Argued
December 14, 2017
Procedural
History
Action
to recover damages for personal injuries sustained as a
result of alleged highway defects, and for other relief,
brought to the Superior Court in the judicial district of New
London, where the court, Devine, J., granted the
defendant's motion to dismiss and rendered judgment
thereon; thereafter, the court, Devine, J., granted
the plaintiff's motion to reargue and to set aside the
judgment, and denied the defendant's motion to dismiss;
subsequently, the court, Cole-Chu, J., granted the
defendant's motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to the
Appellate Court, Sheldon, Prescott and
West, Js., which reversed the trial court's
judgment and remanded the case for further proceedings, and
the defendant, on the granting of certification, appealed to
this court. Reversed in part; judgment directed
in part; further proceedings.
Lorinda S. Coon, for the appellant (defendant).
Ralph
J. Monaco, with whom, on the brief, was Eric J. Garofano, for
the appellee (plaintiff).
Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and
Vertefeuille, Js. [*]
OPINION
ROBINSON, J.
In this
appeal, we consider whether the waiver of sovereign immunity
under General Statutes § 13a-144, [1] the state's
highway defect statute, extends to a claim that the state
police failed to close a bridge before a crew from the
Department of Transportation (department) could arrive to
address an icy surface on that bridge. The defendant, the
Commissioner of Transportation (commissioner), appeals, upon
our grant of his petition for certification, [2] from the
judgment of the Appellate Court reversing the trial
court's grant of summary judgment in favor of the
commissioner on the ground that the personal injury action
brought by the plaintiff, Barry Graham, was barred by
sovereign immunity. Graham v. Commissioner of
Transportation, 168 Conn.App. 570, 611, 148 A.3d 1147
(2016). On appeal, the commissioner asks us to overrule this
court's decision in Lamb v. Burns, 202
Conn. 158, 520 A.2d 190 (1987), to the extent that it expands
the waiver of sovereign immunity under § 13a-144 to
include actions of the state police. We decline to overrule
Lamb, and conclude that the waiver of sovereign
immunity under § 13a-144 extends to the actions of state
employees other than those employed by the commissioner, but
only to the extent that they are performing duties related to
highway maintenance and the plaintiff proves that a
relationship exists between the commissioner and the state
employee such that the commissioner can be found to have
breached his statutory duty to keep the highways, bridges, or
sidewalks in repair. We further conclude that, in the present
case, there is nothing in the record to indicate that the
requisite relationship existed between the commissioner and
the state police. Accordingly, we reverse in part the
judgment of the Appellate Court.
The
opinion of the Appellate Court sets forth the relevant facts
and procedural history. ‘‘In the plaintiff's
original complaint dated July 5, 2012, as later revised on
May 29, 2014 . . . he alleged that the [commissioner] has a
statutory duty to keep and maintain all highways and bridges
within the state highway system in a reasonably safe
condition, and that that duty extends to Interstate 95, a
public highway in that system. He further alleged that, in
the early morning hours of December 12, 2011, employees,
representatives and agents of the department became aware
that the surface of Interstate 95 on the Gold Star Memorial
Bridge had become icy and unreasonably dangerous, based upon
reports they had received from the state police of numerous
ice related accidents on the bridge that morning. The
plaintiff alleged that later that morning, at 6:38 a.m., as
he was driving his pickup truck in the northbound lanes of
the bridge about one-tenth of one mile south of the New
London-Groton town line, it slid on black ice, rolled over on
its side and collided with a bridge structure, causing him
serious injuries. The plaintiff alleged that the cause of his
accident and resulting injuries [were due to the
commissioner's] breach of his statutory duty to keep the
bridge in a reasonably safe condition by failing to take
adequate measures, in response to the notice he had received
of its dangerous condition, either by treating its icy
surface, placing or utilizing warning signs in the area to
warn travelers of that dangerous condition, or closing the
bridge entirely until that dangerous condition could be
remedied. Finally, the plaintiff alleged that he had provided
timely written notice to the [commissioner] of his intent to
sue in connection with his accident and injuries within
ninety days of their occurrence, as required by §
13a-144.
