Graham v. Comm'r of Transp.
Graham v. Comm'r of Transp.
Opinion of the Court
**402*667In this appeal, we consider whether the waiver of sovereign immunity under General Statutes § 13a-144,
The opinion of the Appellate Court sets forth the relevant facts and procedural history. "In the plaintiff's original complaint dated July 5, 2012, as later revised on May 29, 2014 ... he alleged that the [commissioner] has a statutory duty to keep and maintain all highways and bridges within the state highway system in a reasonably safe condition, and that that duty extends to Interstate 95, a public highway in that system. He further alleged that, in the early morning hours of December *66812, 2011, employees, representatives and agents of the department became aware that the surface of Interstate 95 on the Gold Star Memorial Bridge had become icy and unreasonably dangerous, based upon reports they had received from the state police of numerous ice related accidents on the bridge that morning. The plaintiff alleged that later that morning, at 6:38 a.m., as he was driving his pickup truck in the northbound lanes of the bridge about one-tenth of one mile south of the New London-Groton town line, it slid on black ice, rolled over on its side and collided with a bridge structure, causing him serious injuries. The plaintiff alleged that the cause of his accident and resulting injuries [were due to the commissioner's] breach of his statutory duty to keep the bridge in a reasonably safe condition by failing to take adequate measures, in response to the notice he had received of its dangerous condition, either by treating its icy surface, placing or utilizing warning signs in the area to warn travelers of that dangerous condition, or closing the bridge entirely until that dangerous condition could be remedied. Finally, the plaintiff alleged that he had provided timely written notice to the [commissioner] of his intent to sue in connection with his accident and injuries within ninety days of their occurrence, as required by § 13a-144. **405"On September 12, 2012, the [commissioner] moved to dismiss the plaintiff's original complaint on the ground that the location of the accident specified in the plaintiff's written notice of intent to sue described an area so large that it failed to satisfy the requirements of § 13a-144, in violation of the sovereign immunity doctrine. This motion was initially granted by the trial court, Devine, J. Thereafter, however, upon reconsideration of its ruling, the court determined that the language of the plaintiff's written notice was subject to at least one reasonable interpretation that could be found to satisfy the requirements of § 13a-144. Concluding, on that basis, that the adequacy of the plaintiff's written notice to apprise the [commissioner] of the location of his accident and injuries was a disputed issue of fact that should be decided by the finder of fact at trial, the court vacated its initial ruling and denied the [commissioner's] motion to dismiss.
"Thereafter, on May 8, 2014, the [commissioner] moved for summary judgment on three grounds: (1) that he did not breach his statutory duty to keep and maintain the bridge in a reasonably safe condition on the morning of the plaintiff's accident because he lacked actual notice of the specific ice patch that caused that accident, and even if he had constructive notice of that ice patch, he lacked sufficient time after receiving such notice to remedy that ice patch before the plaintiff's accident occurred; (2) insofar as the plaintiff's written notice of intent to sue described the location of his accident, it failed to satisfy the requirements of § 13a-144 ; and (3) that the plaintiff could not prove that the [commissioner's] breach of statutory duty under **406§ 13a-144, if any, was the sole proximate cause of his accident and resulting injuries.
"The [commissioner] supported his motion with a memorandum of law and several attached exhibits, including: sworn affidavits from four employees of his department, Peter Silva, James F. Wilson, Jay D'Antonio and Theodore Engel; an excerpt from the certified transcript *669of the deposition of state police Trooper Robert D. Pierce, who responded to and investigated the plaintiff's accident; and copies of the plaintiff's written notice of intent to sue in connection with his accident, Trooper Pierce's police report concerning the accident, and the department's work log for the day of the accident.
"The main thrust of the [commissioner's] argument on the first of his three grounds for seeking summary judgment, to which the trial court ultimately limited its decision on his motion, was that he did not breach his statutory duty to remedy the ice patch that caused the plaintiff's accident and injuries because, although his employees responded promptly to the first report they received of an ice related accident on the bridge that morning, they could not have reached the bridge with the necessary equipment and materials to treat its icy surface and make it reasonably safe for travel before the plaintiff's accident occurred. The department's call log showed, more particularly, that the department first was notified of icing on the bridge at 5:49 a.m. that morning, in a call from the state police to its Bridgeport operations center, of which Silva was the supervisor. That call reported that an ice related accident had occurred on the bridge at 5:40 a.m. The operations center responded to the call by implementing its standard protocol for responding to off-hour calls for service by calling D'Antonio, the supervisor of the department's maintenance garage in Waterford, which services the Gold Star Memorial Bridge, with instructions to call out a crew to salt the bridge. The Waterford garage, which **407was then closed, routinely dispatched two man work crews, with one crew leader and one helper, to respond to off-hour calls for service. When crew members were called out to salt an icy bridge or highway, they had to drive in their own nonemergency vehicles to the garage, where the department's deicing equipment and materials were stored, open the garage with the crew leader's key, start and load the salting truck, then drive to the location where salting was to be performed. The garage had two crew leaders in December, 2011: Engel, who lived in Madison, approximately thirty to thirty-five minutes away from the garage when there was no traffic, and another unnamed person whose town of residence was not disclosed. D'Antonio assigned Engel to salt the bridge after the 5:40 a.m. accident was reported to him pursuant to his general practice of alternating off-hour call-outs between crew leaders so as not to 'unduly burden' either one of them in the busy winter season.
