Lipwich v. Frankel
Lipwich v. Frankel
Opinion of the Court
The plaintiff appeals from the judgment rendered by the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly (1) rendered summary judgment by incorrectly interpreting applicable statutes and (2) refused the plaintiff permission to amend her complaint. The plaintiff also alleges that the doctrine of sovereign or governmental immunity should be abolished for negligence claims against the state. We affirm the judgment of the trial court.
The plaintiff commenced this action against the defendant commissioner of transportation seeking to recover for personal injuries claimed to have been suffered as a result of a fall on October 8, 1992, on a sidewalk adjacent to the building occupied by the department of motor vehicles (DMV) on State Street in Hamden.
The defendant filed a motion for summary judgment claiming that (1) the department of transportation (DOT) had no statutory duty to maintain or repair the area of the alleged fall and (2) the plaintiff had failed to allege in her complaint that a state agency requested the DOT to maintain the subject sidewalk so as to invoke the provisions of General Statutes § lSb-30.
I
The plaintiff claims that § 13b-30 should be read to include sidewalks.
“[W]hen it is shown that the commissioner has a legal duty to repair or maintain such roads and drives pursuant to § 13b-30, § 13a-144 imposes liability on the commissioner for injuries sustained on those roads and drives as a result of the commissioner’s negligence in performing his or her duty.” Amore v. Frankel, 228
The duty under § 13b-30 is to maintain roads and drives. The legislature saw fit not to include sidewalks, although it did include sidewalks in other sections of the statute.
II
The plaintiff next argues that the trial court improperly denied her request for permission to amend her complaint to add a count of negligence against the state. The plaintiff claims that she falls within the scope of the “foreseeable class” exception to the doctrine of governmental immunity as set forth by our Supreme Court in Burns v. Board of Education, 228 Conn. 640, 644, 638 A.2d 1 (1994). We are unpersuaded.
Additional facts are needed for analysis of this claim. The only defendant in this action is the commissioner of transportation. The plaintiff sought to amend her complaint to add a claim against the state for negli
Ill
The plaintiff argues that sovereign immunity should be abolished in Connecticut. She cites other states that have abolished governmental immunity for certain claims through legislative and judicial exceptions.
Our Supreme Court has refused to abrogate the doctrine of governmental immunity by judicial fiat. Fidelity Bank v. State, 166 Conn. 251, 255, 348 A.2d 633 (1974). “The source of sovereign power in the state of Connecticut is the constitution, and it is recognized that a sovereign is immune from suit ‘on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ [Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977)] . . . .” (Citations omitted.) Herzig v. Horrigan, supra, 34 Conn. App. 818.
“The question whether the principles of governmental immunity from suit and liability can best serve this and succeeding generations has become, by force of the long and firm establishment of these principles as precedent, a matter for legislative, not judicial, determi
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 13b-30 provides in pertinent part: “Maintenance of roads on state property. From funds appropriated to the Department of Transportation for general operations, the Commissioner of Transportation shall, on request of the state agency having jurisdiction over the property
On appeal, the defendant, as part of his counterstatement of the issues and not as a cross appeal or an alternate reason for affirming the trial court, also claims that the trial court improperly “fail[ed] to grant summary judgment for [the] defendant on the ground that the court lacks subject matter jurisdiction since the complaint fails to allege that the Department of Motor Vehicles requested the Department of Transportation to maintain the sidewalk where the plaintiff alleges to have fallen.”
GeneralStatut.es § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”
General Statutes § 13a-14 provides: “There shall be a system of state highways which shall include (1) state primary highways, which are highways serving the predominant flow of traffic between the principal towns of this state and between such towns and similar towns of the surrounding states; (2) state secondary highways, which are connecting and feeder high
See footnote 1.
The plaintiff concedes, and we agree, that the sidewalk where she claims to have fallen is not part of the state highway system as defined under § 13a-14.
See, e.g., General Statutes §§ 13a-91 (a), 13a-92 and 13a-258.
The record discloses that the plaintiff first sought unsuccessfully to cite in the state as an additional party defendant. The plaintiff did not appeal from that denial.
General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be hable.”
Reference
- Full Case Name
- SARA LIPWICH v. EMIL H. FRANKEL, COMMISSIONER OF TRANSPORTATION
- Cited By
- 7 cases
- Status
- Published