Stotler v. Dept. of Transportation ( 2014 )

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ELLEN STOTLER, ADMINISTRATRIX (ESTATE OF
PAUL A. STOTLER III) v. DEPARTMENT OF
TRANSPORTATION
(SC 19177)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Robinson and Vertefeuille, Js.
Argued April 30—officially released August 19, 2014
Joel T. Faxon, with whom, on the brief, was Eric P.
Smith, for the appellant (plaintiff).
Ronald D. Williams, Jr., for the appellee (defendant).
Opinion
ROGERS, C. J. The dispositive issue in this certified
appeal is whether a defective highway claim based on
the design of Route 44 across Avon Mountain falls
within the purview of General Statutes § 13a-144,1 pur-
suant to which the state has consented to liability for
certain injuries caused by a defective highway. The
plaintiff, Ellen Stotler, administratrix of the estate of
the decedent, Paul A. Stotler III, brought this action
pursuant to § 13a-144 against the defendant, the Depart-
ment of Transportation, to recover damages sustained
when a truck descending Avon Mountain along Route
44 experienced brake failure and collided with multiple
vehicles.2 The defendant filed a motion to dismiss the
action on the ground that the complaint failed to state
a claim under § 13a-144 and, therefore, was barred by
sovereign immunity. The trial court denied the defen-
dant’s motion to dismiss, and the defendant appealed
from that decision to the Appellate Court.3 The Appel-
late Court determined that the plaintiff’s complaint
failed to state a cause of action under § 13a-144, and,
accordingly, reversed the judgment of the trial court and
remanded the case with direction to render judgment
dismissing the plaintiff’s complaint. Stotler v. Dept. of
Transportation, 142 Conn. App. 826, 843, 70 A.3d 114
(2013). We granted the plaintiff’s petition for certifica-
tion to appeal limited to the following issue: ‘‘Did the
Appellate Court properly conclude that the plaintiff’s
action should have been dismissed for lack of subject
matter jurisdiction because the allegations in the plain-
tiff’s complaint failed to state a cause of action under
. . . § 13a-144?’’ Stotler v. Dept. of Transportation, 309
Conn. 921, 76 A.3d 624 (2013). We answer this question
in the affirmative and, accordingly, affirm the judgment
of the Appellate Court.
The following facts and procedural history are rele-
vant to our disposition of this appeal. The plaintiff
brought this defective highway action against the defen-
dant alleging that, on July 29, 2005, the decedent ‘‘was
operating his motor vehicle easterly along [Route] 44, a
public highway in Avon . . . when a series of collisions
occurred when a truck owned by American Crushing
and Recycling, LLC, lost control as it traveled down
Avon Mountain on Route 44 . . . result[ing] in the
death of [the decedent].’’
The plaintiff alleged that the decedent’s injuries and
death resulted from the neglect or default of the defen-
dant, ‘‘by means of a defective road, in one or more of
the following ways:
‘‘(a) in that [the defendant] utilized a plan of design,
construction and/or repair for the area of Route 44
described above, adopted by the state of Connecticut
and/or its employees, which was totally inadmissible,4
in that it created an unsafe condition;
‘‘(b) in that [the defendant] failed to provide adequate
warnings and signage on the downhill grade on Route
44 before the intersection;
‘‘(c) in that [the defendant] failed to construct a neces-
sary runaway truck ramp;
‘‘(d) in that [the defendant] failed to prohibit trucks
on this roadway in the absence of other safeguards;
‘‘(e) in that [the defendant] failed to have, or failed to
have adequate, procedures for maintaining the downhill
slope in a safe condition;
‘‘(f) in that [the defendant] failed to train, or properly
train, personnel in inspection of, or maintenance of,
the signage and grade;
‘‘(g) in that [the defendant] failed to maintain, or
properly maintain, the roadway for traffic upon it;
‘‘(h) in that [the defendant] failed to inspect, or prop-
erly inspect, the roadway so that it could be maintained
or properly maintained;
‘‘(i) in that [the defendant] failed to train, or properly
train, personnel to inspect the roadway so that it could
be maintained or properly maintained;
‘‘(j) in that [the defendant] failed to have, or failed
to have adequate, procedures for inspecting and main-
taining the roadway so as to be safe for vehicular traffic;
‘‘(k) in that [the defendant] failed to have procedures
in place so adequate notice could be given to correct
unsafe conditions on the roadway or so that the road-
way could be closed;
‘‘(l) in that [the defendant] failed to follow procedures
which were intended to give adequate notice so that
unsafe conditions on the roadway could be corrected,
or the roadway closed;
‘‘(m) in that [the defendant] failed to provide adequate
advance warning of said dangerous area to oncoming
motorists so that they could avoid foreseeable out of
control vehicles coming down the [Avon] [M]ountain;
‘‘(n) in that [the defendant] failed to close the road
until conditions could be made safe for travel;
‘‘(o) in that [the defendant] failed to follow practices
and procedures set forth in the state’s Policy Manual;
‘‘(p) in that [the defendant] failed to properly super-
vise state agents, servants or employees who were
responsible for maintaining the roadway in a safe condi-
tion, and/or
‘‘(q) in that [the defendant] failed to install visible
street signage causing the truck to proceed down [Avon]
[M]ountain missing the turn off.’’ (Footnote added.)
The defendant filed a motion to dismiss the action
on the ground that the plaintiff’s allegations were insuf-
ficient, as a matter of law, to state a claim under § 13a-
144.5 Specifically, the defendant claimed that the allega-
tions did not fall within the limited exception to the
general rule barring design defect claims under the
defective highway statute. After a hearing, the trial
court, Sheldon, J., denied the defendant’s motion to
dismiss.6 The trial court reasoned that ‘‘the plan of
design providing for the steep downhill grade of Route
44, which has always been open to truck traffic, is
alleged and may be proved by the [plaintiff] to have been
defective from the outset because its incorporation into
the roadway created a condition, intrinsic to the road-
way, that constituted a nuisance, when the roadway
was used as intended by trucks, from which injury [was]
ultimately necessarily the inevitable or probable result.’’
(Internal quotation marks omitted.)
