Sole Proximate Cause Doctrine
July 22, 2009
Standard of Causation under Defective Highway Statute
The state highway liability statute, Conn. Gen. Stat. §§ 13a-144 and 13a-149, is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. The statute imposes the duty to keep the state highways in repair upon the highway commissioner. 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 and 13a-149.
The first legislative act waiving a municipality’s immunity to suit for a defect in a highway appeared in the Acts of 1672. The general court ordered the counties and towns to keep their roads and bridges in sufficient repair and if an individual should sustain an injury, the county or town was to pay a fine of one hundred pounds. Thus, while the common law did not subject municipalities to liability for injuries due to a defective highway, this branch of sovereign immunity has been abrogated since 1672 as to a town.
The Connecticut Supreme Court first articulated the sole proximate cause standard for liability under the defective highway statute in 1899, in Bartram v. Sharon, 71 Conn. 686. Bartram involved an action against a municipality to recover damages for personal injuries claimed to have been caused by a defective highway. In Bartram, the plaintiff, a passenger in a horse-drawn wagon, was injured when her driver, who himself was found guilty of negligence, operated the wagon so that it overturned upon striking a defect in the highway that the defendant town had failed to repair. The Court held that a traveler on a highway cannot be injured through a defect in the highway, when the culpable negligence of a fellow traveler is a proximate cause of her injury.
Bartram, after tracing the historical evolution of the municipal highway liability statute, set out the conditions upon which towns would incur a penalty: there must be a defect in the highway, a failure or neglect of the town to make sufficient repair that involved questions of reasonable notice and knowledge, and time, and an injury caused by the defect. Bartram went on to say that it follows that an injury caused by the culpable negligence of a traveler does not happen by means of the defect, even if such defect were a concurring cause. Bartram further explained that if the wrongful act of the plaintiff’s driver is a proximate cause of her injury, then it is inconsistent with the liability of the town. Bartram thus laid down the sole proximate cause standard of liability under the municipal highway liability statute, which standard is still the law today.
It was not until 1915 that the legislature enacted a statute concerning the state’s liability for injuries sustained due to defects on state highways. It was entitled “An Act Concerning Payment by the State of Damages sustained by Injuries on Trunk Line Highways.” In 1920, the Connecticut Supreme Court, in Perrotti v. Bennett, 94 Conn. 533 (1920) (an action for damages against the state highway commissioner for injuries alleged to have been caused by his negligence in the construction and maintenance of a state highway), applied the sole proximate cause standard enumerated in Bartram to the state highway liability statute. Since Perrotti, the Connecticut courts have consistently applied the sole proximate cause standard to actions brought under Conn. Gen. Stat. § 13a-144.
There is no material difference in the obligation imposed on the state by Conn. Gen. Stat. § 13a-144 and that imposed on municipalities by Conn. Gen. Stat. § 13a-149. There are certain differences between the language of the state defective highway statute and the municipal defective highway statute that may, on occasion, necessitate separate treatment. For example, the municipal statute has a savings clause with respect to the provision of requisite notice that is absent from the state statute. Also, the state statute provides the government with a right of subrogation against third party tortfeasors, language that is without parallel in the municipal statute. To the extent that their language and purpose overlap, however, Conn. Gen. Stat. Conn. Gen. Stat. §§ 13a-144 and 13a-149 have always been read in concert.