Graham v. Comm'r of Transp.

• Decision Date: 04 October 2016
• Docket Number: AC 37975
• Citation: 168 Conn.App. 570,148 A.3d 1147
• Court: Connecticut Court of Appeals
• Parties: Barry Graham v. Commissioner of Transportation

168 Conn.App. 570

148 A.3d 1147

Barry Graham

v.Commissioner of Transportation

AC 37975

Appellate Court of Connecticut.

Argued May 23, 2016

Officially released October 4, 2016

Ralph J. Monaco, with whom, on the brief, was Eric J. Garofano, for the appellant (plaintiff).

Lorinda S. Coon, for the appellee (defendant).

Sheldon, Prescott and West, Js.

SHELDON, J.

The plaintiff, Barry Graham, appeals from the summary judgment rendered by the trial court in favor of the defendant, the Commissioner of Transportation, in this action to recover damages under the state defective highway statute, General Statutes § 13a–144.¹ The plaintiff commenced this action on July 9, 2012, to recover for injuries he claims to have suffered on December 12, 2011, in a motor vehicle accident allegedly caused by the sliding of the vehicle that he was then operating on untreated black ice in the northbound lanes of Interstate 95 as it crosses the Thames River between New London and Groton on the Gold Star Memorial Bridge. The trial court granted the defendant's motion for summary judgment on the ground that because his statutory duty to keep the bridge in a reasonably safe condition is purely reactive rather than anticipatory, he did not breach that duty to the plaintiff by failing to treat or otherwise remedy the icing condition that caused the plaintiff's accident because he had no actual notice of the specific patch of ice before the accident occurred, and even if he had constructive notice of that ice patch based upon prior reports to the Department of Transportation (department) from the state police about earlier ice related accidents on the bridge that morning, he had insufficient time after receiving such notice to remedy that ice patch before it caused the plaintiff's accident.

On appeal, the plaintiff claims that the trial court erred in rendering summary judgment in favor of the defendant because the evidence before it on the defendant's motion, when considered in the light most favorable to the plaintiff, gave rise to a genuine issue of material fact as to whether the defendant had sufficient time, after receiving actual or constructive notice of the dangerous icing condition that caused his accident, to remedy that condition before the accident occurred.

The defendant opposes this claim in two ways. First, he argues that the trial court ruled correctly, on the undisputed facts before it, that he had insufficient time, after receiving notice of the icing condition that later caused the plaintiff's accident, to remedy that condition before the accident occurred. Second, as an alternative ground for affirming the trial court's ruling, the defendant argues, as he did both in his summary judgment motion and in his prior, unsuccessful motion to dismiss, that the trial court lacked subject matter jurisdiction over this action because the plaintiff's written notice of intent to sue failed to satisfy the requirements of § 13a–144, upon which the state's statutory waiver of its sovereign immunity depends, insofar as the statute required him to disclose the location of his accident and resulting injuries. The plaintiff disputes the defendant's challenge to the legal sufficiency of his written notice of intent to sue insofar as it describes the location of his accident and resulting injuries.

We agree with the plaintiff that the trial court erred in rendering summary judgment in favor of the defendant because the evidence before it on the defendant's motion gave rise to a genuine issue of material fact as to whether the defendant had sufficient time, after receiving notice of the icing condition that caused the plaintiff's accident, to treat or otherwise remedy that condition before the accident occurred. Therefore, because we also agree with the plaintiff that the adequacy of his written notice of intent to sue to apprise the defendant of the location of his accident and injuries cannot be decided on this record as a matter of law, we reverse the trial court's judgment and remand this case for further proceedings.

