Baker v. Ives

Citation162 Conn. 295,294 A.2d 290
CourtSupreme Court of Connecticut
Decision Date26 January 1972
PartiesLuva M. BAKER v. Howard S. IVES, Highway Commissioner, et al.

Robert L. Trowbridge, Glastonbury, with whom were James T. Healey, Hartford, and, on the brief, Edward F. Rosenthal, Hartford, for appellant (named defendant).

Richard A. Walsh, Hartford, with whom, on the brief, were Joseph F. Skelley, Jr., and William M. Shaughnessy, Jr., Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and THIM, SHAPIRO, LOISELLE and O'SULLIVAN *, JJ.

THIM, Associate Justice.

The plaintiff brought this action to recover damages from the town of Portland, or in the alternative, the state highway commissioner, for injuries sustained in a fall allegedly caused by an accumulation of snow and ice. At the conclusion of the evidence, both defendants made motions for directed verdicts. The court granted the motion of the town of Portland, but denied that of the state highway commissioner. Following a jury verdict for the plaintiff, the named defendant, hereinafter called the defendant, moved to set aside the verdict. The court denied the motion and from the judgment the defendant appealed to this court.

The complaint against the highway commissioner alleged a cause of action under the so-called defective highway statute. General Statutes § 13a-144. 1

The jury reasonably could have found the following facts: On February 14, 1963, the plaintiff parked her automobile perpendicular to the sidewalk located in front of 285 Main Street (route 17A) in the town of Portland, in an area generally used for public parking. The plaintiff alighted from her car, walked toward the sidewalk, and, when she had reached a point approximately nineteen inches from the sidewalk, she was caused to fall due to an accumulation of unsanded snow and ice. Having walked very carefully, the plaintiff was in no way contributorily negligent. The area where the plaintiff fell is approximately thirty-four feet wide, is composed of dirt and grass, and is situated between the paved highway and the sidewalk. Vehicles travel over the grassy area and park all the way up to the sidewalk where two-hour parking is not only permitted but invited by parking signs placed there by the state. Route 17A is a paved state highway and was maintained at the time of the accident by the state highway commissioner. While the plaintiff fell within the boundaries of the state right-of-way line, the locus of the fall was about thirty-two feet from the edge of the paved state highway. A large tree was located approximately thirty-three inches from the sidewalk at the locus of the fall. There were no street or driveway encroachments onto route 17A for 200 feet south of the point of the fall or ten to fifteen feet north of that point. The ice on which the plaintiff fell was two to four inches thick and was at least two weeks old. In February, 1963, the state had at its disposal equipment capable of plowing, sanding and breaking up ice.

Although the defendant is the state highway commissioner, this action is, in effect, one against the state as a sovereign. Donnelly v. Ives, 159 Conn. 163, 166, 268 A.2d 406; Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596; Tuckel v. Argraves, 148 Conn. 355, 357, 170 A.2d 895; Anderson v. Argraves, 146 Conn. 316, 319-320, 150 A.2d 295. It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued. Donnelly v. Ives, supra; Murphy v. Ives, supra; Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468; Scranton v. L. G. DeFelice & Son, Inc., 137 Conn. 580, 585, 79 A.2d 600; Anselmo v. Cox, 135 Conn. 78, 80, 60 A.2d 767, cert. denied,335 U.S. 859, 69 S.Ct. 132, 93 L.Ed. 405; State v. Anderson, 82 Conn. 392, 394, 73 A. 751; State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028. The legislature waived the state's sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144. Donnelly v. Ives,supra; Murphy v. Ives, supra, 151 Conn. 262-263, 196 A.2d 596, 598; Tuckel v. Argraves, supra. '(T)he state's sovereign right not to be sued without its consent is 'not to be diminished by statute unless a clear intention to that effect on the part of the Legislature is disclosed, by the use of express terms or by force of a necessary implication.' State v. Kilburn, . . . (81 Conn. 9, 11, 69 A. 1028).' Murphy v. Ives, supra. There being no right of action against the sovereign state at common law, the plaintiff must prevail, if at all, under § 13a-144.

