Connecticut Defective State Highway Law – Right To Sue

 

Connecticut state law allows a person injured because of a defective state highway to sue the state for damages, but only if the highway defect was the sole cause of the injuries (CGS 13a-144). There is a similar law allowing people to sue a town for roads under municipal control (CGS 13a-149). If the injured person does not use the defective highway statute, he or she would have to use the claims commissioner law. Both statutory provisions require written notice of the claim to filed on Department of Transportation or the municipality (depending on whether the road is controled by the state or the town) within 90 days of the accident. Furthermore, the notice of claim requires a detailed description of the location of the accident, the alleged defect and the nature of the injuries.

Generally, the law requires those who wish to sue the state, or to present a claim against it, to file a claim with the claims commissioner unless their case falls within an exception established by law. They must file their claim with the commissioner within one year after it accrues. A claim accrues on the date the damage or injury is sustained or discovered or, in the exercise of reasonable care, should have been discovered. But, the law requires that the claim be submitted within three years after the date of the act or event that allegedly caused the damages (CGS � 4-148).

Of course anyone who believes they may have a claim against the state should consult with one of our firm’s attorneys as soon as possible to determine what approach to take and to make sure�your legal interests are being protected. As you can see from this overview of Connecticut’s law on highway defect claims, the law is complex and failure to meet certain statutory deadlines and written notifications can prove fatally defective to your legal case.

RIGHT TO SUE THE STATE

Generally, the law requires those who wish to sue the state, or to present a claim against it, to file a claim with the claims commissioner unless their case falls within an exception established by law.

Certain types of claims are excepted from the claims commissioner process:

1. claims based on a violation of federal law;

2. claims for the periodic payment of disability, pensions, retirement, or other employment benefits;

3. claims for tax refunds;

4. claims for which an administrative hearing procedure is established by law;

5. requests by political subdivisions for the payments of grants in lieu of taxes; and

6. claims based on a state law that allows a claim to go directly to court (CGS � 4-142).

We found six statutes that allow classes of people to sue the state directly instead of going to the claims commissioner. These statutes are:

1. CGS � 4-61, which authorizes those who have entered into a highway or public works contract with the state to bring disputed claims directly to court;

2. CGS � 4-197, which authorizes those who are aggrieved by a violation of the law protecting the privacy of personal data about state employees to sue for damages;

3. CGS � 13a-144, which authorizes those injured by a defective road or bridge to sue the transportation commissioner for damages (the defect must be the sole proximate cause);

4. CGS � 17a-550, which allows a person injured by a violation of the patient’s bill of rights for mentally ill people to sue the state or its commissioners for damages (Mahoney v. Lesnick, 213 Conn. 548 (1990));

5. CGS � 19a-24, which allows people to sue the commissioners of Public Health and Mental Retardation, their staffs, and certain other, related entities for official acts or omissions if the damage claims exceed $ 7,500; and

6. CGS � 52-556, which allows anyone injured because of the negligence of any state official or employee when operating state owned and insured motor vehicles to sue the state for damages.

If the law allows a lawsuit against the state instead of using the claims commissioner process, the person bringing the suit must have a state marshal, constable, or other statutorily authorized officer serve process by (1) leaving a true and attested copy of the process, including the declaration or complaint, at the attorney general’s office or (2) sending a true and attested copy of the process, including the summons and complaint, to the attorney general’s office by certified mail, return receipt requested (CGS � 52-64).

Defective Highway Statute

As noted above, state law allows a person injured because of a defective state highway to sue the state for damages but only if the highway defect was the sole cause of the injuries (CGS � 13-144). There is a similar law allowing people to sue a town for roads under municipal control (CGS � 13a-149).

To bring a successful claim under either defective highway statutes, the plaintiff must prove, by a fair preponderance of the evidence, that:

1. the highway was defective as claimed;

2. the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways, it should have known of that defect;

3. 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. the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove that his own actions did not contribute to the injury (Prato v. New Haven, 246 Conn. 638, 642 (1998)).

