Horrigan v. Town of Washington
Horrigan v. Town of Washington
Opinion of the Court
This appeal arises out of a motor vehicle accident on an early April morning that resulted in the death of seventeen year old Richard Tyler Horri-gan (decedent). His parents, the plaintiffs, Richard Hor-rigan and Kathleen Horrigan, coadministrators of the decedent’s estate,
The following facts reasonably could have been found by the jury. On the morning of April 9,2003, the decedent was driving himself and his younger brother from their home to school. The decedent and his brother traveled up Baldwin Hill Road in Washington and the decedent’s motor vehicle slid on a patch of black ice on a straight portion of the road. The motor vehicle slid to the side of the road because it did not have a strong grip and it eventually ended up on the road’s shoulder. The vehicle
The plaintiffs brought the underlying action in a two count complaint against the defendant pursuant to General Statutes § 13a-149
Thereafter, the plaintiffs filed a motion to set aside the verdict and for a new trial, claiming that the court erred (1) in its charge as to whether an open storm drain on the shoulder of Baldwin Hill Road constituted a defect, (2) in failing to charge the jury that, as a matter of law, the public would be expected to use the shoulder of Baldwin Hill Road in an emergency, (3) in its charge regarding the decedent’s comparative negligence and (4) in allowing the defendant’s expert to testify. The court denied the motion. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The plaintiffs’ principal claim is that the jury’s finding that the storm drain was not a defect was clearly erroneous. The plaintiffs argue that the “overwhelming evidence at trial clearly established that the uncovered
We first note that this claim was not presented to the trial court. In their motion to set aside the verdict, the plaintiffs challenged the court’s instructions and argued there was error in the court’s charge as to whether an open storm drain was a defect. In the motion, the plaintiffs stated that “the [cjourt’s charge precluded the jury from ever finding in the plaintiffs’ favor and, in fact, mandated that the jury find that the open storm drain in question did not render Baldwin Hill Road defective.”
“We are disinclined to disturb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses. . . . The concurrence of the judgments of the [trial] judge and the jury ... is a powerful argument for upholding the verdict. . . . Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In
“A defect in a highway has been described as any object or condition 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.” (Internal quotation marks omitted.) Trotta v. Branford, 26 Conn. App. 407, 410, 601 A.2d 1036 (1992). “It is true that there may be situations where the source of danger, although situated without the way, is of itself so direct a menace to travel over the way and so susceptible to protection or remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a failure to exercise reasonable care to keep the highway reasonably safe. . . . But a municipality is not an insurer against accidents occurring on its highways; its duty is not to make its streets absolutely
The plaintiffs argue that “[t]he overwhelming evidence at trial clearly established that the uncovered and unguarded drainage hole on the shoulder of Baldwin Hill Road barely three feet from the paved roadway made travel unreasonably unsafe and was a ‘defect’ within the meaning of ... § 13a-149 [and that] [t]he jury’s finding to the contrary can only be explained as a mistake and is clearly erroneous.” Pursuant to Trotta v. Branford, supra, 26 Conn. App. 410, the jury needed to find that the drain “necessarily obstructed] or hindered] one in the use of the road for the purpose of traveling thereon . ...” In its charge to the jury, the court stated that, as a matter of law, the “area in which the storm drain is located is expected to be used by
There was sufficient evidence to support the jury’s finding that the plaintiffs did not meet this burden. “[T]he analysis under § 13a-149 centers on the word ‘defect’ and not on the word ‘road. ’ ” Ferreira v. Pringle, supra, 255 Conn. 357. Although the jury was instructed that the drain was in the traveled portion of the road, it was up to the jury to determine whether it necessarily obstructed or hindered the use of the road. There was evidence that the drain was placed off of the paved portion of the road, and that the majority of traffic was on the paved portion. Further, as in Chazen, evidence suggested that the drain was placed out of the direct line of traffic so as not to obstruct traffic. Matthew Somerset, a former worker for the defendant familiar with the storm drains on Baldwin Hill Road, testified that the drains were intended to catch surface water from the road and that they had pipes leading out of them in order to facilitate draining the road runoff. Somerset also testified that there were two wooden posts placed near the subject drain on Baldwin Hill Road. Somerset testified that these posts were roughly eight to ten inches in circumference and were buried approximately three to five feet into the ground. Using a photograph provided by the defendant’s counsel, Somerset pointed to the existing posts at the scene of the accident. Finally, Somerset testified that the posts were not placed to prevent cars from falling into the drain.
Richard Binkowski, a state police trooper and trained accident reconstructionist, described the storm drain as “kind of like a trough . . . concrete edges and a concrete back but there was no actual, if you understand, was no actual front. It was kind of like a rectangle
On the basis of the police report of the accident, the testimony presented at trial and the multiple photographs of the accident scene introduced at trial, the jury reasonably could have concluded that the drain was, as the court instructed, “in the area . . . expected to be used by travelers,” but not in a position so as to “necessarily obstruct or hinder” the common use of the road. The evidence showed that the drain was more than three feet from the paved portion of the road and that it was placed in its position specifically for the purpose of making the paved portion of the road safer by draining excess water. Thus, the jury reasonably could have inferred that the drain was not an unaccounted for obstruction, like, for example, a pothole or an exposed culvert in the paved portion. Testimony indicated that there were wooden posts of a visible size, which identified the location of the drain to passersby. Although the court instructed the jury that the drain was in a portion of the road expected to be used by travelers, the jury reasonably could have inferred from the evidence and testimony that this use was dissimilar to the use of the paved portion of the road and that
The plaintiffs further claim that the court erred in refusing to instruct the jury that the defendant had a duty to provide a fence or rail to guard the storm drain, refusing to instruct the jury to use a prudent person of like age standard to determine whether the decedent breached his common-law duty, and admitting into evidence the testimony of the defendant’s expert. In order for a plaintiff to prevail in an action brought under § 13a-149, the jury must find a defective condition as alleged in the complaint. Because the jury here did not do so, no purpose will be served in addressing the plaintiffs’ other claims.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs mistakenly commenced this action as the parents and next friends of the decedent. On July, 5, 2005, the court granted their motion to be substituted as the plaintiffs in their capacities as coadministrators of the decedent’s estate.
General Statutes § 13a-149 provides: “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. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefore. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”
Although the jury did not find that the open storm drain constituted a defect pursuant to § 13a-149, the jury did find that on the day of the accident, Baldwin Hill Road was not reasonably safe for public travel due to the
This claimed instructional error is not raised in this appeal.
The motion’s opening sentence states: “The plaintiffs, though counsel, hereby move to set aside the jury’s verdict in favor of the defendant and, further, move for a new trial upon the grounds that the verdict is contrary to the law and against the weight of the evidence.”
Reference
- Full Case Name
- RICHARD HORRIGAN v. TOWN OF WASHINGTON
- Cited By
- 3 cases
- Status
- Published