Burgess v. State

• Decision Date: 02 August 2012
• Docket Number: Nos. CV–03–0520679,CV–03–0520681.,s. CV–03–0520679
• Citation: 74 A.3d 581,52 Conn.Supp. 562
• Court: Connecticut Superior Court
• Parties: Christopher BURGESS v. STATE of Connecticut. Richard Piotrowski v. State of Connecticut.

52 Conn.Supp. 562

74 A.3d 581

Christopher BURGESS

v.STATE of Connecticut.

Richard Piotrowski

v.State of Connecticut.

Nos. CV–03–0520679, CV–03–0520681.

Superior Court of Connecticut,

Judicial District of New Britain.

Aug. 2, 2012.

Gary D. Constant, Bristol, and Stratton Faxon Trial Lawyers, LLC, for the plaintiff, Christopher Burgess.

James F. Kane, for the plaintiff, Richard F. Piotrowski.

Michael R. Bullers, assistant attorney general, for the defendant.

JOSEPH M. SHORTALL, Judge Trial Referee.

Late on the night of June 10, 1994, Christopher Burgess and Richard Piotrowski(plaintiffs), longtime friends who had just finished their first year at college, were spending the evening drinking beer and catching up with each other and other friends first at Pinnacle Mountain and later at Sunset Rock State Park (Sunset Rock), both located in Plainville. ¹ At approximately 10:45 p.m. Mr. Burgess accidentally stepped over the edge of the steep cliff which forms the western boundary of Sunset Rock and fell about seventy-five feet down the cliff. Shortly thereafter, Mr. Piotrowski, in a brave and foolish attempt to climb down the cliff and aid Mr. Burgess, also fell.

In this action the plaintiffs seek compensation from the state of Connecticut for the injuries they suffered. They allege that the state acted not only negligently but also wilfully and maliciously in failing to take measures to safeguard visitors to Sunset Rock from the hazard posed by the cliff; e.g., posting adequate warning signs, lighting the park after dark, trimming back vegetation obscuring the cliff's edge, and repairing the fence between Ledge Road, which forms the eastern boundary of the park, and the cliff. ² The state denies that it was negligent or acted wilfully or maliciously in its management of Sunset Rock. Moreover, it claims by way of special defenses that (1) it is immune from liability pursuant to General Statutes § 52–557g, the recreational land use immunity statute, and (2) the injuries suffered by the plaintiffs were caused by their own negligence. ³

The liability issues raised by the parties were tried to this court on June 19, 21 and 22 of 2012.⁴ This memorandum of decision sets out the court's findings of the material facts, based on its assessment of the credibility of the witnesses and the weight to be accorded their testimony, as well as the exhibits that were introduced and the court's conclusions of law on the issues argued by the parties at trial and in their posttrial submissions.

I

Sunset Rock was deeded to the state “for state park purposes for the perpetual use and enjoyment of the people of Connecticut”; exhibit 24; by the Sunset Rock Association (association) in October, 1928. It contains 13.6 acres “more or less”; id.; bounded on the east by what is now known as Ledge Road ⁵ and on the west by the cliff. It consists of a heavily wooded strip of land running approximately 500 feet along Ledge Road. It is maintained by the state department of energy and environmental protection (DEEP), known in June, 1994, as the department of environmental protection (DEP).

Members of the public have access to Sunset Rock directly from Ledge Road, and there are two “pull-off” areas where cars can be parked and from which persons can walk into Sunset Rock. The best evidence in the record of the distance between Ledge Road and the cliff is found in the report of the plaintiffs' expert witness, Brian Callagan, who states that the distance is less than seventy-five feet. Exhibit 11, p. 3. Intermittently along the length of Sunset Rock, a six foot high chain-link fence runs between Ledge Road and the cliff. The distance from the fence to the cliff varies and was no more than twenty feet at the point where the plaintiffs fell. The obvious purpose of the fence was to prevent access to the cliff edge, but access was possible by climbing over or walking around the ends of the fence. In addition, the fence was routinely breached by vandals and breached again after being repaired by state personnel, to the point that a well-worn path led from Ledge Road to the cliff area. On June 10, 1994, Mr. Burgess and Mr. Piotrowski gained access to the cliff area through a section of the fence that had been pulled down by vandals and left lying on the ground.

