Bacon v. Town of Rocky Hill

• Decision Date: 23 February 1940
• Citation: 11 A.2d 399,126 Conn. 402
• Court: Connecticut Supreme Court
• Parties: BACON v. TOWN OF ROCKY HILL.

11 A.2d 399

126 Conn. 402

BACON v. TOWN OF ROCKY HILL.

Supreme Court of Errors of Connecticut.

February 23, 1940

Reargument Denied April 16, 1940.

Appeal from Superior Court, Hartford County; Frank P. McEvoy and Alfred C. Baldwin, Judges.

Action by Alice Bacon against Town of Rocky Hill to recover damages for a defect in a highway. A demurrer to the complaint was overruled, and the issues were tried to the court. From a judgment for plaintiff, defendant appeals.

No error.

Ernest L. Averill and William P. Averill, both of Hartford (Henry H Hunt, of Hartford, on the brief), for appellant (defendant).

Ralph O. Wells and Warren Maxwell, both of Hartford, for appellee (plaintiff).

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

The complaint alleges that the plaintiff was a passenger in an automobile operated by Charles Canfield while it was proceeding in a northerly direction upon a highway in the defendant town; that the highway, as it descended steeply from the crest of a hill in a northerly direction, was imminently dangerous and unsafe for the passage of automobiles due to insecure and dangerous paving created and maintained by the defendant town, in that it had dumped and rough-graded heavy trap rock upon the surface of the road near the top and at the foot of the hill; that this caused an inherently and imminently dangerous condition, the natural and inevitable tendency of which was to inflict injury upon persons using it; and that as Canfield operated the car down the hill, due to the dangerous nature of the highway, he lost control of it, with the result that it turned over, causing the injuries to recover for which the plaintiff brought this action. To the complaint the defendant filed a demurrer on the ground that there was no allegation that the plaintiff had given the town the notice which is required by the statute concerning the recovery of damages by a person injured by means of a defective road or bridge. General Statutes, § 1420. The trial court overruled the demurrer, and this ruling is assigned as error. While, at the trial, the same questions presented under the demurrer were again raised by the defendant and overruled, the underlying question of law is fairly presented by the ruling upon the demurrer and may well be considered in connection with it.

Under the allegations of the complaint the plaintiff could prove that the town had created upon the highway a condition constituting a nuisance. The issue of law presented was whether or not a traveler upon a highway who suffers injury by reason of the creation of a nuisance upon it by a municipality may recover damages apart from the statutory liability for injuries due to the defective roads or bridges. As appears in Bartram v. Sharon, 71 Conn. 686, 693, 43 A. 143, 145,46 L.R.A. 144, 71 Am.St.Rep 225, the right to recover damages for injuries due to defective roads or bridges originated in an act passed in 1672, permitting it, under certain limitations, as a penalty for failure on the part of the towns to keep their bridges and highways in repair, where the injury was suffered ‘ through the defect or insufficiency’ of a bridge or highway. The word ‘ defect,’ with its adjective ‘ defective,’ has continued over since as the basis in the statute upon which liability rests. General Statutes, § 1420. In some of the earlier decisions the right of recovery under the statute was treated as though it were one in negligence. See e. g. Dimock v. Suffield, 30 Conn. 129, 131; Young v. New Haven, 39 Conn. 435, 439. It is now fully recognized that the right to recover for injuries claimed to be due to defects in highways is strictly statutory, and that the question whether or not the municipality has exercised reasonable care to keep them in a reasonable safe condition is merely the test by which to determine whether they are defective. Rogers v. Meriden, 109 Conn. 324, 326, 146 A. 735; Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531; Older v. Old Lyme, 124 Conn. 283, 284, 199 A. 434. This test is undoubtedly adequate for most questions which arise, but it has the effect of centering consideration of conditions within the scope of the statute upon those elements which ordinarily are regarded in negligence actions. However, as originally enacted, the statute provided for a recovery not of damages actually suffered, but of double damages, and that continued to be the law until the Revision of 1821. This being the origin and the scope of the law, it is clear that the statute was meant to cover situations which render a highway defective, whether the condition would fall within the ordinary field of negligence or within that of nuisance where the fault of the municipality is in a failure to guard against conditions not created by it.

