Opinion
Nos. X05CV054006399S, X05CV054003308S, X05CV054004870S, X05CV054004642S, X05CV054004451S, X05CV054004452S, X05CV054004495S
April 7, 2009
MEMORANDUM OF DECISION ON THE DEFENDANT CONNECTICUT DEPARTMENT OF TRANSPORTATION'S MOTION TO DISMISS
Introduction
These cases collectively consist of seven separate defective highway lawsuits involving multiple plaintiffs and multiple defendants. The cases have all been consolidated for trial, as they involve the same set of factual allegations surrounding a fatal motor vehicle accident which occurred in the pre-dawn hours of January 17, 2009 on Interstate 95, a public highway of this State. The several plaintiffs here under their respective docket numbers are either the administrators of the estates of parties who perished in the accident, or parties who themselves sustained physical injuries. It is alleged that at approximately 4:50 a.m. on January 17, 2003, Armando Salgado (Salgado) was operating a tractor-trailer in the northbound lanes of Interstate 95 (I-95) at or near milepost 26.6, where that stretch of highway runs through the town of Fairfield, CT. At that location, Salgado's tractor-trailer allegedly crashed into the concrete median barrier, which, due to highway construction, was a temporary median barrier which separated the northbound lanes from the southbound lanes of the highway.
When the tractor-trailer came to rest after the collision, a portion of the back section of Salgado's trailer allegedly protruded over the concrete median barrier, and obstructed traffic in the travel portion of the northbound lanes of the highway. It is alleged that the plaintiffs were occupants of a Chevrolet Tahoe which was also traveling along in the northbound lanes of I-95 on that date, some distance behind the disabled tractor-trailer. The plaintiffs were returning from New York City en route to Yale University at the time. Four occupants of the Tahoe were killed, and four others in the Tahoe were seriously injured when their vehicle collided with the back portion of the trailer approximately fifteen minutes after Salgado's initial collision. This second collision was allegedly as a result of certain defects on the highway, and the negligence of one or both of the defendant construction companies that were doing work on that portion of I-95.
Each of the plaintiffs' complaints sound in four counts. The first count is a defective highway allegation against the defendant Stephen E. Korta, II, and/or James F. Byrnes, Jr., both former Commissioners of Transportation of the State of Connecticut (the State). The State has pled as a special defense that the first count is barred by General Statutes § 13a-145. It is this first count against the State in each complaint, the defective highway allegations, which are the primary subject of this decision. The second and third counts allege negligence on the part of two construction companies which were working under contract with the State to perform certain improvements to I-95 at the time. These are the defendants M. DeMatteo Construction Co. (DeMatteo), and The Brunalli Construction Company (Brunalli). The fourth count of each plaintiff's complaint alleges a joint venture between the corporate defendants DeMatteo and Brunalli as an alternate means of relief.
As is acknowledged by the plaintiffs in their consolidated opposition to the defendant's motion to dismiss, while the named defendant here is the Connecticut Commissioner of Transportation, courts have recognized that such claims are essentially claims against the State of Connecticut.
It is alleged that an employee of one of these two defendants knocked down an overhead highway light pole on I-95 while operating an excavator. This is alleged to have occurred either sometime late in the evening on January 16, or in the early morning hours of January 17, 2003. This downed pole allegedly led to the disabling of the overhead highway lighting along this stretch of I-95 in the area of the fatal collision. The defendant construction companies are alleged to have been negligent with respect to the issues surrounding the striking of the pole, and the resulting loss of illumination on this stretch of highway, as well as in the failure of these defendants to use and properly install adequate concrete median barriers on I-95, barriers sufficient to prevent them from being breached by Salgado's tractor-trailer into the plaintiffs' lane of travel.
