The plaintiffs, the "C" Fish Company Limited (Fish), Attilio Ciurcovich, and Cecil R. Wescome, appeal from the trial court's judgment following
On October 27, 1976, at approximately 2 a.m., while traveling west on Interstate 84 in Middlebury, the plaintiffs' tractor trailer truck hit a piece of metal in the left lane of the highway, crashed and burned. The owner and driver of the tractor, Wescome, suffered injuries in addition to the damage to the tractor. Ciurcovich, the president of Fish, who was a passenger in the truck, suffered injuries, and Fish suffered the loss of its trailer and cargo. The plaintiffs sued the commissioner pursuant to General Statutes § 13a-144. They also sued 0 & G on the grounds of nuisance, pursuant to General Statutes (Rev. to 1975) § 19-310, now § 19a-335,
It is useful to note at the outset that, while the suits against the two defendants were based on separate legal grounds, there is an overlap of significant factual issues between the two cases. The threshold factual issue with regard to O & G was whether O & G caused the piece of metal to be in or remain in the traveled portion of the highway. Similarly, proof of when the defect originally came into existence was also central to the case against the commissioner because that evidence must logically support the inference that the defect remained in the highway for a sufficient period of time; Baker v. Ives, supra; for the jury to conclude
Connecticut state police trooper Gary Knapik testified that, at approximately 2:15 a.m. on October 27, 1976, he responded to the scene of the collision on Interstate 84 in Middlebury. He testified that Interstate 84 extends for approximately three miles
Knapik described the piece of metal as approximately fifteen to eighteen inches long, shaped in the form of an L and resembling a piece of guardrail. The road condition was dry and Knapik found no evidence that the truck was traveling at an excessive speed. Nor had there been any other accidents that evening, according to Knapik. He inspected the guard railing west of the bridge abutment on both sides of the highway and found no damage to any of the guardrails. He did not, however, note his observations with respect to the guardrails in his written report. Knapik also testified that Wescome appeared to be in normal condition after the accident.
Wescome testified that he was driving westbound in the left hand lane approximately fifty-five miles per hour, and as he proceeded past the bridge abutment he saw a gray piece of metal about ten feet ahead in the road. The piece of metal was shaped roughly like an L. Wescome further testified that his front left wheel hit the top edge of the metal, the tire burst and the entire wheel came off of the truck. The cab of the truck hit the rock ledge in the median and the truck tipped over and began to burn. Wescome, a professional driver, had inspected the truck before beginning the trip.
When he looked around after the accident, Wescome saw road paving equipment, which he referred to as a roller and an asphalt spreader, parked on the grassy median nearby. Wescome testified that Knapik searched the area and presented him with a piece of metal with black marks on it and one corner bent over with a small piece of rubber tire bent into the metal. He recognized the tread design as similar to his tire.
There were two types of guardrailing in use in the general vicinity of the accident. On the west side of the bridge abutment was cable and post railing and on the east side was B-beam railing. Wescome testified that he inspected the guardrailing on both sides of the bridge and found no damage. He also confirmed, on cross-examination, that B-beam railing is used on the sides of certain trailers.
In 1976, O & G was awarded a contract for the repaving of that section of Interstate 84 which extends through Middlebury. During early October, 1976, the state performed preparatory work on the highway in advance of the repaving by O & G, which included the use of a mechanical sweeper and other large machinery including a skid box, which is a hopper on the front of a truck with a skid and a skreet attached to it. This machinery leveled and filled cracks and wheel ruts. This work did not require the removal of guardrails and state transportation department records showed that no work of any kind had been performed on any guardrails in the Middlebury area from October 1 through October 29, 1976. The state personnel and trucks were utilized in the area of the repaving work for purposes of loading and unloading traffic warning signs. At the end of the work day, the state personnel would leave certain equipment in the area of the work site.
O & G's contract for repaving work required, inter alia, the spreading of bituminous asphalt. It did not call for O & G to remove or to touch any of the guardrails on Interstate 84. O & G began repaving on October 12, 1976. It used an asphalt spreader with a skreet, which was comprised of one solid piece of metal ten feet wide
The paver with extenders was in use until October 25, 1976, when it broke down. On the afternoon of October 25, O & G completed its work with a rental paver which was not equipped with the hydraulic extender arms. On October 26, O & G did not work on this repavement project because of rain. As of the date of the accident, in the early morning hours of October 27, O & G had completed its repaving work in an area that was two and two-tenths miles from the Middlebury-Waterbury town line, or two miles west of the accident site. The area was inspected on a daily basis by state workers and opened for travel.
On the basis of this evidence, the plaintiffs posit essentially two theories as to the origin or cause of the piece of metal in the road, neither of which is sufficiently grounded in the evidence. On the one hand, the plaintiffs contend that the piece of guardrail was knocked into the road by O & G during its repaving work. Contrary to the plaintiffs' argument, however, there is no basis upon which the jury could infer that the extender arm knocked the piece of metal into the road on October 25, because O & G was forced to complete its repaving work with the rental paver, which was not equipped with extender arms. In addition, because O & G's contract did not require any work on guardrails, and there was no damage to the guardrails in the vicinity of the accident, the plaintiffs' first theory is highly speculative at best.
The plaintiffs' alternative theory is that the state caused the piece of metal to enter and remain in the road. A review of the evidence, however, renders this theory even more speculative than the first. The evidence clearly indicated that the state did no work on guardrailing during the month of October. Although the state did perform preparatory work involving machinery similar to that used by O & G, there was no evidence that the state touched the guardrails while performing this work.
At most, the only evidence linking O & G to the cause of this defect was the contract to repave the entire length of Interstate 84 through Middlebury. The only evidence linking the state to the cause of the defect was that it did similar work before O & G began repaving. There was no other basis upon which the jury could rationally infer the source or origin of the defect. In addition, absent any proof of the point in time when the defect came into existence, there was insufficient evidence upon which to infer that it remained in existence for any given period of time. Without these essential evidentiary links, the jury could not reasonably infer that the commissioner had constructive notice of the defect, or that O & G was liable for negligence or nuisance.
There is no error.
In this opinion the other judges concurred.