Opinion
No. CV 07-5011774-S, CV 07-5011825-S
September 29, 2011
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS AND/OR FOR SUMMARY JUDGMENT
I. INTRODUCTION
The cases now before the Court are related actions to recover money damages from the State under Connecticut's highway defect statute, General Statutes § 13a-144, for injuries suffered by one plaintiff, Michael Cummings, and for the death of the other plaintiff's decedent, Paul "Chip" Stotler, allegedly due to a defective highway, in a highly publicized multi-vehicle accident at the foot of Avon Mountain, at the intersection of Routes 44 and 10 in Avon, Connecticut, on July 29, 2005. On that date, the driver of a truck owned by American Crushing and Recycling, LLC, a company owned by Mr. David Wilcox, lost control of and was unable to stop his runaway truck as it traveled westbound, down Avon Mountain on Route 44, causing it to hurtle into the intersection of Routes 44 and Route 10 at the bottom of the Mountain, where it collided with several vehicles, including those of Mr. Cummings and Mr. Stotler.
The plaintiffs allege, in their respective complaints, that the injuries, death and losses for which they now seek to recover damages resulted from the neglect and/or default of the State, by and through its Department of Transportation, its Commission of Transportation and/or its agents, servants and/or employees, by means of a defective road, in one or more of the following ways:
a) in that they utilized a plan of design, construction and/or repair for the area of Route 44 described above, adopted by the State of Connecticut and/or its employees, which was totally inadmissible, in that it created an unsafe condition;
b) in that they failed to provide adequate warnings and signage on the downhill grade on Route 44 before the intersection;
c) in that they failed to construct a necessary runaway truck ramp;
d) in that they failed to prohibit trucks on this roadway in the absence of other safeguards; [and]
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m) in that they failed to provide adequate advance warning of said dangerous area to oncoming motorists so that they could avoid foreseeable out of control vehicles coming down the mountain.
Complaint, Stotler v. State of Connecticut Department of Transportation, Count I, ¶ 5(a)-(d)(m); Complaint, Michael Cummings, et al. v. State of Connecticut Department of Transportation, Count I, ¶ 5(a)-(d), (m). The plaintiffs claim that the allegedly defective highway here at issue was the sole proximate cause of the collision and of the resulting injuries, death and losses for which they seek damages in this case.
After the two actions were consolidated upon the motion of the defendant, the defendant filed separate motions to dismiss and/or for summary judgment in each of them, on December 3, 2009 in Stotler and on December 4, 2009 in Cummings. Each motion was initially supported by a memorandum of law and two attached exhibits: the application for an arrest warrant for Mr. Wilcox in connection with above-described incident; and the later judgment of conviction against Mr. Wilcox on several criminal charges arising from and relating to that incident and its injurious consequences. The plaintiffs filed separate oppositions to the defendant's motions on October 27, 2010, each accompanied by sworn affidavits in opposition to the defendant's motion for summary judgment from two professional engineers, Lance E. Robson and Douglas Rowland, whom they had hired as expert witnesses. Thereafter, the defendant separately replied to each such objection, on June 10, 2011 in Cummings and on June 16, 2011 in Stotler, by filing an additional memorandum of law together with certified transcripts of the depositions of the plaintiffs' two engineering experts.
The Court heard oral argument on the two motions on August 22, 2011.
II. MOTION TO DISMISS
The defendant claims initially that the plaintiffs' present claims must be dismissed for lack of subject-matter jurisdiction because they do not fall within the purview of General Statutes § 13a-144, pursuant to which the State has consented, in limited circumstances, to be sued for damages by any person who has suffered injury to person or property as to which a defect in a state highway is the sole proximate cause. On this score, it argues that an action under § 13a-144 cannot be based upon any alleged defect in the design of a state road or highway unless the defect falls within the narrow exception for such claims first articulated by our Supreme Court in Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897), as recently clarified and applied in McIntosh v. Sullivan, 274 Conn. 262, 875 A.2d 459 (2005). The plaintiffs respond that their challenged claims may properly be prosecuted under § 13a-144 because, as pleaded, they fall squarely within the so-called " Hoyt exception" to the general rule precluding design defect claims under § 13a-144, as interpreted and applied in McIntosh v. Sullivan. For the following reasons, the Court agrees with the plaintiffs that, insofar as the defendant's motions seek the dismissal of their claims, said motions must be denied.
