McGuinness v. Town of Hamden, No. Cv-97-0401629s (Jan. 28, 1998) , 21 Conn. L. Rptr. 289 ( 1998 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE MOTION TO STRIKE The plaintiff has brought this action pursuant to the defective highway statute, General Statutes § 13a-149, following an alleged fall on a Town of Hamden sidewalk. Citing Public Act 95-111, the Town has brought an apportionment complaint against the owners of the adjoining property, Richard and Lydia Cozzolino. Both the plaintiff and the apportionment defendants have moved to strike the apportionment complaint in accordance with their contention that there can be no apportionment of liability pursuant to Public Act 95-111 in an action based on § 13a-149, which expressly applies only to actions to which General Statutes § 52-572h applies. The latter, which is our comparative negligence statute, applies only to negligence actions seeking damages for personal injuries, wrongful death, or property damage. It does not apply to actions for personal injuries based on General Statutes § 13a-149. CT Page 987Lukas v. New Haven, 184 Conn. 205, 213 (1981).

A municipality is not liable under General Statutes §13a-149 if the plaintiff or some third party is concurrently negligent. See, e.g, Parker v. Hartford, 122 Conn. 500, 505 (1937); Porpora v. New Haven, 119 Conn. 476, 480 (1935); Messinav. New Haven, 119 Conn. 166, 168 (1934). The town is concerned that if it does not bring this apportionment action, it might lose its opportunity to assert the negligence of a third party and thereby potentially relieve itself from any liability.

Municipalities, however, have been prevailing in actions brought against them under the defective highway statute when there was negligence of a third party long before the enactment of Public Act 95-111. There is nothing in the Public Act . . . or anywhere else . . . that prevents them from continuing to rely on the requirement that a plaintiff in a defective highway case prove that the alleged defect was the sole proximate cause of his or her injury. Because, however, Public Act 95-111 is inapplicable to proceedings under the defective highway statute, they are not entitled assert this position through the filing of an apportionment complaint.

The motions to strike the Town's apportionment complaint is therefore granted.

SILBERT, J.