The defendant appealed from the trial court’s deci-
sion to the Appellate Court.7 The Appellate Court con-
cluded that the plaintiff failed to allege an actionable
highway defect under § 13a-144 and, therefore, that her
claim was barred by sovereign immunity. Stotler v. Dept.
of Transportation, supra, 142 Conn. App. 841. The
Appellate Court reasoned that the trial court miscon-
strued the plaintiff’s complaint as alleging that the steep
downhill grade of the road alone is an actionable high-
way design defect.8 Id., 840–41. Instead, the Appellate
Court construed the complaint to allege that the design
of Route 44 providing for the steep downhill grade in
combination with the lack of tangible safety measures
rendered the road defective. Id., 841. The Appellate
Court determined that the absence of safety measures
is not an actionable highway defect, and, therefore,
the plaintiff failed to state a claim under § 13a-144. Id.
Accordingly, the Appellate Court reversed the judgment
of the trial court. Id., 843. This certified appeal
followed.9
We begin with the governing legal principles and stan-
dard of review. ‘‘[W]e have long recognized the validity
of the common-law principle that the state cannot be
sued without its consent . . . . Nevertheless, a plain-
tiff may surmount this bar against suit if, inter alia, he
can demonstrate that the legislature, either expressly
or by force of a necessary implication, statutorily
waived the state’s sovereign immunity. . . . Even
when there is an express statutory waiver of immunity,
however, the plaintiff’s complaint must allege a claim
falling within the scope of that waiver. . . .
‘‘Lack of a statutory waiver of immunity is a jurisdic-
tional defect properly raised by a motion to dismiss.
. . . 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. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . .
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, 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 necessar-
ily implied from the allegations, construing them in
a manner most favorable to the pleader.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Conboy v. State, 292 Conn. 642, 649–51, 974
A.2d 669 (2009).
‘‘The state highway liability statute is a legislative
exception to the common law doctrine of sovereign
immunity and is to be strictly construed in favor of the
state. While negligence was a common law tort, there
was no liability of the sovereign at common law for a
defective highway in negligence or on any other com-
mon law theory. . . . The state highway liability stat-
ute imposes the duty to keep the state highways in
repair upon the highway commissioner; that is the statu-
tory command. Therefore, because there was no right
of action against the sovereign at common law, a plain-
tiff, in order to recover, must bring himself within § 13a-
144.’’ (Citations omitted.) White v. Burns, 213 Conn.
307, 321, 567 A.2d 1195 (1990).
In order for a plaintiff to recover under § 13a-144,
‘‘the plaintiff must prove by a preponderance of the
evidence: (1) that the highway was defective as claimed;
(2) that the [Commissioner of Transportation] actually
knew of the particular defect or that, in the exercise
of [his] supervision of highways . . . [he] should have
known of that defect; (3) that the [Commissioner of
Transportation], having actual or constructive knowl-
edge 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 proxi-
mate cause of the injuries and damages claimed, which
means that the plaintiff must prove freedom from con-
tributory negligence.’’ (Internal quotation marks omit-
ted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d
459 (2005). ‘‘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 stat-
ute is a question of law . . . .’’ (Internal quotation
marks omitted.) Ferreira v. Pringle, 255 Conn. 330,
341–42, 766 A.2d 400 (2001).
We have defined a highway defect as ‘‘any object or
condition 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.’’ Hickey v. Newtown, 150 Conn. 514, 518–19,
192 A.2d 199 (1963); accord McIntosh v. Sullivan, supra,
274 Conn. 268–69 (‘‘[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’’ [internal quotation marks omitted]). ‘‘[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.’’ Comba v. Ridgefield,
177 Conn. 268, 271, 413 A.2d 859 (1979); see id., 269,
271 (overhanging tree limb that fell on automobile was
not highway defect because it ‘‘did not obstruct, hinder
or operate as a menace to travel’’).
Moreover, ‘‘[w]e have consistently held 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);
accord Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d
406 (1970) (‘‘[t]he 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’’); Chazen v. New
Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961) (‘‘a
[state] is not an insurer against accidents occurring on
its highways; its duty is not to make the streets abso-
lutely safe for the users thereof but only to exercise
reasonable care to keep them in a reasonably safe condi-
tion for travel’’).
With these governing legal principles in mind, we
turn to the plaintiff’s allegations in the present case. In
her complaint, the plaintiff alleges that the defendant
‘‘utilized a plan of design, construction and/or repair
. . . which was totally inadmissible, in that it created an
unsafe condition . . . .’’ See footnote 4 of this opinion.
Specifically, the plaintiff alleges that the absence of
tangible safety measures, including a runaway truck
ramp and adequate signage warning of the steep down-
hill grade, as well as the failure to prohibit trucks on the
roadway in the absence of these and other safeguards,
rendered the roadway defective.10
Although the plaintiff does not specifically allege that
the downhill grade of the roadway constituted part of
the claimed design defect, we are mindful that ‘‘[t]he
complaint must be read in its entirety in such a way as
to give effect to the pleading with reference to the
general theory upon which it proceeded . . . .’’ (Inter-
nal quotation marks omitted.) Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 536, 51 A.3d
367 (2012). Indeed, the plaintiff argues, and we agree,
that her allegations concerning the absence of certain
safety measures must be viewed in the context of the
steep downhill grade of Route 44. As the plaintiff states
in her brief, ‘‘[a]lleged defects such as the absence of
a runaway truck ramp, and adequate signage are only
defective because of the topography of Route 44. If
Route 44 was flat, or had a substantially less severe
gradient . . . [safety measures] like a runaway truck
ramp would be entirely unnecessary.’’ (Emphasis in
original.)
We note, however, that the plaintiff has conceded
both in her appellate brief and at oral argument before
this court that she has not alleged that the steep down-
hill grade of Route 44 alone constitutes an actionable
highway defect.11 See footnote 8 of this opinion. Indeed,
by her own account, the plaintiff alleges that the defect
in the present case consists of the ‘‘dangerously steep
road surface that channels descending traffic into a
major crossing intersection immediately at the bottom
of the slope, together with the absence of an escape
ramp to divert and contain vehicles encountering run-
away conditions, and the absence of adequate warning
signs to alert drivers to the severity of the conditions
they were about to encounter before they were irrevoca-
bly committed to the descent.’’ (Emphasis added.) Put
simply, the plaintiff’s complaint alleges that the design
of the roadway consisting of the steep downhill grade,
in the absence of certain identified safety measures,
rendered it unsafe for public travel and thus defective
within the meaning of § 13a-144.
