STOTLER III v. DEPARTMENT OF TRANSPORTATION

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Supreme Court of Connecticut.

Ellen STOTLER, Administratrix (Estate of Paul A. Stotler III) v. DEPARTMENT OF TRANSPORTATION.

No. 19177.

Decided: August 19, 2014

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, ROBINSON and VERTEFEUILLE, Js. Joel T. Faxon, with whom, on the brief, was Eric P. Smith, for the appellant (plaintiff). Ronald D. Williams, Jr., for the appellee (defendant).

The dispositive issue in this certified appeal is whether a defective highway claim based on the design of Route 44 across Avon Mountain falls within the purview of General Statutes § 13a–144,1 pursuant to which the state has consented to liability for certain injuries caused by a defective highway. The plaintiff, Ellen Stotler, administratrix of the estate of the decedent, Paul A. Stotler III, brought this action pursuant to § 13a–144 against the defendant, the Department of Transportation, to recover damages sustained when a truck descending Avon Mountain along Route 44 experienced brake failure and collided with multiple vehicles.2 The defendant filed a motion to dismiss the action on the ground that the complaint failed to state a claim under § 13a–144 and, therefore, was barred by sovereign immunity. The trial court denied the defendant's motion to dismiss, and the defendant appealed from that decision to the Appellate Court.3 The Appellate Court determined that the plaintiff's complaint failed to state a cause of action under § 13a–144, and, accordingly, reversed the judgment of the trial court and remanded the case with direction to render judgment dismissing the plaintiff's complaint. Stotler v. Dept. of Transportation, 142 Conn.App. 826, 843, 70 A.3d 114 (2013). We granted the plaintiff's petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the plaintiff's action should have been dismissed for lack of subject matter jurisdiction because the allegations in the plaintiff's complaint failed to state a cause of action under ․ § 13a–144?” Stotler v. Dept. of Transportation, 309 Conn. 921, 76 A.3d 624 (2013). We answer this question in the affirmative and, accordingly, affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff brought this defective highway action against the defendant alleging that, on July 29, 2005, the decedent “was operating his motor vehicle easterly along [Route] 44, a public highway in Avon ․ when a series of collisions occurred when a truck owned by American Crushing and Recycling, LLC, lost control as it traveled down Avon Mountain on Route 44 ․ result[ing] in the death of [the decedent].”

The plaintiff alleged that the decedent's injuries and death resulted from the neglect or default of the defendant, “by means of a defective road, in one or more of the following ways:

“(a) in that [the defendant] utilized a plan of design, construction and/or repair for the area of Route 44 described above, adopted by the state of Connecticut and/or its employees, which was totally inadmissible,4 in that it created an unsafe condition;

“(b) in that [the defendant] failed to provide adequate warnings and signage on the downhill grade on Route 44 before the intersection;

“(c) in that [the defendant] failed to construct a necessary runaway truck ramp;

“(d) in that [the defendant] failed to prohibit trucks on this roadway in the absence of other safeguards;

“(e) in that [the defendant] failed to have, or failed to have adequate, procedures for maintaining the downhill slope in a safe condition;

“(f) in that [the defendant] failed to train, or properly train, personnel in inspection of, or maintenance of, the signage and grade;

“(g) in that [the defendant] failed to maintain, or properly maintain, the roadway for traffic upon it;

“(h) in that [the defendant] failed to inspect, or properly inspect, the roadway so that it could be maintained or properly maintained;

“(i) in that [the defendant] failed to train, or properly train, personnel to inspect the roadway so that it could be maintained or properly maintained;

“(j) in that [the defendant] failed to have, or failed to have adequate, procedures for inspecting and maintaining the roadway so as to be safe for vehicular traffic;

“(k) in that [the defendant] failed to have procedures in place so adequate notice could be given to correct unsafe conditions on the roadway or so that the roadway could be closed;

“(l ) in that [the defendant] failed to follow procedures which were intended to give adequate notice so that unsafe conditions on the roadway could be corrected, or the roadway closed;

“(m) in that [the defendant] failed to provide adequate advance warning of said dangerous area to oncoming motorists so that they could avoid foreseeable out of control vehicles coming down the [Avon] [M]ountain;

“(n) in that [the defendant] failed to close the road until conditions could be made safe for travel;

“(o) in that [the defendant] failed to follow practices and procedures set forth in the state's Policy Manual;

“(p) in that [the defendant] failed to properly supervise state agents, servants or employees who were responsible for maintaining the roadway in a safe condition, and/or

“(q) in that [the defendant] failed to install visible street signage causing the truck to proceed down [Avon] [M]ountain missing the turn off.” (Footnote added.)

The defendant filed a motion to dismiss the action on the ground that the plaintiff's allegations were insufficient, as a matter of law, to state a claim under § 13a144.5 Specifically, the defendant claimed that the allegations did not fall within the limited exception to the general rule barring design defect claims under the defective highway statute. After a hearing, the trial court, Sheldon, J., denied the defendant's motion to dismiss.6 The trial court reasoned that “the plan of design providing for the steep downhill grade of Route 44, which has always been open to truck traffic, is alleged and may be proved by the [plaintiff] to have been defective from the outset because its incorporation into the roadway created a condition, intrinsic to the roadway, that constituted a nuisance, when the roadway was used as intended by trucks, from which injury [was] ultimately necessarily the inevitable or probable result.” (Internal quotation marks omitted.)

