Dobie v. City of New Haven 219 Conn. App. 487 (4-18-2023)

By: Mark J. Claflin

mclaflin@hl-law.com

860-249-1361 x 143

This civil suit was brought after a City of New Haven snowplow knocked a manhole cover out of its seat, and the Plaintiff, operating in a motor vehicle behind the plow, drove into the open manhole. This caused his car to stop abruptly, and resulted in bodily injury. Plaintiff sued the plow operator for negligence, arguing that the failure to keep the plow blade high enough is what caused the dislodging of the manhole cover. The City argued that the negligence claim should be dismissed because the plaintiffs exclusive remedy was the Connecticut defective highway act CGS 13a–149, a remedy which was not pursued. The trial court declined to dismiss the case and allowed the jury to deliberate on a claim of negligence.

After the jury returned a verdict for the plaintiff and awarded damages, the City appealed, advancing the argument that the defective highway act was plaintiff’s exclusive remedy. The Appellate Court agreed and reversed the jury verdict. The Connecticut Supreme Court agreed to hear the appeal from the Appellate Court, and has now affirmed the Appellate Court reversal of the jury verdict in favor of the plaintiff at trial. Several principles emerged from this decision that will guide future suits brought pursuant to the defective highway act, CGS 13a- 149.

1. An uncovered manhole is, as a matter of law, a highway defect; which, accordingly, makes CGS 13a–149 the plaintiff’s exclusive remedy.

2. In order to proceed with a defective highway claim a plaintiff must give notice of intent to sue within 90 days of the injury or damage complained of. This is a jurisdictional mandate so a motion to dismiss the claim can be raised at any time, including after trial, but before appeals are exhausted.

3. The plaintiff does not get a choice of remedy. Once the facts are clear that the injury occurred by means of a defective road or bridge, a plaintiff may not elect to proceed with a negligence claim, or a nuisance claim, even though a Town employee’s negligence may have been what created the defect in the first instance.

4. The fact that the plaintiff had the difficult task of demonstrating an essential element of the defective highway act – that the City of New Haven had notice of the uncovered manhole with an opportunity to cure it–did not negate the clear legislative intent that CGS 13a–149 is a Plaintiffs sole remedy whenever the facts demonstrate an injury occurred by means of a defective road or bridge. Plaintiff cannot raise futility as grounds to pursue an alternate remedy.