The question then becomes whether the complaint,
so construed, states a cause of action under the defec-
tive highway statute. We begin our analysis with an
overview of the parameters of the right of action
afforded under § 13a-144 for damages arising from an
alleged defect in a highway’s design. ‘‘[I]t is well estab-
lished that a public authority acts in a quasi-judicial or
legislative capacity in adopting a plan for the improve-
ment 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. . . . Thus,
as we stated in Hoyt v. Danbury, 69 Conn. 341, 37 A.
1051 (1897), [a] defect in the plan upon which [a] high-
way [is] constructed . . . [does] not [come] within the
[defective highway] statute. . . . [Thus] injuries which
it may occasion to travelers cannot be made the subject
of any action in their favor. They are the result of an
error of judgment on the part of the officers of a public
corporation, on which has been cast the burden of dis-
charging a governmental duty of a quasi-judicial charac-
ter. For consequential damages thus occasioned to
members of the general public, the common law never
gave a remedy; nor has the statute changed the rule.
. . . Id., 351–52.12
‘‘Recognizing that an unduly rigid application of this
rule could work an injustice in certain circumstances,
however, the court in Hoyt also stated, in dictum, that,
[i]f . . . a defect in the plan of construction should be
so great as soon to require repairs in order to make the
highway safe for travel, a neglect to make these repairs
might [support] an action; but the plaintiff’s case would
be no stronger than if the road had been originally built
in the best manner. So, were the plan of construction
adopted 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. Id.,
352 . . . .’’ (Citations omitted; footnote added; internal
quotation marks omitted.) McIntosh v. Sullivan, supra,
274 Conn. 270–71.
‘‘The hypothetical design claim that the court in Hoyt
used to illustrate what an actionable design claim might
resemble reveals the true nature and limitation of the
‘exception.’ Specifically, the court described a sidewalk
that ‘had been left with its grade broken simply by a
four foot wall, without the provision of steps . . . .’
[Hoyt v. Danbury, supra, 69 Conn. 352]. According to
the court, such a sidewalk ‘would have been in such a
defective condition as to have been out of repair from
the beginning.’ Id. Thus, the cognizable design defect
claim that the court hypothesized in Hoyt essentially
would consist of an allegation that the plan of design
called for a four foot drop or hole in the road. Indeed,
the court in Hoyt immediately went on to state that,
under its hypothetical, the plaintiff’s claim would be
‘no stronger than if the road had been originally built
in the best manner’; id.; because, logically, the highway
defect statute covers four foot holes in the middle of
the roadbed irrespective of how they came to be there.
In other words, a design defect claim can be distin-
guished from a traditional highway defect claim only
insofar as the former includes an allegation that the
dangerous condition inhered in the highway’s plan of
design, that is, the defect was not created by some other
external condition, such as a particular occurrence, like
a storm, or normal wear and tear. In all other respects,
however, a design defect claim is indistinguishable
from any other highway defect claim and, accordingly,
it is subject to all the same statutory requirements,
including the requirement that the alleged defect actu-
ally be in the roadbed or so near to it as to ‘necessarily
obstruct or hinder one in the use of the road for the
purpose of traveling thereon . . . .’ Hewison v. New
Haven, [34 Conn. 136, 142 (1867)]. [That is], Hoyt merely
precludes the state from raising sovereign immunity as
a defense when the plan of design, as implemented,
creates the very type of hazardous condition for which
the highway defect statute abrogated governmental
immunity in the first place and for which the govern-
ment otherwise would be liable had the dangerous con-
dition originated through means other than the plan of
design.’’ (Emphasis added.) McIntosh v. Sullivan,
supra, 274 Conn. 281–82. Therefore, ‘‘notwithstanding
the general rule that the state is not liable for damages
sustained by a traveler due to a defect in a highway’s
design, the state nevertheless may be liable if such a
defect gave rise to a hazard that otherwise would be
actionable under § 13a-144.’’ Id., 271.
Thus, the issue we must decide in the present case
is whether the plaintiff’s allegations, if true, would
amount to an actionable highway defect claim within
the narrow exception in Hoyt to the general rule pre-
cluding liability for design defects. The plaintiff argues
that the plan pursuant to which the highway was con-
structed was ‘‘totally inadmissible’’ because the high-
way was ‘‘inherently dangerous when put to the use for
which it was intended and for which it [was] lawfully
open.’’ Specifically, the plaintiff claims that the road-
way’s steep grade and layout, combined with the
absence of tangible safety measures, constituted a con-
dition intrinsic to the roadway that rendered it defective
within the meaning of the highway defect statute.13 In
response, the defendant claims that the steep downhill
grade, together with the lack of safety measures, does
not constitute an actionable highway defect because it
is not a hazardous object or condition in or near the
roadbed that necessarily obstructed travel thereon. Fur-
thermore, the defendant argues that the plaintiff’s claim
is materially indistinguishable from the design defect
claim in McIntosh that this court held was not action-
able under § 13a-144. We agree with the defendant.
Accordingly, we conclude that the plaintiff’s allegations
are insufficient as a matter of law to state a claim
pursuant to § 13a-144.
First, we are not persuaded by the plaintiff’s attempt
to distinguish her claim in the present case from the
claim raised in McIntosh that this court held was barred
by sovereign immunity. In McIntosh, the plaintiff, Adal-
bert H. McIntosh, Sr., brought a highway defect claim
under § 13a-144 for injuries he sustained when rocks
and debris fell from a rocky ledge ‘‘adjacent to and
above [the] highway’’ and struck his motor vehicle.
(Internal quotation marks omitted.) Id., 264. McIntosh
alleged that the highway was defectively designed in
that, inter alia, ‘‘the highway was located dangerously
close to raised rocky cliffs . . . the [defendant, the
Commissioner of Transportation] failed to erect barri-
ers . . . to prevent falling rocks and debris from enter-
ing the highway . . . [and] there were no warning signs
in the area to warn approaching motorists of the hazard-
ous and dangerous conditions then and there existing
. . . .’’ (Internal quotation marks omitted.) Id., 264–65.
The trial court denied the Commissioner of Transporta-
tion’s motion to dismiss the action for failure to state a
claim under § 13a-144, and the Appellate Court affirmed
the trial court’s decision. McIntosh v. Sullivan, 77 Conn.