The defendant appealed from the trial court's decision to the Appellate Court.7 The Appellate Court concluded that the plaintiff failed to allege an actionable highway defect under § 13a–144 and, therefore, that her claim was barred by sovereign immunity. Stotler v. Dept. of Transportation, supra, 142 Conn.App. at 841. The Appellate Court reasoned that the trial court misconstrued the plaintiff's complaint as alleging that the steep downhill grade of the road alone is an actionable highway design defect.8 Id., at 840–41. Instead, the Appellate Court construed the complaint to allege that the design of Route 44 providing for the steep downhill grade in combination with the lack of tangible safety measures rendered the road defective. Id., at 841. The Appellate Court determined that the absence of safety measures is not an actionable highway defect, and, therefore, the plaintiff failed to state a claim under § 13a–144. Id. Accordingly, the Appellate Court reversed the judgment of the trial court. Id., at 843. This certified appeal followed.9

We begin with the governing legal principles and standard of review. “[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent․ Nevertheless, a plaintiff may surmount this bar against suit if, inter alia, he can demonstrate that the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity․ Even when there is an express statutory waiver of immunity, however, the plaintiff's complaint must allege a claim falling within the scope of that waiver․

“Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by a motion to dismiss․A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court․ [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo․

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 649–51, 974 A.2d 669 (2009).

“The state highway liability statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory․ The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign at common law, a plaintiff, in order to recover, must bring himself within § 13a144.” (Citations omitted.) White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990).

In order for a plaintiff to recover under § 13a–144, “the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [Commissioner of Transportation] actually knew of the particular defect or that, in the exercise of [his] supervision of highways ․ [he] should have known of that defect; (3) that the [Commissioner of Transportation], 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.) McIntosh v. Sullivan, 274 Conn. 262, 268,875 A.2d 459 (2005). “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law․” (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341–42, 766 A.2d 400 (2001).

We have defined a highway defect as “any object or condition in, upon, or near the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.” Hickey v. Newtown, 150 Conn. 514, 518–19, 192 A.2d 199 (1963); accord McIntosh v. Sullivan, supra, 274 Conn. at 268–69, 875 A.2d 459 (“[w]e have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result” [internal quotation marks omitted] ). “[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.” Comba v. Ridgefield, 177 Conn. 268, 271, 413 A.2d 859 (1979); see id., at 269, 271, 413 A.2d 859 (overhanging tree limb that fell on automobile was not highway defect because it “did not obstruct, hinder or operate as a menace to travel”).

Moreover, “[w]e have consistently held that [t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel․ Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.” (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 462–63, 569 A.2d 10 (1990); accord Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970) (“[t]he duty imposed on the state by the provision of the defective highway statute is not such as to make the state an insurer for people using those highways which the defendant must keep in repair but is rather a duty to exercise reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler”); Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961) (“a [state] is not an insurer against accidents occurring on its highways; its duty is not to make the streets absolutely safe for the users thereof but only to exercise reasonable care to keep them in a reasonably safe condition for travel”).

With these governing legal principles in mind, we turn to the plaintiff's allegations in the present case. In her complaint, the plaintiff alleges that the defendant “utilized a plan of design, construction and/or repair ․ which was totally inadmissible, in that it created an unsafe condition․” See footnote 4 of this opinion. Specifically, the plaintiff alleges that the absence of tangible safety measures, including a runaway truck ramp and adequate signage warning of the steep downhill grade, as well as the failure to prohibit trucks on the roadway in the absence of these and other safeguards, rendered the roadway defective.10

Although the plaintiff does not specifically allege that the downhill grade of the roadway constituted part of the claimed design defect, we are mindful that “[t]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded․” (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012). Indeed, the plaintiff argues, and we agree, that her allegations concerning the absence of certain safety measures must be viewed in the context of the steep downhill grade of Route 44. As the plaintiff states in her brief, “[a]lleged defects such as the absence of a runaway truck ramp, and adequate signage are only defective because of the topography of Route 44. If Route 44 was flat, or had a substantially less severe gradient ․ [safety measures] like a runaway truck ramp would be entirely unnecessary.” (Emphasis in original.)

We note, however, that the plaintiff has conceded both in her appellate brief and at oral argument before this court that she has not alleged that the steep downhill grade of Route 44 alone constitutes an actionable highway defect.11 See footnote 8 of this opinion. Indeed, by her own account, the plaintiff alleges that the defect in the present case consists of the “dangerously steep road surface that channels descending traffic into a major crossing intersection immediately at the bottom of the slope, together with the absence of an escape ramp to divert and contain vehicles encountering runaway conditions, and the absence of adequate warning signs to alert drivers to the severity of the conditions they were about to encounter before they were irrevocably committed to the descent.” (Emphasis added.) Put simply, the plaintiff's complaint alleges that the design of the roadway consisting of the steep downhill grade, in the absence of certain identified safety measures, rendered it unsafe for public travel and thus defective within the meaning of § 13a–144.