‘‘On
September 12, 2012, the [commissioner] moved to dismiss the
plaintiff's original complaint on the ground that the
location of the accident specified in the plaintiff's
written notice of intent to sue described an area so large
that it failed to satisfy the requirements of § 13a-144,
in violation of the sovereign immunity doctrine. This motion
was initially granted by the trial court, Devine, J.
Thereafter, however, upon reconsideration of its ruling, the
court determined that the language of the plaintiff's
written notice was subject to at least one reasonable
interpretation that could be found to satisfy the
requirements of § 13a-144. Concluding, on that basis,
that the adequacy of the plaintiff's written notice to
apprise the [commissioner] of the location of his accident
and injuries was a disputed issue of fact that should be
decided by the finder of fact at trial, the court vacated its
initial ruling and denied the [commissioner's] motion to
dismiss.[3]
‘‘Thereafter,
on May 8, 2014, the [commissioner] moved for summary judgment
on three grounds: (1) that he did not breach his statutory
duty to keep and maintain the bridge in a reasonably safe
condition on the morning of the plaintiff's accident
because he lacked actual notice of the specific ice patch
that caused that accident, and even if he had constructive
notice of that ice patch, he lacked sufficient time after
receiving such notice to remedy that ice patch before the
plaintiff's accident occurred; (2) insofar as the
plaintiff's written notice of intent to sue described the
location of his accident, it failed to satisfy the
requirements of § 13a-144; and (3) that the plaintiff
could not prove that the [commissioner's] breach of
statutory duty under § 13a-144, if any, was the sole
proximate cause of his accident and resulting injuries.
‘‘The
[commissioner] supported his motion with a memorandum of law
and several attached exhibits, including: sworn affidavits
from four employees of his department, Peter Silva, James F.
Wilson, Jay D'Antonio and Theodore Engel; an excerpt from
the certified transcript of the deposition of state police
Trooper Robert D. Pierce, who responded to and investigated
the plaintiff's accident; and copies of the
plaintiff's written notice of intent to sue in connection
with his accident, Trooper Pierce's police report
concerning the accident, and the department's work log
for the day of the accident.
‘‘The
main thrust of the [commissioner's] argument on the first
of his three grounds for seeking summary judgment, to which
the trial court ultimately limited its decision on his
motion, was that he did not breach his statutory duty to
remedy the ice patch that caused the plaintiff's accident
and injuries because, although his employees responded
promptly to the first report they received of an ice related
accident on the bridge that morning, they could not have
reached the bridge with the necessary equipment and materials
to treat its icy surface and make it reasonably safe for
travel before the plaintiff's accident occurred. The
department's call log showed, more particularly, that the
department first was notified of icing on the bridge at 5:49
a.m. that morning, in a call from the state police to its
Bridgeport operations center, of which Silva was the
supervisor. That call reported that an ice related accident
had occurred on the bridge at 5:40 a.m. The operations center
responded to the call by implementing its standard protocol
for responding to off-hour calls for service by calling
D'Antonio, the supervisor of the department's
maintenance garage in Waterford, which services the Gold Star
Memorial Bridge, with instructions to call out a crew to salt
the bridge. The Waterford garage, which was then closed,
routinely dispatched two man work crews, with one crew leader
and one helper, to respond to off-hour calls for service.
When crew members were called out to salt an icy bridge or
highway, they had to drive in their own nonemergency vehicles
to the garage, where the department's deicing equipment
and materials were stored, open the garage with the crew
leader's key, start and load the salting truck, then
drive to the location where salting was to be performed. The
garage had two crew leaders in December, 2011: Engel, who
lived in Madison, approximately thirty to thirty-five minutes
away from the garage when there was no traffic, and another
unnamed person whose town of residence was not disclosed.
D'Antonio assigned Engel to salt the bridge after the
5:40 a.m. accident was reported to him pursuant to his
general practice of alternating off-hour call-outs between
crew leaders so as not to ‘unduly burden' either
one of them in the busy winter season.
