Doctrine of Sovereign Immunity

July 26, 2009

By: David K. Jaffe

Is it a "Defect" under Highway Defect Statute?

The state highway defect statute[1] is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory. The state highway defect statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within Conn. Gen. Stat. § 13a-144.[2] Moreover, whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law.[3]

In construing the term "defect" in the highway defect statute, Connecticut courts have held that a highway defect is any object 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.[4] In an 1867 case, the Court distinguished such highway defects from those objects which have no necessary connection with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway.[5]

Moreover, the Connecticut Supreme Court has consistently held that the state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.[6]

Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.[7] In Kozlowski v. Comm'r of Transp., 274 Conn. 497 (2005), the pedestrian's complaint alleged that his employer was performing work on a highway under a contract with the State when the pedestrian, who was working on the project, stepped on a defective catch basin cover along the road that broke and caused him to fall into the catch basin. The Appellate Court found that the catch basin could not constitute a highway defect because it was in an area off the roadway that was not intended to be traversed. The Court noted that, while the area immediately surrounding the catch basin was flat, the grassy area on either side sloped up from the roadway and was covered with heavy shrubbery. While the catch basin was near the roadway, it was in an area unintended for automobile or pedestrian travel. Thus, the Court held that the pedestrian was unable to show that his case fell within § 13a-144.

In contrast to the defect alleged in Kozlowski, the plaintiff in Ferreira v. Pringle, 255 Conn. 330 (2001) was injured when he stepped off a public bus and tripped on the remnant of a severed steel signpost embedded in the grassy embankment at the shoulder of the road intended for disembarking bus passengers. The Court concluded that, although the alleged defect was off the roadway, it nonetheless fell within the scope of the municipal highway defect statute, § 13a-149, because it was in an area where travelers, namely bus passengers, were likely, and in fact encouraged to traverse.

The Connecticut Supreme Court has previously evaluated highway defect claims predicated upon similar circumstances. In so doing, the Court has concluded that defective conditions located near the roadway, but in area unintended for travel, are not highway defects within the ambit of the highway defect statute.[8]

The Court also has recognized that, when the state either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the statute. For example, the plaintiff's claim was held to be within the scope of the highway defect statute when an injury occurred in a parking lot in a public rest area connected to a state highway.[9] In another case, the plaintiff and the public in general were encouraged to use the area for parking and it was reasonably to be expected that after parking her car the plaintiff would cross the dirt and grass area to reach the sidewalk. The fact that the defective condition was in an area which an occupant of an automobile was likely, and in fact encouraged, to use is an important consideration.[10]

In Sanzone v. Board of Police Comm'rs, 219 Conn. 179 (1991), the plaintiff sustained injuries when his vehicle collided with another vehicle after the faulty traffic light at an intersection simultaneously signaled green to both vehicles. Although the malfunctioning traffic light in Sanzone was above and thus near but not in the roadway, its defective condition necessarily hindered travel irrespective of the fact that it was not a physical impediment in the road itself. The Sanzone court stated that, it is well settled that if a defective condition is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. Id. at 202.


[1] Conn. Gen. Stat. § 13a-144 (state); Conn. Gen. Stat. § 13a-149 (municipal).

[2] White v. Burns, 213 Conn. 307, 321 (1990).

[3] Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201 (1991).

[4] McIntosh v. Sullivan, 274 Conn. 262, 268 (2005).

[5] Hewison v. New Haven, 34 Conn. 136, 143 (1867).

[6] McIntosh v. Sullivan, 274 Conn. 262, 269 (2005).

[7] Chazen v. New Britain, 148 Conn. 349, 353 (1961).

[8] Chazen v. New Britain, 148 Conn. 349, 354 (1961) (since it is not intended that there shall be travel on such areas, travelers who leave the way provided for them and attempt to cross such areas may not assume that the areas are free from danger or unusual conditions, as travelers may do in the use of the traveled way).

[9] See, e.g., Serrano v. Burns. See also Novicki v. New Haven, 47 Conn. App. 734, 740 (1998) (since the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it).

[10] Baker v. Ives, 162 Conn. 295, 301-302 (1972).