Opinion
No. CV-02-0080357S
May 6, 2003
RULING ON MOTION TO STRIKE APPORTIONMENT COMPLAINT (#107) AND MOTION TO DISMISS APPORTIONMENT COMPLAINT (#111)
The plaintiffs Hatidza Kaniza and Mirsad Kaniza brought an action in two counts against the defendant Joseph E. Salvati, Jr. ("Salvati") alleging that they were injured in an intersection collision with Salvati's vehicle as a result of Salvati's negligence. Thereafter, Salvati filed an answer and special defenses alleging negligence on the part of Hatidza Kaniza. Salvati also filed separate apportionment complaints against the Commissioner of Transportation ("Commissioner") and the City of Ansonia ("Ansonia") in which it was alleged, in paragraph eleven of each complaint, that the accident was caused by a "defective traffic light and breach of statutory duty." Ansonia has moved to strike (#107) the apportionment complaint against it on the sole ground that "an apportionment complaint cannot be brought against a municipality for a defective highway claim." The Commissioner has moved to dismiss (#111) the apportionment complaint against him on that ground as well as several other grounds. For the reasons stated below, these motions are granted.
The Commissioner asserts that the apportionment complaint is barred by the doctrine of sovereign immunity on the following grounds: (1) failure to give proper notice; (2) an apportionment complaint cannot be predicated on the defective highway statute; and (3) only an injured traveler can make a claim under the defective highway statute.
I. Apportionment Based on a Defective Highway Claim
Ansonia claims that an apportionment complaint cannot be brought against a municipality for what is essentially a defective highway claim and the Commissioner makes a similar argument. Although the municipal highway defect statute, General Statutes § 13a-149, is not specifically cited in the apportionment complaint against Ansonia, the allegations clearly state a claim within its purview, as Salvati conceded at oral argument. Similarly, although the defective highway statute, General Statutes § 13a-144, is not specifically cited in the apportionment complaint against the Commissioner, the allegations also clearly state a claim within its purview.
It is now well established that General Statutes § 52-572h (o) "entirely precludes apportionment on any basis other than negligence." Bhinder v. Sun, 263 Conn. 358, 365 (2003). It is also equally well established that a defective highway claim, either under § 13a-149 or § 13a-144, is not a claim arising from negligence, but is one for breach of a statutory duty. White v. Burns, 213 Conn. 307, 321, 323, 567 A.2d 1195 (1990) (§ 13a-144), Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981) (§ 13a-149). Accordingly, there is no basis for apportionment against Ansonia or the Commissioner.
Moreover, to establish liability under § 13a-149 or § 13a-144 it must be proven that the highway defect was the sole proximate cause of the injuries which the plaintiffs sustained. Smith v. New Haven, 258 Conn. 56, 60-67, 779 A.2d 104 (2001) (§ 13a-149); White v. Burns, supra, 213 Conn. 336 (§ 13a-144). However, in order for apportionment to arise under § 52-572h (c), the damages must be "determined to be proximately caused by the negligence of more than one party." Thus, unless Salvati's negligence is deemed to have proximately caused the plaintiffs' injuries there would be no basis upon which a jury could apportion damages. But, if Salvati is found liable no liability can be found against Ansonia or the Commissioner on the basis of a highway defect. Indeed, a finding of negligence on the part of anyone other than Ansonia or the Commissioner would completely defeat any claim of responsibility against them. Smith v. New Haven, supra, 258 Conn. 65. Consequently, there would be no basis to apportion anything against these parties. See Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. 052173 (April 8, 1996, Sferrazza, J.), 18 Conn.L.Rptr. 636, aff'd. per curiam, 45 Conn. App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997); Gee v. Skarupa, judicial district of Fairfield at Bridgeport, Docket No. 306993 (Dec. 20, 1993, Pittman, J.), 10 Conn.L.Rptr. 520.
II. Lack of Proper Notice
Although section I is dispositive of both Ansonia's and the Commissioner's motions, the court must briefly address the Commissioner's additional claims. See Practice Book § 64-1. The Commissioner also correctly argues that the absence of compliance with the notice provision of § 13a-144 provides complete immunity from suit and precludes apportionment. Section 13a-144 requires that notice be given to the Commissioner within 90 days of the occurrence as a condition precedent to maintaining a defective highway claim against the state. In its absence, the state maintains its sovereign immunity. Lussier v. Department of Transportation, 228 Conn. 343, 354, 636 A.2d 508 (1994); Bresnan v. Frankel, 224 Conn. 23, 26, 615 A.2d 1040 (1992). If the state is immune from liability, the Commissioner cannot be made an apportionment defendant. General Statutes § 52-102 (c).
In this case, the apportionment complaint against the Commissioner does not allege that the requisite statutory notice was provided. Accordingly, the requirements of § 13a-144 have not been met, the Commissioner is immune from suit under the doctrine of sovereign immunity and he cannot be made an apportionment defendant. See Wrona v. Holden, Superior Court, judicial district of Tolland at Rockville, Docket No. 067113 (Dec. 15, 1998, Sullivan, J.), 23 Conn.L.Rptr. 547; Catuccio v. Coca-Cola Bottling Co., Superior Court, judicial district of Waterbury, Docket No. 130016 (Nov. 18, 1996, Peck, J.), 18 Conn.L.Rptr. 235.
III. Statutory Waiver Limited to Traveler on Highway
Finally, the Commissioner maintains that § 13a-144 only permits waiver of the state's sovereign immunity with respect to a direct claim by a traveler who has been injured because of a highway defect. "Section 13a-149 . . . permits recovery only by the injured traveler. (Internal quotation marks omitted; internal citations omitted)." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991). Although Salvati does not seek recovery from the Commissioner, but merely apportionment of damages, that is a distinction without a difference for the purposes of the sovereign immunity issue. See Adams v. Champagne, Superior Court, judicial district of Ansonia-Milford, Docket No. 061154 (May 26, 1998, Corradino, J.), 22 Conn.L.Rptr. 241. Again, since the state is immune from liability under the doctrine of sovereign immunity, the Commissioner cannot be made an apportionment defendant. General Statutes § 52-102 (c).
IV. Conclusion
Accordingly, Ansonia's Motion to Strike (#107) the apportionment complaint against it is granted. The Commissioner's Motion to Dismiss (#111) the apportionment complaint against him is granted.
LINDA K. LAGER, JUDGE