‘‘After
being called out at about 5:51 a.m. on December 12, 2011,
Engel and his helper, William Grant, needed more than one
hour to get to and open the garage, prepare and load a truck
for salting operations and drive the truck to the bridge. By
the time they reached the bridge, the plaintiff's
accident had already occurred, and the state police, who had
been on the bridge since before 6 a.m. responding to other
accidents, had closed the bridge. On the basis of this
evidence, the [commissioner] argued that he could not be held
liable for the plaintiff's accident or injuries because
he lacked sufficient time after receiving constructive notice
of ice on the bridge at 5:49 a.m. to reach and treat the
bridge before the plaintiff's accident occurred.
‘‘Finally,
the [commissioner] presented evidence, through Silva's
sworn affidavit, that in addition to attempting to treat the
bridge with salt on the morning of the plaintiff's
accident, his employees attempted, at 6:23 a.m., to warn
motorists approaching the bridge of its dangerous condition
by illuminating electronic signboards positioned about
one-tenth of one mile before the start of the bridge in both
directions, which read: ‘Slippery Conditions. Use
Caution.' The plaintiff, he contended, had to drive by
one such illuminated signboard when he drove his truck onto
the bridge approximately fifteen minutes later.
‘‘The
plaintiff opposed the [commissioner's] motion for summary
judgment with his own memorandum of law and accompanying
exhibits, including: an excerpt from the certified transcript
of the deposition of Diana Dean, the driver who had been
involved in the first ice related accident reported to the
[commissioner] on the morning of the plaintiff's
accident; the police report concerning the Dean accident,
which was written by state police Trooper Christopher
Sottile, who had responded to and investigated that accident
before the plaintiff's accident that morning; an excerpt
from the certified transcript of the deposition of Engel, the
crew leader who had been called out to treat the bridge after
the Dean accident; the sworn affidavit of Silva, the
supervisor of the department's operations center in
Bridgeport, who described the department's standard
protocol for responding to off-hour calls and averred that
the previously described electronic signboards had been
illuminated before the plaintiff's accident; the
plaintiff's own sworn affidavit describing his accident
and the events leading up to it; another excerpt from the
certified transcript of the deposition of Trooper Pierce, as
to his investigation of the plaintiff's accident; the
police report of Trooper Pierce concerning the
plaintiff's accident; and work logs for the Waterford
garage on the day of Dean's and the plaintiff's
accidents.
‘‘The
plaintiff relied on these submissions to raise issues of fact
as to several aspects of the [commissioner's] initial
ground for seeking summary judgment. First, Dean testified
and [Trooper] Sottile wrote in his police report that when
[Dean's] accident occurred at 5:40 a.m. on the morning of
the plaintiff's accident, the entire surface of the
roadway on the northbound side of the bridge was covered with
black ice, which caused her vehicle to spin out of control in
the right lane of the five lane bridge and continue spinning
all the way across the bridge until it crashed into the
cement barrier on the opposite side of the roadway. Second,
the plaintiff averred in his affidavit and Trooper Pierce
confirmed in his police report that when the plaintiff's
accident occurred almost one hour after the Dean accident,
the entire surface of the roadway on the northbound side of
the bridge was still completely covered with black ice.
Third, Engel testified, based upon his three years of
experience working at the Waterford garage in the winter,
that when the outside temperature falls below freezing, the
surface of the Gold Star Memorial Bridge, unlike those of
other nearby bridges, is prone to freezing over completely,
with black ice of the kind he saw on the morning of December
12, 2011, due to the recurring presence of ice fog in the
area. The [commissioner's] work logs confirmed that the
air temperature at 6 a.m. on that date was 27 degrees
Fahrenheit, and the surface temperature of the roadway was 24
degrees Fahrenheit. Fourth, although Silva averred in his
affidavit that electronic signboards warning of slippery
conditions on the bridge had been illuminated before the
plaintiff drove onto the bridge on the morning of his
accident, both the plaintiff and Engel swore that they had
not seen any such warning signs when they drove onto the
northbound lanes of the bridge several minutes later. Fifth,
shortly after the plaintiff's accident took place, the
state police closed the northbound lanes of the bridge
entirely until its icy surface could be treated by department
personnel.
