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Graham v. Commissioner of Transportation

Supreme Court of Connecticut

November 20, 2018

BARRY GRAHAM
v.
COMMISSIONER OF TRANSPORTATION

          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 ...


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