MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT

ADAMS, JUDGE.

I. Background

In his amended complaint in the first of the above-entitled actions (X08 CV02 0190220) the plaintiff Michael A. Mazzuca seeks money damages from the State of Connecticut, and in the alternative from L.G. DeFelice, Inc. (DeFelice) Bernhard Contracting Corp. (Bernhard) and Costello Industries, Inc. (Costello). The named defendant William F. Sullivan, as Commissioner of the Connecticut Department of Transportation, is the named defendant representing the State of Connecticut. In the second action (X08 CV02 0196149) Mazzuca has sued HR Leasing/L.G. DeFelice, a joint venture (HR/DeFelice). Both cases involve the same single vehicle accident.

Mazzuca's amended complaint alleges that Sullivan, as Commissioner of the Department of Transportation, was responsible for the inspection and maintenance of the Interstate 84 highway in the relevant area, and that at about 5:30 a.m. on May 19, 2000 Mazzuca was traveling west on Interstate 84 when his car went into an uncontrollable spin and crashed into a tree located between the Interstate and the Exit 6 ramp, causing him serious injuries. Mazzuca alleges that his accident and injuries were the result of the Department of Transportation's failure to perform its duties in sixteen specified ways, resulting in the highway being in a defective and dangerous condition. Mazzuca brings this claim against Commissioner Sullivan pursuant to General Statutes § 13a-144.

The complaint alleges, in the alternative, that if "the Commissioner is not legally liable to the plaintiff, DeFelice and Barnhard are liable because their negligence in doing and supervising work to repair Interstate 84 (I-84) between Exit 3 and Exit 8 caused his accident. The complaint further alleges, again in the alternative to the Commissioner's liability, that Costello which is alleged to have performed milling work on the I-84 road surface near where the accident occurred, did so in a negligent manner causing Mazzuca's accident. Similar allegations of negligence by H.R./DeFelice are made in the second case.

Each of the defendants has moved for summary judgment which motions have been fully briefed and argued and are ripe for decision.

II. Standard of Review

Summary judgment may be granted when there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. A genuine issue as to a material fact requires more than just an assertion that there is a triable issue; it requires an evidentiary foundation. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). A fact is material when its existence or not would make a difference in the result of a case. United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378 (1969). The party seeking summary judgment has the burden of proving the absence of any genuine issue as to a material fact. Appleton v. Board of Education, supra. In deciding a summary judgment motion the trial court must view the evidence in the light most favorable to the non-moving party. Id. Finally, the trial court, in the context of a summary judgment motion, may not decide issues of material fact but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

III. Discussion A. Commissioner's Motion

Commissioner Sullivan moves for summary judgment on four grounds. The first two grounds, which will be considered together, are that Mazzuca has no evidence that he was exercising due care at the time the accident occurred and cannot prove that a highway defect was the sole proximate cause of his injury. The Connecticut Supreme Court has held that a claim under General Statutes § 13a-144 requires a plaintiff to prove that the highway defect claimed was "the sole proximate cause of his injuries and to prove that he was "free from contributory negligence." Williamson v. Commissioner, 209 Conn. 310, 319 (1988).

The Commissioner asserts that Mazzuca cannot meet this evidentiary hurdle because Mazzuca concedes that he has no recollection of the accident or the events immediately preceding it. He does not remember getting up in the morning, does not remember traveling on I-84, does not remember having difficulty with road conditions, and does not remember what speed he was traveling at, or the lane he was in. Mazzuca Deposition, 41, 61, 69. Furthermore, the plaintiff's expert, Dr. Peter Parsonson has no expert opinion as to why Mazzuca's automobile left the road and hit the tree. Parsonson Deposition, 94, 98-99, 104.