The question then becomes whether the complaint, so construed, states a cause of action under the defective highway statute. We begin our analysis with an overview of the parameters of the right of action afforded under § 13a–144 for damages arising from an alleged defect in a highway's design. “[I]t is well established that a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the improvement or repair of its streets or highways and ordinarily will not be liable for consequential damages for injuries due to errors or defects in the plan adopted․ Thus, as we stated in Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897), [a] defect in the plan upon which [a] highway [is] constructed ․ [does] not [come] within the [defective highway] statute․ [Thus] injuries which it may occasion to travelers cannot be made the subject of any action in their favor. They are the result of an error of judgment on the part of the officers of a public corporation, on which has been cast the burden of discharging a governmental duty of a quasi-judicial character. For consequential damages thus occasioned to members of the general public, the common law never gave a remedy; nor has the statute changed the rule․ Id., at 351–52, 37 A. 1051.12

“Recognizing that an unduly rigid application of this rule could work an injustice in certain circumstances, however, the court in Hoyt also stated, in dictum, that, [i]f ․ a defect in the plan of construction should be so great as soon to require repairs in order to make the highway safe for travel, a neglect to make these repairs might [support] an action; but the plaintiff's case would be no stronger than if the road had been originally built in the best manner. So, were the plan of construction adopted one which was totally inadmissible ․ the highway would have been in such a defective condition as to have been out of repair from the beginning. Id., at 352, 37 A. 1051 ․ “ (Citations omitted; footnote added; internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. at 270–71, 875 A.2d 459.

“The hypothetical design claim that the court in Hoyt used to illustrate what an actionable design claim might resemble reveals the true nature and limitation of the ‘exception.’ Specifically, the court described a sidewalk that ‘had been left with its grade broken simply by a four foot wall, without the provision of steps․' [Hoyt v. Danbury, supra, 69 Conn. at 352]. According to the court, such a sidewalk ‘would have been in such a defective condition as to have been out of repair from the beginning .’ Id. Thus, the cognizable design defect claim that the court hypothesized in Hoyt essentially would consist of an allegation that the plan of design called for a four foot drop or hole in the road. Indeed, the court in Hoyt immediately went on to state that, under its hypothetical, the plaintiff's claim would be ‘no stronger than if the road had been originally built in the best manner’; id.; because, logically, the highway defect statute covers four foot holes in the middle of the roadbed irrespective of how they came to be there. In other words, a design defect claim can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway's plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear. In all other respects, however, a design defect claim is indistinguishable from any other highway defect claim and, accordingly, it is subject to all the same statutory requirements, including the requirement that the alleged defect actually be in the roadbed or so near to it as to ‘necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon ․’ Hewison v. New Haven, [34 Conn. 136,142 (1867) ]. [That is], Hoyt merely precludes the state from raising sovereign immunity as a defense when the plan of design, as implemented, creates the very type of hazardous condition for which the highway defect statute abrogated governmental immunity in the first place and for which the government otherwise would be liable had the dangerous condition originated through means other than the plan of design.” (Emphasis added.) McIntosh v. Sullivan, supra, 274 Conn. at 281–82, 875 A.2d 459. Therefore, “notwithstanding the general rule that the state is not liable for damages sustained by a traveler due to a defect in a highway's design, the state nevertheless may be liable if such a defect gave rise to a hazard that otherwise would be actionable under § 13a–144.” Id., at 271, 875 A.2d 459.

Thus, the issue we must decide in the present case is whether the plaintiff's allegations, if true, would amount to an actionable highway defect claim within the narrow exception in Hoyt to the general rule precluding liability for design defects. The plaintiff argues that the plan pursuant to which the highway was constructed was “totally inadmissible” because the highway was “inherently dangerous when put to the use for which it was intended and for which it [was] lawfully open.” Specifically, the plaintiff claims that the roadway's steep grade and layout, combined with the absence of tangible safety measures, constituted a condition intrinsic to the roadway that rendered it defective within the meaning of the highway defect statute.13 In response, the defendant claims that the steep downhill grade, together with the lack of safety measures, does not constitute an actionable highway defect because it is not a hazardous object or condition in or near the roadbed that necessarily obstructed travel thereon. Furthermore, the defendant argues that the plaintiff's claim is materially indistinguishable from the design defect claim in McIntosh that this court held was not actionable under § 13a–144. We agree with the defendant. Accordingly, we conclude that the plaintiff's allegations are insufficient as a matter of law to state a claim pursuant to § 13a–144.

