Donnelly v. Ives

Decision Date04 February 1970
CourtConnecticut Supreme Court
PartiesEileen DONNELLY v. Howard S. IVES, Highway Commissioner.

David M. Reilly, Jr., New Haven, for appellant (plaintiff).

Francis A. Smith, Jr., Bridgeport, with whom were William B. Rush, Bridgeport, and Henry Lyons III, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

COTTER, Associate Justice.

The plaintiff brought this action in two counts. The trial court sustained the defendant's demurred to the second count alleging a common-law nuisance, and on appeal to this court we affirmed the judgment for the defendant on that count. Murphy v. Ives, 151 Conn. 259, 196 A.2d 596. The parties thereafter proceeded to trial before a jury on the first count of the complaint, which alleged a cause of action under the so-called defective highway statute. General Statutes § 13-87 (now § 13a-144). 1 At the conclusion on the evidence on the trial as to the first count, the jury, at the direction of the court, returned a verdict for the defendant which the plaintiff thereupon moved to set aside. The court denied the motion, and the plaintiff has appealed from the judgment.

In the first count of her complaint, the plaintiff based her cause of action on General Statutes § 13-87 (now § 13a-144). The complaint alleged that an automobile in which the plaintiff was riding as a pssenger collided with a concrete abutment or stanchion located at the Chapel Street exit of the westbound portion of the Connecticut Turnpike. It alleged that the cause of the injuries sustained by the plaintiff was a defective condition which was created by the circumstances enumerated in the footnote. 2 The plaintiff claimed that liability is imposed on the highway commissioner under General Statutes § 13-87 (now § 13a-144) for a condition existing in the original design or plan of construction of a highway.

The verdict must conform to the issues raised by the pleadings. In reviewing the action of the trial court in directing a verdict and denying the plaintiff's motion to set it aside, we consider the action of the court in the light of the evidence most favorable to the plaintiff. Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2.

This is an action against the defendant in his capacity as a representative of the state so that it is in effect one against the state. Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596. Although it is the settled law in Connecticut that the sovereign state is immune from suit except so far as it consents to be sued, the state has clearly waived its immunity to the extent set out in General Statutes § 13-87 (now § 13a-144) for certain injuries occurring on the state highways. Ibid. The question here is whether the plaintiff, under the circumstances of the present case, has brought herself within the ambit of that statute where she does not claim the lack or unsufficiency of repairs as the proximate cause of the accident and resulting injuries but rather claims that they were caused by the neglect of the defendant in building and maintaining a defectively designed highway. We must turn to the statute itself to determine whether the plaintiff has alleged a cause of action under the statute and has produced evidence in support thereof sufficient to warrant the submission of her case to the jury.

The statute allows the plaintiff to bring a civil action if she was injured 'through the neglect or default of the state * * * by means of any defective road * * * which it is the duty of the highway commissioner to keep in repair.' In interpreting these terms we have on many occasions looked to and applied the rationale in cases involving statutory actions against municipalities under what is now General Statutes § 13a-149 since there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149. Hay v. Hill, 137 Conn. 285, 289, 76 A.2d 924, and cases cited. The duty imposed on the state by the provision of the defective highway statute is not such as to make the state an insurer for people using those highways which the defendant must keep in repair but is rather a duty to exercise reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler. Bacon v. Rocky Hill, 126 Conn. 402, 404, 11 A.2d 399; Older v. Old Lyme, 124 Conn. 283, 284, 199 A. 434; Perrotti v. Bennett, 94 Conn. 533, 539, 109 A. 890. A defect in a highway has been described as 'any object or condition 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.' Hickey v. Newtown, 150 Conn. 514, 518, 192 A.2d 199; Hay v. Hill, supra, 137 Conn. 288, 76 A.2d 924.

Although this court has stated that a defect in the plan upon which the highway was constructed was not within the statute, nevertheless, we have gone on to declare that 'were the plan of construction adopted one which was totally inadmissible, * * * the highway would have been in such a defective condition as to have been out of repair from the beginning.' Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051. In a subsequent case involving a situation similar to that in the Hoyt case, we recognized the principle set forth in Hoyt that a set of circumstances might create an exception to the general rule of nonliability for error of judgment in a plan; we reiterated the so-called Hoyt exception and went on to state that: 'Obviously from the time the drain was laid it constituted a defect in the highway.' Perrotti v. Bennett, supra, 94 Conn. 541, 109 A. 893.

The plaintiff strenuously urges that we adopt a 'simple' rule that liability be imposed upon the highway commissioner 'for a...

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28 cases
  • Baker v. Ives
    • United States
    • Connecticut Supreme Court
    • January 26, 1972
    ...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,......
  • Harrison v. Escambia County School Bd.
    • United States
    • Florida District Court of Appeals
    • June 23, 1982
    ...discretion. Dodds v. West Liberty, 225 Iowa 506, 281 N.W. 476 (1938); Gould v. Topeka, 32 Kan. 485, 4 P. 822 (1884); Donnelly v. Ives, 159 Conn. 163, 268 A.2d 406 (1970); Paul v. Faricy, 228 Minn. 264, 37 N.W.2d 427 (1949). Once, however, the governmental body has met its burden of showing ......
  • White v. Burns
    • United States
    • Connecticut Supreme Court
    • January 2, 1990
    ...supra; Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986); Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979); Donnelly v. Ives, 159 Conn. 163, 268 A.2d 406 (1970); Murphy v. Ives, supra; Tuckel v. Argraves, 148 Conn. 355, 170 A.2d 895 (1961); Rapid Motor Lines, Inc. v. Cox, 134 Con......
  • Stotler v. Dep't of Transp.
    • United States
    • Connecticut Supreme Court
    • August 19, 2014
    ...traveler.” (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 462–63, 569 A.2d 10 (1990); accord Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970) (“[t]he duty imposed on the state by the provision of the defective highway statute is not such as to make the state an i......
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