Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
MEMORANDUM OF DECISION AFTER COURT TRIAL
Wilson J. Trombley, Judge Trial Referee.
I. Nature and History of the Proceedings
A. The Initial Complaint
This case arises out of a one-car automobile accident that occurred on December 12, 2008, in Middlebury, Connecticut. In her initial three-count complaint, the plaintiff alleged that on said date she was a passenger in her husband's 2002 Chevrolet that was traveling in a westerly direction on Middlebury Road (Route 64), when he " lost control of said vehicle, causing [it] to strike the wire rope guide rail and/or hit four guide rail posts . . ." The plaintiff further alleges that as a result of said collision she sustained multiple injuries, some of which are permanent, and economic and noneconomic damages.
The first count was brought against her husband, the former defendant Frederick W. Richmond. In paragraph 4, the plaintiff asserted that her injuries and other losses were caused by the negligence and carelessness of her husband in the operation of his vehicle in that, inter-alia, he failed to properly control the vehicle and, given the weather conditions at the time, operated said vehicle at an unreasonable speed.
The second count, which was the only remaining count at the commencement of the trial, was brought against the Commissioner of the state's Department of Transportation (DOT). In that count, the plaintiff alleged that the Commissioner was responsible for the maintenance of Route 64, in particular the area that caused her husband to lose control of the vehicle. In paragraph 4 of said count the plaintiff alleged that her husband, at approximately 6:24 P.M. on December 12, 2008, " encountered an area of ice caused by pooled water in the roadway due to a heavy rainstorm the night before." Although the plaintiff asserted in paragraph 10 that the action against the Commissioner was brought pursuant to General Statutes Section 13a-144, the so-called state defective highway statute, in paragraph 5 the plaintiff alleged that her injuries and other losses " were caused by the negligence and carelessness " of the agents and employees of the state DOT. (Emphasis added.) What followed were twenty-six specifications of negligence, including allegations that the DOT knew or should have known about the pooling of water in the area where the accident occurred, yet failed to take the necessary steps to remediate that alleged dangerous condition or warn the traveling public of the alleged defective condition at that portion of the highway before, due to a drop in temperature, the water froze, thereby causing the accident and the plaintiff's resultant injuries and losses.
The third count of the initial complaint was brought against the town of Middlebury pursuant to General Statutes Section 13a-149, the municipal companion to the state's defective highway statute. In that count the plaintiff alleged that her injuries and other losses were due to the negligence and carelessness of the town's agents and employees. It likewise contained twenty-six specifications of negligence that were essentially identical to those lodged against the state DOT.
B. The Operative Pleadings
The operative complaint, entitled " Corrected Substituted Complaint" (#155), was filed on June 23, 2015, immediately prior to the commencement of trial. It was the fifth complaint filed by the plaintiff after several pretrial conferences and as a result of a Motion To Dismiss (#145) filed by the state. The plaintiff deleted therefrom any reference to the previously alleged negligence and carelessness of DOT employees. In paragraph 5 of the complaint, however, the plaintiff alleges that the state DOT, through its agents and employees, " caused" those injuries and losses in that they failed to keep the roadway in proper repair and in a reasonably safe condition; they created and maintained a dangerous condition on the roadway; they knew of the defective and unsafe condition yet failed to correct it. In light of the content of the plaintiff's latest complaint and the elements required to properly plead a defective highway claim pursuant to 13a-144, this court, prior to the presentation of the evidence, asked counsel for the defendant if the subject matter jurisdiction issue was cured by the filing of the operative complaint. Counsel conceded that the jurisdictional issue was thereby resolved. The parties then agreed that the Answer (#153) that was filed by the defendant on June 16, 2015, would serve as the defendant's operative pleading. No special defenses were contained therein. In paragraph 3 thereof, the defendant admits that Route 64 is owned and maintained by the Commissioner of the Department of Transportation and that DOT was at the time of the accident (and at the present time) under a duty to keep that highway in repair. The defendant, however, denies that it was liable for the plaintiff's claimed injuries and losses. The operative pleadings having been thus established, the court commenced the trial.
C. The Trial
The trial commenced on June 23, 2015, and concluded the next day. In addition to the plaintiff, Linda Richmond, and her husband, Frederick W. Richmond, a former defendant, the court heard from Todd Adams, the Middlebury police officer who investigated the subject accident and Eoin McClure, who is the current maintenance supervisor of DOT's Waterbury area facilities. The court received thirty exhibits into evidence, four of which were duplicative. Among the exhibits were the police investigative report, weather reports, photographs of the accident scene, DOT logs and reports, excerpts from McClure's deposition, medical and hospital reports, the plaintiff's initial three count complaint and a life expectancy table. After the court heard all the witnesses and received the exhibits a briefing schedule was agreed to. The last brief was filed by the defendant on September 11, 2015.
The court, after reviewing the testimony of all the witnesses and assessing the credibility of each, after examining all of the exhibits, after considering the briefs submitted by counsel and reviewing the cases cited therein, finds the issues in favor of the defendant based upon the following factual findings and legal analysis.
II. General Statutes Section 13a-144--Defective Highway
Sec. 13a-144, pursuant to which the plaintiff brings this action, provides, in pertinent part: " Any person injured in person or property . . . by means of any defective highway . . . 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. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the ...