First, we are not persuaded by the plaintiff's attempt to distinguish her claim in the present case from the claim raised in McIntosh that this court held was barred by sovereign immunity. In McIntosh, the plaintiff, Adalbert H. McIntosh, Sr., brought a highway defect claim under § 13a–144 for injuries he sustained when rocks and debris fell from a rocky ledge “adjacent to and above [the] highway” and struck his motor vehicle. (Internal quotation marks omitted.) Id., at 264, 875 A.2d 459. McIntosh alleged that the highway was defectively designed in that, inter alia, “the highway was located dangerously close to raised rocky cliffs ․ the [defendant, the Commissioner of Transportation] failed to erect barriers ․ to prevent falling rocks and debris from entering the highway ․ [and] there were no warning signs in the area to warn approaching motorists of the hazardous and dangerous conditions then and there existing․” (Internal quotation marks omitted.) Id., at 264–65, 875 A.2d 459. The trial court denied the Commissioner of Transportation's motion to dismiss the action for failure to state a claim under § 13a–144, and the Appellate Court affirmed the trial court's decision. McIntosh v. Sullivan, 77 Conn.App. 641, 644–45, 825 A.2d 207 (2003).

On appeal, this court reversed the judgment of the Appellate Court. McIntosh v. Sullivan, supra, 274 Conn. at 264, 875 A.2d 459. We concluded that “[McIntosh's] allegations [were] insufficient to establish an actionable claim under § 13a144 because the rocks and debris located above the highway did not impede or obstruct travel thereon.” Id., at 285, 875 A.2d 459. Because McIntosh failed to allege an actionable highway defect, we held that, “[a] fortiori, [his] allegations [were] insufficient to fall within the limited exception to the general rule precluding liability for design defects.” Id. Thus, the court determined that the plan of design providing for the location of the highway next to a rocky cliff, in combination with the absence of adequate warning signs and a barrier to prevent falling rocks from entering the highway, did not render the highway defective within the meaning of the defective highway statute.

Similarly, in the present case, we conclude that the plan of design providing for the steep downhill grade of the highway, in combination with the absence of adequate warning signs and tangible safety measures, did not render the highway defective within the meaning of § 13a–144. The absence of adequate warning signs and tangible safety measures is not a cognizable highway defect because it does not constitute an “object or condition in ․ the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon․”14 Hickey v. Newtown, supra, 150 Conn. at 518, 192 A.2d 199. Although the plaintiff claims that certain safety measures were necessary because of the steep downhill grade, and that the absence thereof rendered the road unsafe, this claim still pertains directly to the design of the road and not to whether that design, as implemented, created an actionable hazard in the road that necessarily obstructed travel. Indeed, this court in McIntosh rejected the notion that the absence of certain safety measures is an actionable defect, despite the fact that these measures may have been warranted in view of the highway's close proximity to a rocky ledge.

The plaintiff further claims that McIntosh is distinguishable from the present case because the steep downhill grade of Route 44, unlike the rocky ledge abutting the highway in McIntosh, is a condition intrinsic to the highway that rendered the road defective.15 Although we acknowledge this limited distinction, we are not persuaded that it compels a different result in the present case. The steep downhill grade, albeit a natural condition inherent to the roadway by virtue of its location across Avon Mountain, is no more cognizable a defect than the rocky ledge located adjacent to the roadway in McIntosh. Neither are objects or conditions in or near the road “which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result․” Hewison v. New Haven, supra, 34 Conn. at 142. Moreover, the steep downhill grade is a condition that pertains solely to the design of the road, namely, its location across Avon Mountain. In order to be a cognizable design defect, however, the defective design must result in an actionable hazard in the road that necessarily obstructed travel. Under the reasoning in McIntosh, the steep downhill grade, together with the lack of adequate warning signs and tangible safety measures, is not an actionable highway defect.16 Therefore, the plaintiff cannot, as a matter of law, state a claim under § 13a144 within the limited exception to the general rule precluding liability for design defects.

Furthermore, the present case is distinguishable from the handful of cases in which this court has recognized a cognizable highway design defect claim. For instance, in Perrotti v. Bennett, 94 Conn. 533, 534–35, 109 A. 890 (1920), the municipality installed a drain pipe below the surface of the highway and, in accordance with the plan adopted, covered it with twelve inches of sand and gravel. The plaintiff brought a highway defect claim against the municipality after he was injured when the highway above the pipe collapsed under the weight of his vehicle. Id., at 535, 109 A. 890. The trial court found that the plaintiff's injuries were “due to a defect in the original plan of construction of said drain,” and rendered judgment for the municipality. Id., at 535–36, 109 A. 890. On appeal, we reversed the trial court's judgment, concluding that the plaintiff's claim fell within the limited exception to the general rule barring liability for design defect claims pursuant to § 13a–144. Id., at 541–42, 109 A. 890.17

In Perrotti, unlike in the present case, the plaintiff alleged an otherwise actionable highway defect, namely, the poorly constructed drain under the surface of the highway that collapsed under the weight of a vehicle traveling thereon. See id., at 535, 109 A. 890. The poorly constructed drain constituted a condition “in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon․” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. at 282, 875 A.2d 459; see Perrotti v. Bennett, supra, 94 Conn. at 541, 109 A. 890 (“from the time the drain was laid it constituted a defect in the highway, whether this was due to the want of adequate covering, or to the character of the pipe, or both”). The municipality could not escape liability merely because the drain was constructed pursuant to a plan of design that the municipality adopted in its “quasi-judicial or legislative capacity”; Donnelly v. Ives, supra, 159 Conn. at 168, 268 A.2d 406; because the plan, as implemented, created a defect “for which the government otherwise would be liable had the dangerous condition originated through means other than the plan of design.” McIntosh v. Sullivan, supra, at 282, 875 A.2d 459; see id. (Hoyt exception “precludes the state from raising sovereign immunity as a defense when the plan of design, as implemented, creates the very type of hazardous condition for which the highway defect statute abrogated governmental immunity in the first place”). The municipality was therefore liable for injuries caused by the defective plan of design “after it had reasonable notice of the defect and of the imminence of the injury.” Perrotti v. Bennett, supra, at 541, 109 A. 890.