It is difficult for an injured person to win a defective highway case because if the injured party or someone else is as little as one percent at fault, the injured party cannot recover against the state or municipality.

Our state Supreme Court has held that to charge the state or a municipality with constructive notice under the defective highway statutes, the plaintiff must establish that the defect existed a sufficient length of time and was of such a dangerous character that the government by the exercise of reasonable care could and should have discovered and remedied it. The test is not whether the defect would have been discovered had the particular portion of the street in question been examined, but would it have been discovered had the government exercised reasonable supervision over its streets as a whole. The government is considered to have notice of what such supervision would disclose (Triendi v. Waterbury, 128 Conn. 464 (1942); Mausch v. Hartford, 184 Conn. 467(1981)).

In a recent case involving the municipal liability law (Renzullo v. Town of Litchfield, LLICV05500042S,39 Conn. L. Rptr. 761, August 10, 2005), the Superior Court allowed a case to go to trial where the injured party alleged that:

1. he was operating his vehicle on a municipal road when he encountered a flooded roadway, which was icy;

2. when the tires passed over the icy portion and the vehicle spun and flipped on its side;

3. the roadway was flooded because a beaver dam obstructed the waterway abutting that portion of the road, causing it to cover the road with water, which then became icy, creating a dangerous and defective condition;

4. the town violated its statutory duties in that it allowed the water to accumulate on the roadway;

5. it knew or should have known that the road had water on it, causing the road to be icy and dangerous;

6. it took no action to remedy the defect within a reasonable time, by either dismantling the beaver dam or establishing a drain, so that the water would not accumulate on the roadway; and

7. it failed to warn motorists of the danger or install appropriate barriers.

The plaintiff claimed that the violation of the statutory duties was the sole proximate cause of the accident and the damage to his truck.

In allowing the case involving Litchfield to go to trial, the Renzullo court concluded that:

1. the town should have known that the defective condition due to the water would inevitably become a dangerous condition due to the ice, once the temperature reached 32�F; and

2. it is for a judge or jury to determine whether the town acted reasonably under the circumstances in not taking the actions that it had taken in the past to alleviate the accumulation of water on the roadway, before the water transformed into ice.

FILING WITH THE CLAIMS COMMISSIONER

Authority of Claims Commissioner (CGS �� 4-141, -142, -148)

A claims commissioner, appointed by the governor with the advice and consent of the General Assembly, hears and determines claims against the state. The law defines a claim as a petition for the payment or refund of money by the state or for permission to sue the state. It explicitly excludes claims for employment benefits, including disability, pension, and retirement benefits; claims that under law can be brought through a lawsuit or administrative hearing; requests by political subdivisions for payment in lieu of taxes; and claims for tax refunds. Any claim that can be presented to the claims commissioner cannot be presented against the state in any other way.

Notice of Claim (CGS � 4-147)

Anyone who wants to present a claim against the state must file a notice with the clerk of the Office of the Claims Commissioner. This notice must contain:

1. the name and address of the claimant and the claimants attorney if he or she is represented;

2. a concise statement of the basis of the claim, including the date, time, place, and circumstances of the act or event complained of;

3. the amount requested; and

1. a request for permission to sue the state, if such permission is sought.

If sent by mail, the notice is deemed to have been filed on the date it is postmarked. A $ 50 filing fee is required for claims over $ 5,000, and a $ 25 fee is needed for lesser claims. The commissioner can waive the fees for good cause.

Notice of Injury (CGS � 4-146)

Anyone who suffers damage or injury because of the defective condition of a building, park, or ground owned or leased by the state must, within a reasonable time after the damage or injury, notify the official in charge of the date, time, place, and circumstances of the damage or injury. But no claim can be defeated for violating this requirement unless the state shows that it was substantially prejudiced by the lack of notice.

Statute of Limitations (CGS � 4-148)

A claim must be presented within one year after it accrues. By law, a claim accrues on the date the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered. But no claim can be presented more than three years from the date of the act or event complained of.

The General Assembly may, through special act, authorize a person to present a claim after the time passes if it (1) deems the authorization to be just and equitable and (2) makes an express finding that the authorization is supported by compelling equitable circumstances that would serve a public purpose.

