WILLIAM KUMAH et al. v. LEO G. BROWN et al., SC 18777

Judicial District of Fairfield

Municipalities; Nuisance; Whether the Appellate Court Properly Determined that the Plaintiffs' Nuisance Counts did not Fall Within the Scope of the Defective Highway Statute.  The plaintiffs commenced this action against the town of Greenwich and others, seeking to recover for personal injuries that the named plaintiff sustained when his vehicle collided with a fire truck that was parked diagonally across the center and middle lanes of Interstate 95 in Greenwich.  The plaintiffs alleged that the town's positioning of its fire truck, which was responding to an accident, created a nuisance.  The trial court struck the nuisance counts on the basis of the Appellate Court's decision in Himmelstein v. Windsor, 116 Conn. App. 28, cert. granted, 293 Conn. 927 (2009).  In Himmelstein, the plaintiff sought recovery against the town of Windsor on a theory of nuisance after sustaining injuries when his bicycle struck a Windsor police department radar trailer.  The trial court struck the nuisance count, and the Appellate Court affirmed on the ground that the claim, as pleaded, fell within the ambit of the defective highway statute, General Statutes § 13a-149, which it found provided the plaintiff with his exclusive remedy.  The plaintiffs in the present matter appealed, arguing that Himmelstein was distinguishable on its facts and, as such, was not controlling here.  The Appellate Court (127 Conn. App. 254) agreed and reversed the trial court's judgment.  It determined that, unlike in Himmelstein, the plaintiffs here have not alleged that the highway where the incident occurred was a road that the town was bound to keep in repair pursuant to § 13a-149.  It stated that it would be disingenuous to conclude that the town was responsible for the upkeep, maintenance and repair of Interstate 95, a major thoroughfare spanning the state.  Hence, it found that the plaintiffs' nuisance claims were clearly distinguishable from those asserted in Himmelstein and that the claims did not fall within the scope of § 13a-149.  In this appeal, the Supreme Court will determine whether the Appellate Court properly reversed the trial court's judgment.