Opinion
CV106006477S.
12-28-2012
John KOMOROSKI v. TOWN OF STRATFORD.
UNPUBLISHED OPINION
SYBIL V. RICHARDS, Judge.
This action arises out of a single-count complaint filed by the plaintiff John Komoroski against the defendant Town of Stratford (" Town") to recover damages under the highway defect statute pursuant to General Statutes § 13a-149 (" highway defect statute") for injuries he alleges he sustained when the motorcycle he was operating came into contact with a patch of sand in the roadway known as Tavern Rock Road, Stratford, Connecticut on August 12, 2008. More particularly, the plaintiff alleges that the Town had a duty under said section to keep and maintain roads and highways within its territorial limits in a reasonably safe condition. The case was tried to the court on July 12, 2012.
The court makes the following findings of fact: On August 12, 2008, the plaintiff was operating a motorcycle traveling east along Tavern Rock Road in Stratford, Connecticut. As the plaintiff was navigating a turn, he noticed a patch of sand in the roadway. When the front tire of the plaintiff's motorcycle came into contact with the patch of sand, the plaintiff applied his front brake and his motorcycle skidded. After striking a curb on the side of the roadway, the plaintiff remained on the motorcycle after the motorcycle jumped up onto the grassy shoulder of the roadway. While on the shoulder, the plaintiff proceeded in his motorcycle toward a speed limit sign. Upon seeing the speed limit sign, the plaintiff leaned to the left in an effort to return to the roadway. Then the plaintiff's motorcycle struck the speed limit sign. After he struck the sign, the plaintiff traveled back towards the roadway. The plaintiff was not able to regain control of his motorcycle and slid along the roadway resulting in road rash injuries. The plaintiff testified that the patch of sand was not present when he had traveled along that same section of Tavern Rock Road a few days prior to the accident. The Town's public works director, Maurice McCarthy, testified that his department had not received any complaints about sand in that area of Tavern Rock Road, performed any work on said road in the year 2008, received any complaints from citizens regarding Tavern Rock Road in the eight months of 2008 prior to the date of the accident or received any reports regarding dangerous or defective conditions on Tavern Rock Road in the eight months of 2008 prior to the date of the accident. The Town stipulated that it is the party bound to keep Tavern Rock Road in repair for purposes of highway defect statute and the plaintiff stipulated that it provided the Town with a notice of intent to sue the Town regarding the plaintiff's accident in accordance with the statutory requirements outlined in said statute.
The plaintiff testified that an August 7, 2008 rainstorm, which dropped 1.43 inches of rain in the area of Stratford, Connecticut between 6:00 p.m. and 9:00 p.m., deposited the sand in the roadway. There was also testimony from Corporal Roger Miller, a member of the Stratford Police Department, who noted the sand in the roadway and indicated that it was not a large amount of sand.
" Historically, the state and its municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control." Prato v. New Haven, 246 Conn. 638, 646 (1998). C.G.S. § 13a-149, in derogation of this common law, states, in relevant part: " 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." Conn. Gen.Stat. 13a-149 (2012). This statute allows for an injured party to recover from a municipality for injuries sustained as a result of a defective road or bridge in repair. " Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiff's ability to recover when he or she is injured on a public highway." Id. at 647.
" To recover for a breach of statutory duty [imposed by C.G.S. § 13a-149], a plaintiff must prove by a preponderance of the evidence: (1) the highway was defective as claimed; (2) the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways, it should have known of that defect; (3) 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." Vega v. City of Hartford, judicial district of Hartford, Docket No. CV-08-5016669, March 27, 2009) (Cofield, J.) (quoting Prato, 246 Conn. at 642). " The 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." Id. (quoting Prato, 246 Conn. at 642). " [T]he predictability of a future defect does not provide the requisite notice to establish municipal liability under § 13a-149." Id. (quoting Prato, 246 Conn. at 644). " Were it otherwise, and municipalities were charged with notice of defects which [in] the future should develop upon the strength alone of their knowledge of such conditions as were calculated to produce them, the expansion of municipal liability for highway defects would be enormous, the burden of repair and remedy cast upon them be vastly enlarged, and a wide field of uncertainty opened up in which triers might wander comparatively unrestrained in speculations as to causes and anticipated results." Prato, 246 Conn. at 647 (quoting Carl v. New Haven, 93 Conn. 622 (1919)).