In the present case, by contrast, the plan of design providing for the steep downhill grade, together with the absence of tangible safety measures, as implemented, did not create an otherwise actionable highway defect as defined by our case law. As discussed previously in this opinion, a highway defect is “[a]ny object [or condition] in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result․” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. at 273, 875 A.2d 459; Hickey v. Newtown, supra, 150 Conn. at 518–19, 192 A.2d 199. A properly constructed road on a 10 percent downhill grade, together with the absence of certain tangible safety measures, does not constitute a condition or object in the traveled path that would necessarily obstruct travel thereon. Indeed, the plaintiff does not claim that the road itself was in poor condition, either “in material or manner of construction․” Hoyt v. Danbury, supra, 69 Conn. at 352, 37 A. 1051. Instead, the plaintiff seeks to hold the defendant liable for its decision to construct a highway across a steep downhill grade, without including certain identified safety measures. This is precisely the nature of the claim that is precluded by virtue of Hoyt and its progeny. See Donnelly v. Ives, supra, 159 Conn. at 168, 268 A.2d 406 (“a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the [construction] of its streets or highways and ordinarily will not be liable for consequential damages for injuries due to error or defects in the plan adopted”); Hoyt v. Danbury, supra, at 351, 37 A. 1051 (“[a] defect in the plan upon which [a] highway [is] constructed ․ [does] not [come] within the [highway defect] statute”).

In the absence of an actionable hazard in the road that necessarily obstructed travel thereon, the defendant's decision in the present case regarding the location of the highway across a steep downhill grade, and the extent of warning signs necessary to alert motorists thereto, is not subject to collateral review by this court. “[I]t has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review [the] determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the [s]tate or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public.” (Internal quotation marks omitted.) Donnelly v. Ives, supra, 159 Conn. at 168, 268 A.2d 406; see id., at 165 n. 2, 169, 268 A.2d 406 (affirming directed verdict in favor of highway commissioner with respect to highway design defect claim alleging poor highway layout and inadequate warning signs); see also Hoyt v. Danbury, supra, 69 Conn. at 351, 37 A. 1051 (“so long as the [sidewalk design] selected was an appropriate and lawful one [in that stairs were properly constructed and in a state of repair], [the defendant city's] decision was not subject to collateral review in a suit of this nature”).18

Under the theory of liability the plaintiff advocates in the present case, virtually every design defect claim pertaining directly to the layout of the road would be actionable under the defective highway statute.19 That is, if we were to decide that a highway's layout across a 10 percent downhill grade, in the absence of tangible safety measures, constitutes a “condition in, upon or near the traveled path which would necessarily obstruct or hinder ․ traveling thereon”; Hickey v. Newtown, supra, 150 Conn. at 518, 192 A.2d 199; then conceivably any highway design could be described as a defective “condition” intrinsic to the highway. This result would hamstring states and municipalities in discharging their respective “duty to plan highways for the safety of the traveling public.” (Internal quotation marks omitted.) Donnelly v. Ives, supra, 159 Conn. at 168, 268 A.2d 406. We simply cannot construe the defective highway statute in a manner that would eviscerate the general rule precluding liability for design defect claims under Hoyt and its progeny. See White v. Burns, supra, 213 Conn. at 321, 567 A.2d 1195 (“[t]he state highway liability statute ․ is to be strictly construed in favor of the state”).

For the reasons set forth herein, we conclude that the Appellate Court properly determined that the plaintiff's complaint fails to state a claim under § 13a–144. Therefore, the plaintiff's claim is barred by the doctrine of sovereign immunity and should have been dismissed by the trial court.

The judgment of the Appellate Court is affirmed.

In this opinion PALMER, ZARELLA, ROBINSON and VERTEFEUILLE, Js., concurred.

I respectfully dissent. The majority concludes that the Appellate Court properly determined that the claim made by the plaintiff, Ellen Stotler, administratrix of the estate of the decedent, Paul A. Stotler III, related to an alleged defect in the plan pursuant to which the highway was constructed, rather than a claim that a defect in such plan or design resulted in an otherwise actionable hazard, namely, one that was in or near the roadway and which actually obstructed travel. Therefore, the majority affirms the judgment of the Appellate Court, which concluded that the trial court should have granted the motion to dismiss filed by the defendant, the Department of Transportation, because the plaintiff's complaint did not state a claim within the ambit of General Statutes § 13a–144 and, thus, was barred by the doctrine of sovereign immunity. I respectfully disagree. In my view, the allegations of the complaint, when read in a light most favorable to the plaintiff, establish that the allegations relate to a claim of design defect that is intrinsic to the road and is, therefore, actionable.