A. Law Governing Motions to Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The defendant argues that the court lacks subject matter jurisdiction over the plaintiffs' claims because the alleged highway defects do not constitute "highway defects" within the meaning of General Statutes § 13a-144, and the doctrine of sovereign immunity bars any common-law negligence claims not brought under that statute. The plaintiffs maintain that their claims all fall within the purview of § 13a-144.
B. Law Governing the State Highway Defect Statute
General Statutes § 13a-144 provides, in relevant part, as follows: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court . . ."
"The state highway liability statute [§ 13a-144] is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144 . . . [W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . .
"To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Citations omitted; internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005).
A highway defect is "[a]ny 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." McIntosh v. Sullivan, supra, 268-69. "[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." Id., 269.
C. Law Governing Design Defect Claims Under the State Highway Defect Statute
"[A] defect in the design of a highway generally is not actionable under § 13a-144. E.g, Donnelly v. Ives, [ 159 Conn. 163, 168, 268 A.2d 406 (1970)]. In Hoyt v. Danbury, [ 69 Conn. 341, 352, 37 A. 1051 (1897)], we recognized a limited exception to that general rule." McIntosh v. Sullivan, supra, 280. The " Hoyt exception" provides that, "notwithstanding the general rule that the state is not liable for damages sustained by a traveler due to a defect in a highway's design, the state nevertheless may be liable if such a defect gave rise to a hazard that otherwise would be actionable under § 13a-144." (Emphasis added.) Id., 271; see also id., 280-82.
"[A] design defect claim can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway's plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear." McIntosh v. Sullivan, supra, 282. In other words, the highway, constructed according to a defective plan of design, is rendered "in such a defective condition as to have been out of repair from the beginning." (Emphasis added.) Id., 281 (quoting Hoyt v. Danbury, supra, 69 Conn. 352). "In all other respects, however, a design defect claim is indistinguishable from any other highway defect claim and, accordingly, it is subject to all the same statutory requirements, including the requirement that the alleged defect actually be in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon." (Internal quotation marks omitted.) Id., 282.
In McIntosh, the plaintiff brought an action under § 13a-144, seeking damages for injuries he sustained when his motor vehicle was struck by rocks and debris that fell from a rocky ledge "adjacent to and above [the] highway." McIntosh v. Sullivan, supra, 264. On appeal to the Supreme Court concerning a motion to dismiss brought by the defendant commissioner of transportation, the defendant argued that the plaintiff's allegations were insufficient as a matter of law because the falling rocks and debris did not constitute a "highway defect" under § 13a-144. Id., 267. The Court noted that "there may be circumstances in which an object or hindrance that is not part of the roadway, but that, from its nature and position in, upon, or near the roadway, could constitute a highway defect if that object or hindrance actually obstructs travel," but held that the falling rocks and debris did not constitute a highway defect because the "rocky ledge suspended high above the traveled path, entirely out of the traveler's way . . . did not, in and of itself, obstruct or hinder one's use of the highway." (Emphasis in original.) Id., 274, 275-76.
The Court explained that "the rocks and debris that fell onto the plaintiff's vehicle did not constitute a highway defect until they fell onto the road and the commissioner knew or reasonably should have known that they had fallen and actually were obstructing travel on the highway." McIntosh v. Sullivan, supra, 274.
The McIntosh plaintiff further claimed that the highway had been defectively designed. The Court held that this claim did not fall within the limited exception to the general rule precluding liability under § 13a-144 for design defects, stating simply that, "In the present case, we already have concluded that the plaintiff's allegations are insufficient to establish an actionable claim under § 13a-144 because the rocks and debris located above the highway did not impede or obstruct travel thereon. A fortiori, the plaintiff's allegations are insufficient to fall within the limited exception to the general rule precluding liability for design defects." Id., 285.
