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3.9-30  State Highway Defect Case - § 13a-144

Revised to January 1, 2008

Note:  This statute applies to highways, bridges or sidewalks.  This instruction uses a highway as an example.

There is a statute that provides that a person who is injured by means of any defective highway that is the duty of the state commissioner of transportation to keep in repair may recover damages from the state.1

In making a claim under this statute, the plaintiff must prove all of the following elements by a fair preponderance of the evidence:

  1. that (he/she) gave the required statutory notice of injury;

  2. that the highway was one that the commissioner of transportation and not some other person or entity, had a duty to maintain or repair;2 

  3. that the highway was defective; that is, that it was not reasonably safe for travel;

  4. that the state had notice of the defect;

  5. that the state failed to exercise reasonable care to remedy the defect; and

  6. that the defect was the sole proximate cause of the plaintiff's injuries; that is, no other cause was a substantial factor in causing (his/her) injuries.

In order to be entitled to compensation from the defendant, the plaintiff must prove each and every one of these elements.3  If (he/she) has failed to prove any one of them, then (he/she) has failed to prove (his/her) claim.

Statutory notice of the injury
Note:  If there is no issue over the statutory notice of injury, this portion may be deleted from the charge.

First, the plaintiff must prove that the applicable statutory notice was given.

The statute states that an action can only be brought against the commissioner of transportation because of a defective highway if the plaintiff provides written notice of the injury and a general description of the injury, including the cause, the time and the place of its occurrence.  The notice must be given in writing to the commissioner within ninety days of the event.4

Whether the notice meets the requirements of the statute and whether it was given within the time prescribed in the statute are questions for you to determine.  The notice that is mandated by the statute includes five elements: 1) written notice of the injury, 2) a general description of the injury, 3) the cause, 4) the time, and 5) the place.5

The purpose of the notice requirement is so that the commissioner will have precise information to enable (him/her) to investigate the circumstances of the accident.  The plaintiff must give such notice as a prerequisite of (his/her) right to recover damages.6

If you find that the notice was not given to the commissioner within the time prescribed by the statute or that the notice did not conform to the requirements of the statute, the plaintiff is not entitled to a verdict and thus you would need not deliberate further. You would return a verdict for the defendant.

Duty to maintain or repair
The next element that the plaintiff must prove is that the highway on which (he/she) claims to have been injured was one that the state, acting through its commissioner of transportation or the commissioner's employees, had a duty to maintain or keep in repair.  The term "highway" can include more than just the traveled portion; it can include those areas related to travel such as the side of the road or perhaps, even a parking area, provided that the defect was "in, upon, or near the traveled path."7  You will have to determine whether the location in question was a "highway" that the commissioner had a duty to maintain or repair.

Defect in a highway
The next element that the plaintiff must prove is that there was a defect in the highway.  A defect is "any object or condition in, upon or near the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . ."8  Again, the defect does not have to be on the actual traveled portion of the highway.  Whether there is a defect in such proximity to the highway so as to be considered "in, upon or near the traveled path" of the highway, is a question of fact for you to resolve.9

The state does not guarantee the safety of travelers upon its highways.  The obligation of the state is not to keep its highways in perfect condition.  The duty of the state is to keep its highways in a reasonably safe condition.10 

In making this determination, you should consider such factors as <state factors that are applicable such as lighting, the location of the highway, the extent of the use as compared to other highways, the nature and use of traffic on it, the number of miles of streets located within the supervision of the state and the amount of money spent and number of employees and equipment involved in maintenance and repair of streets>.11

Notice of the defective condition
The next element that the plaintiff must prove is that the defendant knew or, in the exercise of due care in inspecting the highway, should have known that the highway at issue was in a defective condition.  The plaintiff must prove that the defendant had notice of the particular defect itself which caused the injury and not merely notice of the conditions that in fact produced it.12 

The plaintiff must prove that the defendant had either actual or constructive notice of the condition that is claimed to be the defect.13  Actual notice is something like a report of the condition to the defendant or observation of the condition by state employees responsible for the maintenance of the highway.

The other kind of notice is called constructive notice.  If the condition that is claimed to be a defect was present for a sufficient length of time that the defendant should have discovered it using reasonable care to inspect highways, then the defendant had constructive notice.14 

Failure to exercise reasonable care to remedy defect
The next element that the plaintiff must prove is that after having notice and having had a reasonable opportunity to do so, the state failed to take reasonable care to remedy the claimed defect.15  In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances that were known or should have been known to the defendant at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised.