App. 641, 644–45, 825 A.2d 207 (2003).
On appeal, this court reversed the judgment of the
Appellate Court. McIntosh v. Sullivan, supra, 274 Conn.
264. We concluded that ‘‘[McIntosh’s] allegations [were]
insufficient to establish an actionable claim under § 13a-
144 because the rocks and debris located above the
highway did not impede or obstruct travel thereon.’’
Id., 285. Because McIntosh failed to allege an actionable
highway defect, we held that, ‘‘[a] fortiori, [his] allega-
tions [were] insufficient to fall within the limited excep-
tion to the general rule precluding liability for design
defects.’’ Id. Thus, the court determined that the plan
of design providing for the location of the highway next
to a rocky cliff, in combination with the absence of
adequate warning signs and a barrier to prevent falling
rocks from entering the highway, did not render the
highway defective within the meaning of the defective
highway statute.
Similarly, in the present case, we conclude that the
plan of design providing for the steep downhill grade
of the highway, in combination with the absence of
adequate warning signs and tangible safety measures,
did not render the highway defective within the meaning
of § 13a-144. The absence of adequate warning signs and
tangible safety measures is not a cognizable highway
defect because it does not constitute an ‘‘object or con-
dition in . . . the traveled path which would necessar-
ily obstruct or hinder one in the use of the road for the
purpose of traveling thereon . . . .’’14 Hickey v. New-
town, supra, 150 Conn. 518. Although the plaintiff claims
that certain safety measures were necessary because of
the steep downhill grade, and that the absence thereof
rendered the road unsafe, this claim still pertains
directly to the design of the road and not to whether that
design, as implemented, created an actionable hazard in
the road that necessarily obstructed travel. Indeed, this
court in McIntosh rejected the notion that the absence
of certain safety measures is an actionable defect,
despite the fact that these measures may have been
warranted in view of the highway’s close proximity to
a rocky ledge.
The plaintiff further claims that McIntosh is distin-
guishable from the present case because the steep
downhill grade of Route 44, unlike the rocky ledge abut-
ting the highway in McIntosh, is a condition intrinsic
to the highway that rendered the road defective.15
Although we acknowledge this limited distinction, we
are not persuaded that it compels a different result in
the present case. The steep downhill grade, albeit a
natural condition inherent to the roadway by virtue of
its location across Avon Mountain, is no more cogniza-
ble a defect than the rocky ledge located adjacent to
the roadway in McIntosh. Neither are objects or condi-
tions in or near the road ‘‘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
. . . .’’ Hewison v. New Haven, supra, 34 Conn. 142.
Moreover, the steep downhill grade is a condition that
pertains solely to the design of the road, namely, its
location across Avon Mountain. In order to be a cogniza-
ble design defect, however, the defective design must
result in an actionable hazard in the road that necessar-
ily obstructed travel. Under the reasoning in McIntosh,
the steep downhill grade, together with the lack of ade-
quate warning signs and tangible safety measures, is not
an actionable highway defect.16 Therefore, the plaintiff
cannot, as a matter of law, state a claim under § 13a-
144 within the limited exception to the general rule
precluding liability for design defects.
Furthermore, the present case is distinguishable from
the handful of cases in which this court has recognized
a cognizable highway design defect claim. For instance,
in Perrotti v. Bennett, 94 Conn. 533, 534–35, 109 A. 890
(1920), the municipality installed a drain pipe below
the surface of the highway and, in accordance with the
plan adopted, covered it with twelve inches of sand
and gravel. The plaintiff brought a highway defect claim
against the municipality after he was injured when the
highway above the pipe collapsed under the weight
of his vehicle. Id., 535. The trial court found that the
plaintiff’s injuries were ‘‘due to a defect in the original
plan of construction of said drain,’’ and rendered judg-
ment for the municipality. Id., 535–36. On appeal, we
reversed the trial court’s judgment, concluding that the
plaintiff’s claim fell within the limited exception to the
general rule barring liability for design defect claims
pursuant to § 13a-144. Id., 541–42.17
In Perrotti, unlike in the present case, the plaintiff
alleged an otherwise actionable highway defect,
namely, the poorly constructed drain under the surface
of the highway that collapsed under the weight of a
vehicle traveling thereon. See id., 535. The poorly con-
structed drain constituted a condition ‘‘in the roadbed
or so near to it as to necessarily obstruct or hinder one
in the use of the road for the purpose of traveling
thereon . . . .’’ (Internal quotation marks omitted.)
McIntosh v. Sullivan, supra, 274 Conn. 282; see Perrotti
v. Bennett, supra, 94 Conn. 541 (‘‘from the time the
drain was laid it constituted a defect in the highway,
whether this was due to the want of adequate covering,
or to the character of the pipe, or both’’). The municipal-
ity could not escape liability merely because the drain
was constructed pursuant to a plan of design that the
municipality adopted in its ‘‘quasi-judicial or legislative
capacity’’; Donnelly v. Ives, supra, 159 Conn. 168;
because the plan, as implemented, created a defect ‘‘for
which the government otherwise would be liable had
the dangerous condition originated through means
other than the plan of design.’’ McIntosh v. Sullivan,
supra, 282; see id. (Hoyt exception ‘‘precludes the state
from raising sovereign immunity as a defense when the
plan of design, as implemented, creates the very type
of hazardous condition for which the highway defect
statute abrogated governmental immunity in the first
place’’). The municipality was therefore liable for injur-
ies caused by the defective plan of design ‘‘after it had
reasonable notice of the defect and of the imminence
of the injury.’’ Perrotti v. Bennett, supra, 541.
In the present case, by contrast, the plan of design
providing for the steep downhill grade, together with
the absence of tangible safety measures, as imple-
mented, did not create an otherwise actionable highway
defect as defined by our case law. As discussed pre-
viously in this opinion, a highway defect is ‘‘[a]ny object
[or condition] 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.)
McIntosh v. Sullivan, supra, 274 Conn. 273; Hickey v.
Newtown, supra, 150 Conn. 518–19. A properly con-
structed road on a 10 percent downhill grade, together
with the absence of certain tangible safety measures,
does not constitute a condition or object in the traveled
path that would necessarily obstruct travel thereon.