In articulating its holding, the McIntosh Court fully synthesized the Hoyt exception for design defects. In so doing, it drew upon its reasoning in Perrotti v. Bennett, 94 Conn. 533, 109 A. 980 (1920), which it described as "the only case in which this court ever has acknowledged that the `so-called Hoyt exception' . . . properly had been raised to defeat a defense of sovereign immunity." (Citation omitted.) Id., 283. In Perrotti, the town of Hamden had installed a drain pipe twelve inches below the surface of a highway "in accordance with [a] plan adopted for the construction used in improving [the] highway." Perrotti v. Bennett, supra, 94 Conn. 534. In accordance with the plan of design, twelve inches of gravel and sand were packed between the surface of the road and the drain pipe. Id., 534-35. The plaintiff was injured, several years after the drain pipe's construction beneath the road, when the roadway over the pipe collapsed under the weight of the plaintiff's truck. Id., 535. The Perrotti Court found the plaintiff's design defect claim to be actionable under the defective highway statute and reversed the judgment of dismissal entered by the trial court, reasoning that, "Whenever the plan [of design] in its execution creates a nuisance, or causes direct injury to another, liability follows for the damage done . . . If the plan [is] defective from the beginning, or if its defect originate[s] shortly after the completion of the improvement, and injury [is] ultimately necessarily the inevitable or probable result, the municipality will be liable. Clearly this is just . . . The finding is that the drain was not properly protected due to the covering of the roadway above it . . . Obviously from the time the drain was laid it constituted a defect in the highway, whether this was due to the want of adequate covering, or to the character of the pipe, or both. Hoyt v. Danbury [ supra, 69 Conn. 352], expressly recognizes . . . this situation as creating an exception to the general rule of nonliability." (Citation omitted; emphasis added.) Id., 541.
Against this background, the McIntosh Court concluded as follows: " Hoyt and Perrotti, therefore, establish the unremarkable principle that a defect in a plan of construction of a highway may, upon execution of that plan, render the highway `out of repair from the beginning' . . . such that, if a person were to be injured as a result of the disrepair, he or she would have a cause of action under the highway defect statute. Thus, the exception to the general rule barring liability under § 13a-144 for design defects is premised on the notion that certain design defects also may constitute highway defects within the meaning of § 13a-144. In other words, Hoyt stands for the limited proposition that, when a plaintiff pleads an otherwise actionable claim under § 13a-144 — that is, a claim that otherwise comports with all of the statutory requirements — the state may not avoid liability merely by demonstrating that the hazardous condition complained of inhered in the plan of design." (Citation omitted.) McIntosh v. Sullivan, supra, 274 Conn. 284-85.
D. Application of Controlling Law to the Plaintiffs' Pending Claims
The plaintiffs argue that the design of Route 44, from the summit of Avon Mountain westward to the intersection of Route 10, was "unreasonably dangerous and defective." Stotler Opposition (No. 115), p. 6. To prevail on these claims, under the McIntosh Court's articulation of the Hoyt exception, the plaintiffs must establish that the plan of design under which the Avon Mountain section of Route 44 was built was defective upon its execution, rendering the highway "out of repair from the beginning," in addition to satisfying the other requirements set forth in § 13a-144. See, e.g., McIntosh v. Sullivan, supra, 274 Conn. 268-69. "[W]hether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law." Id., 268.
Here, to reiterate, the plaintiffs initially allege that the claimed "injuries and death occurred due to the neglect and/or default of the State of Connecticut, its Department of Transportation, its Commissioner of Transportation Stephen E. Korta, II, and/or its agents, servants and employees, by means of a defective road . . ." in that the defendant "utilized a plan of design, construction and/or repair for the [Avon Mountain] area of Route 44 . . . adopted by the State of Connecticut and/or its employees, which was totally inadmissible, in that it created an unsafe condition." (Complaints, ¶ 5(a)). Although the "unsafe condition" allegedly arising out of the defective design is not particularized in the Complaints, the plaintiffs' further allegations unmistakably disclose that the unsafe condition complained of involves the operation of trucks on the steep downhill grade of Route 44 between the summit of Avon Mountain and its intersection with Route 10, and the resulting risk that such trucks will experience brake failure on the roadway and run away down the Mountain, with potentially disastrous consequences. On that score, the plaintiffs allege, inter alia, that the road in that location was defective because the defendant "failed to provide adequate warnings and signage on the downhill grade of Route 44 before the intersection;" id., ¶ 5(b); "failed to construct a necessary truck ramp;" id., ¶ 5(c); and, perhaps most importantly, "failed to prohibit trucks on the roadway in the absence of other safeguards." Id., ¶ 5(d).
Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1. "The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." ABB Automation, Inc. v. Zaharna, 77 Conn.App. 260, 265, 823 A.2d 340 (2003). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 497, 815 A.2d 1188 (2003) (concluding that plaintiff's allegations, "although somewhat vague," were sufficient to withstand motion to dismiss). See also Committee to Save Guilford Shoreline, Inc. v. Guilford Planning and Zoning Commission, 48 Conn.Sup. 598, 601, 853 A.2d 654 [ 37 Conn. L. Rptr. 286] (2004), quoting W. Horton K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (2004 Ed.) § 10-31, authors' comments, p. 443 ("In deciding a motion to dismiss, allegations of facts in the pleadings are read broadly in favor of the plaintiff . . .").
Read in the light most favorable to the plaintiffs, the above-quoted allegations clearly place their claims within the purview of § 13a-144, as interpreted and applied in Hoyt and its progeny. Like the plan of design in Perrotti, pursuant to which the drain pipe that ultimately collapsed under the weight of passing trucks was built into the roadway, only twelve inches under its surface, making the roadway intrinsically defective from the outset as built, the plan of design providing for the steep downhill grade of Route 44, which has always been open to truck traffic, is alleged and may be proved by the plaintiffs to have been defective from the outset because its incorporation into the roadway created a condition, intrinsic to the roadway, that constituted a nuisance, when the roadway was used as intended by trucks, from which "injury [was] ultimately necessarily the inevitable or probable result." Id., 541 Unlike the rocky ledge high above the roadway in McIntosh, by contrast, which was not built into the roadway and was thus not an intrinsic defect in it which actually obstructed travel upon it or hindered its use, 10% downhill grade built into the relevant section of Route 44 has been claimed and may be shown by the plaintiffs to constitute such an intrinsic defect, which, when trucks use the roadway, creates an unacceptable risk of brake failure, even in trucks with working brakes, and ensuing runaways, collisions with other vehicles, and resulting injuries and losses. Consistent with this theory of liability, the plaintiffs have duly pleaded and intend to prove, as they explained at oral argument on these motions, that the steep downhill grade of the roadway in this location was the sole proximate cause of the runaway that caused the collisions, death and injuries for which they seek to recover damages, and that it did so by causing brake fade and ultimate brake failure as the truck proceeded down the Mountain. ABB Automation, Inc. v. Zaharna, supra, 77 Conn.App. at 267. (The Court may properly consider the entire record before it, not merely the allegations of the challenged pleading, when determining if a plaintiff's challenged claim falls within the subject-matter jurisdiction of the court.) If these allegations are proven true, they would support a finding that the Avon Mountain section of Route 44 is inherently dangerous when put to the use for which it was intended and for which it is lawfully open. Thus, as with the plan in Perrotti that called for the drain pipe to be built only twelve inches under the road, the plan of design providing for the steep downhill grade in Route 44 could be considered defective because the execution of that plan created a nuisance from which "injury [was] ultimately necessarily the inevitable or probable result." Perrotti v. Bennett, supra, 94 Conn. 541.
E. Conclusion
For the foregoing reasons, the Court concludes that, insofar as the defendant's motions seek dismissal of these actions, said motions must be DENIED.