Section 13a-144 authorizes civil suits against the sovereign for injuries caused by 'the neglect or default of the state . . . by means of any defective highway . . . in the state highway system.' This statute affords a right of recovery similar to that against the municipalities under § 13a-149 and is subject to the same limitations. 2 Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10; Shirlock v. MacDonald, 121 Conn. 611, 613, 186 A. 562; Falkowski v. MacDonald, 116 Conn. 241, 243, 164 A. 650; Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890. For this reason, we have applied on occasion the rationale in cases involving statutory suits against municipalities under § 13a-149 to actions against the state highway commissioner under § 13a-144. Donnelly v. Ives, supra, 159 Conn. 167, 268 A.2d 406; Hay v. Hill, 137 Conn. 285, 289, 76 A.2d 924.

The state is not an insurer of the safety of travelers on the highways which it has a duty to pepair. Thus, it is not bound to make the roads absolutely safe for travel. Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891. Rather, the test is whether or not the state has exercised 'reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.' Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406, 408; Bacon v. Rocky Hill, 126 Conn. 402, 404, 11 A.2d 399; Older v. Old Lyme, 124 Conn. 283, 284, 199 A. 434; Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531; Perrotti v. Bennett, supra, 94 Conn. 539, 109 A. 890. This duty of reasonable care extends to pedestrian travel as well as to vehicular traffic. Hay v. Hill, supra, 137 Conn. 290, 292, 76 A.2d 924. 'A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute. . . . To Qualify, a plaintiff is not obliged to remain seated in a vehicle proceeding on the highway. Reasonable latitude is allowed to meet the exigencise of travel.' Hay v. Hill, supra, 289-290, 76 A.2d 926. Nor does the defect have to be on the actual traveled portion of the highway. 'An early case recognized that a defect outside of the traveled path might give rise to an action against a town under the statute. The accepted definition of such a devect reads as follows: 'Any object 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, or which, from its nature and position, would be likely to produce that result, would generally constitute a defect in the highway.' Hewison v. City of New Haven, 34 Conn. 136, 142.' Hay v. Hill,supra, 288, 76 A.2d 925; see also Donnelly v. Ives, supra; Hickey v. Newtown, 150 Conn. 514, 518, 192 A.2d 199; Horton v. MacDonald, 105 Conn. 356, 361-362, 135 A. 442. 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 must be determined on a case by case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by tis court unless the conclusion is one which could not be reasonably reached by the trier. Chazen v. New Britain, supra; see Linn v. Hartford, 135 Conn. 469, 472, 66 A.2d 115; Horton v. MacDonald, supra, 105 Conn. 361, 135 A. 442. It is also recognized that for purposes of recovery under § 13a-149 and § 13a-144, a highway can be considered defective, as claimed in the case at bar, by reason of ice or snow, depending, of course, on the circumstances and conditions. Pape v. Cox, 129 Conn. 256, 260, 28 A.2d 10; Ritter v. Shelton, 105 Conn. 447, 449, 135 A. 535; Frechette v. New Haven, 104 Conn. 83, 89, 132 A. 467. "(I)n this rigorous climate the duty of cities and towns in respect to snow and ice is and must be very limited.' Congdon v. Norwich, 37 Conn. 414, 419. . . . '(I)n our climate, considerable latitude should be allowed municipalities in cases of this character. . . .' DeCrosta v. New Haven, 119 Conn. 344, 347, 176 A. 268, 270.' Wadlund v. Hartford, 139 Conn. 169, 176, 91 A.2d 10, 12; see also Bazinet v. Hartford, 135 Conn. 484, 487, 66 A.2d 117; Campbell v. New Haven, 78 conn. 394, 396, 62 A. 665.

In the case at bar, the plaintiff left the paved portion of the state highway and drove onto what is essentially a thirty-four foot wide dirt and grass parking strip located between the paved portion of the highway and the sidewalk. After parking her car in this area she alighted from it and fell at a point approximately nineteen inches from the sidewalk to which she was walking. There was sufficient evidence to show that the ice was from two to four inches thick where the plaintiff fell and that the ice was at least two weeks old. There was no evidence that the state had at any time prior to this accident sanded or in any way employed such measures to remedy the hazardous condition.

This is not a situation where the plaintiff crossed an area not intended for pedestrian travel as in Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891. Here, the area in question was used as a parking area for the convenience of people shopping at the stores along the road. In fact, the public was 'invited' to park there by the state. In the 1950's, the state highway department, after conducting an investigation concerning the feasibility of allowing parking at that area, recommended to ...

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