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Howd & Ludorf, LLC Wins Supreme Court Appeal in Defective Highway Case

  Howd & Ludorf, LLC Partners Thomas R. Gerarde and Beatrice S. Jordan won summary judgment for the Town of Windsor in a Defective Highway Case that has now been affirmed by the Connecticut Supreme Court.  The decision in Himmelstein v. Town of Windsor establishes the legal framework for cases involving injuries on state routes that run through our cities and towns.  In Himmelstein, the Town of Windsor put a radar trailer in the travel path of State Rte 159, and a boy on a bicycle struck it, causing serious head injuries.  In affirming summary judgment for the Town, the Supreme Court made clear:

1. Whenever you have an injury by means of a defective road or bridge, the plaintiff gets one cause of action and one cause of action only.  A statutory defective highway claim against the party bound to keep the road in repair.  The plaintiff does not have a negligence claim against anyone, or a nuisance claim against anyone.  A statutory defective highway claim against the Town must be brought under 13a-149 of the General Statutes.

2. The plaintiff must sue the party bound to keep the road in repair, or else he will be left without a remedy. If the State of CT is the party bound to keep the road in repair (which will be the case for state routes) then the plaintiff has one remedy only—a cause of action under 13a-144 against the State of CT.  The plaintiff does not also get a claim against the Town, even if the Town created the defective condition on the State Highway.

3. In defective highway claims it is the defective condition that must be the sole proximate cause of the plaintiff’s injury.  This means that even if the negligence of more than one person lead to the creation of the defect, so long as the defect itself is the sole proximate cause of the injury plaintiff can prevail (assuming, of course, that the Town had notice with an opportunity to cure).

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