The State has moved to dismiss count one of each of the plaintiffs' complaints against it for lack of subject matter jurisdiction. Specifically, the State asserts that these defective highway actions under General Statutes § 13a-144 are barred by the doctrine of sovereign immunity. The plaintiffs filed their consolidated opposition to the State's motions, and following an exchange of briefs on the issues, the court held a hearing to consider the various arguments of counsel. Following the hearing, the court ordered supplemental briefing on the issue of signage.
The State contends that at the time and place of the accident on I-95, that portion of the highway was undergoing reconstruction and/or repair. The State further asserts that this construction zone had been designated by law as restricted to traffic, and that notices of such restricted traffic use were properly posted to the public with signs at each end of the construction zone along I-95, in accordance with General Statutes § 13a-115. The State submits that the deaths, injuries and damages complained of by the plaintiffs in these cases are all traceable to alleged defects caused in the process of highway reconstruction and repair. Therefore, it is the State's position that the plaintiff's claims are barred by General Statutes § 13a-145, and must be dismissed on the basis of sovereign immunity.
The plaintiffs object to the State's motion to dismiss on two grounds. As to signage, the plaintiffs contend that there is insufficient evidence that a sign was posted along I-95 in the area of the collision as required by statute. The plaintiffs also argue that the State has not brought forth sufficient evidence to demonstrate that the signs at issue complied with the Manual on Uniform Traffic Control Devices (MUTCD), pursuant to General Statutes § 13a-119. The plaintiffs assert that the State has therefore not met its burden of establishing its entitlement to sovereign immunity. Second, the plaintiffs note that their allegations also include a failure of the State to properly maintain the highway with respect to the presence of ice and snow, and the plaintiffs argue that these allegations are not related to the highway construction project that was ongoing. Accordingly, the plaintiffs contend that the State's sovereign immunity argument is inapplicable to these weather-related allegations, and that the motions to dismiss should be denied on these grounds as well.
Summary of the Defective Highway Allegations Against the State
While there are some variations in the exact wording of the several complaints of the different plaintiffs, complaints that have been consolidated for trial here, essentially each of the plaintiffs allege that the State was under a duty to keep I-95 in repair, but that this portion of the highway was in a dangerous and defective condition in one or more of seven different ways:
1. The road surface was icy, snowy, slippery, and/or inadequately salted and/or sanded;
2. There was no highway lighting in the area;
CT Page 6239
3. The concrete barriers were not sufficient to keep tractor trailers from crossing over and/or through them;
4. There were no warnings of the condition of the road surface;
5. There were no warnings of the lack of highway lighting;
6. There were no warnings of the insufficiency of the concrete barriers; and
7. There were no warnings of Salgado's collision.
Each of the plaintiffs further allege that these dangerous and defective highway conditions, and the collision and resulting deaths and personal injuries, were caused by the neglect or default of the State or its employees. Again, with some variations in the wording of the complaints, the State is alleged to have been at fault in one or more of the following ways:
1. They failed to maintain the roadway in a reasonably safe condition;
2. They maintained a dangerous or defective condition on the roadway;
3. They knew or should have known the highway was defective and hazardous, yet continued to maintain the defects, and/or failed to correct defects which they knew or should have known existed;
4. They failed to maintain and/or inspect the roadway for traffic in view of the circumstances, including ice and/or snow and/or a lack of adequate and appropriate highway illumination and median barriers;
5. They failed to properly train and/or supervise personnel to inspect the roadway for safety and/or failed to have adequate inspection and maintenance procedures;
6. They failed to give notice of the dangerous conditions, and/or failed to follow or failed to have in place adequate notice procedures as to unsafe road conditions;
7. They failed to provide oncoming motorists with adequate advance warning of the defective and dangerous conditions and/or prior accidents;
8. They failed to close the road until conditions could be made safe for travel;
9. They failed to properly salt and/or sand the road and/or dispatch enough trucks to do so, and/or to follow proper snow and ice removal procedures; and
10. They failed to communicate between State agents, servants or employees regarding road conditions and the need for corrective actions.