"After being called out at about 5:51 a.m. on December 12, 2011, Engel and his helper, William Grant, needed more than one hour to get to and open the garage, prepare and load a truck for salting operations and drive the truck to the bridge. By the time they reached the bridge, the plaintiff's accident had already occurred, and the state police, who had been on the bridge since before 6 a.m. responding to other accidents, had closed the bridge. On the basis of this evidence, the [commissioner] argued that he could not be held liable for the plaintiff's accident or injuries because he lacked sufficient time after receiving constructive notice of ice on the bridge at 5:49 a.m. to reach and treat the bridge before the plaintiff's accident occurred.
"Finally, the [commissioner] presented evidence, through Silva's sworn affidavit, that in addition to attempting to treat the bridge with salt on the morning of the plaintiff's accident, his employees attempted, at **4086:23 a.m., to warn motorists approaching the bridge of its dangerous condition by illuminating electronic signboards positioned about one-tenth of one mile before *670the start of the bridge in both directions, which read: 'Slippery Conditions. Use Caution.' The plaintiff, he contended, had to drive by one such illuminated signboard when he drove his truck onto the bridge approximately fifteen minutes later.
"The plaintiff opposed the [commissioner's] motion for summary judgment with his own memorandum of law and accompanying exhibits, including: an excerpt from the certified transcript of the deposition of Diana Dean, the driver who had been involved in the first ice related accident reported to the [commissioner] on the morning of the plaintiff's accident; the police report concerning the Dean accident, which was written by state police Trooper Christopher Sottile, who had responded to and investigated that accident before the plaintiff's accident that morning; an excerpt from the certified transcript of the deposition of Engel, the crew leader who had been called out to treat the bridge after the Dean accident; the sworn affidavit of Silva, the supervisor of the department's operations center in Bridgeport, who described the department's standard protocol for responding to off-hour calls and averred that the previously described electronic signboards had been illuminated before the plaintiff's accident; the plaintiff's own sworn affidavit describing his accident and the events leading up to it; another excerpt from the certified transcript of the deposition of Trooper Pierce, as to his investigation of the plaintiff's accident; the police report of Trooper Pierce concerning the plaintiff's accident; and work logs for the Waterford garage on the day of Dean's and the plaintiff's accidents.
"The plaintiff relied on these submissions to raise issues of fact as to several aspects of the [commissioner's] initial ground for seeking summary judgment. First, **409Dean testified and [Trooper] Sottile wrote in his police report that when [Dean's] accident occurred at 5:40 a.m. on the morning of the plaintiff's accident, the entire surface of the roadway on the northbound side of the bridge was covered with black ice, which caused her vehicle to spin out of control in the right lane of the five lane bridge and continue spinning all the way across the bridge until it crashed into the cement barrier on the opposite side of the roadway. Second, the plaintiff averred in his affidavit and Trooper Pierce confirmed in his police report that when the plaintiff's accident occurred almost one hour after the Dean accident, the entire surface of the roadway on the northbound side of the bridge was still completely covered with black ice. Third, Engel testified, based upon his three years of experience working at the Waterford garage in the winter, that when the outside temperature falls below freezing, the surface of the Gold Star Memorial Bridge, unlike those of other nearby bridges, is prone to freezing over completely, with black ice of the kind he saw on the morning of December 12, 2011, due to the recurring presence of ice fog in the area. The [commissioner's] work logs confirmed that the air temperature at 6 a.m. on that date was 27 degrees Fahrenheit, and the surface temperature of the roadway was 24 degrees Fahrenheit. Fourth, although Silva averred in his affidavit that electronic signboards warning of slippery conditions on the bridge had been illuminated before the plaintiff drove onto the bridge on the morning of his accident, both the plaintiff and Engel swore that they had not seen any such warning signs when they drove onto the northbound lanes of the bridge several minutes later. Fifth, shortly after the plaintiff's accident took place, the state police closed the northbound lanes of the bridge entirely until its icy surface could be treated by department personnel. *671"In light of the foregoing evidence, the plaintiff claimed that the [commissioner] was not entitled to **410summary judgment on the first ground raised in his motion because the reasonableness of a [commissioner's] response to notice he receives of ice on a bridge or highway is a multifactorial factual issue that must typically be decided by the finder of fact at trial. Here, in particular, the plaintiff claimed that he had presented evidence raising several genuine issues of material fact about factors upon which the ultimate resolution of that issue in this case depends. Those issues included: whether the [commissioner] had actual notice of the dangerous icing condition that caused [the plaintiff's] accident and injuries based upon the reported observations by the state police of black ice covering the entire northbound surface of the bridge from almost one hour before the plaintiff's accident until the state police responded to it well after it occurred; whether, in light of the magnitude