I

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10–31(a)(1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, ‘[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, ‘it must consider the allegations of the complaint in their most favorable light․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’ ․ Filippi v. Sullivan, [273 Conn. 1, 8, 866 A.2d 599 (2005) ]; see also Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., [239 Conn. 93, 99–100, 680 A.2d 1321 (1996) ] (deciding jurisdictional question on pleadings alone).

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10–31(a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, [274 Conn. 497, 504 n. 7, 876 A.2d 1148 (2005) ] (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, supra, 253 Conn. at 139 n. 7, 749 A.2d 1147 (official records of department of children and families); and/or public records of which judicial notice may be taken; Cox v. Aiken, [278 Conn. 204, 217, 897 A.2d 71 (2006) ] (state employees' collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ‘and need not conclusively presume the validity of the allegations of the complaint.’ Shay v. Rossi, supra, at 140, 749 A.2d 1147. Rather, those allegations are ‘tempered by the light shed on them by the [supplementary undisputed facts].’ Id ., at 141, 749 A.2d 1147; see also Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10–31(b); or other evidence, the trial court may dismiss the action without further proceedings. See, e.g., Ferreira v. Pringle, supra, at 344–45, 766 A.2d 400; Amore v. Frankel, 228 Conn. 358, 364, 367–69, 636 A.2d 786 (1994). If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations; Connecticut Hospital Assn. v. Pogue, 870 F.Supp. 444, 447 (D.Conn.1994); or only evidence that fails to call those allegations into question; Ostow & Jacobs, Inc. v. Morgan–Jones, Inc., 189 F.Supp. 697, 698 (S.D.N.Y.1960); the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. See id.

“Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) (‘[w]hen issues of fact are necessary to the determination of a court's jurisdiction ․ due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses' ․ ); Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (‘[i]n some cases ․ it is necessary to examine the facts of the case to determine whether it is within a general class that the court has power to hear’), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). An evidentiary hearing is necessary because ‘a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.’ Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001).” (Emphasis omitted; footnotes omitted.) Conboy v. State, 292 Conn. 642, 650–54, 974 A.2d 669 (2009). Therefore, in view of the fact that this motion to dismiss was on the basis of the wording of the complaint, I view the allegations “in their most favorable light ․ including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. at 8, 866 A.2d 599.

The defective condition involved in the present case is alleged to be a dangerously steep road surface that channels descending traffic into a major crossing intersection immediately at the bottom of the slope, together with the absence of an escape ramp to divert and contain vehicles encountering runaway conditions, and the absence of adequate warning signs to alert drivers to the severity of the conditions they were about to encounter before they were irrevocably committed to the descent. In my view, these allegations are similar to those alleged in Filippi, in which this court concluded that the trial court properly denied the defendant's motion to dismiss. In Filippi, the allegations were that the road contained a blind curve and inadequate warning signs to alert drivers of a graded blind curve concealing traffic that had stopped. In my view, the majority's reliance upon McIntosh v. Sullivan, 274 Conn. 262, 875 A.2d 459 (2005), is misplaced. In McIntosh, the plaintiff claimed that the defendant, the Commissioner of Transportation (commissioner), was liable for injuries he suffered when “rocks, boulders, ice and dirt” became dislodged from a rock formation adjacent to the highway and struck his car. (Internal quotation marks omitted.) Id., at 264, 875 A.2d 459. Specifically, the plaintiff in McIntosh claimed that the highway was defectively designed in that it was proximate to a rock face from which rocks might fall at some point in the future, and the commissioner had taken no steps to design the highway in a way that avoided or ameliorated that potential hazard. Id. at 264–65, 875 A.2d 459. The commissioner claimed that the falling rocks did not qualify as an actionable highway defect pursuant to § 13a–144. Id., at 267, 875 A.2d 459. This court agreed and held that potential hazards arising from objects out of the roadway are not actionable under § 13a–144. Id., at 285, 875 A.2d 459.

Unlike McIntosh, the present case alleges existing hazards arising from the roadway's design, layout and surface condition, which makes the case clearly actionable. “To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], 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.) Id., at 268, 875 A.2d 459. A highway defect is “[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result․” (Internal quotation marks omitted.) Id., at 268–69, 875 A.2d 459. “[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.” (Internal quotation marks omitted.) Id., at 269, 875 A.2d 459.

