Angela Haines–Mizia v. Alban Duati et al. (2011)

MEMORANDUM OF DECISION

This is a motion to dismiss (# 119) filed by the defendant, Commissioner of Transportation.   For the reasons given, the motion must be granted.

The plaintiff, Angela Haines Mizia, alleges in her amended complaint that she was crossing Clay Street from north to south at the northeast corner of Main Street, when she was struck by a car driven by Alban Duati which was making a turn from Main Street.   Main Street is a State highway;  Clay Street is a municipal highway in Thomaston.   The crosswalk at Clay Street is controlled by a pedestrian traffic control display which the plaintiff alleges was in a defective condition, thereby contributing to the accident.

The first count of the plaintiff's amended complaint is a claim against the operator Alban Duati for negligence in the operation of his vehicle.   The second count is a claim against the defendant, Town of Thomaston, under the municipal highway defect statute, C.G.S. § 13a–149, based upon allegations that the Town was in control of the traffic control display.   The plaintiff's cause of action against the Commissioner is based upon the State defective highway statute, C.G.S. § 13a–144, based upon allegations that the Commissioner was in control of the traffic control display.

The Town of Thomaston filed a motion for summary judgment (# 121) on the second count based upon documentary evidence that the State, not the Town, owned, controlled and maintained the traffic control display.   The court (Roche, J.) granted the Town's motion following briefing and argument [51 Conn. L. Rptr. 23].

The Commissioner of Transportation moves to dismiss the third count on the ground that the plaintiff cannot maintain an action under the defective highway statute because she was not a traveler upon a State highway.   The plaintiff never really addresses this point but maintains that a defective traffic control signal can be a highway defect upon which she can maintain an action.

The plaintiff is correct that a defective traffic control signal on a municipal highway is, as a matter of law, part of a “defective highway” as those words are used in the municipal defective highway statute, § 13a–149.  Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991).   There is no reason to think that the result is different under the State highway defect statute, § 13a–144.   But, that does not help the plaintiff overcome the defect raised by the Commissioner's motion to dismiss.   The plaintiff's complaint does not allege that the plaintiff was a traveler on Main Street, a State highway.   The complaint alleges that the plaintiff was attempting to cross Clay Street, a municipal highway, not a State highway.   There is no allegation that the plaintiff was walking on Main Street and was attempting to cross Clay Street as part of that travel.

“It is settled law that the statutory right of action is given only to a traveler on the road or sidewalk alleged to be defective.”  Tuckel v. Argraves, 148 Conn. 355, 358 (1961).  “[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 ․’ ‘[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.’  “(Citations omitted.)  Ferreira v. Pringle, 255 Conn. 330, 342 (2001).   As used in this quotation, the words “traveled path,” “road” “roadway” would all refer to a municipal highway in a case under § 13a–149, and to a State highway in a case under § 13a–144.

In this case, the plaintiff's complaint does not allege facts from which one could conclude that, as a pedestrian on Main Street, the defective pedestrian traffic control display on Clay Street was so direct a menace to the plaintiff's travel on Main Street that it would necessarily have obstructed or hindered the plaintiff in the use of Main Street for the purpose of traveling on it.   For this reason, the motion to dismiss is granted.

BY THE COURT,

John W. Pickard

Pickard, John W., J.