of the danger presented by the pervasive icing condition of which the [commissioner] had notice, as evidenced by the numerous ice related accidents it had caused in subfreezing weather conditions known to cause icing due to ice fog, it was reasonable for the [commissioner] to call out [people from] a work crew that predictably could not reach the bridge and treat it until more than one hour after they were first called out; whether, if [people from] a work crew called out to treat the bridge could not reasonably be expected to treat it for more than one hour after they were first called out, adequate measures were taken in the interim to warn motorists still using it of its dangerous icing condition before that condition was remedied; and whether, if the bridge could not be treated more quickly and the motoring public could not be warned more effectively of its dangerous condition before it was treated, the bridge should have been closed to all traffic before, not after, the plaintiff's accident. In light of those open, contested issues, the plaintiff insisted that the reasonableness of the [commissioner's] response to the **411black ice condition reported to the department before the plaintiff's accident presented a genuine issue of material fact that should be decided by the finder of fact at trial.
"On January 12, 2015, the trial court, Cole-Chu, J. , heard oral argument on the [commissioner's] motion for summary judgment, at which the foregoing arguments were presented. Thereafter, on May 12, 2015, the trial court granted the [commissioner's] motion for summary judgment. In its memorandum of decision, the trial court held that 'despite ... the drawing of inferences in the light most favorable to the nonmoving party ... the court concludes that the [commissioner] is entitled to judgment as a matter of law. The court cannot conclude that the [commissioner] had actual notice of the black ice condition which caused the plaintiff's accident before the report of that accident. Even treating the black ice on the bridge in general as the defect which caused the plaintiff's accident and treating the black ice accident on the same bridge fifty minutes before the plaintiff's accident as constructive notice to the [commissioner] of that defect, the court finds as a matter of law that the [commissioner's] response time was reasonable. Indeed, the plaintiff does not contend otherwise, other than by claiming that the [commissioner] should have anticipated the black ice condition.' "
*672(Footnotes added and omitted.) Graham v. Commissioner of Transportation , supra,
Thereafter, the plaintiff appealed to the Appellate Court, claiming that "the trial court erred in rendering **412summary judgment in favor of the [commissioner] because the evidence before it on the [commissioner's] motion, when considered in the light most favorable to the plaintiff, gave rise to a genuine issue of material fact as to whether the [commissioner] had sufficient time, after receiving actual or constructive notice of the dangerous icing condition that caused his accident, to remedy that condition before the accident occurred."
The Appellate Court then turned to a consideration of whether the commissioner failed to make adequate use of available temporary remedies-such as the use of a warning sign or closing the bridge-to protect travelers before the department could physically treat the icy condition.
In response, the plaintiff contends that the Appellate Court properly concluded that the plain and unambiguous language of § 13a-144 imposes liability on the commissioner for actions of the state or any of its employees. The plaintiff further argues that we should not overrule Lamb because this court cited it favorably in White , recognizing that the actions of the state and its employees can ripen into a claim against the commissioner, with the legislature's failure to amend § 13a-144 in light of Lamb indicating its validation of that decision. We agree with the plaintiff that Lamb remains good law and conclude that, strictly construed, § 13a-144 waives sovereign immunity for the actions of state employees, but only to the extent that they are performing duties related to highway maintenance and the plaintiff proves that a relationship exists between the commissioner and the state employee such that the commissioner can be found to have breached his statutory duty to keep the highways, bridges, or sidewalks in repair. We further conclude that there is no evidence in the record of the present case to establish the requisite relationship between the commissioner and the state police.
It is well established that " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for **415summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Stewart v. Watertown ,
The general principles governing sovereign immunity are well established. "[W]e have long recognized the validity of *674the common-law principle that the state cannot be sued without its consent ...." (Internal quotation marks omitted.) Cox v. Aiken ,
Accordingly, we must consider whether § 13a-144 operates as a waiver of sovereign immunity with respect to the actions of the state police, which presents a question of statutory construction that constitutes a question of law over which our review is plenary. Gonzalez v. O & G Industries, Inc. ,
**417Importantly, statutes in derogation of sovereign immunity "are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) Hicks v. State , supra,
*675Moreover, in considering the commissioner's claim that we should overrule our construction of § 13a-144 in Lamb , we are mindful that "[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.... It is the most important application of a theory of [decision-making] consistency in our legal culture and ... is an obvious manifestation of the notion that [decision-making] consistency itself has normative value....