The Defective Highway Statutes
The plaintiffs' claims against the State implicate a number of statutes found in Title 13a, which governs highways and bridges. There is general agreement between the parties as to the relevance of four of those statutes, although not surprisingly, they dispute the application and interplay of those four statutes to the facts. However, the plaintiffs and the State seem to disagree as to whether or not all of the terms of a fifth statute also apply here, namely, General Statutes § 13a-119, entitled "warning and directional signs." It was this area of law that was the basis for the supplemental briefs that were requested. Before addressing that statute, the court will first set forth the terms of the four statutes of unquestioned relevance and applicability. The first of these is the defective highway statute. The second is the statute allowing for the legal "closure" of highways under construction, maintenance, or repair. The third is the statute that governs the signage warning of such highway closure. Fourth and finally is the statute specifying that persons using a closed highway do so at their own risk.
The defective highway statute is General Statutes § 13a-144, which is entitled "Damages for injuries sustained on state highways or sidewalks." It provides in relevant part that
[a]ny 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 . . . which it is the duty of the Commissioner of Transportation to keep in repair . . . or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in Superior Court.
General Statutes § 13a-115 is entitled "Closing highways under construction, maintenance or repair." It grants the Commissioner of Transportation the power to close highways undergoing construction, maintenance or repair. It provides in relevant part as follows:
(a) The Commissioner of Transportation may close or restrict traffic over any section of any state highway or bridge for the purpose of construction, reconstruction, maintenance or repair by posting notices at each end of such section of highway or at each end of such bridge . . .
(b) If in the course of construction, reconstruction, maintenance or repair of any state highway, the commissioner finds it necessary to close a highway or bridge of any town, city, borough or municipal corporation, he shall have the authority to do so in the manner provided in subsection (a) of this section and the provisions of said subsection and section 13a-145 shall be applicable thereto.
General Statutes § 13a-116, entitled simply "Warning signs," governs the warning signs erected to provide public notice of highway closures under the statute specified above, § 13a-115. As is apparent, the highway closure statute, § 13a-115, is also specifically referenced in this warning sign statute. § 13a-116 provides:
On any road or bridge maintained by the state where repairs or construction are under way or on any road or bridge being constructed or reconstructed under supervision of the commissioner, the display of reflectorized signs erected under the provisions of sections 13a-115 and 13a-119 shall be deemed adequate warning, provided there are no openings or obstructions within the traveled portion of the road or adjacent thereto.
General Statutes § 13a-145 is entitled "Use of closed highway at user's risk." This is the statute which is referenced above in the highway closure statute, § 13a-115, and it governs the use of closed highways; that is, the use of highways designated as closed or restricted by authority of the Commissioner of Transportation pursuant to § 13a-115. It provides that:
Any person using a state highway or bridge which has been designated as closed or restricted under the provisions of section 13a-115 shall do so at his own risk except with respect to any injury or loss not traceable to a defect caused in the process of construction, reconstruction or repair.
Finally, as mentioned earlier, there is another statute in Title 13a whose relevance to these cases is disputed by the parties. The statute in question is General Statutes § 13a-119, entitled "Warning and directional signs." It provides as follows:
The commissioner [of Transportation], whenever in his opinion the same is necessary, shall on any state highway, and may on any town highway, erect and maintain suitable warning and directional signs for the guidance of persons traveling thereon and may erect and maintain traffic control signals, devices, signs and markings on state highways, as approved by the State Traffic Commission. All of such signs and devices shall conform to the specifications of the manual of uniform traffic control devices [MUTCD] as approved and revised by the State Traffic Commission.
The plaintiffs maintain that this statute is also applicable to any signs posted pursuant to §§ 13a-115 and 13a-116, while the State maintains in its supplemental brief that this statute, § 13a-119, should not be construed as to require that such signs also comply with the MUTCD. The contentions of the parties on this point are more fully discussed, infra.
