her injuries, pain and suffering and disability, in the past and into the future, the court will also award her noneconomic damages. She testified as to her pain and suffering from the date of the accident until the date of trial. She also presented evidence of permanent scarring. Dr. Julius F. Deiparine testified as to her traumatic brain injury by way of deposition. He indicated that she had a post-concussion syndrome caused by the collision which has resulted in headaches, light headedness, fatigue, poor concentration and memory problems. He testified that this was a permanent condition and that treatment would be helpful but would not cure the problem. The court finds that according to the life expectancy tables, the average female of the plaintiff's age, 47, will have a life expectancy of 34 years. Based upon all of the foregoing, the court hereby awards noneconomic damages in the amount of $200,000.00.
Meena Gurguis was a passenger in the car driven by his mother. As a result of the collision, he was caused to become nervous and upset and suffered anxiety over seeing his mother injured. He was 8 years old at the time. He had medical bills of $775.34. In addition to the medical bills, the court awards noneconomic damages of $1,500.00.
Gamal Gurguis is the husband of Theresa. He filed a claim for loss of consortium. He also claimed property damage and towing during the trial, however, the complaint fails to mention property damage and towing. Accordingly, the court awards $5,000.00 for loss of consortium in view of the evidence presented in that regard.
The court, therefore, awards Theresa Gurguis total damages of $237,617.11; to Meena Gurguis damages of $2,275.34 and to Gamal Gurguis damages of $5,000.00.
D. Michael Hurley, JTR