Fairfield County Defective Highway Premises Liability Claims

Before the Connecticut legislature passed the highway defect statute, the State of Connecticut had immunity for personal injuries caused by a defective state highway, sidewalk, overhead traffic light, ditch, gravel sand, raised asphalt, debris or wet leaves located in, upon, or near the traveled portion of a state controlled roadway.The state highway defect statute known as Connecticut General Statute 13a-144 eliminated the State of Connecticut's sovereign immunity for such travel claims.

Unfortunately, however, the plaintiff has a stringent burden of proof when prosecuting a Connecticut highway defect premises liability claim. The plaintiff must prove a defect, notice of the defect, injury by way of a defective highway, bridge or sidewalk, due care exercised by the injured plaintiff and that the defect was the sole proximate cause of the personal injury suffered by the plaintiff.

As a condition precedent to maintaining the suit, the Commissioner of Transportation, the defendant, must receive a written notice of the exact defect within 90 days of the incident noting the cause of the injury, the time of the injury, the fact specific place of the injury, the general description of the injury and that the injured person is making a claim for damages under 13a-144.

The burden of proof of this condition precedent is on the plaintiff to prove that notice was provided to the Commissioner of Transportation. The notice should be served by a Connecticut State Marshal with a duly noted return. Furthermore, each injured person must provide his or her own written notice.

The bottom line is that the notice must fully and precisely describe the exact location of the defect. The rational behind this statutory and case law requirement is that the State of Connecticut must be allowed to fully and fairly investigate all circumstances surrounding the asserted claim.

An effective way to provide and prove reasonable notice is for the plaintiff's attorney to attach a map and pictures of the defect to the written notice as an incorporated exhibit.

One of the difficulties that is encountered by the plaintiff's attorney when investigating a State of Connecticut highway defect case is the underlying question of whether the defect is within a State of Connecticut highway, roadway, street, sidewalk or right of way.

Often, a client may fall or be injured within an area that appears to be controlled by an abutting landowner but in reality the defective area is within the control of the Department of Transportation or DOT. Frequently, highway DOT maps must be examined to determine the control of the area in question. Additionally, failure to timely provide a 90 day written notice may box a client out of an underlying action against the Commissioner of Transportation where the injured plaintiff fell within a highway area controlled by the State of Connecticut Department of Transportation.

The most difficult part of a highway defect claim is proving that the plaintiff was in exercise of due care. Unlike the typical premises liability claim against a landlord, homeowner or commercial property owner, the plaintiff must prove that he was free from any and all comparative negligence.

Comparative negligence in non highway defect cases generally must be alleged by the defendant and proven by the defendant by way of special defense. The key is that in non highway defect cases, the defendant has the burden of proof of comparative negligence.

In the 13a-144 state highway defect case, however, the plaintiff has the burden of proving due care or no comparative negligence. The defect must be the sole proximate cause of the plaintiff's injuries. If the plaintiff's conduct is a substantial factor in causing the injury or if a third party caused the injury, the state will not be liable under the defective highway statute. This is a very difficult burden of proof for the plaintiff to make. The net result is that many highway defect cases are difficult to prove and hence are often not won by the plaintiff at trial.

Additionally, there are groups of cases that do not qualify as viable highway defect cases because the defects are held to not obstruct, hinder or operate as a menace to travel. Adjacent catch basins to a roadway, over head tree limbs (as opposed to street tree limb debris) and falling rock from an adjacent embankment are examples of cases that the courts have ruled do not fall under the defective state highway statute.

Finally, municipalities have their own statute that is seperate and distinct from the state highway statute. The municipal highway defect statute is known as 13a-149. This statute also has a stringent notice requirement and is strictly construed by the court. Both statutes have a two year statute of limitations. In a municipal case, the notice is served on the city or town clerk. For obvious reasons, it is important to first determine if a roadway or sidewalk is controlled by either the State of Connecticut or a local municipality so that the proper party is given notice and eventually named as a defendant in any suit.

I hope this blog on injuries sustained on Connecticut state highways, roadways and/ or sidewalks has been informative. If you have a premises liability claim in Stamford, Fairfield County, or anywhere in Connecticut that you would like investigated, feel free to contact Peter Rotatori, III of The Rotatori Law Firm.

Regards, Peter Rotatori, III, Esq.


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