Sole proximate cause
The plaintiff must finally prove that the highway defect was not just one cause among many of (his/her) injuries, but that it was the sole proximate cause; that is, the only substantial factor causing (his/her) injuries.16  The plaintiff must prove that the injuries claimed were caused solely by a defect in the highway.

The plaintiff was bound to use reasonable care for (his/her) own safety, that is, the degree of care that a reasonably prudent person would use in order to avoid injury.17  (He/She) could not be entirely heedless of the situation, but had a duty to reasonably use (his/her) vision and (his/her) faculties to observe (his/her) surroundings and to use reasonable care in view of any danger that was presented by the condition of the highway.18

A person who knows of a dangerous condition in the path of travel is not required to take an alternate route or a detour, but is bound to take precautions that an ordinary prudent person would take to avoid the dangerous condition.19  If a person makes the decision to pass over a dangerous condition that (he/she) knows about, then that person has a duty to use reasonable care in doing so.  Knowledge of a dangerous condition generally requires greater care to meet the standard of care.20 

If you find that the plaintiff failed to prove that (he/she) was exercising reasonable care for (his/her) own safety and that (his/her) own negligence was a substantial factor in causing (his/her) injuries, then any defect in the highway would not be the sole proximate cause of the plaintiff’s injuries, and you must find for the defendant.
_______________________________________________________

1 General Statutes § 13a-144.

2 General Statutes §§ 13b-30, 13a-144; Serrano v. Burns, 248 Conn. 419, 428 (1999); Amore v. Frankel, 228 Conn. 358, 366-67 (1994).

3 Bovat v. Waterbury, 258 Conn. 574, 583-84 (2001); Prato v. New Haven, 246 Conn. 638, 642 (1998); Lukas v. New Haven, 184 Conn. 205, 207 (1981).

4 General Statutes § 13a-144; see also Warkentin v. Burns, 223 Conn. 14, 17 (1992); Tyson v. Sullivan, 77 Conn. App. 597, 607 (2003).

5 Salemme v. Seymour, 262 Conn. 787, 793 (2003); Pratt v. Old Saybrook, 225 Conn. 177, 180 (1993).

6 Lussier v. Dept. of Transportation, 228 Conn. 343, 354 (1994).

7 Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 502-505 (2005); Serrano v. Burns, supra, 248 Conn. 426.

8 McIntosh v. Sullivan, 274 Conn. 262, 268-69 (2005); Serrano v. Burns, supra, 248 Conn. 425-26, quoting Baker v. Ives, 162 Conn. 295, 300 (1972).

9 Serrano v. Burns, supra, 248 Conn. 426; Baker v. Ives, supra, 162 Conn. 300; Bellman v. West Hartford, 96 Conn. App. 387, 396 (2006).

10 McIntosh v. Sullivan, supra, 274 Conn. 269; Serrano v. Burns, supra, 248 Conn. 426.

11 Hall v. Burns, supra, 213 Conn. 474-75.

12 McIntosh v. Sullivan, supra, 274 Conn. 270; Prato v. New Haven, supra, 246 Conn. 642.

13 Hall v. Burns, supra, 213 Conn. 462; Ormsby v. Frankel, supra, 54 Conn. App. 110.

14 Baker v. Ives, supra, 162 Conn. 305.

15 McIntosh v. Sullivan, supra, 274 Conn. 270; Hall v. Burns, supra, 213 Conn. 462.

16 Prato v. New Haven, supra, 246 Conn. 642 (maintaining 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"); White v. Burns, 213 Conn. 307, 333-34 (1990).

17 Baker v. Ives, supra, 162 Conn. 298-99.

18 Krupien v. Doolittle, 117 Conn. 534, 538 (1933); Schupp v. Grill, 27 Conn. App. 513, 518-19 (1992).

19 Rodriguez v. New Haven, 183 Conn. 473, 479 (1981).

20 Id.; Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 219 (1994).

Notes

The cases that apply for municipal liability under General Statutes § 13a-149 can also be used to support an action for state liability under General Statutes § 13a-144.  See Smith v. New Haven, 258 Conn. 56, 64 (2001) (stating that cases dealing with § 13a-144, the state defective highway statute, "are nonetheless persuasive authority with respect to the construction of the municipal defective highway statute because §§ 13a-144 and 13a-149 have always been regarded as in pari materia as far as the scope of the governmental entity's obligation is concerned"); Donnelly v. Ives, 159 Conn. 163, 167 (1970) (stating that "on many occasions [the court has] looked to and applied the rationale in cases involving statutory actions against municipalities under what is now General Statutes § 13a-149 since there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149").
 


 

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