Murray v. City of Milford, Connecticut

Decision Date26 June 1967
Docket NumberNo. 375,Docket 30721.,375
PartiesCarolyn M. MURRAY, an infant under 21 years, by Carrie Murray a/k/a Caroline Murray her mother and natural guardian and Carrie Murray, a/k/a Caroline Murray, individually, Plaintiffs-Appellants, v. The CITY OF MILFORD, CONNECTICUT, Appellee, and Richard W. Schlachter and Dorothy Schlachter, Defendants.
CourtU.S. Court of Appeals — Second Circuit


Raymond T. Finnan, Troy, N. Y. (Stephen E. Ketcham, Rockville, Conn., on the brief), for plaintiffs-appellants.

John C. Flanagan, New Haven, Conn., for appellee.

Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge:

During the evening of March 2, 1965, the plaintiff, Carolyn Murray, then nineteen years of age and a citizen of New York State, was a passenger on a motorcycle driven by one Bruce Heddon. As the motorcycle was being driven in an easterly direction on Milford Point Road, a public highway in the City of Milford, it ran into an "icy, slippery and wet portion" of the road and went out of control. The plaintiff was thrown from the vehicle and severely injured. On February 24, 1966, the plaintiff brought a diversity suit in the District of Connecticut against both the City of Milford and Richard and Dorothy Schlachter, the owners of the property abutting the highway. The City moved under Rule 12(b) to dismiss the complaint as to the City for failure to state a claim upon which relief could be granted. This motion was granted (256 F.Supp. 351), and a Rule 54(b) certificate and order were issued by the District Court which brought the matter before this court for review. The plaintiff's suit against the Schlachters is still pending.

As this is an appeal from the granting of a Rule 12(b) motion to dismiss, this court must accept plaintiff's allegations of facts as true together with such reasonable inferences as may be drawn therefrom in her favor. So regarded it appears that the "icy, slippery and wet" section of Milford Point Road was caused by the act of the Schlachters in pumping water from the cellar or basement of their house onto a portion of the highway where the contour and grade and the absence of adequate drainage facilities caused the water to remain on the highway and freeze in the cold weather instead of flowing off. The Schlachters had followed the practice of pumping water onto the highway for at least fifteen years, and the City had actual notice that they had on occasion done so in the past and had left a portion of the public highway wet but there is no allegation that the City had actual notice of the condition of the highway at the time and place of the accident.

The City's Rule 12(b) motion raises the question of the extent of a municipality's liability in tort for injuries caused by dangerous conditions existing on highways within its control. As a preliminary matter it is necessary to determine what law the courts of Connecticut apply, i. e. whether they would choose the law of Connecticut as the place of the tort or as the place of incorporation of the defendant municipality or the law of New York as the state of the domicile of the plaintiff. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). It is clear that the Connecticut courts adhere to a strict "place of the tort" rule for determining applicable substantive law; and the governing procedural and remedial law is that of the forum. Landers v. Landers, 153 Conn. 303, 216 A.2d 183 (1966) rejecting the "more significant relationship" approach of Restatement II, Conflict of Laws; Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960); Bissonnettee v. Bissonnettee, 145 Conn. 733, 142 A.2d 527 (1958); Bond v. Meredith, 17 Conn.Sup. 196 (1951). Here both the place of the tort and the forum are Connecticut and its law therefore applies to all aspects of the case.

The construction and maintenance of roads is a "governmental function," and a municipality is not liable for common law negligence in carrying out this duty. Scoville v. Town of West Hartford, 131 Conn. 239, 241, 38 A.2d 681 (1944); Riccio v. Town of Plainville, 106 Conn. 61, 63-64, 136 A. 872 (1927). It is liable, however, if it creates a "nuisance." In addition municipalities are subject to a special statutory liability under Connecticut General Stat. § 13a-149 which provides:

"Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair * *."