The Legal Standard for Review
The law of sovereign immunity is grounded in the well established principle that "the state cannot be sued without its consent." Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Because the doctrine of sovereign immunity implicates the court's subject matter jurisdiction, it is therefore a proper basis for granting a motion to dismiss. Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). As the Supreme Court has reaffirmed in its recently published decision in Kelly v. University of Connecticut Health Center, 290 Conn. 245, 963 A.2d 1 (2009), a case which also involved the doctrine of sovereign immunity, "A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record . . . Moreover, [a]s we must in reviewing a motion to dismiss, we 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." (Internal citations omitted.) Id., 252. "Whether a highway is defective may involve questions of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law." Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001).
Through a long line of precedents stretching back many years, Connecticut courts have upheld statutes that limit state liability when road use by the public is permitted during highway construction. Belhumuer v. Bristol, 121 Conn. 475, 478-79 (1936). "The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
The court's analysis of the operative statutes here is guided "by the well settled principle that when the state waives sovereign immunity by statute, a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . . . [When] there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Emphasis added; internal quotation marks omitted; other citation omitted.) Jeanne Rivers v. City of New Britain, 288 Conn. 1, 11, 950 A.2d 1247 (2008).
Plaintiffs who seek to litigate a cause of action against the State such is at issue here, under a statute where the doctrine of sovereign immunity is implicated, must therefore bear the burden of proving their claims fit precisely within that statute. An insistence upon precision in this narrowly drawn area of law not only makes perfect sense in light of the nature of sovereign immunity, it has also been stressed by the Supreme Court in a recent sovereign immunity case that also involved the State Department of Transportation. That case involved a public works contract dispute. After citing much of the foregoing strictly construed sovereign immunity analysis, the court concluded, "Thus, a party who seeks to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of [the statute]." Dept. of Transportation v. White Oak Corporation, 287 Conn. 1, 9, 946 A.2d 1219 (2008).
"When the question of law involves statutory interpretation, that determination is guided by well settled principles. We have previously stated that in construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Other citations omitted; Internal quotation marks omitted.) Baker v. Commissioner of Corrections, 281 Conn. 241, 254, 914 A.2d 1034 (2007).
Analysis
For the purposes of ruling on the defendant's motion to dismiss, the court finds the following facts to be proven. As to the sign, if the court finds it was both posted by the State and that it constituted a legally sufficient sign pursuant to statutes and the State Traffic Commission, it is a "good" sign in a legal sense. It works as a genuine shield of sovereign immunity for the State, protecting the State from liability and defeating the plaintiffs' claims. If the sign is found to have been missing, or is wholly lacking, or if the sign is inadequate on its face to convey its legal import, the State's claim of sovereign immunity must fall.
The court will not spend too much time on the plaintiffs' initial argument that a sign erected pursuant to § 13a-115 was not properly posted, as that fact is found proven by both direct and circumstantial evidence. An engineer for the Department of Transportation, Jeffrey Mordino (Mordino), attested that prior to the commencement of the I-95 project at issue, the State had posted reflectorized signage at each end of the construction zone. That signage read as follows: "CONSTRUCTION AHEAD — ROAD USE RESTRICTED — STATE LIABILITY LIMITED — GENERAL STATUTES SEC. 13a-115, 13a-145 — COMMISSIONER OF TRANSPORATION." Mordino further attested that such signage was in place on January 17, 2003, and that the collision occurred within the confines of that construction zone. The sign's placement further allowed northbound motorists such as the plaintiffs to exit I-95 by three separate exits (exit nos. 21, 22, and 23) before reaching the construction zone. There is even a brief glimpse of the sign on the dashboard video of a State Trooper, Andrew Borelli, who recorded his drive as he was dispatched to the accident in those early morning hours of January 17, 2003. Trooper Borelli arrived at the scene by traveling in his cruiser in the same direction of travel that the plaintiffs had followed, i.e., northbound along I-95.
