Opinion
No. CV 98-0585292
January 17, 2001
MEMORANDUM OF DECISION ON MOTION TO STRIKE
FACTS
The plaintiffs, Usha Sankaran, Uma Gnanguru and Rukmani Sankaran, were injured when the automobile in which they were riding traveled off Route 2, through a guardrail and struck a tree. The plaintiffs filed a revised complaint on May 10, 1999, alleging that the defendant, James F. Sullivan, the commissioner of transportation, failed in his duty to keep and maintain the highway in a reasonably safe condition. Specifically, the plaintiffs allege that the defendant failed to install or attempt to install rumble strips, failed to mark or identify adequately the highway edge, failed to install an effective guardrail and knew or should have known of the conditions and remedy them. The plaintiffs claim damages pursuant to the defective highway statute, General Statutes § 13a-144. The plaintiffs filed timely notice of their claim with the department of transportation pursuant to this statute.
General Statutes § 13a-144 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. 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."
The defendant filed a motion to dismiss arguing that the alleged defects in the highway are design defects, and, therefore, § 13a-144 does not apply.
DISCUSSION CT Page 1061
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "In ruling upon whether a complaint survives a motion to dismiss, 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). A motion to dismiss is the appropriate vehicle with which to challenge the court's subject matter jurisdiction. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "[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.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).The plaintiffs allege that the defendant breached his statutory duty in the following ways: the highway had no rumble strips in the area of the accident and, therefore, was hazardous for vehicles that strayed outside the lanes of travel; failed to install an effective guardrail; and the defendant's failure to mark or identify the highway edge rendered it hazardous for highway travel. The defendant specifically argues that § 13a-144 does not apply to choices that the state makes when deciding what design plan to execute when building a highway, including the specific choices of whether to use a specific type of guardrail, rumble strips or other identifying marks along the highway.
"It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued."Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). "[S]tatutes 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." (Citations omitted.) White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). "[T]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144]." (Internal quotation marks omitted.) Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). "[W]hen a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity." Id., 365.
"Section 13a-144 imposes liability on the commissioner [of transportation] for injuries occurring on any defective highway, bridge or sidewalk which it is the duty of the commissioner to . . . keep in repair." (Internal quotation marks omitted.) Amore v. Frankel, supra, 228 Conn. 366-67. Generally, 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. . . ." (Internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 601, 691 A.2d 594 (1997). "Whether 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.) Id.
In Donnelly v. Ives, 159 Conn. 163, 168, 268 A.2d 406 (1970), the Supreme Court stated the general rule that "a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the improvement or repair of its streets or highways and ordinarily will not be liable for consequential damages for injuries due to errors or defects in the plan adopted." "In the area of highway safety . . . it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review 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 State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public." (Internal quotation marks omitted.) Id.
Although defective design is generally not a defect pursuant to § 13a-144, there is an exception in cases where "the plan of construction adopted [is] 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." (Internal quotation marks omitted.) Donnelly v. Ives, supra, 159 Conn. 167. In order to fall within the exception, the design defect must be "so egregious, requiring obvious correction. . . ."Langton v. Westport, 38 Conn. App. 14, 17, 658 A.2d 602 (1995); see alsoFederman v. Stamford, 118 Conn. 427, 429, 172 A. 853 (1934) (example of design defect so egregious as to come within exception includes a sidewalk left with its grade broken simply by a four foot wall, without the provision of steps, or had steps provided been insecure, or unguarded by proof of a railing).
Although the plaintiffs allege that their claims constitute defective highway conditions resulting from the defendant's neglect or default, it is clear that they are really alleging design defects: that the area of Route 2, where the accident occurred, was defective because it lacked rumble strips, warning signs or marks and an effective guardrail. See Donnelly v. Ives, supra, 159 Conn. 166 (claim for damages because of the existence of an abutment at Chapel Street exit of Connecticut Turnpike alleged a design defect claim); Langton v. Westport, supra, 38 Conn. App. 17 (claim for damages because of a space between a grate and its door resembled a defective design claim); D'Arcy v. Shugrue Transportation Commissioner, 5 Conn. App. 12, 15, 496 A.2d 967, cert. dismissed, 197 Conn. 812, 499 A.2d 56, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985) (claim for damages because of the absence of a metal beam divider between two sides of the highway alleged a design defect claim). The plaintiffs' defective design claims do not fall within the limited exception contained in Donnelly v. Ives, supra, 159 Conn. 167.
It is interesting to note that the plaintiffs have cited neither General Statutes § 13a-111 concerning the requirement to maintain sufficient railings or fences or § 13a-152 concerning the lack of a railing or fence. Although allegations of design defects are impermissible under § 13a-144, § 13a-152 allows any person who suffers damage by reason of the want of a railing or fence required by § 13a-111 to recover damages.
"[W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 760, 741 A.2d 956 (1999). In order to sue the state or a municipality on a defective guardrail claim a plaintiff would presumably need to specifically allege a violation of §§ 13a-111 and 13a-152 and 13a-144 (or, the municipal equivalent; § 13a-149). See Gerlach v. Brookfield, Superior Court, judicial district of Danbury, Docket No. 300493 (April 12, 1994, Moraghan, J.) ( 9 C.S.C.R. 513, 514); Smith v. Metro-North Commuter Railroad, Superior Court, judicial district of New Haven, Docket No. 290530 (November 24, 1993, Martin, J.) ( 10 Conn.L.Rptr. 481, 483). The plaintiffs have not alleged that the guardrail at issue was in violation of § 13a-111 or § 13a-152, specifically, as the basis for their § 13a-144 claim, rendering their guardrail claim impermissible.
For the foregoing reasons, therefore, the defendant's motion to dismiss is granted.
Berger, J.