"[I]n evaluating the force of stare decisis, our case law dictates that we should be especially wary of overturning a decision that involves the construction of a statute.... When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, [that is] the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided.... More often, however, the legislature takes no further action to clarify its intentions. Time and **418again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature's acquiescence in our construction of a statute.... Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision." (Internal quotation marks omitted.) Spiotti v. Wolcott ,
We begin, then with the language of § 13a-144, which allows a person injured "through the neglect or default of the state or any of its employees by means of any defective highway ... which it is the duty of the [commissioner] to keep in repair" to bring a civil action against the commissioner. In order to satisfy § 13a-144, "the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in [exercising] supervision [over] highways ... should have known of that defect; (3) that 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." (Internal quotation marks omitted.) Ormsby v. Frankel ,
This court first had occasion to address whether the waiver of sovereign immunity under § 13a-144 was limited only to the actions of the department's employees in Lamb v. Burns , supra,
**419The evidence at trial showed that the state police had received a call about the same ice patch seventy-five minutes prior to the plaintiff's accident and, thereafter, arrived on the scene thirty-five minutes before the accident to "investigate the road condition." Id., at 159-60,
In Lamb , this court held that § 13a-144"waives sovereign immunity for defective highway claims based upon the neglect or default not merely of the [commissioner], but of the state or any of its employees, at least when performing duties related to highway maintenance ."
This court's decision in Lamb went on to emphasize the importance of establishing a relationship between the negligent state employee and the commissioner where there is evidence that the commissioner was looking to someone other than a department employee to discharge his statutory duty to keep the highways, bridges, and sidewalks in repair. The court explained that, "[a]lthough the state police are not statutorily charged with duties that concern the repair or maintenance of state highways ... the evidence in the present case indicates that by custom the commissioner ... has availed himself of the assistance of the state police and that the state police have assumed such duties." (Citation omitted.) Id., at 171,
We decline the commissioner's invitation to overrule Lamb . It is well settled that, "[i]n evaluating the force of stare *677decisis, our case law dictates that we should be especially wary of overturning a decision that involves the construction of a statute." (Internal quotation marks omitted.) **421Spiotti v. Wolcott , supra,
Moreover, the conclusion in Lamb that the waiver of sovereign immunity under § 13a-144, while not limited to department employees alone, is constrained by the requirements that the employee be engaged in highway maintenance and be in a Lamb type relationship with the commissioner, is consistent with the purpose of the statute and has not been undermined by subsequent case law. Since our decision in Lamb , we have stated that "[t]he state highway liability statute imposes the duty to keep the state highways in repair upon the ... commissioner ...." (Emphasis added.) White v. Burns , supra,
In light of the foregoing, and mindful that we are to strictly construe waivers of sovereign immunity in favor of the state; e.g., Envirotest Systems Corp. v. Commissioner of Motor Vehicles , supra,
Accordingly, we view the analysis set forth in Lamb , which narrows the scope of potential liability through the waiver of sovereign immunity by requiring proof that the state employee is engaged in highway maintenance and that a relationship exists between the state employee and the commissioner, as responsive to the **425commissioner's primary argument in support of overruling Lamb , namely, that he alone is statutorily responsible for the maintenance of the state's highways and he alone is liable for a breach of that duty. The commissioner's concerns are assuaged by Lamb 's narrowing of the scope of potential liability under § 13a-144. Thus, we decline to overrule our decision in Lamb .
Applying the standard set forth in Lamb to the facts of the present case, we observe that there is almost no evidence in the record before us regarding the nature of the relationship between the state police and the commissioner. Evidence of the relationship must be sufficient to establish a connection between the negligent actions of the state employee in remedying the highway defect and the commissioner's statutory duty, such that the commissioner can be found to have breached his duty.
Moreover, in Lamb , the evidence "established [that a] procedure exist[ed] by which [the department made] available to the state police a list of the home phone numbers of its maintenance supervisors for use after hours and on weekends."
The judgment of the Appellate Court is reversed only as to the conclusion in part I B 3 of its opinion that § 13a-144 extends to the conduct of the state police in failing to close the bridge, and the case is remanded to that court with direction to affirm the trial court's judgment with respect to that claim; the judgment of the Appellate Court is affirmed in all other respects.
In this opinion McDONALD, KAHN and VERTEFEUILLE, Js., concurred.
