Cummings v. Dept. of Transportation ( 2014 )

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MICHAEL CUMMINGS ET AL. v. DEPARTMENT OF
TRANSPORTATION
(SC 19176)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Robinson and Vertefeuille, Js.
Argued April 30—officially released August 19, 2014
Thomas J. Donohue, Jr., for the appellant (named
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, Michael Cummings,2 brought this defective
highway action under § 13a-144 against the defendant,
the Department of Transportation, seeking damages for
injuries the plaintiff sustained when a truck descending
Avon Mountain along Route 44 experienced brake fail-
ure and collided with multiple vehicles. 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 defendant’s motion to dismiss,
and the defendant appealed from that decision to the
Appellate Court.3 The Appellate Court determined that
the plaintiff’s complaint failed to state a cause of action
under § 13a-144 and, accordingly, reversed the judg-
ment of the trial court and remanded the case with
direction to render judgment dismissing the plaintiff’s
complaint. Cummings v. Dept. of Transportation, 142
Conn. App. 843, 849, 68 A.3d 123 (2013). We granted
the plaintiff’s petition for certification 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 plaintiff’s complaint failed
to state a cause of action under . . . § 13a-144?’’ Cum-
mings v. Dept. of Transportation, 309 Conn. 920, 76
A.3d 624 (2013). We answer this question in the affirma-
tive and, accordingly, affirm the judgment of the Appel-
late 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, he ‘‘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, careened down Avon Mountain
from east to west, left the west bound travel path, expe-
rienced exploded brakes and crashed into multiple vehi-
cles including the [plaintiff’s] as it traversed and
descended the 10 [percent] slope down Avon Mountain
on Route 44,’’ causing the plaintiff ‘‘severe injuries
. . . .’’
The plaintiff alleged that his injuries resulted from
the neglect or default of the defendant, ‘‘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 inadequate, 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 [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 . . .
‘‘(q) in that [the defendant] failed to install visible
street signage for cross streets at Deercliff Road at the
top of [Avon] [M]ountain; [and]
‘‘(r) in that [the defendant] failed to maintain a safe
and adequate intersection at Deercliff Road and
[Route] 44.’’
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-
144.4 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.5 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.) Therefore, the trial
court determined that the allegedly defective plan of
design providing for a steep downhill grade of Route
44 fell within the ambit of the defective highway statute.
The defendant appealed from the trial court’s deci-
sion to the Appellate Court.6 The Appellate Court con-
cluded that the plaintiff failed to allege an actionable
highway defect under § 13a-144 and, therefore, that his
claim was barred by sovereign immunity. Cummings
v. Dept. of Transportation, supra, 142 Conn. App. 849.
The Appellate Court incorporated by reference its anal-
ysis in Stotler v. Dept. of Transportation, 142 Conn.
App. 826, 70 A.3d 114 (2013),7 wherein the Appellate
Court reasoned that the trial court misconstrued the
plaintiff’s complaint as alleging that the steep downhill
grade of the road alone is an actionable highway design
defect. Id., 841; see Cummings v. Dept. of Transporta-
tion, supra, 849. Instead, the Appellate Court in Stotler
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. Stotler v. Dept. of Trans-
portation, supra, 841. That 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
in Cummings reversed the judgment of the trial court.
Cummings v. Dept. of Transportation, supra, 849. This
certified appeal followed.8
The plaintiff claims that the Appellate Court improp-
erly concluded that the trial court should have dis-
missed his complaint on jurisdictional grounds because
his allegations are insufficient to state a cause of action
under § 13a-144. We disagree and, accordingly, we con-
clude that the Appellate Court properly reversed the
trial court’s judgment. Therefore, we affirm the judg-
ment of the Appellate Court.
In all material respects, the plaintiff’s complaint is
indistinguishable from the complaint filed against the
defendant in Stotler v. Dept. of Transportation, 313
Conn. , A.3d (2014), an opinion we have also
released today. In Stotler, we held that a claim identical
to the one alleged in the present case was barred by
sovereign immunity because it did not fall within the
ambit of the defective highway statute. Id., . The
present case is controlled by our holding and analysis
in Stotler. Accordingly, we conclude that the Appellate
Court properly determined that the trial court should
have dismissed the plaintiff’s complaint for failure to
state a claim under § 13a-144.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA, ROBINSON and
VERTEFUILLE, 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 . . .
may bring a civil action to recover damages sustained thereby against the
commissioner in the Superior Court. . . .’’
2
Although the original complaint included a loss of consortium claim by
the plaintiff Tammy Cummings, the wife of Michael Cummings, the plaintiffs
subsequently withdrew the loss of consortium claim. In this opinion, we
refer to Michael Cummings as the plaintiff.
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
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 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. Cummings v. Dept. of Transportation, supra, 142 Conn.
App. 849.
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.
5
Earlier in these proceedings, the trial court, Graham, J., granted the
defendant’s motion to consolidate this action, pursuant to Practice Book
§ 9-5 (a), with the related action in Stotler v. Dept. of Transportation, Supe-
rior Court, judicial district of Hartford, Docket No. CV-07-5011825-S (Septem-
ber 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.
6
The defendant appealed from the trial court’s judgment in both the
present case and Stotler v. Dept. of Transportation, Superior Court, judicial
district of Hartford, Docket No. CV-07-5011825-S (September 29, 2011). See
Stotler v. Dept. of Transportation, 142 Conn. App. 826, 70 A.3d 114 (2013).
The Appellate Court granted the plaintiff’s motion to adopt the appellate
brief of the plaintiff-appellee in Stotler, and consolidated the two appeals
for oral argument only. Cummings v. Dept. of Transportation, supra, 142
Conn. App. 847 n.2.
7
The Appellate Court determined that the plaintiff’s complaint is substan-
tively identical to the complaint in Stotler v. Dept. of Transportation, supra,
142 Conn. App. 826, and, therefore, that the ‘‘[t]he present claim is controlled
by [the] analysis and holding in Stotler.’’ Cummings v. Dept. of Transporta-
tion, supra, 142 Conn. App. 849.
8
For the purposes of oral argument only, this court consolidated the
present case and the related certified appeal in Stotler. See Stotler v. Dept.
of Transportation, 313 Conn. , A.3d (2014).