Frankie WHITE, Administratrix (ESTATE OF Fiona JOHNSON), et al.
J. William BURNS, Commissioner of Transportation. Brian E. BARTRON, Administrator (ESTATE OF Tammy BARTRON), et al.
J. William BURNS, Commissioner of Transportation. Magdolona Maria BAYERS, Executrix (ESTATE OF Maria Szabo KALISKA), et al.
J. William BURNS, Commissioner of Transportation. Joyce PISCITELLI, Administratrix (ESTATE OF Michael PISCITELLI), et al.
J. Willaim BURNS, Commissioner of Transportation.
Argued Oct. 10, 1989.
Richard A. Bieder, Bridgeport, with whom, on the brief, were Joan C. Harrington, Joseph B. Barnes, Milford, Vincent R. Falcone, New Haven, and George A. Dagon, Jr., Hartford, for appellants (plaintiffs).
Arnold J. Bai, Trumbull, with whom were Lawrence Russ, Asst. Atty. Gen., and, on the brief, Clarine Nardi Riddle, Atty. Gen., Arnold Shimelman, Asst. Atty. Gen., and Garie J. Mulcahey, Bridgeport, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, COVELLO and HULL, JJ.
[213 Conn. 308] ARTHUR H. HEALEY, Associate Justice.
These cases are consolidated appeals arising out of several actions brought under General Statutes § 13a-144  against
the defendant J. William Burns, commissioner of transportation (commissioner), by the plaintiffs on behalf of the estates of individuals who were fatally injured and several others [213 Conn. 309] who were seriously injured in a collision on interstate 95 in Stratford. The trial court, Cioffi, J., granted summary judgment on the plaintiffs' amended complaints in favor of the defendant on the ground that an action brought under § 13a-144 requires a plaintiff to prove that the highway defect alleged to have caused the death or injury was the sole proximate cause of such death and/or injury. The plaintiffs have appealed from that decision. We find no error.
The following facts are not in dispute. On January 19, 1983, a tractor trailer truck driven by Charles Kluttz struck a number of vehicles at the Stratford toll plaza on interstate 95 killing seven people and injuring several other persons. Kluttz was subsequently convicted of seven counts of negligent homicide.
The plaintiffs sued the commissioner under § 13a-144, alleging improper design and placement of the toll booths including the commissioner's failure to provide adequate warning systems to alert drivers that they were approaching the toll booths. In their amended complaints, the plaintiffs specifically alleged that the [213 Conn. 310] deaths and injuries "[were] caused, but not solely caused, by the neglect and default of the State or any of its employees, pursuant to Section 13a-144...."
On March 29, 1989, the trial court, on its own motion, granted summary judgment in favor of the commissioner. In doing so, it pointed out that because § 13a-144 authorizes a statutory cause of action where there was no common law right "to sue the State for negligence ... the case law has established the fact that the actions of the Commissioner or employees of the State and the highway department must be [proven] the sole proximate cause of the injury" in order for a plaintiff to recover. The plaintiffs appealed from that decision. We transferred these cases from the Appellate Court to ourselves pursuant to Practice Book § 4023.
The only issue on these appeals is whether the trial court erred in granting summary judgment on the ground that a plaintiff bringing an action under § 13a-144 must prove that the highway defect alleged to have caused the death or injury must have been the sole proximate cause of such death or injury. The plaintiffs make several related claims. Basically, they contend that the legislative intent, history and purpose of the state highway liability statute mandate a different proximate cause standard and that, therefore, the judicial construction of this statute must be reexamined. The plaintiffs assert that this should be done not only because we have the authority to do so, but because our erroneous judicial construction of § 13a-144, beginning with our construction of the statute in Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), has been continued in subsequent decisions down to the present time. They are not, however, requesting us to overturn "precedent for new policy reasons" but are rather directing "[our] attention to an old mistake in statutory interpretation" and requesting us "to correct a [213 Conn. 311] past error." In so arguing, they maintain that: (1) the legislative history of § 13a-144 shows "an intent to reject 'sole proximate causation' "; (2) the plain language of § 13a-144 shows a legislative intent not to incorporate sole proximate cause; (3) the subrogation clause of § 13a-144 is "incompatible with 'sole proximate cause' "; and (4) the policy goals of § 13a-144 "do not mandate 'sole proximate cause.' " We do not agree with any of the plaintiffs' claims and analyze them seriatim below.