‘‘In
light of the foregoing evidence, the plaintiff claimed that
the [commissioner] was not entitled to summary judgment on
the first ground raised in his motion because the
reasonableness of a [commissioner's] response to notice
he receives of ice on a bridge or highway is a multifactorial
factual issue that must typically be decided by the finder of
fact at trial. Here, in particular, the plaintiff claimed
that he had presented evidence raising several genuine issues
of material fact about factors upon which the ultimate
resolution of that issue in this case depends. Those issues
included: whether the [commissioner] had actual notice of the
dangerous icing condition that caused [the plaintiff's]
accident and injuries based upon the reported observations by
the state police of black ice covering the entire northbound
surface of the bridge from almost one hour before the
plaintiff's accident until the state police responded to
it well after it occurred; whether, in light of the magnitude
of the danger presented by the pervasive icing condition of
which the [commissioner] had notice, as evidenced by the
numerous ice related accidents it had caused in subfreezing
weather conditions known to cause icing due to ice fog, it
was reasonable for the [commissioner] to call out [people
from] a work crew that predictably could not reach the bridge
and treat it until more than one hour after they were first
called out; whether, if [people from] a work crew called out
to treat the bridge could not reasonably be expected to treat
it for more than one hour after they were first called out,
adequate measures were taken in the interim to warn motorists
still using it of its dangerous icing condition before that
condition was remedied; and whether, if the bridge could not
be treated more quickly and the motoring public could not be
warned more effectively of its dangerous condition before it
was treated, the bridge should have been closed to all
traffic before, not after, the plaintiff's accident. In
light of those open, contested issues, the plaintiff insisted
that the reasonableness of the [commissioner's] response
to the black ice condition reported to the department before
the plaintiff's accident presented a genuine issue of
material fact that should be decided by the finder of fact at
trial.
‘‘On
January 12, 2015, the trial court, Cole-Chu, J.,
heard oral argument on the [commissioner's] motion for
summary judgment, at which the foregoing arguments were
presented. Thereafter, on May 12, 2015, the trial court
granted the [commissioner's] motion for summary judgment.
In its memorandum of decision, the trial court held that
‘despite . . . the drawing of inferences in the light
most favorable to the nonmoving party . . . the court
concludes that the [commissioner] is entitled to judgment as
a matter of law. The court cannot conclude that the
[commissioner] had actual notice of the black ice condition
which caused the plaintiff's accident before the report
of that accident. Even treating the black ice on the bridge
in general as the defect which caused the plaintiff's
accident and treating the black ice accident on the same
bridge fifty minutes before the plaintiff's accident as
constructive notice to the [commissioner] of that defect, the
court finds as a matter of law that the [commissioner's]
response time was reasonable. Indeed, the plaintiff does not
contend otherwise, other than by claiming that the
[commissioner] should have anticipated the black ice
condition.' ''[4] (Footnotes added and omitted.)
Graham v. Commissioner of Transportation,
supra, 168 Conn.App. 575-83.
Thereafter,
the plaintiff appealed to the Appellate Court, claiming that
‘‘the trial court erred in rendering summary
judgment in favor of the [commissioner] because the evidence
before it on the [commissioner's] motion, when considered
in the light most favorable to the plaintiff, gave rise to a
genuine issue of material fact as to whether the
[commissioner] had sufficient time, after receiving actual or
constructive notice of the dangerous icing condition that
caused his accident, to remedy that condition before the
accident occurred.'' Id., 574. The
commissioner disagreed, claiming that summary judgment was
proper because he had insufficient time, after receiving
notice of the icing condition, to remedy the condition before
the plaintiff's accident.[5]Id. The Appellate
Court concluded that there were genuine issues of material
fact as to whether and when the commissioner received actual
notice of the specific defect that caused the plaintiff's
injury, and that the determination of the reasonableness of
the commissioner's response to that notice should be made
by the trier of fact. Id., 595, 603.
The
Appellate Court then turned to a consideration of whether the
commissioner failed to make adequate use of available
temporary remedies-such as the use of a warning sign or
closing the bridge-to protect travelers before the department
could physically treat the icy condition. Id., 598.
The Appellate Court relied on this court's holding in
Lamb v. Burns, supra, 202 Conn.
