Himmelstein v. Bernard
A claim of nuisance, having been struck properly by the trial court, is a judgment on the merits for purposes of res judicata. Paul Himmelstein was severely injured while riding his bicycle on Route 159 when forced by traffic into the breakdown lane where he collided with a radar trailer placed by the Windsor police department. He filed a complaint against the town of Windsor and others. The trial court granted the town's motion to strike the nuisance claim against it finding that the plaintiff's exclusive remedy was an action under the highway defect statute, C.G.S. §13a-149. Thereafter, the court granted the town's motion for summary judgment on the remaining claim against it under C.G.S. §13a-149, finding that the town had no obligation to maintain the state highway. The plaintiff appealed arguing that the court improperly struck his nuisance count and granted summary judgment to the town. The Appellate Court affirmed the judgment. The Supreme Court affirmed the judgment of the Appellate Court. Meanwhile, the plaintiff served a complaint commencing this action in nuisance against the defendants, the town of Windsor and Sergeant James Bernard. The trial court denied the defendants' motion for summary judgment. The defendants appealed claiming that the court erred in concluding that the doctrine of res judicata did not bar the action. The Appellate Court agreed and reversed the judgment. The appeal's resolution turned on whether the granting of the motion to strike the nuisance claim against the town in the first action was a decision on the merits. The plaintiff asserted in this action the identical claim of nuisance against the town that was stricken in the first action. Following the grant of the motion to strike, the plaintiff had a choice to amend his complaint, if possible, or to file a motion for judgment and take an appeal. Because he chose the latter, he was bound by the decisions of the appellate courts, which found no error. The claim of nuisance, having been struck properly, was a judgment on the merits for purposes of res judicata. The claim against Bernard, brought against him in his official capacity, was merely a redundant claim of nuisance against the town. Like the claim against the town, the nuisance claim against Bernard was precluded by res judicata.