July 22, 2009
By: David K. Jaffe
Recovery from Government for Injuries caused by Defective Roadways, Sidewalks & Bridges
Two statutes permit recovery from the government for injuries caused by defective roadways, sidewalks and bridges. Conn. Gen. Stat. § 13a-144 permits recovery against the state for such injuries. Conn. Gen. Stat. § 13a-149 permits recovery against municipalities and other government entities responsible for the maintenance and repair of such structures.
The two statutes contain virtually identical requirements, duties and conditions with the exception of the identity of the liable party. Cases interpreting one statute frequently cite cases interpreting the other statute for support. The statutes abrogate the immunity otherwise provided by law. As such, the courts strictly construe their provisions and requirements.
The statutes by their own terms apply to defects in roadways, highways, and bridges. Conn. Gen. Stat. § 13a-144 explicitly permits recovery against the state for defects in abutting sidewalks. The statute implicitly includes sidewalks as part of the road for which a municipality may have liability under Conn. Gen. Stat. § 13a-149.
The state has liability under the terms of Conn. Gen. Stat. § 13a-144 for any road the commissioner of transportation has the legal duty to repair or maintain. The statute does not limit its effect to roads within the state highway system. However, the state has no liability for sidewalks located within its right of way but maintained by a municipality. Additionally, like all premises liability actions, the governmental defendant must have actual or constructive notice of the defect before the injury occurred for the court to hold it liable.
The statutes apply not only to defects in the surface of the road, bridge or sidewalk itself, but objects upon or near the path of travel that actually or would be likely to obstruct or hinder travel. However, the statutes apply to objects not in the path of travel only if they so directly menace travel and are so susceptible to the protection and remedial measures offered by the statutes that the failure to remedy the condition is equivalent to a lack of reasonable repair of the roadway. For example, a defective traffic light creates a defective roadway within the scope of the statutes.
The statutes require a plaintiff to give notice to the proper authority to bring a cause of action under either of the defective roadway statutes. The court will apply the notice requirement strictly because it represents a condition precedent to the abrogation of governmental immunity. However, reference to the incorrect statute will not vitiate fulfillment of the notice requirement if the notice satisfies the other requirements.
The notice serves to furnish the commissioner or the appropriate municipal or corporate official with the information necessary to allow him to timely investigate the facts upon which the claim is based, and acquire the information necessary for a proper defense. The statute therefore requires the plaintiff to give the notice within the ninety days following the injury. No relaxed standard exists for cases involving deaths or serious injuries. In cases of death, the time limit runs from the date of the injury, not the date of the appointment of the fiduciary.
The notice requirements of the two statutes differ in that Conn. Gen. Stat. § 13a-149 contains a "savings clause" which forgives an inaccuracy in describing the injury or relating the facts of the incident if the plaintiff did not intend to mislead the town or if the town was not in fact misled. In contrast, Conn. Gen. Stat. § 13a-144 does not contain a savings clause applicable to claims against the state, and the notice requirement will preclude recovery regardless of whether or not the notice misled the state.
The plaintiff must provide the notice in writing to the Commissioner of Transportation for an action against the state, and to a selectman or clerk of a town, clerk of a city or borough, or the secretary or treasurer of a corporation for an action against those entities. An action will fail if the plaintiff does not send the notice to the proper entity, even if instructed to send it to a particular place by a governmental official. The injured party or someone on behalf of the injured party who intends to file the claim must send the notice. Constructive notice or notice given by any other person or method will not suffice.
The notice must contain the name of the injured party, a general description of the injury and its cause, and the time and place of its occurrence. The notice must also inform its recipient that the issuer intends to make a claim. The court will not permit an action following a notice which does not accurately include this information even if the defect resulted from an obviously innocuous error, such as accidentally stating "north" instead of "south," or "east" instead of "west" unless the savings clause applies.
The accuracy of the description of the defect's location provides the greatest difficultly for plaintiffs. The statutes require "reasonable definiteness" concerning the location, but the plaintiff need not provide the precision of a cartographer. Nevertheless, reference to and distance from a specific and identifiable fixed point or landmark seems required in an adequate notice.
The jury determines the adequacy of the notice, unless the court decides as a matter of law that a purported notice patently meets or fails to meet the statutory requirements. Evidence of subsequent remedial repairs of the defect does not provide admissible evidence concerning the sufficiency of the notice.