PAUL R. HIMMELSTEIN v. TOWN OF WINDSOR et al., SC 18455

Judicial District of Hartford

 Municipalities; Highway Defect; Nuisance; Whether Trial Court's Decision Striking Plaintiff's Nuisance Claim Based on the Exclusivity Provision of the Highway Defect Statute was Improper Due to Court's Subsequent Ruling that the Statute did not Apply to this Case.  In 2004, the plaintiff allegedly sustained serious injuries when he collided with a Windsor police department radar trailer while riding his bicycle.  Thereafter, he brought this action, asserting that the defendant town of Windsor violated the municipal highway defect statute, General Statutes § 13a-149, and that the radar trailer constituted a nuisance.  The town filed a motion to strike the plaintiff's nuisance claim, which the trial court granted on the ground that the allegations of the complaint fell within the ambit of § 13a-149, and, therefore, the statute was the plaintiff's exclusive remedy.  Subsequently, the town moved for summary judgment as to the § 13a-149 claim, and the court granted the motion, holding that because there was no genuine issue of material fact that the radar trailer was located on a state road, the town was not responsible for the road's maintenance under § 13a-149.  On appeal, the plaintiff argued that in striking his nuisance claim, the trial court prevented him from pleading in the alternative.  He also claimed that a genuine issue of material fact existed with respect to the issue of whether the town was responsible for the road's maintenance.  The Appellate Court (116 Conn. App. 28) determined that the allegations contained in the nuisance count concerning the placement of the radar trailer in the travel portion of the roadway amounted to a claim that a highway defect existed on the roadway.  Accordingly, it concluded that although the nuisance count did not cite § 13a-149, the specific allegations set forth in that count fell within the province of § 13a-149 as a matter of law, and, therefore, the statute was the plaintiff's exclusive remedy.  It added that the plaintiff would have been entitled to plead in the alternative only if he had been able to allege facts that supported his nuisance claim but did not fall within the purview of § 13a-149.  With regard to the motion for summary judgment, the court concluded that there was no genuine issue of material fact that the plaintiff's collision with the radar trailer occurred on a state road.  In this appeal, the plaintiff argues that the trial court's decision to strike his nuisance claim based on the exclusivity provision of § 13a-149 was improper because the court, in subsequently granting the town's motion for summary judgment, made the paradoxical ruling that the statute did not apply to this case.  He maintains that in striking the nuisance count before it had the opportunity to determine whether § 13a-149 was applicable, the trial court deprived him of his right to plead a nuisance claim as an alternative to a highway defect claim.