NICHOLAS GIANNONI, PPA, DAVID GIANNONI AND MICHELLE GIANNONI v. COMMISSIONER, DEPARTMENT OF TRANSPORTATION,

SC 19522

Judicial District of Fairfield

 

      Whether General Statutes § 13a-144 Highway Defect Action Barred by Sovereign Immunity Because Defect Located in an Area not Intended for Public Travel.  The plaintiff brought this action under the state highway defect statute, General Statutes § 13a-144, seeking to recover for injuries that he sustained in a bicycle accident.  The plaintiff alleged that he was riding his bicycle on Route 113 in Stratford, a state highway, and that he left the paved portion of the road to travel along the sidewalk in order to avoid oncoming cars that were traveling at a high rate of speed and because the glare of the cars’ headlights was obscuring his vision.  When the sidewalk ended, the plaintiff continued traveling across a private driveway and lawn.  As he was traveling across the grass on the side of Route 113, he fell into a culvert that was hidden by overgrown vegetation.  Although there were three wooden posts in the grassy area between Route 113 and the culvert, the plaintiff was unable to see them from the direction from which he approached the culvert.  The culvert was approximately nine feet from Route 113 in a right-of-way maintained by the state department of transportation.  The defendant filed a motion to dismiss the action, claiming that it is barred by the doctrine of sovereign immunity because it does not fall within the ambit of the highway defect statute.  The defendant argued that the plaintiff was not a traveler on a state highway when the accident occurred and that his act of riding his bicycle into the culvert was not incidental to his use of a state highway but, rather, incidental to his use of a town-maintained sidewalk and the private driveway and lawn.  The defendant also argued that the culvert does not constitute a highway defect under the statute because it is located in an area not intended for public travel or for travel incidental to use of the state highway.  The trial court denied the motion to dismiss, finding that the plaintiff properly pleaded, and that the evidence presented showed, that the accident happened on the state’s right-of-way.  The court also noted that there were remaining material issues of fact.  The defendant appeals, claiming that the trial court wrongly rejected its claim it enjoys sovereign immunity from this suit.  The defendant contends that, because the claimed defect was located in an area not intended for public travel, it could not constitute a highway defect for purposes of § 13a-144.  The defendant also claims that this action falls outside the ambit of § 13a-144 because the plaintiff was not traveling on a state highway at the time the accident occurred.