As mentioned earlier, the parties disagree over the reach and applicability of § 13a-119 to the facts of this case. The plaintiffs argue that this other warning sign statute, § 13a-119, in addition to the warning sign provisions of § 13a-116, also applies to signs posted to provide public notice of highway closures under the highway closure statute, § 13a-115. Therefore, the plaintiffs argue that highway closure signs must also conform to the federal MUTCD in order to be considered valid. The State disagrees, and counters that the highway closure statute, § 13a-115, has its own specific companion warning sign statute, § 13a-116, that is addressed to highway closure signage. By its terms, § 13a-116 specifically references the highway closure statute, whereas § 13a-119 does not.
Based in part on the differing origins and legislative histories of these two different sign statutes, the State maintains that the language of the second warning sign statute, § 13a-119, is more properly addressed to the other types of discretionary warning signs that the Commissioner of Transportation has the general authority to erect, "whenever in his opinion the same is necessary," as well as traffic control signals, devices, signs and markings. The language of a statute is to be construed so that no clause or provision is considered superfluous, void or insignificant. See Graff v. Zoning Board of Appeals, 277 Conn. 645, 653, 894 A.2d 285 (2006). It would therefore seem that each statute serves a different purpose. Unlike the signs covered by § 13a-119, there is no discretion associated with a sign posted under § 13a-115 to limit the liability of the state under the highway closure statute. If the State is seeking the benefit of sovereign immunity in such settings, the absence of a sign would be fatal to the State's claims.
The MUTCD is published by the U.S. Department of Transportation's Federal Highway Administration under 23 Code of Federal Regulations, Part 655, Subpart F. The MUTCD 2000 was current at the time of the accident in 2003. On its official website, the Federal Highway Administration both confirms and recognizes that Connecticut is one of 20 states in the United States to have adopted its own separate state supplement. As to the state of Connecticut and the MUTCD 2000 edition, the Federal Highway Administration specifically notes that the "State is using National MUTCD in conjunction with the State Traffic Commission regulations (in essence State supplement)." (Emphasis added.)
The MUTCD 2003 with Revisions 1 and 2 is the most current edition; a further revision is anticipated in 2009. The Federal Highway Administration notes that it does not print hard copies of the MUTCD "because of the prohibitive costs involved [and because] the web site version is . . . more efficient and reliable." www.mutcd.fhwa.dot.gov.
http://mutcdfhwa.dot.gov/knowledge/natl_adopt_2000_2003.htm
The plaintiffs' highway sign expert, Russell M. Lewis (Lewis) opined that the warning sign at issue did not comply with the MUTCD. Lewis based his opinion on his view of what federal highway regulations call for under the MUTCD. The plaintiffs also stress the perceived shortcomings of the deposition testimony of Mordino, particularly in his working knowledge of the MUTCD. Because of the alleged deficiencies in that sign, the plaintiffs argue that the State's right to be immune from suit is defeated. Even assuming, arguendo, that § 13a-119 also applies to these signs, Lewis' opinion is insufficient proof to defeat sovereign immunity, absent further proof that the sign was not approved by the State Traffic Commission. The wording of § 13a-119 clearly includes the MUTCD qualifier "as approved and revised by the State Traffic Commission." The court finds the burden of proving such a deficiency by the State Traffic Commission will not be inferred by the mere absence of evidence on this score. It is true that in ruling on a motion to dismiss, the court must construe the allegations in a manner most favorable to the plaintiffs. However, that does not mean that the weight to be given plaintiffs' experts, or the doctrine of sovereign immunity, or a waiver thereof, are to be construed in a manner most favorable to the plaintiffs.
