author: Arthur H. Healey, J.

text:
    Frankie White, Administratrix (Estate of Fiona Johnson), et al. v. J. William Burns, Commissioner of Transportation Brian E. Bartron, Administrator (Estate of Tammy Bartron), et al. v. J. William Burns, Commissioner of Transportation Magdolona Maria Bayers, Executrix (Estate of Maria Szabo Kaliska), et al. v. J. William Burns, Commissioner of Transportation Joyce Piscitelli, Administratrix (Estate of Michael Piscitelli), et al. v. J. William Burns, Commissioner of Transportation
    (13712)
    (13713)
    (13714)
    (13715)
    Peters, C. J., Healey, Callahan, Covello and Hull, Js.
    Argued October 10, 1989
    decision released January 2, 1990

      Richard A. Bieder, with whom, on the brief, were Joan C. Harrington, Joseph B. Barnes, Vincent R. Fal-cone and George A. Dagon, Jr., for the appellants (plaintiffs).

      Arnold J. Bai, with whom were Lawrence Russ, assistant attorney general, and, on the brief, Clarine Nardi Riddle, attorney general, Arnold Shimelman, assistant attorney general, and Garie J. Mulcahey, for the appellee (defendant).
   Arthur H. Healey, J.

These cases are consolidated appeals arising out of several actions brought under General Statutes § lSa-144 against the defendant J. William Burns, commissioner of transportation (commissioner), by the plaintiffs on behalf of the estates of individuals who were fatally injured and several others who were seriously injured in a collision on interstate 95 in Stratford. The trial court, Cioffi, J., granted summary judgment on the plaintiffs’ amended complaints in favor of the defendant on the ground that an action brought under § 13a-144 requires a plaintiff to prove that the highway defect alleged to have caused the death or injury was the sole proximate cause of such death and/or injury. The plaintiffs have appealed from that decision. We find no error.

The following facts are not in dispute. On January 19, 1983, a tractor trailer truck driven by Charles Kluttz struck a number of vehicles at the Stratford toll plaza on interstate 95 killing seven people and injuring several other persons. Kluttz was subsequently convicted of seven counts of negligent homicide.

The plaintiffs sued the commissioner under § 13a-144, alleging improper design and placement of the toll booths including the commissioner’s failure to provide adequate warning systems to alert drivers that they were approaching the toll booths. In their amended complaints, the plaintiffs specifically alleged that the deaths and injuries “[were] caused, but not solely caused, by the neglect and default of the State or any of its employees, pursuant to Section 13a-144 . . . .”

On March 29,1989, the trial court, on its own motion, granted summary judgment in favor of the commissioner. In doing so, it pointed out that because § 13a-144 authorizes a statutory cause of action where there was no common law right “to sue the State for negligence . . . the case law has established the fact that the actions of the Commissioner or employees of the State and the highway department must be [proven] the sole proximate cause of the injury” in order for a plaintiff to recover. The plaintiffs appealed from that decision. We transferred these cases from the Appellate Court to ourselves pursuant to Practice Book S4023.

The only issue on these appeals is whether the trial court erred in granting summary judgment on the ground that a plaintiff bringing an action under § 13a-144 must prove that the highway defect alleged to have caused the death or injury must have been the sole proximate cause of such death or injury. The plaintiffs make several related claims. Basically, they contend that the legislative intent, history and purpose of the state highway liability statute mandate a different proximate cause standard and that, therefore, the judicial construction of this statute must be reexamined. The plaintiffs assert that this should be done not only because we have the authority to do so, but because our erroneous judicial construction of § 13a-144, beginning with our construction of the statute in Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), has been continued in subsequent decisions down to the present time. They are not, however, requesting us to overturn “precedent for new policy reasons” but are rather directing “[our] attention to an old mistake in statutory interpretation” and requesting us “to correct a past error.” In so arguing, they maintain that: (1) the legislative history of § 13a-144 shows “an intent to reject ‘sole proximate causation’ (2) the plain language of § 13a-144 shows a legislative intent not to incorporate sole proximate cause; (3) the subrogation clause of § 13a-144 is “incompatible with ‘sole proximate cause’ ”; and (4) the policy goals of § 13a-144 “do not mandate ‘sole proximate cause.’ ” We do not agree with any of the plaintiffs’ claims and analyze them seri-atim below.