" [Tb charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by exercise of reasonable care could and should have discovered and remedied it ... The test is, not would the defect had been discovered had the particular portion of the street in question been examined, but would it have been discovered had the municipality exercised reasonable supervision over its streets as a whole." Vega (quoting DeMatteo v. New Haven, 90 Conn.App. 305, 308-09 (2005)).
A plaintiff must prove that the " defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." (Internal quotation marks omitted.)" Nicefaro v. New Haven, 116 Conn.App. 610, 616. " Before one can rely upon the principles of reasonableness and ordinary care to infer notice of a defect under § 13a-149, the claimed highway defect must actually exist. Municipalities are not liable under § 13a-149 for failure to inspect and discover a potential defect, or a defect that might arise at some future time ... the reasonable duty to inspect and discover defects does not arise until there is an actual defect in the highway." Prato v. New Haven, supra, 246 Conn. at 646.
In reviewing the record of the trial, it is clear that the plaintiff failed to prove by a fair preponderance of the evidence that he satisfied all of the elements of a highway defect pursuant to the highway defect statute and applicable law. In particular, the plaintiff failed to prove the second and third elements of said statute to recover for damages. Assuming, for the moment, that a patch of sand on a road constitutes a highway defect under the highway defect statute, the plaintiff failed to establish that the Town had actual notice of the existence of said sand on the roadway. Rather, the testimony from the Town's public works director indicates that the Town had neither received actual notice nor performed any roadway work on Tavern Rock Road in the eight months prior to the date of the plaintiff's accident.
Because the plaintiff failed to satisfy the second and third elements required to be proven under the highway defect statute, it is unnecessary for the court to reach the issue of whether sand constitutes a " highway defect" within the context of the application of the highway defect statute as all four elements must be proven to recover for damages.
While the public works director testified that the Town had actual notice of the rainstorm that occurred five days prior to the date of the plaintiff's accident, the plaintiff also failed to establish that the Town had or should have had constructive notice that there was sand on Tavern Rock Road prior to the date of the plaintiff's accident. Although the plaintiff elicited testimony from the Town's public works director that indicated that the Town lacks an organized system in place to record citizen complaints about its roads, this is immaterial to the matter before the court with respect to the issue of constructive notice. The notice requirement under the highway defect statute has not been met by the plaintiff inasmuch as the plaintiff failed to demonstrate that the Town had or should have had constructive notice of the patch of sand in the roadway by exercising reasonable care in keeping its roads reasonably safe for intended travel and would have, in the exercise of such care, discovered the sand and had a reasonable period of time to remove it. Thus, the plaintiff's testimony surmising that the sand deposited on the roadway must have been caused by the August 7, 2008 rainstorm based upon his use of the same road several days prior, as well of that of a member of the Town's police department concerning of existence of sand on the roadway on the actual date of the accident, is of no significance. Indeed, the plaintiff himself testified that the sand appeared to have been " freshly placed" on the date of the accident. The fact that the investigating police officer testified that he observed that there was not a large amount of sand and notified only the department of public works about the damage to the speed limit sign suggests he also found the sand on the roadway to be unimportant. Thus, it would be unreasonable to find that the Town would or should have discovered the existence of the sand on the roadway prior to the date of the plaintiff's accident while in the process of exercising reasonable care to keep its roadways reasonably safe assuming, again, a patch of sand on a roadway constitutes a " highway defect" within the meaning of the highway defect statute.
Based upon the foregoing reasons, the court enters judgment against the plaintiff and in favor of the Town.