Graham v. Comm'r of Transp.

330 Conn. 400

195 A.3d 664

Barry GRAHAM

v.COMMISSIONER OF TRANSPORTATION

SC 19867

Supreme Court of Connecticut.

Argued December 14, 2017

Officially released November 20, 2018

Lorinda S. Coon, Hartford, for the appellant (defendant).

Ralph J. Monaco, with whom, on the brief, was Eric J. Garofano, New London, for the appellee (plaintiff).

Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js.^*

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.’...