In interpreting a statute the court must ascertain and give effect to the intent of the legislature. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); State v. Whiteman, 204 Conn. 98,101, 526 A.2d 869 (1987). “ ‘[T]he meaning of [a] statute must, in the first instance, be sought in the language in which the act is framed . . . . ’ ” 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 46.01, quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 917, 61 L. Ed. 442 (1917). “If the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature . . . . ” Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978); Lamb v. Burns, 202 Conn. 158, 167, 520 A.2d 190 (1987). Where the statute presents no ambiguity, we need look no further than the words themselves which we assume express the intention of the legislature. Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116, 118, 557 A.2d 1256 (1989); State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). “When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself . . . the legislative history and circumstances surrounding the enactment of the statute . . . and the purpose the statute is to serve.” Rhodes v. Hartford, supra; Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987).

“It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases”; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63,196 A.2d 596 (1963); “and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state.” Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). The state and its municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. Id. Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute. Therefore, because the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. DeFonce Construction Corporation v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985); Sestito v. Groton, 178 Conn. 520, 524, 423 A.2d 165 (1979); Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355-56, 422 A.2d 268 (1979); 2A J. Sutherland, supra, § 58.04. Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity. See Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951). Further, this court has stated that “the state's sovereign right not to be sued without its consent is ‘not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms ....’” Murphy v. Ives, supra, 262-63.

The first legislative act waiving a municipality’s immunity to suit for a defect in a highway appeared in the Acts of 1672. The general court ordered the counties and towns to keep their roads and bridges in sufficient repair and if an individual should sustain an injury, the county or town was to pay a fine of one hundred pounds. The order specifically stated: “That if any person at any time [lose] his life through defect or insufficiency of such Bridges, in passing any such Bridge or High-way after due warning . . . then the County or Town which ought to secure such ways or Bridges, shall pay a fine. . . .” The order further stated: “And if any person [lose] a Limb . . . through such defect . . . the County or Town through whose neglect such hurt is done shall pay. . . .” Acts of 1672, p. 7. Thus, while the common law did not subject municipalities to liability for injuries due to a defective highway; see Beardsley v. Hartford, 50 Conn. 529, 537 (1883); this branch of sovereign immunity has been abrogated since 1672 as to a town.

Insofar “as it affect[ed] the duty and liability of the towns, the act of 1672 [was] in force [in 1899]” when this court decided Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899). In Bartram, we announced that sole proximate cause was to be the standard for determining liability under the municipal highway liability statute. The municipal highway liability statute in effect at the time Bartram was decided was § 2673 of the 1887 Revision of the General Statutes, which provided in part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city, corporation, or borough, unless written notice . . . . ” The parties to these appeals lay great stress on the meaning of Bartram.

Bartram involved an action against a municipality to recover damages for personal injuries claimed to have been caused by a defective highway. In that case, the plaintiff, a passenger in a horse-drawn wagon, was-injured when her driver, who himself was found guilty of negligence, operated the wagon so that it overturned upon striking a defect in the highway that the defendant town had failed to repair. Bartram v. Sharon, supra, 687. We reversed the judgment of the trial court that had awarded the plaintiff damages against the defendant town. In that case, we said: “The precise point decided in this case is, that a traveler on a highway [Bartram] cannot be injured through a defect in the highway, within the meaning of our statute, when the culpable negligence of a fellow traveler [Bartram’s driver] is a proximate cause of [her] injury. We think this construction is demanded by the language and history of the Act, and also that it is in accord with sound public policy.” Id., 697.

In Bartram, after tracing the historical evolution of the municipal highway liability statute, we cautioned that the statute “should not be extended by construction beyond the plain meaning of its words” and that the “liability of the towns is to pay a penalty.” Id., 694. Bartram set out the conditions upon which the penalty is incurred as being a defect in the highway, a “failure or neglect” of the town to make sufficient repair that involved “questions of reasonable notice and knowledge, and reasonable time” and “[a]n injury caused through or by means of the defect” to one lawfully using the highway. Id., 694-95. Because all of these conditions must concur to fasten liability on the town, Bartram went on to say that “[i]t follows that an injury caused by the culpable negligence of a traveler, whether to himself or to another, does not happen by means of or through a defect in the highway, even if such defect were a concurring cause. One reason why a person injured through his own carelessness cannot maintain an action against the town is, that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person.” (Emphasis added.) Id., 695.

