Giarnese v. Town of Litchfield
If a plaintiff's complaint alleges a cause of action under the defective-highway statute, Connecticut General Statutes §13a-149, the plaintiff may not possess a cause of action in nuisance. On May 26, 2010, the plaintiff, George Giarnese, was traveling at night on South Lake Street, a two-lane public highway, which he believed connected to Route 63, when his motorcycle allegedly went into a depression on an unpaved portion of the road that contained puddles, depressions, ruts and holes. Giarnese crashed. Giarnese sued the defendant municipality, alleging it maintained a nuisance, because there were no signs to indicate where the municipal road ended, and the paved part of the road that the municipality maintained could not be distinguished from the unpaved part of the road that was located on White Memorial Foundation's property. The defendant municipality moved to strike and argued that the defective-highway statute, C.G.S. §13a-149, provides the plaintiff's only remedy. "Section §52-557n(a)(1) abrogated the common law . . . by making [General Statutes] §13a-149 the exclusive remedy against a municipality for damages resulting from injury to any person or property caused by a defective road or bridge," pursuant to Kumah v. Brown, a 2013 decision of the Connecticut Supreme Court. Although a defect in the design of a highway generally is not actionable under the highway-defect statute, certain design defects may also constitute highway defects. "[T]o bring [a] claim within the design defect exception, [a] plaintiff must present evidence sufficient to show that the plan for [the highway] was so defective as to have been faulty from the start," pursuant to Trotta v. Branford, a 1992 decision of the Connecticut Appellate Court. Here, the court found that the plaintiff's complaint alleged that there was a design defect, because the paved portion of the municipality's road ended abruptly, without warning, and the road continued, as an unimproved road, onto the property of the White Memorial Foundation. The plaintiff's claims alleged a highway defect within the parameters of the defective-highway statute, which provides the plaintiff's exclusive remedy. The court granted the municipality's motion to strike the plaintiff's nuisance count.