The plaintiff makes several arguments in opposition. First, he points out that there is no evidence that he was driving negligently and that the defendants' expert could only opine that when the automobile left the roadway, it was traveling at a minimum of 54-1/2 miles per hour. Miller Deposition, 111. He also points out evidence that the weather conditions were rainy, the road conditions "puddly" and that the highway had been recently milled as part of an ongoing repair project. Furthermore, the plaintiff contends that the accident was the result of the Department of Transportation's failure to maintain a "clear zone" in the area between the main highway and the Exit 6 off-ramp. Dr. Parsonson has testified that the tree which Mazzuca's automobile struck was 23 feet from the main highway in violation of the Department's policy of maintaining a nine-meter-wide clear zone designed to allow "80-85% of run-off-the road vehicles to recover." Parsonson Deposition 32-33; Conn. Department of Transportation Highway Design Manuel, § 13-2.01. Dr. Parsonson has given an opinion that the violation of the clear zone concept was the cause of the accident. Parsonson Deposition, 64.

The plaintiff focuses his opposition to summary judgment with respect to the sole proximate cause issue on two legal arguments. First, he contends that the Connecticut Supreme Court's interpretation of General Statutes § 13a-144 is wrong because there is no basis for it in the statutory language, and that the Connecticut Supreme Court and Appellate Court cases imposing the sole proximate cause requirement used incorrect and outdated reasoning to reach that interpretation.

Regardless of how one might view the merits of Mazzuca's arguments, they essentially ask this court to ignore Connecticut Supreme Court precedent, precedent which was not so long ago explicitly reaffirmed in White v. Burns, 213 Conn. 307 (1990) ("Sole proximate cause remains the standard of causation under § 13a-144"). This court cannot oblige.

Mazzuca's second legal argument is that the requirements that a plaintiff prove he was exercising due care and that the highway defect be the sole proximate cause have no application to his case. Essentially, he argues that it is nonsensical to have these requirements when he struck an object in a zone in which the Department of Transportation has purportedly undertaken the responsibility to clear of obstacles so that an automobile has a high percentage chance to recover safely. As the plaintiff points out, there will probably always be a cause for the automobile to run off the road, be it the driver's negligence, or something else. Therefore, the sole proximate cause requirement allows the Department to avoid liability in any case in which it has failed in its assumed responsibility to maintain a clear zone.

The argument made by plaintiff in these summary judgment papers is presented with more logical force than a somewhat similar argument made in opposition to an earlier motion to strike. See Memorandum of Decision, December 4, 2003 ( 36 Conn. L. Rptr. 144). Nevertheless, to accept the argument would be contrary to controlling precedent which makes no exception to the sole proximate cause requirement.

While the plaintiff does not make an argument with respect to there being any factual issues in contention, this court is still required to assess the validity of the Commissioner's argument that there are no material facts at issue and under the undisputed facts, the plaintiff cannot prove the lack of contributory negligence or that the defect was the sole proximate cause of the accident.

It is axiomatic that when the plaintiff has the burden of proof to establish his due care he must provide an evidentiary foundation which is sufficient to remove the issue from the realm of speculation. As far as the record shows, in this case, there was no eyewitness to the accident and Mazzuca, as noted, has no recollection of it. The police report indicates it was raining, and in those conditions at 5:30 a.m. one can conclude it was dark. Another driver who came upon the scene shortly after the accident said the I-84 pavement was "puddly." While there is no evidence that Mazzuca was driving over the speed limit, neither is there any to show that he was driving at a reasonable speed for the conditions, although as a general matter Mazzuca testified that he would drive more slowly if conditions warranted. There was evidence that Mazzuca, an agent of the FBI had taken specialized driving courses teaching techniques to keep an automobile under control.

While the plaintiff contends that the cause of the accident was the existence of a tree in the area between I-84 and Exit 6 ramp, there had to be some cause for his automobile to be traveling more than twenty feet off the highway at a sufficient rate of speed to cause the resulting damage.

The Commissioner argues that there is no evidence that plaintiff can adduce to provide a basis for finding that he was in the exercise of due care at the time of, or immediately preceding, the collision with the tree. This appears to be the case. Dr. Parsonson, as noted, does not have an expert opinion as to why Mazzuca's automobile left the travel portion of I-84 and entered the area between the expressway and the exit ramp. Mazzuca has no recollection of the event and there were no eye witnesses. Whether Mazzuca was operating his vehicle in a non-negligent fashion is a question that can only be speculated upon.