Representation by the Attorney General (CGS � 4-149)

The attorney general must represent the state agency or department before the claims commissioner unless he determines the states interests do not require it. In making his determination, the attorney general must consider (1) the sum of money involved; (2) the legal significance of the claim as a precedent; and (3) the complexity of the legal and factual issues presented.

When the representative for the state decides to oppose a claim, the representative must file with the claims commissioners clerk a notice of opposition, in duplicate, containing a concise statement of the representatives objections. The clerk must promptly deliver a copy to the claimant.

Hearings (CGS � 4-151)

Claims must be heard as soon as practicable after they are filed. The following claims must be given priority when scheduling hearings:

1. claims by people who are 65 or older or who reach age 65 during the pendency of the claim;

2. claims by people who are terminally ill, as defined by state law; and

3. claims by executors or administrators of estates.

Hearings may be held at (1) the Office of the Claims Commissioner, (2) at any available hearing facility in the State Capitol or Legislative Office Building, (3) upon request at any courthouse serving a judicial district or geographical area, or any city or town hall in the state or (4) such other suitable place as the claims commissioner finds is convenient and just to the claimant and to the attorney general (CGS � 4-151(a)).

The claims commissioner may call witnesses, examine and cross-examine witnesses, require information not offered by the claimant or the attorney general, and stipulate matters to be argued. The claims commissioner is not bound by any law or rule of evidence, except as he may provide by his rules (CGS � 4-151(b)).

The claims commissioner may administer oaths, require depositions to be taken, issue subpoenas, and order inspection and disclosure of books, papers, records, and documents. Upon good cause shown any such order or subpoena may be revoked by the claims commissioner (CGS � 47-151(c)).

If any person fails to respond to a subpoena, the claims commissioner may issue an order, directed to a state marshal, to arrest the person and bring him or her before the claims commissioner to testify.

If anyone refuses to testify or to produce any relevant, unprivileged book, paper, record, or document, the claims commissioner must notify the attorney general, who must apply to the superior court for an order compelling compliance. If the person subsequently willfully refuses to comply or, having appeared, refuses to be sworn or to answer any relevant question, he or she may be fined between $ 100 and $ 1,000, and imprisoned for one to 12 months. The law also requires the claims commissioner to dismiss his claim and order it forfeited to the state.

When subpoenaed by the claims commissioner, witnesses must be offered the same fees and mileage allowances that people who testify in court are entitled to. But no such fee or allowance shall be paid to any state officer or employee who appears on behalf of the state.

Waiver of Hearings (CGS � 4-151a)

The claims commissioner may waive the hearing of any claim up to $ 5,000 and proceed upon affidavits filed by the claimant and the state agency concerned.

Misbehavior at Proceedings (CGS � 4-152)

If in the course of any proceeding any person is guilty of obstructive misbehavior, the person may be excluded from further participation. If that person is the claimant or the claimants attorney, the claims commissioner may terminate the proceeding, dismiss the claim, and order it forfeited to the state.

Time Limit for Decision (CGS � 4-154)

Within 90 days after hearing a claim, the claims commissioner must decide the case. The claims commissioner must make a finding of fact for each claim and file such finding with the order, recommendation, or authorization disposing of the claim. The commissioners clerk must deliver a copy of such finding and order, recommendation, or authorization to the claimant and to the state representative.

If the law requires that the claim automatically be submitted to the General Assembly, the clerk must notify the claimant that the claim will be so submitted and that the General Assembly may accept, modify, or reject the claims commissioners recommendations or remand it to the claims commissioner.

If the claimant has the right to ask the General Assembly to review the decision, the clerk must give written notice so that he or she may request the General Assembly to review the decision and that the General Assembly may confirm, modify, or vacate the decision or remand the claim to the claims commissioner. The notice must indicate the date by which a request must be filed with the Office of the Claims Commissioner.