No fee was charged for access to Sunset Rock, and there were no public facilities or amenities there. Although not officially designated as a “scenic overlook” by the state, that was the principal use made of Sunset Rock, as it afforded an elevated platform to view Interstate 84 and the western part of the state. On a DEP map in evidence; exhibit 20a; it is designated a “scenic reserve.” It was also regularly used by young people like the plaintiffs as a place for nocturnal meetings and beer drinking, a fact well known to the state from its regular cleanup activities at Sunset Rock.

Like all state parks, except those with campgrounds, Sunset Rock closed at sunset, and access thereafter was prohibited. There was a sign posted at Sunset Rock to this effect; its effectiveness as a warning, however, was less than it might have been, as it was attached to a tree about twelve feet off the ground and was invisible after dark. Although Mr. Burgess testified that he did not know the park was closed at sunset, Mr. Piotrowski acknowledged that he knew they should not have been there after dark. And, both plaintiffs had been told by Plainville police to leave the park after dark not long before this incident.

There was a sign attached to an intact portion of the fence through which the plaintiffs reached the cliff area, reading, “Warning Cliff Natural Hazard.” Furthermore, both plaintiffs testified that they had been to the park numerous times before the night of June 10 and were well aware of the presence of the cliff.

II

The state's first line of defense against the plaintiffs' claims is the immunity from liability conferred by § 52–557(g)(a) on owners of land available to the public for recreation: “[A]n owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.” ⁶ The threshold question in considering this defense is whether it is available to the state of Connecticut or is limited to private landholders who make their property available free of charge for recreational purposes. In Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996), the Supreme Court held that this grant of immunity is not available to municipalities, stating that “[t]he protection granted through the act was an incentive for private owners to open up new lands for public use. It was not an attempt to provide an immunity shield for existing state ⁷ or municipal recreational areas.” (Internal quotation marks omitted.) Id., at 674, 680 A.2d 242.

The plaintiffs argue that the rationale for denying this immunity to a municipality should apply equally to the state. In doing so, however, they fail to give sufficient consideration to another statute governing lawsuits like this one, where the state's sovereign immunity is abrogated by the grant of a right to sue the state for damages. General Statutes §§ 4–159 and 4–160 authorize actions against the state either upon a vote of the General Assembly; General Statutes § 4–159(c); or with the approval of the claims commissioner. General Statutes § 4–160(a). In both statutes the standard for allowing suit is the same; viz., when the General Assembly or the claims commissioner “believes the claim to present an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4–159(c). Section 4–160(c) goes on to provide that, whether authorized by the General Assembly, as here, or the claims commissioner, “[t]he rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.” (Emphasis added.)

Read together with § 52–557g, which grants immunity from suit to private persons who make their land available to the public without charge for recreational purposes, the plain meaning of § 4–160(c) is that the state enjoys the same immunity as such a private person as long as it otherwise satisfies the requirements of the statute, i.e., as long as it makes land which it owns available for recreational purposes free of charge.

The plaintiffs see an inconsistency between the language of § 4–160(c) quoted above and the sentence immediately preceding it in the statute: “The state waives its immunity from liability and from suit in each such action [where the General Assembly or the claims commissioner authorizes suit] and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of....” General Statutes § 4–160(c). To the contrary, the court sees these two sentences as complementary and consistent. Read together, they drive home the point of the statutory scheme allowing suits against the state in cases presenting “an issue of law or fact under which the state, were it a private person, could be liable.” (Emphasis added.) General Statutes §§ 4–159(c) and 4–160(a). In such cases the state is stripped of any of the defenses on which it could rely as a governmental entity ⁸ and stands in court with only the “rights and liability of private persons in like circumstances,” in this case, the rights of a private landowner.

Moreover, were the plaintiffs' reading of the statute the correct one, the rights of private persons which the state is granted by the statute would avail it nothing because all of the activities for which it might be sued would necessarily...