In Roy v. Michaud, 5 Conn.App. 695 (1985) cert. denied 198 Conn. 806 (1986) the vehicle in which plaintiff's decedent was a passenger drifted off the travel portion of Interstate I-95 at 6:00 a.m. and struck two rock ledges. The vehicle driver did not testify. There were two eye witnesses, one of whom said the vehicle was traveling within the speed limit and neither of whom testified as to any facts from which the driver's negligence could necessarily be inferred. The Appellate Court stated:

"The principle that a plaintiff must produce enough evidence to justify a finding of negligence on the part of another applies equally when his burden is, instead, to establish due care on the part of another. In both instances, he must remove the issue from the realm of speculation and lay a sufficient evidentiary foundation for a finding that the fact in issue is more probable than not. When the circumstances point as strongly to the absence as to the existence of due care, or point in neither direction, there is no basis for a finding of due care." Burke v. West Hartford, 147 Conn. 149, 157 A.2d 757 (1960). The plaintiff's evidence in this case fails to cross the evidentiary threshold of speculation.

There is insufficient evidence in this case upon which to base a finding that what caused the Michaud vehicle to leave the traveled portion of the highway was some factor not related to negligence of [the driver] Michaud. Michaud did not testify. The only evidence relating to the exercise of due care by him was that he was traveling within the speed limit. Under the circumstances of this case, however, that alone is insufficient as a basis for a finding that he was not negligent in drifting off the highway, going across the shoulder, climbing the seven foot embankment and colliding with the rock ledges.

Id., 700. The Appellate Court held that the trial court's direction of a verdict for the commissioner on the plaintiff's claim under § 13a-144 was proper because the fact-finder would have been left to speculate as to the myriad causes of loss of control of a vehicle. Id., 701. This court comes to the same conclusion.

The Commissioner also contends that summary judgment should be granted because Mazzuca failed to give the required notice. General Statutes § 13a-144 states in pertinent part, that:

No . . . action shall be brought . . . unless notice of . . . injury and a general description of the same and of the cause therefore and of the time and place of its occurrence has been given in writing within ninety days . . . to the commissioner.

On July 13, 2000 Mazzuca's counsel wrote to the Commissioner and stated:

The collision and the injuries sustained by Mr. Mazzuca were the result of the defective condition of I-84 in that, inter alia: (i) immediately prior to the point of the collision, on-going construction work on the highway and breakdown lanes of the highway at that location resulted in an uneven, dangerous and defective condition on the traveled portion of the highway and in the drainage system of the roadway being in a defective state, and resulted further in the collection and pooling of excessive quantities of precipitation on the traveled portion of the roadway, all of which caused Mr. Mazzuca to loose control of the automobile he was driving; and/or (ii) there was no guard rail or deflection device present along the northerly side of the roadway adjacent to the point of impact to prevent traffic from striking the tree located in the grassy area immediately adjacent to the traveled portion of the highway. The above described highway defects are solely responsible for the collision and injuries sustained by Mr. Mazzuca.

The Commissioner argues that Mazzuca's notice describes the tree as the point of impact but not as the cause of the accident which is stated to be the defective condition of the traveled portion of the highway and in the drainage system caused by construction and the lack of a guard rail around the tree. The plaintiff responds that the notice clearly identified the tree in question and stated that his injuries were the result of striking that tree.

The notice provision of Section 13a-144 "is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Lussier v. Department of Transportation, 228 Conn. 343, 354 (1994). However, the requirement was not devised as a means of putting difficulties in the path of a injured claimant; rather to permit the commissioner to gather information to protect him from a potential lawsuit. Warkentin v. Burns, 223 Conn. 14, 18 (1992). Unless the notice patently meets or fails this purpose the question of its adequacy "is one for the jury and not for the court." Morico v. Cox, 134 Conn. 218, 223 (1947).

In this case, while arguably the notice stated that the defect was the condition of the roadway and drainage and lack of a guard rail, the tree was specifically identified and located as well as described as the point of impact of the collision causing the injuries. The notice is not patently insufficient so as to prevent the Commission from investigating the facts in order to defend himself. The motion for summary judgment on this issue is denied.

Finally, the Commissioner asserts that summary judgment should be granted in his favor because the defect asserted is not a highway defect as Section 13a-144 has been interpreted. The Connecticut Supreme Court has said a defect in a highway is "any 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." Hall v. Burns, 213 Conn. 446, 461-62 (1990) (quoting and citing cases).