Several of the earlier decisions dealt with conditions on the highway which constituted or might constitute nuisances, but the liability was determined under the terms of the statute. Dimock v. Suffield, supra, 30 Conn. 134; Norwich v. Breed, 30 Conn. 535, 549. In Hewison v. New Haven, 34 Conn. 136, 91 Am.Dec. 718, where it was held that a highway was not rendered defective because one of the iron weights at the lower corners of a flag suspended over it by private individuals, became detached and fell upon a traveler, it was said (page 140): ‘ It must be borne in mind that, while every defect in a highway which obstructs, hinders or endangers travelers hereon, is a nuisance, yet it is not every nuisance which obstructs, hinders or endangers travelers upon a highway, that constitutes a defect of the highway within the meaning of this act.’ In Ayer v. Nerwich, 39 Conn. 376, 12 Am.Rep. 396, it was held that a tent within the limits of a highway calculated to frighten horses rendered it defective, the court saying (page 381): ‘ In conclusion, we are satisfied that the law is, and ought to be so, that objects within the limits of a highway, which in their nature are calculated to frighten horses of ordinary gentleness, may be nuisances which make the highway defective within the meaning of the statute, and which the town or corporation charged with the duty of maintaining the highway is bound to remove.’ In Young v. New Haven, supra, where a steam roller had been used by the defendant city in repairing its highways and been left upon one of them, a judgment rendered against the city was sustained, and while that decision was based upon the claimed negligence of the city, it largely relied upon the decision in Ayer v. Norwich, supra, the court stating (page 442 of 39 Conn.): ‘ The statute provides that if any person shall receive any injury in his person or property by means of any defective bridge or road, the town, & c. shall be liable. It is silent in regard to the mode by which the defective condition of the road shall have caused the injury, and we think it makes no difference in principle what that mode is.’ In Parker v. Hartford, 122 Conn. 500, 190 A. 866, which was an action to recover damages suffered by a traveler upon a highway by reason of a gully in it, the second count of the complaint sounded in nuisance and of it was said (122 Conn. page 504, 190 A. page 868): ‘ Even if the gully constituted a nuisance, it was a situation which was not created by the defendant, and the only liability which could attach to it would be its failure to remedy the condition. To that failure governmental immunity would attach, if it were not for the liability for a defect in a highway created by the statute. * * * The right to recover damages for injuries due to such conditions is only that given by the statute, and in an action founded upon the statute contributory negligence is a defense. The court was in error in charging that there might be a recovery in this case based upon the existence of a nuisance, regardless of any negligence on the part of the plaintiff.’ In fact in many of the cases dealing with defective roads or bridges, the defect claimed might well have been found to be a nuisance, but no suggestion was made that there was any liability on the part of the municipality except that under the statute. Whenever a condition upon a highway makes it defective, there is a remedy under the statute, and where that condition is not due to any positive act of the municipality but is due to its neglect to take steps to remedy the defect, the statute affords the exclusive remedy, whether or not the defect is or might be found to be a nuisance.

It has been frequently stated in our opinions that the only liability which rests upon a municipality for injuries due to defects in highways is that created by the statute. Lavigne v. New Haven, 75 Conn. 693, 696, 55 A. 569; Udkin v. New Haven, 80 Conn. 291, 296, 68 A. 253, 14 L.R.A.N.S., 868; Dyer v. Danbury, 85 Conn. 128, 81 A. 958, 39 L.R.A.N.S., 405, Ann.Cas.1913A, 784; Coletti v. Bridgeport, 103 Conn. 117, 119, 130 A. 175; Riccio v. Plainville, 106 Conn. 61, 63, 136 A. 872; Belhumuer v. Bristol, 121 Conn. 475, 477, 185 A 421; Roth v. MacDonald, 124 Conn. 461, 463, 200 A. 725. In all the cases where this statement has been made, the situations before the court involved conditions in highway which were not created by the municipality, but the court was considering liability based upon the failure of the municipality to remedy the defect. A municipality, while not liable for the negligence of its agents and employees engaged in the exercise of its governmental functions, may be liable for a nuisance which they create. Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499, 75 A.L.R. 1191. That liability includes a situation where a nuisance is created upon a highway by the positive act of the municipality. The principle is that stated in Mootry v....