I would affirm the judgment of the Appellate Court on the first certified issue,
**429The plaintiff, Barry Graham, alleges that on December 12, 2011, he was driving his pickup truck in the northbound lanes of the Gold Star Memorial Bridge, about one-tenth of one mile south of the New London-Groton town line, when at 6:38 a.m. his vehicle slid on black ice, rolled over on its side and collided with a bridge structure, causing him serious injuries. Graham v. Commissioner of Transportation ,
Because it was so early in the morning, the department implemented its "off-hour"
*682protocols, and department personnel were dispatched to salt the bridge.
The Appellate Court also held that there was a "genuine issue of material fact as to whether the state police responded unreasonably to the icing condition of the **430bridge by failing to close the road before the plaintiff's accident."
Today's majority, however, distinguishes the present case from Lamb , holding instead that whether a court has jurisdiction to entertain a claim by a motorist injured on our state highways under our defective highway statute turns on whether the plaintiff brings forth evidence "sufficient to establish a connection between the negligent actions of the state employee in remedying the highway defect and the commissioner's statutory duty, such that the commissioner can be found to have breached his [statutory] duty." I disagree with the majority's interpretation of our defective highway statute and its reinterpretation of Lamb v. Burns , supra,
First, the text of § 13a-144 does not limit its waiver of sovereign immunity in the way the majority holds. Second, I do not agree with the majority's view that Lamb "narrow[ed] the scope of potential liability" under the defective highway statute by requiring evidence of what the majority refers to as a " Lamb type relationship" between the commissioner and the negligent state employee to fit within the statute's sovereign immunity waiver when a plaintiff alleges that someone other than the commissioner's employees was negligent.
*683Obviously, Lamb could neither have added to nor subtracted from the statute's meaning. Third, although the majority declines the commissioner's invitation to overrule Lamb , it has, in my view, reinterpreted its holding in a way that mixes concepts of sovereign immunity, duty and liability. In doing so, I believe the statutory right of recovery for those injured on our state highways has been limited in a way the legislature did not intend, and in a way that is impractical and will lead unnecessarily to multiple actions.
Because I believe the Appellate Court properly construed and applied § 13a-144 and our decision in Lamb , I would affirm its judgment on the first certified question.
I
As we did in Lamb , we must first consider the language of the statute before turning to case law. See General Statutes § 1-2z.
A conclusion that the waiver of immunity extends beyond the negligence of department employees-and beyond employees in some "relationship" with the commissioner-is bolstered by a review of the entire statute, which we are obliged to consider. See, e.g., Bennett v. New Milford Hospital, Inc. ,
The fact that the statute's text directs plaintiffs to bring the action against the commissioner is unremarkable. After all, an action brought under § 13a-144 is brought against the commissioner in his official capacity; Rivers v. New Britain ,
In my view, this was this court's interpretation of the statute in Lamb and should remain our interpretation.
II
The majority posits that our decision in Lamb "narrow[ed] the scope of potential liability" under § 13a-144 by waiving sovereign immunity for the "actions of state employees other than those employed by the commissioner, but only to the extent that they are performing duties related to highway maintenance and the plaintiff proves that a relationship exists between the commissioner and the state employee ...." I do not agree, however, that our decision in Lamb , like the statute itself, requires proof of such a relationship to overcome sovereign immunity.
Lamb involved facts similar to the present case. The plaintiffs in both cases claimed their injuries were caused by icy road conditions: in Lamb , on a Saturday afternoon; Lamb v. Burns , supra,
**436Graham v. Commissioner of Transportation , supra, at 582,
Important to an understanding of the court's precise reasoning in Lamb is that, like the present case, the proceedings in the trial court did not involve the issue of sovereign immunity. A jury had found for the plaintiff in Lamb and awarded damages. Id., at 159,
The court in Lamb rejected the commissioner's "general claim" that "the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for finding the defendant liable under § 13a-144." Lamb v. Burns , supra,
We held instead that "[t]he words the legislature employed in § 13a-144 unambiguously support the conclusion that the statute waives sovereign immunity for defective highway claims based upon the 'neglect or default' not merely of the commissioner of transportation , but 'of the state or any of its employees,' at least when performing duties related to highway maintenance." (Emphasis added.)
In Lamb , we also disagreed with the commissioner's contention that the word "any" within the phrase, "through the neglect or default of the state or any of its employees," in § 13a-144 should "be interpreted in a restrictive sense to refer only to [department] employees." Lamb v. Burns , supra,
Having concluded that we "perceive[d] no ambiguity in the language" used in the statute;
Finally, we noted in Lamb that the evidence indicated "that by custom the commissioner of transportation has availed himself of the assistance of the state police and that the state police have assumed such duties."