We stated, however, in Bartram that “[i]f the language of the statute had been used in reference to a common-law tort, it might well be claimed that it is broad enough to cover an injury resulting from two combining torts; for in that case the controlling question would be, — has the defendant committed a tort? But the language is not so used; it does not refer to a common-law tort. There is, therefore, no question involved as to the liability of the town for a -wrong which cannot be defeated by any concurring wrong; the language is simply defining the conditions of a statutory penalty, and when it says that penalty shall arise in case of an injury caused through or by means of a defect in the highway, it is an extension of the natural meaning of the words to include an injury caused by the wrongful act of a third person and such defect. It cannot with truth be said that the injury is caused by the defect. This appears more clearly in considering the other purpose of the Act, which is intended not merely to stimulate towns to the performance of a governmental act by imposing a penalty for failure, but also to indemnify against the dangers of an insufficient highway all who put it to its proper use.” (Emphasis added.) Id., 695-96.

It is clear that Bartram in its analysis drew on the plain meaning of the statutory language. It determined that a plaintiff injured by his own negligence “even if [the] defect were a concurring cause” is not injured “by means of or through a defect in the highway,” under the statute. Id., 695. Bartram indicated that that reasoning applies even when the injury is caused through the carelessness of a third person. Therefore, it is an “extension” of the natural meaning of the statutory language to “include” an injury caused by the wrongful act of a third person. Id., 695-96. Having then decided that the defendant town is liable only if the defect is demonstrated to be the sole proximate cause of the plaintiffs injury, Bartram reversed the trial court saying that when “the Superior Court finds that the wrongful act of the plaintiff’s driver is a proximate cause of her injury, it finds a fact inconsistent with the liability of the town; and upon the facts found judgment for the defendant is the conclusion of the law.” (Emphasis added.) Id., 696. Bartram thus laid down the sole proximate cause standard for liability under the municipal highway liability statute; that standard is still the law under that statute, now General Statutes § 13a-149. See, e.g., Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

It was not until 1915 that the legislature enacted a statute concerning the state’s liability for injuries sustained due to defects on state highways. It was entitled “An Act Concerning Payment by the State of Damages sustained by Injuries on Trunk Line Highways.” Public Acts 1915, No. 307. That act provided in part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair . . . may bring a civil action to recover damages sustained thereby against the highway commissioner . . . ,”

In 1920, this court decided Perrotti v. Bennett, supra, which was an action for damages against the state highway commissioner for injuries alleged to have been caused by his negligence in the construction and maintenance of a state highway. Perrotti applied the sole proximate cause standard enunciated in Bartram to the state highway liability statute. Perrotti v. Bennett, supra, 542. At that time, Chief Justice Wheeler said: “We do not share the plaintiff’s view that the trunk-line statute (Chapter 76, Revision 1918) affords a right of recovery upon a different basis from the statute imposing liability against towns for damages from defective highways .... We think the legislative intent was to impose upon the highway commissioner, as the representative of the State, the same burden theretofore laid upon the towns as respects these highways, and that the limitations upon municipal liability apply equally to State liability.” Id. Sinee Perrotti, we have consistently applied the sole proximate cause standard to actions brought under § 13a-144. See, e.g., Williamson v. Commissioner, 209 Conn. 310, 551 A.2d 704 (1988); Lamb v. Burns, supra; Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986); Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979); Donnelly v. Ives, 159 Conn. 163, 268 A.2d 406 (1970); Murphy v. Ives, supra; Tuckel v. Argraves, 148 Conn. 355, 170 A.2d 895 (1961); Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519 (1947).

The plaintiffs argue that the judicial interpretation of the state highway liability statute to require sole proximate cause is “wholly unsupported by the language, history and purpose of Section 13a-144.” The plaintiffs argue that when this court first announced the sole proximate cause standard in Perrotti, there was no analysis of the statute, no reliance on any of the traditional tenets of statutory construction, but that in one sentence this court made a determination of legislative intent that has been relied upon over the years without question. The judicial interpretation of the statute “was not,” the plaintiffs argue, “based on a reasoned analysis of the language, history and purpose of the statute and legislative acquiescence cannot correct that error.” In a word, Perrotti, the plaintiffs argue, was wrong, as is its progeny.