In interpreting a statute the court must ascertain and give effect to the intent of the legislature. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987). " '[T]he meaning of [a] statute
must, in the first instance, be sought in the language in which the act is framed....' " 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 46.01, quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). "If the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature...." Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978); Lamb v. Burns, 202 Conn. 158, 167, 520 A.2d 190 (1987). Where the statute presents no ambiguity, we need look no further than the words themselves which we assume express the intention of the legislature. Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 118, 557 A.2d 1256 (1989); State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). "When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself ... the legislative history and circumstances surrounding the enactment of the statute ... and the purpose the statute is to serve." Rhodes v. Hartford, supra; Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987).
[213 Conn. 312] "It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases"; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963); "and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state." Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). The state and its municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. Id. Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute. Therefore, because the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. DeFonce Construction Corporation v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985); Sestito v. Groton, 178 Conn. 520, 524, 423 A.2d 165 (1979); Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355-56, 422 A.2d 268 (1979); 2A J. Sutherland, supra, § 58.04. Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity. See Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951). Further, this court has stated that "the state's sovereign right not to be sued with[213 Conn. 313] dissent is 'not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms....' " Murphy v. Ives, supra, 151 Conn. at 262-63, 196 A.2d 596.
The first legislative act waiving a municipality's immunity to suit for a defect in a highway appeared in the Acts of 1672. The general court ordered the counties and towns to keep their roads and bridges in sufficient repair and if an individual should sustain an injury, the county or town was to pay a fine of one hundred pounds. The order specifically stated: "That if any person at any time [lose] his life through defect or insufficiency of such Bridges, in passing any such Bridge or High-way after due warning ... then the County or Town which ought to secure such ways or Bridges, shall pay a fine...." The order further stated: "And if any person [lose] a Limb ... through such defect ... the County or Town through whose neglect such hurt is done shall pay...." Acts of 1672, p. 7. Thus, while the common law
did not subject municipalities to liability for injuries due to a defective highway; see Beardsley v. Hartford, 50 Conn. 529, 537 (1883); this branch of sovereign immunity has been abrogated since 1672 as to a town.
Insofar "as it affect[ed] the duty and liability of the towns, the act of 1672 [was] in force [in 1899]" when this court decided Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899). In Bartram, we announced that sole proximate cause was to be the standard for determining liability under the municipal highway liability statute. The municipal highway liability statute in effect at the time Bartram was decided was § 2673  of the [213 Conn. 314] 1887 Revision of the General Statutes, which provided in part: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city, corporation, or borough, unless written notice...." The parties to these appeals lay great stress on the meaning of Bartram.
Bartram involved an action against a municipality to recover damages for personal injuries claimed to have been caused by a defective highway. In that case, the plaintiff, a passenger in a horse-drawn wagon, was injured when her driver, who himself was found guilty of negligence, operated the wagon so that it overturned upon striking a defect in the highway that the defendant town had failed to repair. Bartram v. Sharon, supra, 687, 43 A. 143. We reversed the judgment of the trial court that had awarded the plaintiff damages against the defendant town. In that case, we said: "The precise point decided in this case is, that a traveler on a highway [Bartram] cannot be injured through a defect in the highway, within the meaning of our statute, when the culpable negligence of a fellow traveler [Bartram's driver] is a proximate cause of [her] injury. We think this construction is demanded by the language and history of the Act, and also that it is in accord with sound public policy." Id., 697, 43 A. 143.
In Bartram, after tracing the historical evolution of the municipal highway liability statute, we cautioned that the statute "should not be extended by construction beyond the plain meaning of its words" and that [213 Conn. 315] the "liability of the towns is to pay a penalty." Id., 694, 43 A. 143. Bartram set out the conditions upon which the penalty is incurred as being a defect in the highway, a "failure or neglect" of the town to make sufficient repair that involved "questions of reasonable notice and knowledge, and reasonable time" and "[a]n injury caused through or by means of the defect" to one lawfully using the highway. Id., 694-95, 43 A. 143. Because all of these conditions must concur to fasten liability on the town, Bartram went on to say that "[i]t follows that an injury caused by the culpable negligence of a traveler, whether to himself or to another, does not happen by means of or through a defect in the highway, even if such defect were a concurring cause. One reason why a person injured through his own carelessness cannot maintain an action against the town is, that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person." (Emphasis added.) Id., 695, 43 A. 143.
We stated, however, in Bartram that "[i]f the language of the statute had been used in reference to a common-law tort, it might well be claimed that it is ...