Just as our Connecticut constitution may provide greater guarantees to its citizens than the federal constitution, see, e.g., State v. Marsala, 216 Conn. 150 (1990), so too may the legislature decree, as they have in § 13a-119, that the Connecticut State Traffic Commission may lawfully act and approve signs in ways outside of or in addition to the scope or purview of the federal highway regulations found in the MUTCD. This is particularly so when the sign under consideration, one advising of the limitation of State liability, simply has no federal counterpart whatsoever. Lewis is critical of the sign for that very reason, stating that, "Because the subject sign is used only in Connecticut, it fails the test of uniformity." Affidavit of Russell M. Lewis at ¶ 15. It is submitted that Lewis misses the point. As the Supreme Court recently noted, "it is well established that courts accord great deference to the time-tested construction given a statute by the agency charged with its enforcement." Honulik v. Greenwich, 290 Conn. 421, 438 (2009). This is, therefore, a matter that is peculiarly within the province of Connecticut state law. Despite some recent and drastic expansions of the scope and ambit of the powers of the federal government in society today, there are still powers reserved to the states, and this is one of them.
Given the precision demanded of those parties who seek to overcome sovereign immunity, it is not the State's burden here to show it is entitled to sovereign immunity; it is the plaintiffs' burden to prove all of the elements of their claims against the State under General Statutes § 13a-144. That is a distinction with a difference. It is not satisfied here. Therefore, this court need not decide (and does not decide) whether § 13a-119, and by extension, the MUTCD or some State supplement to it, also applies to the warning signs of roads legally closed or restricted, in addition to the sign provisions of §§ 13a-115 and 13a-116. The court merely notes that, even if § 13a-119 were found to be applicable here, the plaintiffs have brought forth insufficient evidence on this issue.
The question further arises as to whether changes to the design of this warning sign alone would have affected the outcome, or led to a different result. The Supreme Court in Craig v. Driscoll, 262 Conn. 312 (2003), overruled the holding of a prior case that had held that the statute known as the dram shop act precluded plaintiff from also alleging a common-law negligence action against a purveyor of alcohol. The court noted that the now-abandoned legal doctrine had apparently not had a real world impact on the actions of the parties at the time of the alleged tortuous behavior. Quoting the rationale of Justice Benjamin Cardozo in his book, The Nature of the Judicial Process, the court stated that, "The arguments for adherence to precedent are least compelling, furthermore, when the rule to be discarded may not reasonably supposed to have determined the conduct of the litigants." (Other citation omitted.) Id., 330. In the same vein of logic articulated by Justice Cardozo and followed by the Connecticut Supreme Court, the arguments for finding a waiver of the strictly construed doctrine of sovereign immunity in this case are "least compelling" when the warning signs at issue here "may not reasonably be supposed to have determined the conduct of the litigants." In other words, there is no evidence that any of the parties out there on that stretch of I-95 that fateful night would have actually done anything differently or altered their behavior based on design changes to that sign, or a differently designed sign altogether, one that might presumably be satisfactory in the opinion of the plaintiffs' expert Lewis. Signs erected pursuant to § 13a-115 to close and/or restrict travel on affected areas of Connecticut highways do so only in a legal sense, not a practical sense.
As the Supreme Court recognized back in the World War II-era case of Rodgers v. Cox, 130 Conn. 616 (1944), which construed the predecessor statute, "A highway so posted may be entirely safe for traffic at the time of posting. The posting, as we have stated, is not primarily a warning of danger but a notice that the state will not be answerable for injury occurring on it." Id., 620-21. To assert that the tragic outcome here might have been any different based solely on design changes to this State sign planted by the side of the highway seems to be speculation. It does not seem warranted by either direct or circumstantial evidence, or the reasonable and logical inferences to be drawn therefrom. In fact, prior interactions in highway construction zones over the years between literally millions of Connecticut motorists on the one hand, and similar signs on the other, strongly support a contrary conclusion.