Initially, the plaintiffs argue that Perrotti incorrectly stated that the state highway liability statute enacted in 1915, now § 13a-144, intended that liability be imposed upon the state on the same basis as upon municipalities. The plaintiffs argue that it is apparent that the legislature, when it enacted the state highway liability statute in 1915, intended that liability be imposed on the state on a different basis than that imposed upon municipalities. For this argument, the plaintiffs point to the following language from Bar-tram: “If the language of the statute had been used in reference to a common-law tort, it might well be claimed that it is broad enough to cover an injury resulting from two combining torts; for in that case the controlling question would be, — has the defendant committed a tort? But the language is not so used; it does not refer to a common-law tort.” Bartram v. Sharon, supra, 695. The state liability statute enacted in 1915, the plaintiffs maintain, was structured on this causation distinction in Bartram between, on the one hand, a statute which has no reference to a common law tort and, on the other hand, a statute whose language does refer to a common law tort. The 1915 statute, the plaintiffs claim, made a material departure from the Bartram language, limiting municipal liability. While the municipal liability statute imposed liability only for injuries or death caused “by means of a defective road,” the plaintiffs point out that the 1915 statute imposed liability for injuries or death caused “through the neglect or default of the state ... by means of a defective road.” (Emphasis added.) Therefore, the plaintiffs maintain, the legislature incorporated into the 1915 state liability statute the very language “in reference to a common-law tort” (i.e., neglect or default) that the Bartram court found absent in the municipal highway liability statute. The legislature’s decision in 1915 to “alter” the language used in the municipal highway liability statute must, the plaintiffs contend, under recognized tenets of statutory construction, be presumed to be intentional and willful. Thus, by adding the language “through the neglect or default of the state” to the preexisting format of “by means of a defective road,” the plaintiffs urge, “the Legislature was affirmatively indicating its intent against incorporating ‘sole proximate cause’ as an element of State liability.” We do not agree.

We address the plaintiffs’ argument that a different basis of liability was intended under the 1915 state highway statute than under the municipal statute interpreted in Bartram. It is true that “neglect” and “default” are terms that have a common meaning and each is concerned with the act or failure to act that is prominent in common law negligence, i.e., the failure to perform a legal duty. We have acknowledged that “[statutory language is to be given its plain and ordinary meaning unless such meaning is clearly at odds with the legislative intent.” State v. Taylor, 153 Conn. 72, 82, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966). The plaintiff correctly asserts that it is a tenet of statutory construction that no word in a statute should be considered superfluous. Green v. Freedom of Information Commission, 178 Conn. 700, 703, 425 A.2d 122 (1979). But recognizing the ordinary meaning of “neglect” and “default” does not persuade us that the legislature intended liability to be imposed on the state on a different basis from the municipal highway liability statute. It must be remembered that because we construe a statute as a whole, not only must every word be considered, but words in a statute must be put in the context of the whole statute, together with its legislative history, its purpose and the circumstances surrounding its enactment. See, e.g., Winchesters. Board of Labor Relations, 175 Conn. 349, 356, 402 A.2d 332 (1978). It is elementary that statutes should be considered as a whole and that the application of common sense to statutory language is not to be excluded. Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984).

The state highway liability statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory. Baker s. Ives, supra, 298; Bartram v. Sharon, supra. The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144. Baker s. Ives, supra. The state highway liability statute construed in Perrotti, which was the precursor of § 13a-144, created and imposed a statutory duty upon the commissioner, the breach of which gave rise to his liability in damages; it was “not really one to recover damages for an injury arising from negligence.” Shirlock v. MacDonald, 121 Conn. 611, 613, 186 A. 562 (1936); McManus s. Jarvis, 128 Conn. 707, 710, 22 A.2d 857 (1939); see Lamb s. Burns, supra, 169.

