Ormsby v. Frankel

• Decision Date: 17 April 2001
• Docket Number: (SC 16187)
• Citation: 768 A.2d 441,255 Conn. 670
• Court: Connecticut Supreme Court
• Parties: CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION

255 Conn. 670

768 A.2d 441

CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION

(SC 16187)

Supreme Court of Connecticut.

Argued November 3, 2000.

Officially released April 17, 2001.

Borden, Katz, Palmer, Vertefeuille and Lager, Js. Louis B. Blumenfeld, with whom were Paul T. Nowosadko and, on the brief, William J. Scully, for the appellant (defendant).

Kathryn Calibey, with whom were Michael Jainchill and Douglas Hammond, for the appellee (plaintiff).

Opinion

BORDEN, J.

The issues in this certified appeal involve: (1) the admissibility of recurring icing conditions and a prior accident to prove constructive notice under General Statutes § 13a-144,¹ the state defective highway statute; and (2) the sufficiency of the evidence to prove constructive notice under that statute. Following our grant of certification,² the defendant, Emil Frankel, the commissioner of transportation, appeals from the judgment of the Appellate Court affirming the judgment of the trial court awarding damages to the plaintiff, Carolyn Ormsby. The defendant claims that certain evidence of prior icing conditions on the highway in question, and certain evidence of an accident one day prior to the plaintiffs accident on that same highway, were inadmissible to prove constructive notice of the specific ice conditions that caused the plaintiffs injuries. The defendant also claims that there was insufficient evidence for the jury to conclude that the defendant had constructive notice of the icing conditions.³ We affirm the judgment of the Appellate Court.⁴

The plaintiff filed a single count complaint alleging that the defendant breached his statutory duty under § 13a-144 to keep the highway upon which the plaintiff was injured reasonably safe. After a jury trial, the defendant was found to have breached this duty, the plaintiff was awarded damages, and the trial court rendered judgment accordingly. On appeal, the Appellate Court determined, inter alia, that: (1) the trial court properly had admitted evidence regarding prior icy conditions on the highway and a prior accident at that same location; and (2) there was sufficient evidence for the jury to have found that the defendant had constructive notice of the alleged defect. Ormsby v. Frankel, 54 Conn. App. 98, 101, 734 A.2d 575 (1999). This appeal followed.

The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. "On Saturday, February 20, 1993, between 2 and 3 p.m., the plaintiff was driving westbound on Route 6 in Farmington over Rattlesnake Mountain. Route 6 is a state highway and, as such, the department of transportation (department) is responsible for its maintenance. The plaintiff was driving at approximately forty-five miles per hour in a forty-five mile per hour zone. In the course of her descent down Rattlesnake Mountain, she approached a lefthand curve. A department warning sign on the side of the highway, placed prior to the curve, informed drivers of the curve. Additionally, there was an advisory speed placard indicating that the recommended speed in the curve was forty miles per hour.

"On February 20, 1993, the temperature was below freezing and the road was dry. The plaintiff entered the curve and encountered a large ice patch approximately 250 feet long in the westbound lane that had not been sanded or salted by the department. The plaintiff had no warning that the ice patch was on the curve and could not see it prior to encountering it. After the plaintiff crossed the ice patch, she lost control of her car and tapped her brakes two or three times to attempt to regain control of her vehicle. Her efforts were unsuccessful and she attempted to steer to regain control. Her car fishtailed approximately 180 degrees and ended up in the eastbound lane where her car collided with another vehicle driving eastbound up the hill. The plaintiff suffered serious injuries as a result of the collision." Id., 100.

Before addressing the defendant's claim, we first set out certain legal principles that guide our review of the defendant's appeal. "It is well established that [t]he trial court has broad discretion in ruling on the admissibility of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... State v. Sullivan, 244 Conn. 640, 646, 712 A.2d 919 (1998); State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997); Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 259, 694 A.2d 1319 (1997)." (Internal quotation marks omitted.) Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 628-29, 717 A.2d 1205 (1998).

To prove a breach of statutory duty under this state's defective highway statutes,⁵ the plaintiff must prove by a preponderance of the evidence: "(1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); accord Janow v. Ansonia, 11 Conn. App. 1, 2-3, 525 A.2d 966 (1987)." (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998).

Although we never explicitly have stated the rationale underlying these statutory requirements, we take the opportunity to do so now, because that rationale informs our disposition of the evidentiary issues involved in the present case. We agree with the defendant that his statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation. That is, the defendant's obligation under § 13a-144 is to remedy a highway defect once he: (1) has actual notice of a specific defect; or (2) is deemed to have constructive notice of a specific defect. As we have noted previously, his obligation does not sound in general negligence. See, e.g., White v. Burns, 213 Conn. 307, 322-23, 567 A.2d 1195 (1990); Lamb v. Burns, 202 Conn. 158, 169, 520 A.2d 190 (1987); McManus v. Jarvis, 128 Conn. 707, 710, 22 A.2d 857 (1938); Shirlock v. MacDonald, 121 Conn. 611, 613, 186 A. 562 (1936); Dunn v. MacDonald, 110 Conn. 68, 77, 147 A. 26 (1929). Thus, the defendant's statutory obligation is to act reasonably in remedying a defect of which he has actual or constructive notice. Absent such actual or constructive notice, his obligation does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur. See Prato v. New Haven, supra, 246 Conn. 646.

With this background in mind, we turn to the defendant's specific claims, namely, that the Appellate Court improperly determined that: (1) the trial court properly had admitted certain evidence of prior icing conditions; (2) the trial court properly had admitted certain evidence of a prior accident at the same location where the plaintiff was injured; and (3) there was sufficient evidence for the jury to conclude that the defendant had constructive notice of the specific icing conditions that led to the plaintiffs injuries. We disagree with the defendant's claims.

I

The defendant claims that certain evidence of prior icing conditions at the same location where the plaintiff's accident occurred was improperly admitted by the trial court to prove constructive notice of the specific ice conditions that caused the plaintiffs injuries. He contends not only that the evidence of prior icing conditions on Route 6 was insufficient to prove constructive notice, but also that this evidence was irrelevant to the question of constructive notice. Specifically, the defendant argues that the trial court improperly admitted testimony from employees of the Farmington police department that in the year before the plaintiffs accident it was common to see ice on the road in question, and that the department had received complaints about this road more than other areas.⁶ In addition, the defendant maintains that this evidence of prior icing conditions was improperly admitted to show that: (1) because this area of the road was prone to icing conditions, there must have been ice on the road on the day that the plaintiff was injured; or (2) because the defendant knew that the area was prone to icing conditions, the defendant should have anticipated the ice on February 20, 1993. We are unpersuaded.

We agree with the defendant that proof of prior icing conditions alone does not satisfy the notice requirement of § 13a-144. "This court previously has held that [t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.... Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919)." (Internal quotation marks omitted.) Prato v. New Haven, supra, 246 Conn. 642; see also DeSantis v. New England Furniture Co., 132 Conn. 134, 138, 42 A.2d 792 (1945); Scoville v. West Hartford, 131 Conn. 239, 242, 38 A.2d 681 (1944). In other words, the fact that the section of the road in the present case often developed ice in the past would be legally insufficient to prove that there was ice on Route 6 on February 20, 1993, or that the defendant had constructive notice about any ice that was in fact present on...