Indeed, the plaintiff does not claim that the road itself
was in poor condition, either ‘‘in material or manner
of construction . . . .’’ Hoyt v. Danbury, supra, 69
Conn. 352. Instead, the plaintiff seeks to hold the defen-
dant liable for its decision to construct a highway across
a steep downhill grade, without including certain identi-
fied safety measures. This is precisely the nature of the
claim that is precluded by virtue of Hoyt and its prog-
eny. See Donnelly v. Ives, supra, 159 Conn. 168 (‘‘a
public authority acts in a quasi-judicial or legislative
capacity in adopting a plan for the [construction] of its
streets or highways and ordinarily will not be liable
for consequential damages for injuries due to error or
defects in the plan adopted’’); Hoyt v. Danbury, supra,
351 (‘‘[a] defect in the plan upon which [a] highway [is]
constructed . . . [does] not [come] within the [high-
way defect] statute’’).
In the absence of an actionable hazard in the road that
necessarily obstructed travel thereon, the defendant’s
decision in the present case regarding the location of
the highway across a steep downhill grade, and the
extent of warning signs necessary to alert motorists
thereto, is not subject to collateral review by this court.
‘‘[I]t has long been the settled view, and an eminently
justifiable one, that courts should not be permitted to
review [the] determinations of governmental planning
bodies under the guise of allowing them to be chal-
lenged in negligence suits; something more than a mere
choice between conflicting opinions of experts is
required before the [s]tate 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.) Donnelly v. Ives,
supra, 159 Conn. 168; see id., 165 n.2, 169 (affirming
directed verdict in favor of highway commissioner with
respect to highway design defect claim alleging poor
highway layout and inadequate warning signs); see also
Hoyt v. Danbury, supra, 69 Conn. 351 (‘‘so long as
the [sidewalk design] selected was an appropriate and
lawful one [in that stairs were properly constructed and
in a state of repair], [the defendant city’s] decision was
not subject to collateral review in a suit of this
nature’’).18
Under the theory of liability the plaintiff advocates
in the present case, virtually every design defect claim
pertaining directly to the layout of the road would be
actionable under the defective highway statute.19 That
is, if we were to decide that a highway’s layout across
a 10 percent downhill grade, in the absence of tangible
safety measures, constitutes a ‘‘condition in, upon or
near the traveled path which would necessarily obstruct
or hinder . . . traveling thereon’’; Hickey v. Newtown,
supra, 150 Conn. 518; then conceivably any highway
design could be described as a defective ‘‘condition’’
intrinsic to the highway. This result would hamstring
states and municipalities in discharging their respective
‘‘duty to plan highways for the safety of the traveling
public.’’ (Internal quotation marks omitted.) Donnelly
v. Ives, supra, 159 Conn. 168. We simply cannot construe
the defective highway statute in a manner that would
eviscerate the general rule precluding liability for design
defect claims under Hoyt and its progeny. See White
v. Burns, supra, 213 Conn. 321 (‘‘[t]he state highway
liability statute . . . is to be strictly construed in favor
of the state’’).
For the reasons set forth herein, we conclude that the
Appellate Court properly determined that the plaintiff’s
complaint fails to state a claim under § 13a-144. There-
fore, the plaintiff’s claim is barred by the doctrine of
sovereign immunity and should have been dismissed
by the trial court.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA, ROBINSON and
VERTEFEUILLE, Js., concurred.
1
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, bridge or sidewalk which
it is the duty of the Commissioner of Transportation to keep in repair . . .
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. . . .’’
2
Prior to instituting this action, the plaintiff filed the requisite statutory
notice of a claim for damages, pursuant to § 13a-144, with the Commissioner
of Transportation, Stephen E. Korta II, and the state of Connecticut.
3
Despite the general rule that interlocutory rulings are not immediately
appealable, the denial of a motion to dismiss based on a colorable claim of
sovereign immunity is an appealable final judgment. See, e.g., McIntosh v.
Sullivan, 274 Conn. 262, 264 n.2, 875 A.2d 459 (2005); Gordon v. H.N.S.
Management Co., 272 Conn. 81, 91 n.12, 861 A.2d 1160 (2004).
4
The term ‘‘inadmissible’’ is apparently taken from this court’s decision
in Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897), wherein the court
articulated the following exception to the general rule precluding liability
for highway design defects: ‘‘If . . . a defect in the plan of construction
should be so great as soon to require repairs in order to make the highway
safe for travel, a neglect to make these repairs might [support] an action;
but the plaintiff’s case would be no stronger than if the road had been
originally built in the best manner. So, were the plan of construction adopted
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.’’
(Emphasis added.) Thus, the term ‘‘inadmissible,’’ as used throughout this
opinion, denotes a plan of construction that is so inadequate that the highway
is ‘‘out of repair from the beginning’’ and thus ‘‘require[s] repairs in order
to make the highway safe for travel . . . .’’ Id.
5
More specifically, the defendant filed a hybrid motion captioned ‘‘motion
to dismiss and/or for summary judgment’’ in which it claimed that the
plaintiff’s complaint was barred by the doctrine of sovereign immunity and/
or there is no genuine issue as to any material fact, and the defendant is
entitled to judgment as a matter of law. With respect to its summary judgment
claim, the defendant argued that it was entitled to judgment as a matter of
law because the alleged highway defect was not the sole proximate cause
of the plaintiff’s injuries. See, e.g., Ormsby v. Frankel, 255 Conn. 670, 675–76,
768 A.2d 441 (2001) (plaintiff bringing claim under § 13a-144 must prove
that alleged highway defect was sole proximate cause of injuries claimed).
In particular, the defendant claimed that there was no genuine issue of
material fact that the dump truck involved in the collision had defective
brakes, and that the defective brakes were a proximate cause of the plain-
tiff’s injuries.
The trial court, Sheldon, J., denied the defendant’s motion for summary
judgment and the defendant appealed from that decision to the Appellate
Court. The Appellate Court, however, declined to review the defendant’s
summary judgment claim in light of its threshold determination that the
plaintiff’s complaint should have been dismissed for failure to state a claim
under § 13a-144. Stotler v. Dept. of Transportation, 142 Conn. App. 826,
842–43, 70 A.3d 114 (2013).