The plaintiffs’ argument, if accepted, would rewrite the statute so that it would no longer be one imposing liability upon the commissioner solely for the breach of a statutory duty. Rather, the plaintiffs would make the statute a hybrid whereby the commissioner’s neglect or default in performing his statutory duty would be determined in conjunction with principles of proximate causation as well as the negligence of third party “tortfeasors.” The plaintiff would have us interpret the statute, despite its language, to embody the theorem that when the culpable negligence of two persons concurs and each is a proximate cause of injury, then the injured party may recover his whole damage from either or both of the wrongdoers. This was not, however, the legislative intent even though the terms “neglect” and “default” were in the state highway liability statute at the time Perrotti was handed down.

There can be no question but that the nature of the duty resting upon the state at the time of Perrotti (and presently) is to exercise reasonable care to keep the state highways in a reasonably safe condition for public travelers whether by pedestrians or vehicles. See, e.g., Donnelly v. Ives, supra, 167. That duty is that of reasonable care, that is, that degree of care which the ordinarily prudent person would exercise under similar circumstances. It is only through the “neglect” and “default” of human character on the part of “the state or any of its employees” that a violation of the duty statutorily imposed on the commissioner ripens into liability because of injury caused “by means of any defective highway.” See General Statutes § 13a-144. The legislature’s use of the terms “neglect or default” in the 1915 state highway liability statute did not indicate a legislative intent to refer to a “common-law tort,” as the plaintiffs claim in drawing on Bartram. Rather, we can fairly presume that by 1915 the legislature was aware that this court had stated that the duty of a municipality was to exercise reasonable care to keep its highways reasonably safe for travel. See, e.g., Smith v. Milford, 89 Conn. 24, 92 A. 675 (1914); Upton v. Windham, 75 Conn. 288, 53 A. 660 (1902). Therefore, the terms “neglect” and “default” refer solely to that action or failure to act by the commissioner which triggers liability for breach of his statutory duty to repair and maintain the state highway.

The circumstance that § 13a-144 incorporates a similar standard to that used in common law negligence does not mean that the cause of action is one in negligence; it is still clearly one for a breach of a statutory duty by the commissioner. Even where liability attaches to the commissioner under § 13a-144, it is not because of any tort committed by him against the plaintiff, but because of his breach of his statutory duty under the statute. The words “neglect” and “default,” as used in the statute, do not alter that consequence either at the time of Perrotti or presently.

The plaintiffs’ argument that, because the state highway liability statute contains different language from the municipal highway liability statute, we should therefore impose a different standard of causation is not persuasive. We do not agree with the plaintiffs’ argument that the plain language and the legislative history of § 13a-144 demonstrate the legislative intent not to incorporate the sole proximate cause standard into § 13a-144 when it added the “through the neglect or default of the state” language to § 13a-144 that was not in the municipal highway liability statute enacted many years before.

The plaintiffs next argue that the enactment of the subrogation right given to the state in § 13a-144 indicates a legislative intent not to require sole proximate causation as the standard for recovery in actions brought under this statute. The plaintiffs point out that the state highway liability statute, at its very inception, created a right of subrogation on behalf of the state to the rights of the injured party against a third party through whose “neglect” or “default” the injuries occurred, while there was no comparable right of subro-gation under the municipal highway liability statute. The plaintiffs claim, therefore, that that “is presumed to mean that the legislature intended a different legislative scheme for State liability.” Pointing out that Bar-tram, did not consider the impact of subrogation, the plaintiffs go on to contend that the statutorily created right of subrogation for the state “is logically inconsistent with the Bartram requirement of sole proximate causation.” The inclusion of the subrogation provision indicates, it is claimed, that the legislature “anticipated highway defect injuries occurring through the combined neglect or default of both the state and third parties,” (emphasis added) thus indicating a concurrent causation standard. Therefore, it is maintained that if the injured party, to whose rights the state is subrogated, were required to meet a burden of sole proximate cause as against the state, there would be no right of recovery against another tortfeasor to which the state could be subrogated. Such a circumstance, the plaintiffs contend, would render the subrogation clause superfluous. Had the legislature intended to incorporate the “sole proximate cause” standard into § 13a-144, the plaintiffs urge, there would have been no need for a subro-gation clause of this type because the state would not be liable at all for any injury concurrently caused by a third party. Thus, the subrogation clause “is a child of the ‘concurrent causation’ standard and to construe the state liability statute to require sole proximate cause would make the subrogation clause merely an orphan of [that] statute,” a “bizarre result,” the plaintiffs argue, that we cannot presume the legislature intended. Although the plaintiffs are correct in stating that the state highway liability statute does have a subrogation clause and that the municipal highway liability statute construed in Bartram did not, we are not persuaded by their claim.