The following procedural history is relevant to our disposition of this appeal. In the plaintiff's original complaint dated July 5, 2012, as later revised on May 29, 2014, without substantive alteration as to the issues now before us, he alleged that the defendant has a statutory duty to keep and maintain all highways and bridges within the state highway system in a reasonably safe condition, and that that duty extends to Interstate 95, a public highway in that system. He further alleged that, in the early morning hours of December 12, 2011, employees, representatives and agents of the department became aware that the surface of Interstate 95 on the Gold Star Memorial Bridge had become icy and unreasonably dangerous, based upon reports they had received from the state police of numerous ice related accidents on the bridge that morning. The plaintiff alleged that later that morning, at 6:38 a.m., as he was driving his pickup truck in the northbound lanes of the bridge about one-tenth of one mile south of the New London-Groton town line, it slid on black ice, rolled over on its side and collided with a bridge structure, causing him serious injuries. The plaintiff alleged that the cause of his accident and resulting injuries was the defendant's breach of his statutory duty to keep the bridge in a reasonably safe condition by failing to take adequate measures, in response to the notice he had received of its dangerous condition, either by treating its icy surface, placing or utilizing warning signs in the area to warn travelers of that dangerous condition, or closing the bridge entirely until that dangerous condition could be remedied. Finally, the plaintiff alleged that he had provided timely written notice to the defendant of his intent to sue in connection with his accident and injuries within ninety days of their occurrence, as required by § 13a–144.²

On September 12, 2012, the defendant moved to dismiss the plaintiff's original complaint on the ground that the location of the accident specified in the plaintiff's written notice of intent to sue described an area so large that it failed to satisfy the requirements of § 13a–144, in violation of the sovereign immunity doctrine.³ This motion was initially granted by the trial court, Devine, J . Thereafter, however, upon reconsideration of its ruling, the court determined that the language of the plaintiff's written notice was subject to at least one reasonable interpretation that could be found to satisfy the requirements of § 13a–144. Concluding, on that basis, that the adequacy of the plaintiff's written notice to apprise the defendant of the location of his accident and injuries was a disputed issue of fact that should be decided by the finder of fact at trial, the court vacated its initial ruling and denied the defendant's motion to dismiss.⁴

Thereafter, on May 8, 2014, the defendant moved for summary judgment on three grounds: (1) that he did not breach his statutory duty to keep and maintain the bridge in a reasonably safe condition on the morning of the plaintiff's accident because he lacked actual notice of the specific ice patch that caused that accident, and even if he had constructive notice of that ice patch, he lacked sufficient time after receiving such notice to remedy that ice patch before the plaintiff's accident occurred; (2) insofar as the plaintiff's written notice of intent to sue described the location of his accident, it failed to satisfy the requirements of § 13a–144 ; and (3) that the plaintiff could not prove that the defendant's breach of statutory duty under § 13a–144, if any, was the sole proximate cause of his accident and resulting injuries.

The defendant supported his motion with a memorandum of law and several attached exhibits, including: sworn affidavits from four employees of his department, Peter Silva, James F. Wilson, Jay D'Antonio and Theodore Engel; an excerpt from the certified transcript of the deposition of state police Trooper Robert D. Pierce, who responded to and investigated the plaintiff's accident; and copies of the plaintiff's written notice of intent to sue in connection with his accident, Trooper Pierce's police report concerning the accident, and the department's work log for the day of the accident.

The main thrust of the defendant's argument on the first of his three grounds for seeking summary judgment, to which the trial court ultimately limited its decision on his motion, was that he did not breach his statutory duty to remedy the ice patch that caused the plaintiff's accident and injuries because, although his employees responded promptly to the first report they received of an ice related accident on the bridge that morning, they could not have reached the bridge with the necessary equipment and materials to treat its icy surface and make it reasonably safe for travel before the plaintiff's accident occurred. The department's call log showed, more particularly, that the department first was notified of icing on the bridge at 5:49 a.m. that morning, in a call from the state police to its Bridgeport operations center, of which Silva was the supervisor. That call reported that an ice related accident had occurred on the bridge at 5:40 a.m. The operations center responded to the call by implementing its standard protocol for responding to off-hour calls for service by calling D'Antonio, the supervisor of the department's maintenance garage in Waterford, which services the Gold Star Memorial Bridge, with instructions to call out a crew to salt the bridge. The Waterford garage, which was then closed, routinely dispatched two man work crews, with one crew leader and one helper, to respond to off-hour calls for service. When crew members were called out to salt an icy bridge or highway, they had to drive in their own nonemergency vehicles to the garage, where the department's deicing equipment and materials were stored, open the garage...