After we granted the plaintiff’s petition for certification, the defendant
raised as an alternative ground for affirmance that ‘‘the claimed highway
defects were not, as a matter of law, the sole proximate causes of the
subject accident.’’ See Practice Book § 84-11. Because we conclude that the
Appellate Court properly reversed the judgment of the trial court on the
ground that the plaintiff’s complaint failed to state a claim under § 13a-144,
we do not reach the merits of the defendant’s alternative ground for
affirmance.
6
Earlier in the proceedings, the trial court, Graham, J., granted the defen-
dant’s motion to consolidate this action, pursuant to Practice Book § 9-5,
with the related action in Cummings v. Dept. of Transportation, Superior
Court, judicial district of Hartford, Docket No. CV-07-5011774-S (September
29, 2011). The trial court, Sheldon, J., therefore issued a memorandum of
decision that disposed of the defendant’s motions to dismiss and/or for
summary judgment in both cases.
7
The defendant appealed from the trial court’s judgment in both the
present case and Cummings v. Dept. of Transportation, Superior Court,
judicial district of Hartford, Docket No. CV-07-5011774-S (September 29,
2011). See Cummings v. Dept. of Transportation, 142 Conn. App. 843, 68
A.3d 123 (2013). The Appellate Court consolidated the two appeals for oral
argument only. Id., 847 n.2.
8
In her main appellate brief, the plaintiff argues that the trial court did
not construe the complaint to allege that solely the steep downhill grade
rendered the road defective. ‘‘The plaintiff submits, however, that her dis-
agreement on this issue is ultimately irrelevant given the Appellate Court’s
recognition of the plaintiff’s actual defect claim, which involves a defective
road design and/or layout combined with the absence of adequate warning
signs and other safety measures on or attached to the roadway.’’ (Empha-
sis added.)
9
For the purposes of oral argument only, this court consolidated the
present case and the related certified appeal in Cummings v. Dept. of
Transportation, 313 Conn. , A.3d (2014).
10
To the extent that the plaintiff alleges that the defendant’s deficient
conduct regarding the training of its employees, the inspection and mainte-
nance of the roadway, and the adherence to proper procedures constitutes
an actionable highway defect pursuant to § 13a-144, we conclude that the
Appellate Court properly determined that these alleged deficiencies are not
cognizable defects under the highway defect statute. Stotler v. Dept. of
Transportation, supra, 142 Conn. App. 841–42. Indeed, none of these allega-
tions relates to the existence of ‘‘[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.) McIntosh v. Sullivan, supra, 274 Conn. 273. Therefore, these allega-
tions do not support a claim for liability under the defective highway statute.
11
In her brief, the plaintiff states: ‘‘While it is true that the complaint does
not specify the extent of Route 44’s grade, and also true that the plaintiff’s
expert testified that he did not regard the 10 [percent] grade of the highway
as per se or necessarily defective when standing alone, that condition cannot
be considered in isolation because it provides the essential context through
which the defects expressly claimed by the plaintiff must be viewed.’’
(Emphasis added.)
During oral argument before this court, the plaintiff averred that the
alleged defect is comprised of a combination of factors, rather than the
downhill grade standing alone:
‘‘The Court: What is the highway defect?
‘‘The Plaintiff’s Counsel: A combination of things. Number one is Route
44 has a 10 percent grade.
‘‘The Court: Is that a defect?
‘‘The Plaintiff’s Counsel: In part.
‘‘The Court: How?
‘‘The Plaintiff’s Counsel: Because it does not incorporate the intrinsic
portions of the defect with proper safety applications . . . including a run-
away ramp. . . .
‘‘The Court: So it’s not the 10 percent grade; it’s something in addition
to the 10 percent grade?
‘‘The Plaintiff’s Counsel: Right, it’s a package of facts that lead to the
defect in this case. It’s not one thing.’’
12
In Hoyt v. Danbury, supra, 69 Conn. 347, the plaintiff brought an action
against the city after he fell on stairs that were built into the side of a hill
that formed part of a municipal sidewalk. After a bench trial, the trial
court found that the stairs were defective because they were too steep and,
accordingly, rendered judgment for the plaintiff. Id., 349–50. On appeal, this
court reversed the judgment of the trial court. Id., 354.
The court reasoned that if the plan of construction were so inadequate
that the sidewalk was ‘‘out of repair from the beginning’’—for instance, if
the sidewalk ‘‘had been left with its grade broken simply by a four foot
wall, without the provision of steps, or had the steps provided been insecure,
or unguarded by a proper railing,’’ then the plaintiff might have a viable
claim. Id., 352. The trial court had found, however, that ‘‘the steps leading
from one grade to the other were not defective, either in material or manner
of construction, nor out of repair, at the time of the plaintiff’s injury.’’ Id.
We concluded that, because the stairs were properly constructed and in
good repair, the municipality’s decision regarding the design of the walkway
‘‘was not subject to review by the courts.’’ Id.; see id., 351 (‘‘the Superior Court
had the right to determine whether [the stairs] were properly constructed and
in good repair, but not to pronounce the walk defective because [they were]
not built on an unbroken grade’’); id., 352 (‘‘The use of steps in a city . . .
sidewalk is one of several permissible means of overcoming a steep grade.
. . . It was for the municipal authorities to decide whether it was the best
means of constructing this particular walk; and their decision was not subject
to review by the courts.’’ [Citation omitted.]).
While it is true that the court in Hoyt intimated that a sidewalk ‘‘unguarded
by a proper railing’’ might be defective by design; id.; we do not agree with
the dissent that ‘‘[a] road with an extremely steep downhill grade that is
traversed by large trucks, without warning signs and with no truck runoff
is defective in the same way that a staircase with no railing is defective.’’
Whereas § 13a-144 expressly waives sovereign immunity for injuries arising
from the ‘‘lack of any railing or fence on the . . . part of such road which
may be raised above the adjoining ground so as to be unsafe for travel,’’
the statute does not similarly waive sovereign immunity for the failure to
incorporate other safety measures, such as warning signs and a runaway
truck ramp, into the roadway.
In this regard, we find the court’s analysis in Hewison v. New Haven, 34
Conn. 136, 141–42 (1867), instructive: ‘‘It seems to have been a matter of
doubt whether a bridge, or a part of the highway raised above the adjoining
ground, although dangerous, was defective; and hence a railing was expressly
required at such places, for the purpose of protecting the ‘safety of travelers.’