In our objective to construe statutory language so as to give effect to the apparent intent of the legislature, mindful of inherent statutory interrelationships, we consider statutes “as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation; [and in doing so] the application, moreover, of common sense to the statutory language is not to be excluded.” LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979); Norwich v. Silverberg, 200 Conn. 367, 371, 511 A.2d 336 (1986). The subrogation provision follows that portion of the statute imposing the duty of repair upon the commissioner and it provides: “This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid.” General Statutes § 13a-144.

This court has said that “ ‘[s]ubrogation is a doctrine which equity borrowed from the civil law and administers so as to secure justice without regard to form or mere technicality.’ ” Home Owners’Loan Corporation v. Sears, Roebuck & Co., 123 Conn. 232, 238, 193 A. 769 (1937). The right to it may arise in several ways. See 83 C.J.S., Subrogation § 3 et seq. Under § 13a-144, it is conferred statutorily. In enacting § 13a-144, and specifically the subrogation portion, the legislature expressly told courts that “[tjhis section [§ 13a-144] shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state . . . . ” General Statutes § 13a-144. The subrogation portion of the statute must be read in conjunction with our earlier analysis of the first portion of § 13a-144 where the duty to repair and maintain is imposed solely upon the commissioner. “Any such injury,” in the first sentence of the subrogation portion, plainly refers to the cause of action authorized earlier in § 13a-144 to “[ajny person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk . . . . ” The commissioner, as already pointed out, is the only one upon whom is imposed the duty to repair under § 13a-144. The language in the subrogation portion speaks plainly only to a contractor’s or other person’s liability to the state in subrogation where the commissioner has already become liable to a plaintiff injured through the neglect or default of a “contractor or other person.” It does not speak to the liability of a contractor or other person to a plaintiff in damages because of injuries suffered from a “defective highway.”

In addition, the words “any such injury” in the subro-gation provision plainly cannot have been intended to be read as “any such injury” proximately caused “through the neglect or default” of “any contractor or other person” in the sense that their neglect or default proximately caused a highway to be a “defective highway.” This is so because, even though some neglect or default of “any contractor or other person” may occasion a condition in a state highway that may ultimately bring about an injury, that condition on the highway cannot be the basis of a cause of action under § 13a-144 unless and until that highway condition becomes a “defective highway.” It is only a “defective highway” that the commissioner has a duty to repair under the statute. For that to come about, a plaintiff must have shown that there was a defect in the highway; see Donnelly v. Ives, supra, 167; that the state had notice of the defect, that thereafter the state failed to exercise reasonable care to remedy the defect, that in failing to remedy the defective condition the state failed in its duty to exercise reasonable care to maintain the highway in a reasonably safe condition so that it became a “defective highway,” and finally, that the “defective highway” was the sole proximate cause of the injury.

In our view, contrary to the plaintiffs’ claims, there is a sound reason why the legislature included the subrogation provision in the 1915 statute. At the time the 1915 statute was enacted, we had already recognized that a municipality could be liable under the municipal highway liability statute because of the action or failure to act of a third party concerning a highway defect. See Smith v. Milford, supra. Smith was decided within one year before the 1915 statute was enacted. It is eminently reasonable, therefore, to believe that the subrogation provision was included in the 1915 statute to permit the state to be subrogated so as to recover state monies expended because of the actions of third parties. Moreover, it is to be remembered that the 1915 state highway liability statute was enacted when the state was in the process of taking over from the towns and imposing upon the state highway commissioner the duty and maintenance of certain highways. See Horton v. Macdonald, 105 Conn. 356, 360, 135 A. 442 (1926). The subrogation provision of § 13a-144 is compatible and consistent with the sole proximate cause standard in a cause of action brought under § 13a-144. Our decision in Root v. Connecticut Co., 94 Conn. 227, 108 A. 506 (1919), does not, as the plaintiff suggests, require the contrary. The plain language of § 13a-144 does not, we conclude, show a legislative intent not to incorporate “sole proximate cause” into that statute.