My reading of Lamb is that all a plaintiff must allege to fit within the sovereign immunity waiver embodied in § 13a-144 is that the "neglect or default of the state or any of its employees" (including state police employees) took place while performing duties related to highway maintenance. I do not read Lamb to restrict the otherwise broad reach of the statute's unambiguous sovereign immunity waiver. Nor could it. The breadth of the statute speaks for itself. As I discuss next, the portion of Lamb the majority relies on as now requiring proof of the negligent employee's "relationship" with the commissioner was not dispositive of the sovereign **439immunity issue but, at most, went to the issue of whether the jury was properly instructed on the issue of duty.
III
Although the majority indicates it is reaching only the first certified question (sovereign immunity) and not the second certified question
It is true that Lamb noted that the commissioner had "availed himself of the assistance of the state police" in maintaining the highways. Lamb v. Burns , supra,
In the present case, the Appellate Court concluded that the statute's plain language waived the state's sovereign **440immunity and further determined that (1) the state police owed the plaintiff a duty, and (2) there was a genuine issue of material fact as to whether the failure of the state police to close the bridge was unreasonable and a breach of that duty. Graham v. Commissioner of Transportation , supra,
In my view, the question of duty on the part of the state police is distinct from and not dispositive of the first certified question, which concerns the scope of the sovereign immunity waiver. Rather, the question of duty falls within the ambit of the second certified question, which the majority does not reach in favor of its sovereign immunity ruling. If indeed the state police had a duty to close the road in this case, I believe the plaintiff should have the opportunity *688to prove a breach of that duty at trial.
Because I believe that the majority has mixed sovereign immunity (the first certified question) with the concepts of duty and breach (the second certified question), I do not feel compelled in this opinion to measure whether the evidence was sufficient in this case to demonstrate that the state police had a duty to close the bridge or breached that duty. It bears emphasis, however, that the Appellate Court noted that the record contains evidence that "the state police have the authority to close the road if they believe it is in the interest of public safety to do so."
IV
The majority worries that if we construe the statute's waiver of sovereign immunity to include the factual scenario in this case, the "floodgates" will open and plaintiffs will bring claims about the neglect of all sorts of state employees, thereby subjecting the state to additional-and perhaps fanciful-lawsuits. I don't see it.
Although I suppose it is (and has been) true under Lamb that an allegation that the failure of a Department of Social Services employee, a correction officer or a judge(!) to take some action to close a highway could fall within the scope of the waiver of sovereign immunity ("neglect or default of the state or any of its employees"), I am hard-pressed to think of an instance in which such specious allegations could state a claim that might lead to liability. Again, in my view, the majority infuses the concept of duty into the question of the scope of a sovereign immunity waiver. In those clearly more attenuated situations the majority imagines, it is unlikely those state employees or officers would have any duty to keep the highway in repair. Although this might necessitate the commissioner's having to file a motion to strike based on lack of duty; see, e.g., Jarmie v. Troncale ,
Moreover, as the commissioner admits candidly in his brief, the sovereign immunity question he advances is not about the state's ultimate fiscal liability: it is about deflecting responsibility for certain lawsuits to a different forum (i.e., the Claims Commissioner instead of the Superior Court) or to a different agency (i.e., the Department of Emergency Services and Public Protection instead of the Department of Transportation). As discussed in part V, I do not believe that the statute's plain language reflects an expressed concern by the legislature about which agency *689would be named a defendant, but instead was intended to provide a forum for all motorists injured by the negligence of "the state or any of its employees ...." General Statutes § 13a-144.
V
Even when it comes to interpreting sovereign immunity waivers, which are narrowly construed, I do not "presume that the legislature intended [a] bizarre and potentially inequitable result." Lyon v. Jones ,
Under the majority's reading of the statute, plaintiffs injured at times when employees within the department **443are not working could be left without a remedy or might have to pursue a remedy in a different forum with a different statute of limitations if they are unable to establish a " Lamb type relationship" between the commissioner and the state employee.
Motorists injured on our roads likely have no understanding of-and little interest in-which state agency **444or employee should have taken action to abate a "highway defect." Extracting information about any relevant relationship between any negligent nondepartment employees and the commissioner is not likely to be immediately knowable, but might require protracted investigation or discovery. And this information is much more likely to be within *690the ken of the state generally, and the department specifically. See, e.g., Arrowood Indemnity Co. v. King ,
Lamb involved an accident that occurred while the department was closed for the weekend. The present case involved a situation in which icy conditions arose before the department had opened for the day. Like the court in Lamb , therefore, I conclude, on the basis of the statute's plain language, that the legislature acted rationally to waive sovereign immunity as to claims of negligence by the state or any of its employees by means of any defective highway and directed the filing of one action naming the commissioner in his official capacity as a defendant. This avoids making injured parties bring different actions against different state actors in multiple forums, which advances neither the interests of the state nor its citizens and taxpayers.