Here then was one danger specially provided for. The legislature must have
been aware that other dangers existed, or might exist, and yet they made
no provision for them. What is the inference? Not only that they did not
suppose that the language used was broad enough to embrace every possible
danger, but also that they did not intend to make [the state] liable in cases
not expressly provided for. We ought not therefore to extend this statute
by construction.’’ (Emphasis in original.) Because this court has expressly
repudiated the notion that ‘‘everything which renders a highway unsafe
makes it defective within the meaning of [§ 13a-144]’’; id., 141; we respectfully
disagree with the dissent that Hoyt ‘‘stands for the proposition that a road
may be defectively designed when it is inherently unsafe.’’
13
Most of the case law that the plaintiff cites in support of her claim is
either inapposite to the issue at bar because the court did not decide whether
the alleged defect properly invoked § 13a-144; see Filippi v. Sullivan, 273
Conn. 1, 8–11, 866 A.2d 599 (2005) (resolving issue of whether motorist’s
written notice to Commissioner of Transportation, as required by § 13a-144,
was insufficient as matter of law); White v. Burns, supra, 213 Conn. 323–28
(resolving issue of whether § 13a-144 requires proof that alleged highway
defect was sole proximate cause of plaintiff’s injuries); or it is factually
distinguishable from the present case. See Priore v. Longo-McLean, 143
Conn. App. 249, 257, 70 A.3d 147 (2013) (alleged defect was unmarked
construction area resulting in narrow, uneven road surface with raised and
exposed catch basin); D’Arcy v. Shugrue, 5 Conn. App. 12, 16, 496 A.2d 967
(alleged defect was absence of metal beam divider along median of highway
separating eastbound and westbound traffic), cert. denied, 197 Conn. 817,
500 A.2d 1336 (1985); see also footnote 14 of this opinion (noting that § 13a-
144 specifically provides for cause of action for absence of divider along
raised highway). This authority does not warrant extended discussion in
this opinion.
In the dissent’s view, the allegations in the present case are similar to
those in Filippi v. Sullivan, supra, 273 Conn. 4–5 n.3, wherein the claimed
defect was insufficient warning signs alerting motorists to a lane closure
along a stretch of highway with a graded blind curve that concealed stopped
traffic. The issue in Filippi, however, was whether the Appellate Court had
improperly concluded that the plaintiff’s notice to the Commissioner of
Transportation describing where the injury had occurred, as required by
§ 13a-144, was inadequate as a matter of law because it did not contain a
reasonably definite description of the location of the injury. Id., 7–8. Because
the court in Filippi did not examine whether the allegations properly
invoked the defective highway statute, we respectfully disagree with the
dissent that Filippi is relevant to our analysis in the present case.
14
We note that § 13a-144 expressly waives sovereign immunity for injuries
arising from the ‘‘lack of any railing or fence on the . . . part of such road
which may be raised above the adjoining ground so as to be unsafe for
travel . . . .’’ The statute, however, does not similarly waive sovereign
immunity for the failure to incorporate other safety measures into the
roadway.
15
To the extent the plaintiff relies on the trial court’s reasoning distinguish-
ing McIntosh from the present case, we disagree with that analysis. In its
memorandum of decision, the trial court reasoned as follows: ‘‘Unlike the
rocky ledge high above the roadway in McIntosh, by contrast, which was
not built into the roadway and was thus not an intrinsic defect in it which
actually obstructed travel upon it or hindered its use, [the 10 percent]
downhill grade built into the relevant section of Route 44 has been claimed
and may be shown by the [plaintiff] to constitute such an intrinsic defect,
which, when trucks use the roadway, creates an unacceptable risk of brake
failure, even in trucks with working brakes, and ensuing runaways, collisions
with other vehicles, and resulting injuries and losses.’’
We find the trial court’s analysis misguided in light of the governing legal
principles. This court has consistently held 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.) McIntosh v. Sullivan,
supra, 274 Conn. 269; see also Hewison v. New Haven, supra, 34 Conn. 141
(‘‘[w]e are not prepared to establish the doctrine that everything which
renders the highway unsafe makes it defective within the meaning of this
[highway defect] act’’).
The trial court’s observation that the downhill grade built into the roadway
‘‘may be shown by the [plaintiff] to constitute such an intrinsic defect, which
. . . create[d] an unacceptable risk of brake failure’’ ignores that the defect
must actually be in, upon, or near the roadbed so as to necessarily obstruct
travel thereon. Indeed, as we stated in McIntosh v. Sullivan, supra, 274
Conn. 289, ‘‘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 of Transportation has reasonable notice
thereof.’’
Apart from the design of the road, that is, the steep downhill grade and
lack of adequate safety measures, the plaintiff does not allege an actionable
hazard in or near the road that necessarily obstructed travel thereon. Rather,
the plaintiff claims that the state is liable for damages because it constructed
a road across a steep mountain without certain identified safety measures
and, in so doing, created an unreasonable risk of catastrophic brake failure.
The plaintiff’s claim falls squarely within our analysis in McIntosh barring
such a claim. See id., 288–89 (‘‘[T]he highway defect statute does not give
rise to a cause of action sounding in general negligence. . . . Although the
rocks and debris that struck the plaintiff’s automobile in the present case
may have posed an unreasonable danger to travelers on the road, such that
the [defendant Commissioner of Transportation’s] failure to remove them
arguably was negligent, any such negligence was manifestly insufficient to
support a claim under the highway defect statute.’’ [Citation omitted.]).
16
The dissent is doubtful that we would reach the same decision in the
present case had the alleged design defect been ‘‘an inherently dangerous
30 percent slope’’ as opposed to a 10 percent slope. The issue that we must
decide in the present case, however, does not depend on the extent of the
downhill grade. Assuming that the downhill grade, however steep, may be
proved by the plaintiff to present an unacceptable risk of brake failure in
trucks, the issue we must decide is whether that alleged defect falls within
the purview of the defective highway statute. We conclude that it does not.
‘‘[A] public authority acts in a quasi-judicial or legislative capacity in adopting
a plan for the [construction] 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.’’ Donnelly v. Ives, supra, 159 Conn. 168; see Hoyt v.