Next, the plaintiffs argue that the policy goals of the state highway liability statute do not mandate “sole proximate cause.” They claim that we should not only examine the purpose of a legislative enactment as an aid to statutory construction but also that we should inquire into public policy, which is an aspect of the judicial function. The plaintiffs, therefore, identify three specific policy considerations that they deem relevant to the judicial construction of the state highway liability statute: (1) cost distribution; (2) indemnification of travelers; and (3) the promotion of safety. None of these considerations, the plaintiffs argue, either explicitly or implicitly, requires a sole proximate cause standard.

At the outset, it is settled that the legislature is “the branch of government charged with the determination of public policy.” State v. Clemente, 166 Conn. 501, 546, 353 A.2d 723 (1974). It “is the arbiter of public policy.” State v. Gilletto, 98 Conn. 702, 714, 120 A. 567 (1923); Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702 (1947). “A statute declares public policy.” Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980). “Public policy is akin to the public good or the public welfare. It varies as the interests and goals of society are modified.” Van Wagner v. Van Wagner, 1 Conn. App. 578, 582, 474 A.2d 110 (1984). “Conditionally valid legislation that is enacted in response to current demands serves as a valuable evidentiary source of public policy. Thus, policy considerations dictate the interpretation according to what is conceived as the purpose, equity or spirit of the statute.” 2A J. Sutherland, supra, § 56.02; see DiBiase v. Garnsey, 103 Conn. 21, 27, 130 A. 81 (1925). Recognizing this, as we must, “[w]e can only take the statutes as they have been enacted . . . .” Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 39, 238 A.2d 410 (1968); International Business Machines Corporation v. Brown, 167 Conn. 123, 135-36, 355 A.2d 236 (1974).

Assuming that each of these policy considerations exist, we are not persuaded that singly or collectively they mandate the causation standard of “a proximate cause” rather than that of “sole proximate cause,” especially in view of our earlier analysis. No one can convincingly contest that each of these policy considerations, if in fact they were involved, promotes highly commendable legislative objectives. But none requires the causation standard that the plaintiffs advocate. Even though the statute may have had a cost distribution consideration, it by no means follows that, because the state is a larger political entity that may have larger resources, it can more easily and more equitably absorb the tremendously greater burden imposed by the state’s obligation to construct and maintain state highways by the imposition of the causation standard the plaintiffs favor. We submit that that is speculative in this instance.

More to the point, the state statute was passed at the time the state highway system was being created and at the time the duty of maintenance and repair of so-called trunk line highways and state aid highways was taken from the towns by the Good Roads Act (and its amendment) and imposed upon the highway commissioner as the representative of the state. See Horton v. Macdonald, supra. The reason for this, we said in Root v. Connecticut Co., 94 Conn. 227, 236, 108 A. 506 (1919), “was the larger purposes served by these roads, inter-town, inter-urban and inter-State as well, and the unfairness of making a locality pay for a benefit to the public of the entire State or of a number of States.” This is a far cry from concluding that such a transfer signalled an intent to move away from the sole proximate causation standard. Moreover, for the plaintiffs to say that the legislature would have known that the state did not necessarily require the same protection as a municipality because the state would be in a better position to absorb the costs and spread the risk of highway use is sheer theorizing about a matter that hardly admits of demonstration on this record, by judicial notice or otherwise. Suffice it to say that the state engages in activities of a scope and variety far beyond that of any town or city, that the demands upon its resources figuratively approach infinity, and that state operations affect vastly larger numbers of people. We can, of course, take judicial notice of the fact that this state has a state highway program that includes thousands of miles of state highways to which it appropriates substantial sums of money. See Wessells v. State Department of Highways, 562 P.2d 1042, 1048 (Alaska 1977).

