Opinion
No. CV 02-0818089S
May 27, 2004
MEMORANDUM OF DECISION
The plaintiff brought this action for damages against the defendant pursuant to Connecticut General Statutes § 13a-144. The claim arises out of an occurrence at Bradley International Airport on a road known as Plaza Drive, where he claims he was caused to slip and fall due to an accumulation of ice, slush and/or snow.
The defendant has filed a Motion to Dismiss asserting that the area where the plaintiff fell was not a roadway within the state highway system, therefore, a statutory condition precedent to suit against the defendant has not been met and that therefore, the suit is barred by the doctrine of sovereign immunity.
The plaintiff argues that the Department of Transportation is charged with the maintenance of Bradley International Airport and that Plaza Drive is being plowed by Department of Transportation crews.
The plaintiff cites the case of Frederick v. Burns, 1999 Ct. Sup. 9009, where Judge Teller, in denying a motion to dismiss, quoted from the Supreme Court case of Baker v. Ives, 162 Conn. 295, where that court stated:
Nor does the defect have to be on the actual traveled portion of the highway. "An early case recognized that a defect outside of the traveled path might give rise to an action against a town under the statute. The accepted definition of such a defect reads as follows: `Any 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, would generally constitute a defect in the highway.' Hewison v. New Haven, 34 Conn. 136, 142." Hay v. Hill, supra, 288; see also Donnelly v. Ives, supra; Hickey v. Newtown, 150 Conn. 514, 518, 192 A.2d 199; Horton v. MacDonald, 105 Conn. 356, 361-62, 135 A. 442. Whether there is a defect in such proximity to the highway so as to be considered "in, upon, or near the traveled path" of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier. Chazen v. New Britain, supra; see Linn v. Hartford, 135 Conn. 469, 472, 66 A.2d 115; Horton v. MacDonald, supra, 361.
Reference is made to Hay v. Hill, 137 Conn. 285, where the court stated:
An early case recognized that a defect outside of the traveled path might give rise to an action against a town under the statute. The accepted definition of such a defect reads as follows: "Any 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, would generally constitute a defect in the highway." Hewison v. New Haven, 34 Conn. 136, 142. So, as we said in Udkin v. New Haven, 80 Conn. 291, 297, 68 A. 253: "It has been frequently contended that nothing which was without the highway could have that effect [constitute a defect under the statute]. This court has, however, held that there might be situations where the source of danger, although situated without the way, was of itself so direct a menace to travel over the way and so susceptible to protection or 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. Beardsley v. Hartford, 50 Conn. 529." See also Dimock v. Suffield, 30 Conn. 129, 132; Seidel v. Woodbury, 81 Conn. 65, 69, 70 A. 58; Smith v. Milford, 89 Conn. 24, 31, 92 A. 675; Parker v. Hartford, 122 Conn. 500, 502, 190 A. 866.
The plaintiff in his reply to defendant's reply to plaintiff's objection to motion to dismiss, dated May 26, 2004, cites the case of Serrano v. Burns, 248 Conn. 419 which reiterated the rationale in the Baker case supra.
Based on the pleadings and the record, this court cannot conclude that the defect in question was not in such proximity to an area that is covered by the requirements of Connecticut General Statutes § 13a-44 and by the case law interpreting said statute.
The issues raised by the Motion to Dismiss raises questions of fact that must be resolved by the trier of fact after an evidentiary hearing.
Based on the pleadings and documents in this case, the court cannot find that the area where the plaintiff fell is not within the purview of Connecticut General Statutes § 13a-144.
Accordingly, the Motion to Dismiss is denied.
Stengel, J.