In Serrano v. Burns, 248 Conn. 419 (1999), the Connecticut Supreme Court reemphasized that:

Whether there is a defect in such proximity to the highway so as to be considered "in, upon, or near the traveled path" of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury . . .

Id., 426 [quoting Baker v. Ives, 162 Conn. 295, 300 (1972)].

The issue is perhaps best posed by the Appellate Court in Tyson v. Sullivan, 77 Conn.App. 597, cert. denied, 265 Conn. 906 (2003). That court quoted from Comba v. Ridgefield, 177 Conn. 268, 271 (1979) that a condition not part of the roadway "must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could reasonably be applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." Then the Tyson court, which was considering the issue of rocks and debris which had fallen from an outcropping near the road and hit a car, held that such outcropping and rocks were a highway defect for which the commissioner could be sued. The Appellate Court distinguished Comba which had held that an overhanging tree branch that fell on to a vehicle was not a defect subjecting the commissioner to suit, by noting, among other things, that rock outcroppings were far more susceptible to remedial measures alleviating damages than were overhanging trees.

In this case, the danger posed by the tree could have been easily remediated either by cutting it down or placing a guard rail, and following the rationale of Comba and at Tyson, this court denies the Commissioner's motion for summary judgment on this point.

B. Motions For Summary Judgment Filed By HR Leasing L.G. DeFelice, Inc. as Joint Venturers DeFelice, Bernhard and Costello

DeFelice, Bernhard and Costello have moved for summary judgment dismissing the negligence claims of Mazzuca against them. In Mazzuca v. HR Leasing, (X08 CV02 0196149) HR/DeFelice has made a similar motion. The gravamen of these motions is that Mazzuca has failed to disclose an expert to support his claims that these defendants negligently performed highway repairs including milling which depressed the highway level below the drains resulting in puddling and loose debris on I-84 in the area of the accident and therefore, the roadway was unsafe.

There is some evidence in the record that the milling of the roadway had brought the level of the road surface below the level of the catch basins. These defendants, however, contend that there is no evidence offered by the plaintiff as to what the proper standards for engineers and highway repair persons are for doing the type of repair and reconstruction work being performed on I-84. They specifically point out that the one expert disclosed by the plaintiff has offered no opinion about the condition of the roadway itself or whether the repair work was negligently performed.

The plaintiff argues that it is within the common knowledge of jurors that puddles on the roadway along with loose debris is not a proper condition for a roadway to be in.

The defendants have the better argument. In this court's view, there are too many technical subjects and too many considerations to factor in to expect a group of jurors to know from their own experience what the standard of due care is for persons and entities in the business of engineering, supervising and undertaking construction and repair work on an interstate highway.

Quite recently the Connecticut Supreme Court stated:

The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard . . . Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.

LaPage v. Home, 262 Conn. 116, 125 (2002) (emphasis in original, internal quotations omitted, citations omitted). LePage held that the proper sleeping position for an infant is beyond the knowledge and experience of the ordinary juror while conceding that tending to sleeping infants is a common experience.

To determine whether these defendants were negligent involves knowledge and experience or training in highway construction and repair requirements and procedures, contract requirements, and certainly a myriad of other factors beyond this court's knowledge. In this case, unless highway engineers or highway construction supervisors filled out the jury, it is unlikely that the jury would know from knowledge and experience what the standard of care for the defendants was or whether it had been breached.

The plaintiff has no expert testimony to establish that the work on I-84 near Exit 6 was performed negligently nor testimony that the negligence was a proximate cause of Mazzuca's accident. Without such evidence the plaintiff cannot succeed.

III. Conclusion

For the reasons stated above, the motion for summary judgment filed by the Commissioner is granted on the grounds that Muzzuca has neither established that he was free of negligence nor that the alleged defect was the sole proximate cause of the accident. The motions filed by DeFelice, Bernhard and Costello in X08 CV02 0190220 and the motion filed by HR/DeFelice in X08 CV02 0196149 are granted.

TAGGART D. ADAMS SUPERIOR COURT JUDGE CT Page 17012