Derfall v. Town of West Hartford

• Decision Date: 22 January 1964
• Docket Number: No. 134500,134500
• Citation: 25 Conn.Supp. 302,203 A.2d 152
• Court: Connecticut Superior Court
• Parties: Maxine D. DERFALL et al. v. TOWN OF WEST HARTFORD et al.

Page 152

203 A.2d 152

25 Conn.Supp. 302

Maxine D. DERFALL et al. v. TOWN OF WEST HARTFORD et al.

No. 134500.

Superior Court of Connecticut, Hartford County.

Jan. 22, 1964.

Samuel Tallow and Benjamin J. Rabinovitz, Hartford, for plaintiffs.

Schatz, Weinstein & Seltzer, Hartford, for defendants Edward P. Hayes & Sons Co., Edward S. Hayes, Thomas F. Hayes, John D. Hayes, Edward P. Hayes, Jr., and Ethel Jary.

Thomas P. Byrne, Corp. Counsel, for defendant Town of West Hartford.

Courtney, Mansfield, Sullivan & Ripley, Hartford, for defendants Willis G. Parsons, Jr., and Town of West Hartford.

HOUSE, Judge.

This action has been brought by the plaintiff and her father against the town of West Hartford, the board of education for the town of West Hartford, Willis G. Parsons, Jr., The Edward Hayes and Sons Company, Edward S. Hayes, Thomas F. Hayes, John D. Hayes, Edward F. Hayes, Jr., Ethel Jary and Raymond Fish. The action is in two counts, the first being on behalf of the plaintiff Maxine Derfall and the second on behalf of her father for the recovery of expenses incurred by his daughter.

In brief, the substance of the complaint is that the plaintiff Maxine Derfall was a passenger in a West Hartford school bus owned by the defendants Hayes and operated by the defendant Ethel Jary on Tunxis Road in West Hartford and was injured when the bus collided with a tree. So far as the town of West Hartford and Raymond Fish are concerned, the allegations are that Fish was superintendent of streets for the town and it 'was his duty to keep said streets free of ice and snow and safe for vehicular traffic,' that the board of education 'was an agency of the Town of West Hartford and was acting within the scope and course of its authority,' and that the town was charged with the responsibility for maintaining the school system of the town and for the safe transportation of retarded children from their homes to various schools. It is alleged that the defendant Fish was negligent in that he failed to remove the ice and snow from the highway, failed to sand it so as to make it safe, and failed adequately to supervise the removal of snow and ice from the highway. It is further alleged that the plaintiff's injuries were not the result of any wilful or wanton act of the defendant Fish and that in accordance with the provisions of § 7-465 of the General Statutes 'the defendants, as aforesaid, were jointly and severally notified of the aforesaid occurrence and demand was made upon the defendants more than 30 days before the date' of the writ, summons and complaint.

To this complaint the defendants town of West Hartford and Raymond Fish have demurred on the ground that the complaint discloses no breach of duty or act of negligence by the town of West Hartford, that the acts of negligence alleged to have been committed by Fish relate to a defective highway, and that the action should have been brought under § 13-11 of the General Statutes (repealed effective June 6, 1963; see § 13a-149), the provisions of which have not been complied with.

It would appear that the drafter of the present complaint and brief supporting it on demurrer had made but a cursory examination of the applicable law although the ad damnum claimed is $275,000.

Right at the start, it is appropriate to note two well-established principles of law. In this state, local boards of education are not agents of the towns but are creatures of the state. A town board of education is an agency of the state in charge of education in the town, and in fulfilling its duties as such an agency it is acting in a governmental, not a proprietary capacity. Waterford v. Connecticut State Board of Education, 148 Conn. 238, 245, 169 A.2d 891; Fowler v. Enfield, 138 Conn. 521, 530, 86 A.2d 662; Norwalk Techers' Assn. v. Board of Education, 138 Conn. 269, 275, 83 A.2d 482, 31 A.L.R.2d 1133; Sestero v. Glastonbury, 19 Conn.Sup. 156, 110 A.2d 629. Hence, the allegation in the complaint that the West Hartford board of education is an agency of the town of West Hartford is, as a matter of law, untrue.

The duty of building and repairing highways is imposed by statute on the towns. General Statutes § 13-2 (repealed effective June 6, 1963; see § 13a-99). In carrying out this duty, the town is engaged in the performance of a public governmental duty imposed upon it by the state and is not liable for damages incident to the discharge of that duty unless made so by statute. Scoville v. West Hartford, 131 Conn. 239, 241, 38 A.2d 681; Salzman v. New Haven, 81 Conn. 389, 392, 71 A. 500. Section 13-11 of the General Statutes does provide a right of action for a person to recover damages from a municipality which is bound to keep a highway in repair. By its terms, a condition precedent to such an action is notice to the municipality of the injury--which notice must be given within sixty days thereafter or, if the defect consists of ice and snow, within ten days thereafter. In an action for injuries caused by a highway defect, it is the duty of the plaintiff to recite the statutory notice given the town as required by statute. Barteis v. Town of Windsor, 134 Conn. 569, 59 A.2d 535. Parenthetically, it should also be noticed that...