**445VI
Finally, if Lamb holds as the majority concludes it holds, I would be tempted to vote to overrule Lamb as not consistent with the statute. Of course, principles of stare decisis and legislative acquiescence would counsel against that position.
*691But in my view, Lamb held as the Appellate Court concluded, and as I have detailed previously: § 13a-144 unambiguously applies to the actions "of the state or any of its employees," regardless of their relationship to the commissioner. I believe that the legislature has acquiesced in that holding.
**446I acknowledge it must seem strange to the reader that both the majority and dissent conclude that the legislature has acquiesced in Lamb 's interpretation of the waiver of sovereign immunity contained in our defective highway statute, but disagree on what that interpretation was. But in my view, the legislature's acquiescence is also informed by the way the executive branch has treated Lamb . Specifically, the commissioner in the present case-an executive branch official-has argued that Lamb was wrongly decided and should be overruled. Accordingly, this argument demonstrates the commissioner's own understanding that the Appellate Court's ruling was true to Lamb ; it signals that this is the interpretation the state has relied on.
More than thirty years have passed since this court decided Lamb , more than ample time for us to conclude that the legislature has acquiesced in Lamb 's holding. Indeed, if the legislature had any concerns about our conclusion in Lamb that the language "employed in § 13a-144 unambiguously support[s] the conclusion that the statute waives sovereign immunity for defective highway claims based upon the 'neglect or default' not merely of the commissioner of transportation, but 'of the state or any of its employees,' at least when performing duties related to highway maintenance"; Lamb v. Burns , supra,
Citizens injured by the neglect of the state's employees have come to rely on that holding and reasoning, and the state-through both the legislative and executive **447branches-has certainly been able to plan for any litigation and liability contingencies our precedent might have exposed it to. See Conway v. Wilton ,
For these reasons, I respectfully disagree with the majority's conclusions and would, instead, affirm the Appellate Court's judgment.
General Statutes § 13a-144 provides in relevant 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. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner...."
We granted the commissioner's petition for certification to appeal, limited to the following issues: (1) "[w]hether the Appellate Court properly concluded that the waiver of sovereign immunity under ... § 13a-144 extends to a claim that the state police were negligent in failing to close the bridge before a [department] crew could arrive to address the condition"; and (2) "[w]hether the Appellate Court properly imposed a duty on the state to employ 'adequate interim measures,' in place of or in addition to the [commissioner's] duty to remedy a highway defect within a reasonable time under the circumstances after actual or constructive notice ...." Graham v. Commissioner of Transportation ,
"Subsequent to the trial court's ruling, the [commissioner] moved for reconsideration, which was denied by the court. The [commissioner] did not file an interlocutory appeal from the trial court's denial of his motion to dismiss." Graham v. Commissioner of Transportation , supra,
"On October 14, 2015, the plaintiff filed a motion for articulation, asserting that he never conceded that fifty minutes was a reasonable response time. Two weeks later, the trial court, Cole-Chu, J. , issued a memorandum stating that regardless of any such concession, the court would have ruled the same way on the [commissioner's] motion based upon the evidence before it." Graham v. Commissioner of Transportation , supra,
The commissioner also argued, as an alternative ground for affirmance, that "the trial court lacked subject matter jurisdiction over this action because the plaintiff's written notice of intent to sue failed to satisfy the requirements of § 13a-144... insofar as the statute required him to disclose the location of his accident and resulting injuries." Graham v. Commissioner of Transportation , supra,
The court also explained that § 13a-144 was unambiguous and noted that while an examination of its legislative history would be superfluous given this conclusion, there was no legislative history explaining the relevant language of the statute. Lamb v. Burns , supra,
This court also noted that "[a] reasonable interpretation of § 13a-144... implies that the commissioner is not relieved of potential liability when he calls upon the assistance of a contractor or other person from outside his department to perform highway maintenance operations ." (Citations omitted; emphasis added.) Lamb v. Burns , supra,
The dissent claims that § 13a-144"sweeps broadly, reaching allegations of neglect or default 'of the state or any of its employees.' " (Emphasis added.) Concluding that the statute waives sovereign immunity for the neglect or default of any state employee is problematic for two reasons. First, this interpretation renders meaningless the requirement that a plaintiff bringing an action under § 13a-144 must prove, by a preponderance of the evidence, that the commissioner "actually knew of the particular defect or ... should have known of that defect." Ormsby v. Frankel , supra,
If the legislature's use of the term "any" was read without regard to the relationship between a state employee and the commissioner, the actions of a corrections officer, Judicial Branch employee, social worker, or any other state employee could trigger liability under § 13a-144.
