Opinion
(14254)
The plaintiff conservatrix sought to recover for the personal injuries sustained by her ward, L, when the automobile in which L was riding went off the road and struck a telephone pole. The complaint alleged that the defendant town of Litchfield had resurfaced and oiled the road in such a manner as to create an extremely slippery and dangerous surface, which constituted a nuisance and caused the vehicle to go out of control. The trial court granted the town's motion to strike the complaint and rendered judgment in favor of the town, from which the plaintiff appealed to this court. Held that the trial court correctly determined that the common law action for an absolute nuisance created by positive acts of a municipality upon a public highway has been eliminated by statute ( 52-557n), and an action brought pursuant to the defective highway statute ( 13a-149) has been made the exclusive remedy.
Argued May 29, 1991
Decision released July 23, 1991
Action to recover damages for personal injuries sustained by the plaintiff's ward as a result of the defendants' alleged negligence, brought to the Superior Court in the judicial district of Litchfield, where, after the complaint had been amended to allege only an action in nuisance against the defendant town of Litchfield, the court, Pickett, J., granted the motion to strike and the motion for judgment filed by the defendant town and rendered judgment thereon in its favor, from which the plaintiff appealed. Affirmed.
Mark D. Malley, with whom were Richard D. Gilland, Jr., and, on the brief, Richard D. Gilland, for the appellant (plaintiff).
James E. Kernan, with whom was Allisan Lee Adams, for the appellee (defendant town of Litchfield).
In this action the plaintiff, Gloria Cook, conservatrix of Dorinda Leonard, sought damages from the defendant town of Litchfield for personal injuries sustained by Leonard on October 3, 1986, when the vehicle she was driving went off a town road and struck a telephone pole. The complaint, as amended, alleged that the town had resurfaced and oiled the road a short time before the accident in such a manner as to create an extremely slippery and dangerous surface, which constituted a nuisance and had caused the vehicle operated by Leonard to go out of control. The town filed a motion to strike, which the trial court granted on the ground that General Statutes 52-557n bars any action for injury to person or property caused by a defective road unless it is brought pursuant to General Statutes 13a-149. That section imposes liability on a town for damages caused by means of a defective road or bridge when the town was' `bound to keep it in repair." After the plaintiff had failed to amend her complaint, the court rendered a final judgment for the town. See Practice Book 157.
The original complaint alleged negligence against James F. Turner, the owner of the vehicle that Dorinda Leonard had been driving, and also against the town of Litchfield. At the time the motion to strike was granted, the complaint had been amended to remove the allegations of negligence against Turner, although he was referred to as a "defendant" and the file does not contain a withdrawal of the action against him. The original allegations of negligence against the town of Litchfield had also been converted to allegations of nuisance based upon the facts set forth in the original complaint.
In her appeal from the judgment, the plaintiff raises only a single issue, whether 52-557n eliminates the common law action for an absolute nuisance created by positive acts of a municipality upon a public highway and makes 13a-149 the exclusive remedy against a municipality for any injury caused by a defective highway. Having concluded recently in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), that 52-557n bars any action based upon a defective highway that has not been brought pursuant to 13a-149, we hold that a common law action for nuisance is barred by 52-557n and affirm the judgment striking the complaint.
In Sanzone we held that the proviso in 52-557n (a) (1) that "no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149" applied to "the entire content of subdivision 52-557n (a)(1), not merely subdivision (a) (1)(C), "to which its application was clearest. (Emphasis added.) Id., 190. Subdivision (a)(1)(C) of 52-557n relates expressly to a common law nuisance action against a municipality: "acts of the political subdivision which constitute the creation or participation in the creation of a nuisance." The complaint in this case alleges precisely such an action based on the slippery condition caused by resurfacing the road. If the proviso restricting highway defect claimants to the remedy provided by 13a-149 is to have any application whatsoever, it must be deemed to apply to the nuisance action pleaded by this plaintiff.
In Sanzone we also considered the effect of the savings clause, "[e]xcept as otherwise provided by law," with which 52-557n (a)(1) begins. The plaintiff relies primarily on this clause in arguing that common law nuisance actions are not affected by the statute. We concluded in Sanzone that this provision was not intended "to preserve without modification all existing law, common and statutory, including such actions for positive nuisance," (emphasis in original) because "[t]he legislature could not have intended the general language of the introductory clause to swallow up and nullify the section's other provisions." Id., 191. We held that the meaning of the word "law" in the savings clause must be limited to state and federal statutes and did not include the common law. Id., 191-92.