169, for the proposition that, ‘‘[w]ith respect
to the conduct of the state police, our courts have held that
[t]he words the legislature employed in § 13a-144
unambiguously support the conclusion that the statute waives
sovereign immunity for defective highway claims based upon
the neglect or default not merely of the commissioner of
transportation, but of the state or any of its
employees, at least when performing duties related to
highway maintenance.'' (Emphasis in original;
internal quotation marks omitted.) Graham v.
Commissioner of Transportation, supra, 168
Conn.App. 601. Thus, the court ultimately concluded that
‘‘there is a genuine issue of material fact as to
whether the failure of the state police to close the bridge
before the plaintiff's accident occurred was unreasonable
and whether the conduct of the state police can provide a
basis for finding the [commissioner] liable under §
13a-144.'' Id., 603. The Appellate Court
reversed the judgment of the trial court and remanded the
case with direction to deny the commissioner's motion for
summary judgment and for further proceedings consistent with
its opinion. Id., 611. This certified appeal
followed. See footnote 2 of this opinion.
On
appeal, the commissioner claims that the waiver of sovereign
immunity under § 13a-144 does not extend to the
plaintiff's claim that the state police were negligent in
failing to close the bridge before a department crew could
arrive to address the icy condition. Specifically, the
commissioner contends that, to the extent that this
court's decision in Lamb v. Burns,
supra, 202 Conn. 158, extends the waiver of
sovereign immunity under § 13a-144 to include actions of
the state police, it was wrongly decided and should be
overruled. The commissioner relies on this court's
decision in White v. Burns, 213 Conn. 307,
323, 567 A.2d 1195 (1990), which explained that
‘‘the terms ‘neglect' and
‘default' [contained in § 13a-144] refer
solely to that action or failure to act by the commissioner
which triggers liability for breach of his statutory duty to
repair and maintain the state highway.'' The
commissioner also argues that, under White,
‘‘[t]he commissioner . . . is the only
one upon whom is imposed the duty to repair under §
13a-144.'' (Emphasis in original.) Id., 326.
Thus, the commissioner contends that ‘‘§
13a-144, strictly construed, waives sovereign immunity only
with respect to the neglect or default of the commissioner .
. . or his employees in connection with road maintenance and
repair.''
In
response, the plaintiff contends that the Appellate Court
properly concluded that the plain and unambiguous language of
§ 13a-144 imposes liability on the commissioner for
actions of the state or any of its employees. The
plaintiff further argues that we should not overrule
Lamb because this court cited it favorably in
White, recognizing that the actions of the state and
its employees can ripen into a claim against the
commissioner, with the legislature's failure to amend
§ 13a-144 in light of Lamb indicating its
validation of that decision. We agree with the plaintiff that
Lamb remains good law and conclude that, strictly
construed, § 13a-144 waives sovereign immunity for the
actions of state employees, but only to the extent that they
are performing duties related to highway maintenance and the
plaintiff proves that a relationship exists between the
commissioner and the state employee such that the
commissioner can be found to have breached his statutory duty
to keep the highways, bridges, or sidewalks in repair. We
further conclude that there is no evidence in the record of
the present case to establish the requisite relationship
between the commissioner and the state police.
It is
well established that ‘‘Practice Book §
17-49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The party moving
for summary judgment has the burden of showing the absence of
any genuine issue of material fact and that the party is,
therefore, entitled to judgment as a matter of law. . . . On
appeal, we must determine whether the legal conclusions
reached by the trial court are legally and logically correct
and whether they find support in the facts set out in the
memorandum of decision of the trial court. . . . Our review
of the trial court's decision to grant [a party's]
motion for summary judgment is plenary.'' (Internal
quotation marks omitted.) Stewart v.
Watertown, 303 Conn. 699, 709-10, 38 A.3d 72 (2012).
The
general principles governing sovereign immunity are well
established. ‘‘[W]e have long recognized the
validity of the common-law principle that the state cannot be
sued without its consent . . . .'' (Internal
quotation marks omitted.) Cox v. Aiken, 278
Conn. 204, 211, 897 A.2d 71 (2006). ‘‘The
practical and logical basis of the doctrine is today
recognized to rest on . . . the hazard that the subjection of
the state and federal governments to private litigation might
constitute a serious interference with the performance of
their functions and with their control over their respective
instrumentalities, funds, and property.'' (Internal
quotation marks omitted.) Horton v.
Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977).
Thus, the doctrine of sovereign immunity
‘‘operates as a strong presumption in favor of
the state's immunity from liability or suit.''
(Internal quotation marks omitted.) Hicks v.
State, 297 Conn. 798, 801, 1 A.3d 39 (2010).
‘‘Nevertheless, a plaintiff may surmount this bar
against suit if, inter alia, he can demonstrate that the
legislature, either expressly or by force of a necessary
implication, statutorily waived the state's sovereign
immunity . . . .'' (Internal quotations marks
omitted.) Conboy v. State, 292 Conn. 642,
649, 974 A.2d 669 (2009). ‘‘When the legislature
intends to waive immunity from suit or liability, it
expresses that intent by using explicit statutory
language.'' Rivers v. New Britain,
288 Conn. 1, 12, 950 A.2d 1247 (2008).
Accordingly,
we must consider whether § 13a-144 operates as a waiver
of sovereign immunity with respect to the actions of the
state police, which presents a question of statutory
construction that constitutes a question of law over which
our review is plenary. Gonzalez v. O & G
Industries, Inc., 322 Conn. 291, 302, 140 A.3d 950
(2016). ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually does
apply. . . . In seeking to determine that meaning, 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. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance 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 . . . .'' (Internal quotation marks omitted.)
Id., 302-303. ‘‘[S]tatutes in derogation
of common law should receive a strict construction and
[should not] be extended, modified, repealed or enlarged in
its scope by the mechanics of construction.''
(Internal quotation marks omitted.) Williams Ford, Inc.
v. Hartford Courant Co., 232 Conn. 559, 581,
657 A.2d 212 (1995).
Importantly,
statutes in derogation of sovereign immunity
‘‘are few and narrowly construed under our
jurisprudence.'' (Internal quotation marks omitted.)
Hicks v. State, supra, 297 Conn.
801. Thus, when ‘‘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.'' (Emphasis in original; internal quotation
marks omitted.) Envirotest Systems Corp. v.
Commissioner of Motor Vehicles, 293 Conn. 382, 388,
978 A.2d 49 (2009).
Moreover,
in considering the commissioner's claim that we should
overrule our construction of § 13a-144 in Lamb,
we are mindful that ‘‘[t]he doctrine of stare
decisis counsels that a court should not overrule its earlier
decisions unless the most cogent reasons and inescapable
logic require it. . . . Stare decisis is justified because it
allows for predictability in the ordering of conduct, it
promotes the necessary perception that the law is relatively
unchanging, it saves resources and it promotes judicial
efficiency. . . . It is the most important application of a
theory of [decision-making] consistency in our legal culture
and . . . is an obvious manifestation of the notion that
[decision-making] consistency itself has normative value. . .
.
‘‘[I]n
evaluating the force of stare decisis, our case law dictates
that we should be especially wary of overturning a decision
that involves the construction of a statute. . . . When we
construe a statute, we act not as plenary lawgivers but as
surrogates for another policy maker, [that is] the
legislature. In our role as surrogates, our only
responsibility is to determine what the legislature, within
constitutional limits, intended to do. Sometimes, when we
have made such a determination, the legislature instructs us
that we have misconstrued its intentions. We are bound by the
instructions so provided. . . . More often, however, the
legislature takes no further action to clarify its
intentions. Time and again, we have characterized the failure
of the legislature to take corrective action as manifesting
the legislature's acquiescence in our construction of a
statute. . . . Once an appropriate interval to permit
legislative reconsideration has passed without corrective
legislative action, the inference of legislative acquiescence
places a significant jurisprudential limitation on our own
authority to reconsider the merits of our earlier
decision.'' (Internal quotation marks omitted.)
Spiotti v. Wolcott, 326 Conn. 190, 201-202,
163 A.3d 46 (2017).
We
begin, then with the language of § 13a-144, which allows
a person injured ‘‘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] to keep in repair'' to bring a civil
action against the commissioner. In order to satisfy §
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 [exercising] supervision
[over] highways . . . 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 reason- able
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.''