Finally, as mentioned earlier, the plaintiffs' allegations also include claims that the State failed to properly maintain the highway with respect to the presence of ice and snow. This is further alleged to have caused Salgado to lose control of his tractor-trailer on I-95 on January 17, 2003. Because the ice and snow conditions were unrelated to the highway construction project itself, plaintiffs argue that this factor takes it out of the ambit of the defective highway statute, § 13a-145, which provides an exception for "any injury or loss not traceable to a defect caused in the process of construction, reconstruction or repair." The State disagrees and argues that § 13a-145 specifically bars suit unless the claimed injury is caused solely by defects unrelated to construction, reconstruction or repairs. The court agrees with the State, based upon the rationale of what is needed to sustain a cause of action for damages for injuries sustained on a state highway pursuant to § 13a-144.
"To prove a breach of duty under § 13a-144, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, 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 . . . It is the plaintiff's burden to prove each of those elements, and failure to prove any element will preclude a finding of liability under the statute." (Emphasis added; Citations omitted; internal quotation marks omitted.) L'Homme v. Dept. of Transportation, 72 Conn.App. 64, 72, 805 A.2d 728 (2002).
Apart from the ice and snow, expert accident reconstruction witnesses are expected to testify that in their opinion, the temporary concrete center median barrier in use was defective, and that because of those defects, Salgado's tractor-trailer, rather than being safely redirected after colliding with it, was caused to crash over the barrier and separate, leaving the unit trailer portion obstructing the plaintiffs' lane of travel. They will further opine that because of the lack of overhead highway illumination, allegedly due to the negligent actions of employees of defendants DeMatteo and/or Brunalli, the operator of the Tahoe, Sean Fenton, was unable to perceive and react to the presence of Salgado's trailer in his lane of travel. In light of this collision scenario, whatever contributing role ice and/or snow may have arguably played, it was very far from the sole proximate cause of the resulting deaths and injuries. In White v. Burns, 213 Conn. 307, 567 A.2d 1195 (1990), the Supreme Court discussed the history of the "sole proximate cause" standard as applied to highway defect statutes, and held that the courts have historically applied this standard to establishing liability under § 13a-144. Accordingly, when this court applies the sole proximate cause standard to the plaintiffs' ice and snow claims against the State under § 13a-144, the State's motion to dismiss must be granted as to these allegations as well.
Conclusion
This accident cost the lives of four young men, and resulted in serious personal injuries to the other plaintiffs. Yet the undeniable severity of this tragedy, however compelling in its poignancy and sense of loss, cannot change the court's analysis of the requirements of the statutes as drafted by the legislature. This sign, and the sovereign immunity it creates, is a creature of state statute, not federal regulation. Statutes in derogation of sovereignty must be strictly construed in favor of the State, so that its sovereignty may be upheld, rather than narrowed or destroyed. Although one statute relied upon by the plaintiff's references a body of federal regulation, that same statute also imposes limits. It subjects the reach and applicability of those federal regulations in state law to the approval and revision of the State Traffic Commission.
The plaintiffs have presented no direct evidence of a lack of approval of the warning sign by the State Traffic Commission, nor any evidence supporting an inference that the State Traffic Commission has failed to approve this sign. It must be emphasized that the court's decision on this issue in no way limits the right of the injured plaintiffs and the families of the plaintiffs' decedents to pursue their cases and various causes of action against the defendant contractors for what allegedly occurred here. General Statutes § 13a-257 provides: "The immunity of the state from liability for damage or injuries incurred on a highway . . . closed under the provisions of sections 13a-115 and 13a-145 shall not extend to any contractor performing work for the state on such highway . . ." It simply means that because of the strictly construed doctrine of sovereign immunity, the State and its Department of Transportation stand in a different position than the private litigants here, particularly the co-defendants directly responsible for the highway construction project. Perhaps a compelling case could even be made for changing the law in highway actions with such grievous losses of life and their related damages, as are present in these allegations. But the court must follow the law as it is currently drafted, for to do otherwise would be improper. For the reasons stated herein, the motion to dismiss count one of each complaint against the State on the grounds of sovereign immunity is granted.
SO ORDERED.