Robinson v. Dellangelo, No. 51 44 47 (Jan. 15, 1992) , 1992 Conn. Super. Ct. 348 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION REGARDING CITY OF NEW LONDON'S MOTION FOR SUMMARY JUDGMENT The plaintiff's complaint is in four counts. Counts two and three are against the City of New London, count two under the City's statutory duty to repair and maintain roads and streets under Connecticut General Statutes Section 13a-149 and count three a public nuisance count.

The City claims in its motion that the intersection of Bank Street and Ocean Avenue, where the accident occurred, are state roads, not city roads. The State of Connecticut admits that these two roads are state roads which the state is required to maintain and keep in repair in accordance with Connecticut General Statutes Section 13a-144. The City cites several witnesses as to the work done by the State to repair and maintain these two roads, the intersection, and the traffic control lights. Other witnesses, including city employees and state employees, testified by way of deposition that the state owned, maintained and repaired Bank Street and Ocean Avenue, including all traffic signals, lights, and the streets themselves, and that the City did not do any of the foregoing.

The plaintiff claims that the court cannot grant the City's motion because the state has denied that it "controlled" the intersection of Bank Street and Ocean Avenue.

Where highway defects are concerned under the statutes, the party required to keep the road in repair is liable. Here there is no material issue of fact as to whose duty it was to keep the area in repair. It is clear that the State had that duty, not the City.

Regarding the third count, the claim of nuisance can only be against the party who has the duty to maintain the area and who has by a positive act created the nuisance. Since the evidence discloses no such positive acts by the City to create a nuisance, and since the City did not have a statutory duty to keep this area in repair, the claim of nuisance cannot lie against the City.

Accordingly, the Motion for Summary Judgment as to the second and third counts is hereby granted.

HURLEY, J. CT Page 349