Danbury, supra, 69 Conn. 351 (‘‘[a] defect in the plan upon which [a] highway
[is] constructed . . . [does] not [come] within the [defective highway] stat-
ute’’). The defendant’s decision to adopt a plan for the construction of Route
44 across Avon Mountain, and its decision regarding the safety measures
necessary to ensure the safety of motorists thereon, is not subject to collat-
eral review by this court.
17
Aside from Perrotti, it appears that there are only two other cases in
which this court has acknowledged a cognizable highway design defect
claim: Bovat v. Waterbury, 258 Conn. 574, 783 A.2d 1001 (2001); and Feder-
man v. Stamford, 118 Conn. 427, 172 A. 853 (1934). Like Perrotti, each of
these cases is factually distinguishable from the present case.
In Bovat, the plaintiff brought an action against the city of Waterbury
under the municipal defective highway statute, General Statutes § 13a-149,
for injuries he sustained when his car struck a utility pole that was located
a short distance from the edge of the road. Bovat v. Waterbury, supra, 258
Conn. 578. The plaintiff alleged that the defendant’s defective design and
maintenance of the highway caused his injuries in that, inter alia, ‘‘the road
was designed with an extremely sharp curve with a utility pole placed at
the apex of the curve at the edge of the roadway, thereby creating a danger-
ous and hazardous condition . . . .’’ Id., 579. The jury found in favor of the
plaintiff with respect to both the design defect and improper maintenance
claims, and the trial court rendered judgment in accordance with the verdict.
This court affirmed the judgment of the trial court. Id., 582, 602.
In Federman, the plaintiff brought a highway defect claim for injuries
she sustained when a sewer manhole cover in the street became unseated
and struck the wheels of her car, causing her to crash into a telephone pole.
Federman v. Stamford, supra, 118 Conn. 428. The plaintiff alleged that the
cover was defectively designed because ‘‘the cover was lower than the
frame, which was set flush with the street [and] it fitted so loosely in the
frame that it was easily dislodged . . . .’’ Id. The jury rendered a verdict
for the plaintiff, and the trial court denied the defendant city’s motion to
set aside the verdict. Id., 430. This court affirmed the judgment of the trial
court, concluding ‘‘the jury might have reasonably concluded that the cover
created, from the moment of its installation, a condition rendering the street
not reasonably safe for public travel and that from that moment the street
was defective within the meaning of the statute.’’ Id., 429.
Bovat and Federman are distinguishable from the present case because
the alleged defect in each case—the utility pole placed at the apex of the
curve in Bovat, and the loosely fitting sewer manhole cover in Federman—
was an object in or near the roadway that necessarily impeded travel thereon.
In the present case, by contrast, the steep downhill grade, together with
the absence of tangible safety measures, does not constitute an object or
condition in or near the roadway that necessarily obstructed travel thereon.
Accordingly, the plaintiff’s claim must fail.
To the extent that the dissent relies upon Rusch v. Cox, 130 Conn. 26, 31
A.2d 457 (1943), we find that case factually distinguishable from the present
case. In Rusch, the plaintiff, Andrew J. Rusch, administrator of the estate
of Frederick A. Rusch (decedent), brought an action against the highway
commissioner after the decedent was killed when the vehicle in which he
was a passenger struck a wooden fence along the shoulder of the road. Id.,
29–30. At the point of the collision, the wooden fence narrowed the shoulder
from approximately eight feet to four feet in width. Id., 29. The trial court
concluded that the sudden and substantial change in the position of the
fence created a dangerous condition in the highway. Id., 30. On appeal, this
court affirmed the trial court’s judgment. Id., 36.
Rusch is distinguishable from the present case because the wooden fence
that was constructed so as to narrow, unexpectedly, the shoulder from eight
to four feet constituted ‘‘[an] 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 . . . .’’ Hewison v. New Haven, supra, 34
Conn. 142. Acknowledging Hewison, the trial court determined that the
fence narrowing the shoulder constituted a condition near the road that
rendered public travel thereon not reasonably safe. See Rusch v. Cox, 10
Conn. Supp. 521, 526 (1942) (‘‘the highway was not reasonably safe . . . .
[because] the layout was such as almost to amount to a trap for those, who
in the night season, might drive upon the shoulder for emergency use’’). No
such condition existed in the present case. The dissent claims that Rusch
is analogous to the present case because ‘‘[i]n both instances, the injury
arose simply from the way in which the road was designed, not from some
other condition or obstacle on the road itself.’’ In Rusch, however, the
defectively designed fence was itself an object that obstructed travel and,
thus, it was an actionable defect despite the fact that the defect inhered in
the highway’s plan of design. In the present case, by contrast, the downhill
slope in the absence of warning signs pertains solely to the design of the road.
18
In Donnelly v. Ives, supra, 159 Conn. 165, the plaintiff brought an action
for damages against the highway commissioner after her automobile struck
a concrete abutment located along an exit ramp of a state highway. She
alleged that the highway was defectively designed due to, inter alia, ‘‘inade-
quate warning devices or signs . . . a poorly designed narrowing of the
highway . . . [and] inadequate visibility of the abutment due to the curve
in the highway . . . .’’ Id., 165 n.2. In examining whether the plaintiff’s
complaint and evidence supported a cause of action under the defective
highway statute, this court declined the plaintiff’s invitation to ‘‘adopt a
simple rule that liability be imposed upon the highway commissioner for a
[highway] design defect . . . resulting from the [highway’s] layout and sign-
ing.’’ (Internal quotation marks omitted.) Id., 168. Instead, the court reiter-
ated the principle that the highway commissioner’s decision in adopting a
plan of design for a highway is not subject to collateral review by this court;
id.; and that conflicting expert opinions are insufficient to establish the
highway commissioner’s failure to discharge its duty to ‘‘exercise reasonable
care to make and keep [its] roads in a reasonably safe condition for the
reasonably prudent traveler.’’ Id., 167.
19
At oral argument before this court, even the plaintiff agreed that poten-
tially any design defect claim would be actionable under her theory:
‘‘The Court: What design defect that applies directly to the road; a hairpin
turn, an exit ramp that is too close to the entrance ramp coming the other
way; what kind of design defect would not be actionable [under your theory]
when [it] pertains directly to the road?
‘‘The Plaintiff’s Counsel: Maybe none, Your Honor.’’