The plaintiff alleges that the City is liable in this case both for nuisance and for maintaining a "defective road" under the statute. Under each theory of liability the plaintiff alleges several elements of wrongdoing by the City, which fall into two broad categories: (1) a causal contribution to the creation of the dangerous accumulation of water and ice through the improper design and construction of the highway, such as depressions in the road, and inadequate drainage facilities and (2) the failure to remedy the dangerous condition of which it had notice or would have had notice through proper inspection, the failure to sand the road, a failure to warn and the failure to restrain the Schlachters from discharging water onto the road.


In order for a municipality to be liable in nuisance it must create the dangerous condition by some positive act; the mere failure to remedy a dangerous condition resulting from natural causes or the acts of third parties, while it may afford adequate ground for a "defective road" action under the statute, is not sufficient to support an action for nuisance. Bacon v. Town of Rocky Hill, 126 Conn. 402, 11 A.2d 399 (1940); Karnasiewicz v. City of New Britain, 131 Conn. 691, 42 A.2d 32 (1945); Jacen v. Town of East Hartford, 133 Conn. 243, 50 A.2d 61 (1946); Sheeler v. City of Waterbury, 138 Conn. 111, 82 A.2d 359 (1951).1 Consequently, the City is not liable in nuisance for its failure to remove the water, or its failure to inspect and sand the road, or its failure to warn, or its failure to restrain the Schlachters from pumping water onto the road.

The City allegedly contributed to the creation of the dangerous condition by the improper design and construction of the highway in leaving depressions in it and in failing to provide adequate drainage facilities. Any such contribution by the City to the creation of the accumulation of ice and water is obviously rather remote. The question presented is whether the City's role was really significant enough to be a "positive act" which can support an action in nuisance. The plaintiff has not cited a single case (and research has disclosed none) in which a city's mere failure to provide adequately for drainage has resulted in its liability for personal injuries caused by ice and water on the highway.2 To the contrary, in Pluhowsky v. City of New Haven, 151 Conn. 337, 197 A.2d 645 (1964), where a pool of water formed in the road, because melting snow did not drain properly, and caused an automobile accident, the city was held not to be liable in nuisance. The case is not directly in point because it appears that debris had clogged a catch-basin which was otherwise adequate. The court's language implies, however, that the city would not be liable in nuisance even if the annually recurring pools at that spot were caused by inadequate catch-basins. (151 Conn. at 346, 197 A.2d 645.)

In Agriesto v. Fairfield, 130 Conn. 410, 35 A.2d 15 (1943), the Connecticut Supreme Court was confronted with a factual situation very similar to the one here.3 There the plaintiff had slipped on an ice patch which had resulted from water collecting in a depression in a sidewalk. The plaintiff brought a "defective road" action, alleging among other things, that the city was liable for "breach of its duty to construct a shoulder and to provide proper drainage facilities, in consequence of which water and ice naturally collected in depressions resulting from the flow of surface water, rendering the highway defective" (130 Conn. at 416, 35 A.2d at 17). The trial judge refused to instruct on the claimant's theory of liability, and the Supreme Court of the State approved:

"Liability depends upon the existence of a defect, not the underlying causes which produce it. * * * No liability arises `unless and until the highway has been rendered defective.\' * * * The instructions requested, relating as they did to the defendant\'s failure to discharge its governmental duty to construct the highway properly and to physical conditions which were antecedent to the existence of the defect in question even though productive of it, were properly refused."

130 Conn. at 417, 35 A.2d at 18. This holding was reaffirmed in Scoville v. Town of West Hartford, supra. The Agriesto case is a statutory action for a "defective road" and it did not include a claim of nuisance; but if improper construction and lack of drainage facilities do not make the City responsible for a resulting pool of water in a "defective road" action, which does not require a "positive act," then such deficiencies on the part of the City would certainly not support an action for nuisance. The Agriesto decision is therefore controlling as to both the statutory and nuisance actions.


Not only does the authority of the Agriesto case bar the action under § 13a-149 for the alleged creation of the wet and icy condition, but the City cannot be held liable under that statute on the facts alleged in the present case because the law of Connecticut, contrary to that of most states, is that a municipality is not liable where an injury is caused by a defect in the road combined with the negligence of a third-party. The highway defect must be the sole proximate cause. Bartram v. Town of Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144 (1899); Gustafson v. City of...

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