Rehearings (CGS � 4-156)

Upon the discovery of new evidence, any claimant may apply for rehearing. The claimant must apply in duplicate, stating concisely the matters which he or she wants to submit to the claims commissioner. The clerk must promptly deliver a copy to the attorney general, who must review it to determine if the states interests requires representation.

Rules of Procedure (CGS � 4-147)

The claims commissioner must adopt regulations governing his proceedings. The regulations must avoid formal and technical requirements, but must provide a simple, uniform, expeditious, and economical procedure.

Decision by Claims Commissioner (CGS � 4-158)

The law authorizes the claims commissioner to:

1. order that a claim be denied or dismissed,

2. order immediate payment of a just claim in an amount not exceeding $ 7,500,

3. recommend to the General Assembly payment of a just claim in an amount exceeding $ 7,500, or

4. authorize a claimant to sue the state (CGS � 4-158(a)).

Legislative Review (CGS �4-158)

A claimant who filed a claim for more than $ 7,500 who wishes to protest the claims commissioners decision to deny it or to order the payment of $ 7,500 or less may waive immediate payment and have his claim submitted to the General Assembly for review. This request for review must be in writing and filed with the claims commissioner within 20 days after the date the claimant receives a copy of the decision. The notice must indicate the deadline for filing the request. The filing of a request for review automatically stays the claims commissioners decision.

The claims commissioner must submit each claim for which a request for review is filed.

If the claims commissioner orders immediate payment of a just claim in an amount up to $ 7,500 and a request for review has not been filed, the clerk must deliver to the comptroller a certified copy of the claims commissioner’s order and the comptroller must make payment from such appropriation as the General Assembly may have made for the payment.

Denial of Claim by Commissioner (CGS � 4-159)

When the commissioner denies a claim seeking more than $ 7,500, the legislature may (1) confirm the decision or (2) vacate it and order the payment of a specified amount or authorize the claimant to sue the state.

Commissioner Order to Pay Claim of $ 7,500 or Less (CGS � 4-159)

When the commissioner orders payment of $ 7,500 or less, for a claim for more than $ 7,500, the legislature may (1) confirm the decision, (2) modify it by ordering that a different amount be paid, or (3) vacate the decision and either deny payment or authorize the claimant to sue the state.

Commissioner Recommendation to Pay a Claim of More Than $ 7,500 (CGS � 4-159)

When the commissioner recommends paying a claim for over $ 7,500, the legislature may:

1. accept the recommendation and order payment of the specified amount,

2. modify the recommendation by ordering that a different amount be paid, or

3. reject the recommendation and order that no payment be made or authorize the claimant to sue the state.

Permission to Sue the State (CGS � 4-159)

The General Assembly may grant the claimant permission to sue the state when the General Assembly deems it just and equitable and believes the claim to present an issue of law or fact under which the state, were it a private person, could be liable.

Statement of Claimant Denying Payment of Commission or Use of Improper Influence Required (CGS � 4-161)

Before paying a judgment or order, the comptroller must require the claimant to swear that (1) no commission, discount, bonus, reward, or present of any kind was promised or was given to, or was received or is expected by any state officer or employee or any member of the General Assembly regarding his claim and (2) to the best of his knowledge and belief no state officer or employee and no member of the General Assembly used, offered to use, or attempted to use his office or position to influence the decision on such claim.

Fraud in Presentation of Claim (CGS � 4-163)

Any claimant who engages in fraud in presenting his claim must forfeit it to the state. The tribunal before which the claim is pending must find that the fraud exists and it must enter its judgment or order of forfeiture.

Any person who knowingly presents or attempts to present, and any person who knowingly participates in the preparation, presentation, or allowance of a false or fraudulent claim must be fined up to $ 200, or imprisoned up to six months, or both. Any state officer or employee who is convicted of this is subject to removal from his office or employment.

Appeal from Forfeiture (CGS � 4-164(a))

Any claimant aggrieved by an order of forfeiture may appeal such order to the superior court.

 

Appeal from Claims Commissioners Decision (CGS � 4-164(b))

The action of the claims commissioner in approving or rejecting payment of any claim or part thereof is final and conclusive on all questions of law and fact and is not subject to review except by the General Assembly