The dissent concedes that such an absurd result is possible, but contends that it is "hard-pressed to think of an instance in which such specious allegations could state a claim that might lead to liability." This approach to sovereign immunity is untenable because it ignores the purpose of the doctrine and would require the state to litigate every case in which any state employee failed to report a highway defect. See Chadha v. Charlotte Hungerford Hospital ,
To this end, we disagree with the dissent's description of our analysis as it concerns these "specious" or "more attenuated" allegations as having improperly "mixed sovereign immunity (the first certified question) with the concepts of duty and breach (the second certified question)." We agree with the dissent that duty and sovereign immunity are doctrinally separate concepts, even though the proof necessary for a plaintiff to establish breach of duty and entitlement to the waiver of sovereign immunity may well overlap. See Coleman v. East Joliet Fire Protection District ,
A plaintiff may establish Lamb 's requisite relationship by presenting evidence that demonstrates that a formal procedure exists in which the commissioner has delegated his duty to remedy highway defects to the negligent state employee. For example, evidence that the state police had a formal directive from the commissioner to report highway defects and that the state police had assumed that duty.
We acknowledge that there are factual similarities between Lamb and this case. For example, like Lamb , the present case involves an off-hours call about an icy road condition. See Lamb v. Burns , supra,
Given our conclusion that, because there is no evidence establishing a Lamb type relationship between the state police and the commissioner, the commissioner is not liable for the actions of the state police, we need not reach the second certified question. See footnote 2 of this opinion.
The dissent states its concern about the potential need for a trial type hearing and "protracted investigation or discovery" with respect to the proof of the requisite relationship given that "[m]otorists injured on our roads likely have no understanding of-and little interest in-which state agency or employee should have taken action to abate a 'highway defect,' " and that "this information is much more likely to be within the ken of the state generally, and the department specifically." The dissent further finds "no evidence in the broad waiver of sovereign immunity contained in our defective highway statute that ... the legislature intended that those injured on state highways must engage in such sleuth work simply to meet a jurisdictional predicate." The dissent has not, however, provided any textual-or even extratextual-evidence to demonstrate that the legislature viewed proof of entitlement to the waiver of sovereign immunity under § 13a-144 as different from any other evidence to be obtained through routine jurisdictional discovery. Similarly, the dissent has failed to demonstrate that the "meaningful" opportunity to conduct discovery about jurisdictional matters that is required by Standard Tallow Corp. v. Jowdy ,
See footnote 2 of the majority opinion.
Specifically, the Appellate Court reversed the trial court's grant of summary judgment in favor of the defendant, the Commissioner of Transportation, holding that there is a genuine issue of material fact as to whether the department acted unreasonably in responding to notice of the icing condition, including whether it failed to make adequate use of available temporary remedies, such as electronic signs, while the icy condition was being remedied. Graham v. Commissioner of Transportation , supra,
Although our decision in Lamb preceded the legislature's passage of § 1-2z in 2003, it is useful to consider the plain language of § 13a-144 because Lamb held the language to be "unambiguous"; see Lamb v. Burns , supra,
General Statutes § 13a-144 provides: "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. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice."
See footnote 2 of the majority opinion.
For example, under the majority's interpretation of the statute and Lamb , if the state police indeed had a duty to close the bridge, the plaintiff, rather than being able to bring an action under the defective highway statute's sovereign immunity waiver, would have to present a "claim" to the Claims Commissioner alleging negligence on the part of the state police. See General Statutes § 4-141 et seq. Rather than having the benefit of the two year statute of limitations under § 13a-144, the plaintiff would face a one year statute of limitations with the Claims Commissioner. See General Statutes § 4-148.
Exactly what a plaintiff would have to establish at this hearing is not clear. The statute offers no guidance and the majority offers only that a plaintiff can establish this relationship by providing evidence of "custom," "usual procedure," "formal procedure," whether the commissioner "availed" himself of the police, and whether the police had "assumed" the duty. Whether these factors are exhaustive or are mandatory predicates is not clear, nor to what extent a plaintiff can rely on traditional tort law principles and case law regarding duty.
Both the commissioner and the majority rely on language from our decision in White v. Burns ,
I do not agree with the conclusion the majority draws from this language. First, the only neglect or default at issue in White was the commissioner's; the court did not have to address the neglect or default of other state agencies or employees, as was at issue in Lamb . Thus, White in no way considers the broader language, "the state or any of its employees," while considering the commissioner's duties and, of course, does not in any way suggest that it overruled Lamb . Second, White was only about "sole proximate cause" and not about the scope of the legislature's waiver of sovereign immunity. White v. Burns , supra,
Finally, this syllogism does not work. It might be true that the commissioner has a duty to repair and maintain the state's highways; and he alone may have a duty to repair the state's highways. But that does not mean he alone has "duties related to highway maintenance." Lamb v. Burns , supra,
Reference
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- Barry GRAHAM v. COMMISSIONER OF TRANSPORTATION
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