“[A] defect in the design of a highway generally is not actionable under § 13a–144. E.g., Donnelly v. Ives, [159 Conn. 163, 168, 268 A.2d 406 (1970) ]. In Hoyt v. Danbury, [69 Conn. 341, 352, 37 A. 1051 (1897) ], [however] we recognized a limited exception to that general rule.” McIntosh v. Sullivan, supra, 274 Conn. at 280, 875 A.2d 459. This exception provides that, “notwithstanding the general rule that the state is not liable for damages sustained by a traveler due to a defect in a highway's design, the state nevertheless may be liable if such a defect gave rise to a hazard that otherwise would be actionable under § 13a–144.” Id., at 271, 875 A.2d 459. “[A] design defect can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway's plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear.” Id., at 282, 875 A.2d 459. In other words, the highway, constructed according to a defective plan of design, is rendered “in such a defective condition as to have been out of repair from the beginning.” (Internal quotation marks omitted.) Id ., at 281, 875 A.2d 459. “In all other respects, however, a design defect claim is indistinguishable from any other highway defect claim and, accordingly, it is subject to all the same statutory requirements, including the requirement that the alleged defect actually be in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon․” (Internal quotation marks omitted.) Id., at 282, 875 A.2d 459. For example, in Hoyt, the plaintiff sued the city of Danbury on the theory that the city had defectively designed a sidewalk on “a street descending a hill” on which the plaintiff slipped and fell. Hoyt v. Danbury, supra, at 347–48, 37 A. 1051. This court ultimately rejected the plaintiff's claim that the design of the sidewalk was defective because it noted that “[a]s to which, out of any appropriate modes of building the particular sidewalk in question, was to be chosen, it was for the borough to decide; and so long as the mode selected was an appropriate and lawful one, its decision was not subject to collateral review․” Id., at 351, 37 A. 1051. This court also opined, however, that the sidewalk's design would have been considered defective—and, therefore, “inadmissible”—if, for example, the steps had not been accompanied by a railing. Id., at 352, 37 A. 1051.

The doctrine first espoused in Hoyt was followed in Perrotti v. Bennett, 94 Conn. 533, 537–38, 109 A. 980 (1920), wherein the town of Hamden had installed a drainpipe twelve inches below the surface of a highway in accordance with a plan adopted for the purpose of construction. In accordance with the plan of design, twelve inches of gravel and sand were packed between the surface of the road and the drainpipe. The plaintiff was injured, several years after the drainpipe's construction beneath the road, when the roadway over the pipe collapsed under the weight of the plaintiff's truck. Id. In Perrotti, this court held the plaintiff's design defect claim to be actionable under the defective highway statute and reversed the judgment of the trial court dismissing the plaintiff's claim, reasoning that, “[w]henever the plan [of design] in its execution creates a nuisance, or causes direct injury to another, liability follows for the damage done․ If the plan [is] defective from the beginning, or if its defect originate[s] shortly after the completion of the improvement, and injury [is] ultimately necessarily the inevitable or probable result, the municipality will be liable. Clearly this is just.” (Citations omitted.) Id., at 539–40, 109 A. 890. This court continued: “The finding is that the drain was no[t] properly protected, due to the covering of the roadway above it․ Obviously from the time the drain was laid it constituted a defect in the highway, whether this was due to the want of adequate covering, or to the character of the pipe, or both. Hoyt v. Danbury, [supra, 69 Conn. at 352], expressly recognizes ․ this situation as creating an exception to the general rule of nonliability ․” (Emphasis added.) Perrotti v. Bennett, supra, at 541, 109 A. 890.

Read in the light most favorable to the plaintiff, the allegations contained in the complaint clearly place the claims within the purview of § 13a–144, as interpreted and applied in Hoyt and its progeny. The plan of design in Perrotti, pursuant to which the drainpipe that ultimately collapsed under the weight of passing trucks was built into the roadway, only twelve inches under its surface, made the roadway intrinsically defective from the outset as built. Similarly, the plan of design in the present case provided for the road, which has always been open to truck traffic, to be built on a steep downhill grade. This plan of design is alleged—and may be proved—by the plaintiff to have been defective from the outset because its incorporation into the roadway created a condition intrinsic to the roadway. This defect, the plaintiff further alleges, constituted a nuisance such that, when the roadway was used as intended by trucks, “injury [was] ultimately necessarily the inevitable or probable result․” Id., at 539, 109 A. 890.

Furthermore, I respectfully disagree with the majority's overly narrow interpretation of what may constitute a design defect. The majority concludes that, because the downhill grade is not “an actionable hazard in the road that necessarily obstructed travel,” the design of the highway in this case cannot be claimed to be an actionable defect. Although I agree with the majority that, ultimately, this doctrine's roots are planted in Hoyt, it is my opinion that Hoyt stands for the proposition that a road may be defectively designed when it is inherently unsafe. Indeed, the defect complained of in the present case is not so different from the situation that this court intimated would qualify as a design defect in Hoyt. It is, ultimately, a decision for the state, and not this court, to decide whether the best place for a road open to trucks is along the downslope of a mountain. Cf. Hoyt v. Danbury, supra, 69 Conn. at 351, 37 A. 1051. But having made that design decision, the state is required to implement it safely. A road with an extremely steep downhill grade that is traversed by large trucks, without warning signs and with no truck runoff is defective in the same way that a staircase with no railing is defective. To recognize that people will occasionally slip while descending stairs is to recognize reality. It is similarly uncontroversial to recognize that if people slip on a set of stairs which does not possess a railing, they will be without means through which they can stabilize themselves, and as a result they will be injured when they fall. Along those same lines, when trucks descend a mountain road with a steep declining grade, occasionally their brakes will fail.1 In the absence of a truck runoff, an accident is all but certain to occur as a result. Both of these aforementioned risks are inherent to the respective chosen designs. The court in Hoyt intimated that these types of inherent risks—when not accounted for by safety features—may give rise to a design defect claim. Indeed, would the majority decision still be the same if the design of this highway was on an inherently dangerous 30 percent slope?