(Internal quotation marks omitted.) Ormsby v.
Frankel, 255 Conn. 670, 675-76, 768 A.2d 441 (2001).
This
court first had occasion to address whether the waiver of
sovereign immunity under § 13a-144 was limited only to
the actions of the department's employees in Lamb
v. Burns, supra, 202 Conn. 158. In
Lamb, the plaintiff brought an action against the
commissioner under § 13a-144 after the vehicle she was
driving slid on a patch of ice and struck a guard post.
Id., 159. The evidence at trial showed that the
state police had received a call about the same ice patch
seventy-five minutes prior to the plaintiff's accident
and, thereafter, arrived on the scene thirty-five minutes
before the accident to ‘‘investigate the road
condition.'' Id., 159-60. Shortly after
arriving on scene, the state police notified the local
department garage of the icy condition. Id., 160.
Similar to the present case, because the call was received
when the garage was closed, this was an off-hour call about
the icy road conditions. Id. The responding officer
decided to light road flares before leaving the scene to
check on another area. Id. After the flares burnt
out, but before the department's crew could arrive, the
plaintiff drove over the ice patch, lost control of her
vehicle, and struck the guard post. Id.
In
Lamb, this court held that § 13a-144
‘‘waives sovereign immunity for defective highway
claims based upon the neglect or default not merely of the
[commissioner], but of the state or any of its employees,
at least when performing duties related to highway
maintenance.''[6](Emphasis added; internal
quotation marks omitted.) Id., 169. Specifically,
the court rejected the argument that the word ‘‘
‘any' '' in the statutory phrase
‘‘ ‘through the neglect or default of the
state or any of its employees,' ''
should be read to include only department
employees.[7] (Emphasis added.) Id.,
169-70. Thus, this court concluded that the waiver of
sovereign immunity set forth in § 13a-144 extended not
only to the actions of department employees, but also to the
actions of any state employees while engaged in highway
maintenance. Id., 169-71.
This
court's decision in Lamb went on to emphasize
the importance of establishing a relationship between the
negligent state employee and the commissioner where there is
evidence that the commissioner was looking to someone other
than a department employee to discharge his statutory duty to
keep the highways, bridges, and sidewalks in repair. The
court explained that, ‘‘[a]lthough the state
police are not statutorily charged with duties that concern
the repair or maintenance of state highways . . . the
evidence in the present case indicates that by custom the
commissioner . . . has availed himself of the assistance of
the state police and that the state police have assumed such
duties.'' (Citation omitted.) Id., 171.
Importantly, the court noted that the record contained
‘‘testimony that it [was] a state trooper's
‘duty' and ‘usual
procedure' to report defects found in the
highway.'' (Emphasis added.) Id. Moreover,
there was evidence that a procedure existed by which the
department made available to the state police the home phone
numbers of its maintenance supervisors for off-hour use.
Id. Thus, although Lamb's
interpretation of § 13a-144 allows the actions of state
employees beyond those employed by the department to subject
the commissioner to liability, it narrows the scope of that
potential liability by requiring that (1) the employee be
engaged in highway maintenance, and (2) the plaintiff prove
the existence of a Lamb type relationship between
the state employee and the commissioner.
We
decline the commissioner's invitation to overrule
Lamb. It is well settled that, ‘‘[i]n
evaluating the force of stare decisis, our case law dictates
that we should be especially wary of overturning a decision
that involves the construction of a statute.''
(Internal quotation marks omitted.) Spiotti v.Wolcott, supra, 326 Conn. 201. Among the
factors that may justify overruling a prior decision
interpreting a statute are ‘‘intervening
developments in the law, the potential for unconscionable
results, the potential for irreconcilable conflicts and
difficulty in applying the interpretation.''
Id., 202. These principles militate strongly against
overruling our decision in Lamb. First, in the more
than thirty years since Lamb was decided, the
legislature has taken no action that would suggest that it
disagreed with our conclusion that ยง 13a-144 extends to
state employees that are performing duties related to highway
maintenance when the plaintiff ...