III. MOTIONS FOR SUMMARY JUDGMENT
The ground upon which the defendant seeks summary judgment in these cases is that the plaintiffs cannot possibly establish that the alleged defect in the downhill grade of Route 44, even if actionable under General Statutes § 13a-144, was the sole proximate cause of the brake failure of the runaway truck that caused the collisions which produced the death, injuries and losses here complained of. To the contrary, they argue, it was well established by the police investigation which followed this tragedy and led ultimately to the arrest and successful prosecution of the truck company's owner, David Wilcox, that the truck's brakes were negligently maintained and in a defective condition well before it ever ventured onto Avon Mountain on July 29, 2005.
The essential problem with the defendant's motion, insofar as it seeks the remedy of summary judgment, is that it is supported only by documents and materials that cannot lawfully be relied upon to support a motion for summary judgment. Although an affidavit may be submitted to the trial court to establish the lack of any genuine issue of material fact as to an essential element of the plaintiff's claim or cause of action, the affidavit must be limited to facts admissible in evidence through the testimony of the affiant. An affiant's recitation of hearsay, however complete and compelling as a basis for establishing probable cause for the issuance of an arrest warrant, is an unacceptable substitute for admissible evidence as a basis for ruling on a motion for summary judgment, except to the extent that the affiant speaks competently in the affidavit about matters within his personal knowledge.
In support of these motions, the State has improperly relied upon the contents of the application for a warrant for the arrest of David Wilcox, and in particular upon the supporting affidavit of certain police investigators who summarized the observations and conclusions of brother officers and others they had interviewed concerning what happened in the incident and what was revealed after the accident by a comprehensive forensic examination and analysis of the runaway vehicle's braking system. Although such evidence presents a compelling picture of gross negligence by the owner of the truck in the care and upkeep of the truck and its braking system prior to the incident, and the State doubtless has witnesses available to it who could competently offer admissible evidence about their personal observations and conclusions concerning its condition on the date of the incident and the contribution of that condition to the brake failure that caused it to run away and collide with other vehicles on that date, the instant affidavit is an improper vehicle for supplying that information to the Court because its affiants lack non-hearsay knowledge of the matters asserted therein. For this reason, the Court must conclude that the State has afforded it no valid and sufficient basis for granting its motions for summary judgment in these cases.
It is true that, in arguing its motions for summary judgment, the State has relied upon the case of D'Arcy v. Shugrue, 5 Conn.App. 12, 14, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985), in which the Appellate Court concluded, as a matter of law, that a claim of highway defect involving the State's alleged failure to install and maintain a guard rail between two lanes of a divided highway could not have been the sole proximate cause of an accident in which a drunk, speeding motorist veered off his lane and into the path of the plaintiff's oncoming vehicle, causing a collision. There, the Court reached its conclusion because the other motorist's speeding and drunk driving was undoubtedly the antecedent act of negligence which triggered the series of events leading up to the accident, without which the accident would not have occurred, with or without a guard rail. As a result of such antecedent negligence, the occurrence of which was undeniable on the record before it, the Court held that the State's failure to install a guard rail between the lanes, even if it could be found to render the highway defective, could not have been the sole proximate cause of the accident at issue before it.
In the instant case, although undeniable proof that the truck driver negligently drove a vehicle with defective brakes which later failed and caused his vehicle to run away and cause a collision might fairly be found to defeat a highway defect claim based upon the failure to install safeguards against runaway vehicles along the highway, the same cannot be said if the brake failure of the runaway vehicle was itself caused solely by the allegedly defective condition of the highway — to wit: its 10% downhill grade from the summit to the foot of the Mountain on the section here at issue — rather than the negligent maintenance of the vehicle's braking system, the plaintiffs claim and will seek to prove through the testimony of its expert witnesses at trial. Because that is a factual dispute that cannot be definitively resolved on the basis of the evidence laid before the Court on the instant motions, its resolution must await a full trial on the merits of these actions.
For the foregoing reasons, the Court also concludes that, insofar as the defendant's motions ask this Court to enter summary judgment in its favor in these actions, said motions must be DENIED.
IV. CONCLUSION AND ORDER
For the reasons set forth in the foregoing Memorandum of Decision, the defendant's motions to dismiss and/or for summary judgment in these actions must be DENIED. Accordingly, IT IS SO ORDERED this 29th day of September 2011.