I also find the case of Rusch v. Cox, 130 Conn. 26, 31 A.2d 457 (1943), instructive. In that case, the plaintiff, the administrator of the decedent's intestate estate, claimed that the death of the decedent had been caused by a defective highway. Id., at 28, 31 A.2d 457. In Rusch, the plaintiff's decedent had been killed when the car in which he was traveling as a passenger slammed into a wooden fence that lined the side of the highway. Id., at 29–30, 31 A.2d 457. At the point where the vehicle containing the decedent struck the fence, the fence suddenly and drastically narrowed the width of the shoulder of the highway from over eight feet to four feet in width. Id. The trial court concluded that the design of the fence created a dangerous and defective condition in the highway. Id., at 30, 31 A.2d 457. On appeal, this court determined that “[w]e may not hold that the conclusion of the trial court that the staggering of the fences under the circumstances constituted a defective road was unreasonable, as a matter of law.” Id., at 30–31, 31 A.2d 457. Thus, just as a highway with a defectively designed guardrail might be considered to be defective, so too might a road with an extreme downhill grade and no accompanying safety measures. In both instances, the injury arose simply from the way in which the road was designed, not from some other condition or obstacle on the road itself.

As a result, this case presents an entirely different question than did the rocky ledge high above the roadway in McIntosh. That claimed defect, by contrast, was not built into the roadway by design and, thus, was not an intrinsic defect to the road itself. On the other hand, the 10 percent downhill grade built into the relevant section of Route 44 has been claimed by the plaintiff to be an intrinsic defect in the design of the road. This 10 percent downhill grade may be shown to present an unacceptable risk of brake failure in trucks that travel over this section of road. Thus, similar to the plan in Perrotti that called for the drainpipe to be built only twelve inches under the road, the plan of design providing for the steep downhill grade in Route 44 could be considered defective because the execution of that plan created a nuisance from which “injury [was] ultimately necessarily the inevitable or probable result․” Perrotti v. Bennett, supra, 94 Conn. at 541, 109 A. 890.

Further, in Bovat v. Waterbury, 258 Conn. 574, 579, 783 A.2d 1001 (2001), this court affirmed a jury award for the plaintiff where the allegations were as follows: “(1) the defendant maintained the road without proper lighting; (2) the road was not reasonably safe for the uses or purposes intended; (3) the defendant maintained the road in a state of disrepair, causing it to be dangerous and hazardous; (4) the layout, grade or design of the road was improper; (5) the road was designed with an extremely sharp curve with a utility pole placed at the apex of the curve at the edge of the roadway, thereby creating a dangerous and hazardous condition; (6) the defendant failed to remedy the stated conditions when it was aware or should have been aware of them in the performance of routine inspections; and (7) the defendant failed to warn travelers of the dangerous and hazardous conditions.” We also held that the city could be held liable for both a design defect and a defect in repair and maintenance. Id., at 585, 783 A.2d 1001. I fail to see any major distinction between Bovat and the present case. Certainly, the allegations in Bovat, which stated that the road was designed with an extremely sharp curve with a utility pole placed at the apex of the curve at the edge of the roadway, are virtually identical to the allegations in the present case which indicate that the road was designed with a very steep slope for trucks with an intersection located at the bottom of the hill. Further, the absence of warning signs, which is an allegation contained in this case, was also present in Bovat. Id. Therefore, I would conclude that the allegations are sufficient, when read in a light most favorable to the plaintiff, to defeat the motion to dismiss the complaint. Therefore, I respectfully dissent from the majority opinion.

II

In view of my position in part I of this dissent, unlike the majority and the Appellate Court, I also consider the defendant's claim that the highway's design was not, as a matter of law, the sole proximate cause of the accident and, therefore, the trial court improperly denied its motion for summary judgment.2 See footnote 5 of the majority opinion. I conclude that there is a genuine issue of material fact primarily established by the affidavit of one of the plaintiff's experts, Douglas Rowland. Rowland concluded that “the condition of the truck, including its brake components, was not a substantial factor in causing the accident.” Further, he concluded that “the only substantial factor in causing the accident was a dangerously defective condition of Route 44, including inadequate signage, the lack of a[b]rake [c]heck [a]rea at the top of the mountain, and the lack of an [e]mergency [e]scape [r]amp at the bottom of the mountain. Had these defects not existed, the accident would not have occurred.” In my view, this affidavit was sufficient to defeat summary judgment, and the opinions therein, if found by a fact finder, would be sufficient to establish sole proximate cause.

Accordingly, I would conclude that the Appellate Court improperly reversed the judgment of the trial court denying the defendant's motion to dismiss this action for lack of subject matter jurisdiction, and that a genuine issue of material fact regarding the issue of sole proximate cause existed. Therefore, I respectfully dissent.

ROGERS, C.J.

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