Without diminishing the statutory objective to compensate those injured in the proper use of the state highways, we see no reason why that objective is not fairly managed by § 13a-144 and specifically by the sole proximate cause standard it incorporates. It promotes safety because any actionable defect that it is the duty of the commissioner to repair gives rise to a cause of action under § 13a-144. Whether the commissioner is solely liable presents questions of fact in every case whether the highway be interstate 95 or a much less frequented highway under his jurisdiction. Any realistic view of the state’s liability must recognize that any number of phenomena beyond the state’s control may sow the seeds of a “defective highway” under the statute, such as abnormal weather conditions, shifts in underlying soil conditions, and acts of third parties. The legislature is entitled to structure a statutory remedy that strikes a balance between the protection of injured victims and the maintenance of reasonably safe public highways. In § 13a-144, as in the statute that this court interpreted in Perrotti, the legislature struck that balance by imposing a duty on the commissioner, as representative of the state, to assume liability in damages only when a defective highway is the sole proximate cause of a victim’s injury. The state statute was, like the municipal statute in Bartram, a carve-out of sovereign immunity, and is to be read as giving no rights not expressly granted. So, we believe now, as we did in Perrotti, that Bartram correctly said: “When the State says we will give certain persons who are injured through defects in the highway, a just compensation, it by no means follows, and ought not to be implied, that the terms of this gift include those who are really injured by the illegal acts of other persons responsible for their wrongs.” Bartram v. Sharon, supra, 696. The plain language of the statute in Perrotti and its successor, i.e., § 13a-144, does not require any deviation, as claimed, from sole proximate cause.

Next, the parties are at issue over the matter of legislative silence or legislative acquiescence in our interpretation of § 13a-144 to embody the sole proximate cause standard. The plaintiffs’ claims are somewhat Janus-like. The first claim is that legislative silence after judicial construction of § 13a-144 is irrelevant, as the language of the statute established the legislative intent. The second claim is that legislative silence cannot be used to confirm legislative intent that is otherwise unsupported by the language, history and purpose of § 13a-144. We cannot, the plaintiffs claim, rely on legislative acquiescence to uphold our interpretation because, they argue, “[i]n a single sentence in Perrotti, [this] Court made a determination about the Legislature’s intent which has been relied on throughout the years, without question, as dispositive of that intent.” “The judicial interpretation of the state liability statute was not based [the plaintiff continues] on a reasoned analysis of the language, history and purpose of the statute and legislative acquiescence . . . .” We address these claims and also resolve them against the plaintiffs.

In 1987, in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118-19, 527 A.2d 664 (1987), we quoted with approval from Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987), the following: “ ‘[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation. Herald Publishing Co. v. Bill, [142 Conn. 53, 63, 111 A.2d 4 (1955)]; Forman Schools, Inc. v. Litchfield, 134 Conn. 1, 6, 54 A.2d 710 (1947); Cashman v. McTernan School, Inc., 130 Conn. 401, 408, 34 A.2d 874 (1943); Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 (1933).’ ” This language from McDonough, a workers’ compensation case, followed this sentence: “Most significant is the lack of legislative action to change the long standing judicially developed standard of causation in compensation cases.” McDonough v. Connecticut Bank & Trust Co., supra, 118. In 1987, we also stated: “This court has recently made it clear that the legislature is presumed to be aware of the interpretation of a statute and ‘that its subsequent nonaction may be understood as a validation of that interpretation.’ Ralston Purina Co. v. Board of Tax Review, [supra, 439] . . . .” Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).

Perrotti was decided in 1920. The sole proximate cause standard announced in that decision has been reiterated in many of our decisions over the years. See, e.g., Williamson v. Commissioner, 209 Conn. 310, 319, 551 A.2d 704 (1988); Lamb v. Bums, 202 Conn. 158, 175, 520 A.2d 190 (1987); Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); Hay v. Hill, 137 Conn. 285, 289, 76 A.2d 924 (1950); Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10 (1942); Shirlock v. Macdonald, 121 Conn. 611, 613, 186 A. 562 (1936); Horton v. Mac- donald, supra, 360-61. Literally dozens of legislatures have convened, deliberated and adjourned since the time of Perrotti. None of these legislatures has amended the state highway liability statute in any fashion that indicates legislative dissatisfaction with the sole proximate cause standard of Perrotti and its progeny. Moreover, over the many years since Perrotti, the legislature has had occasion to revisit the state highway liability statute and has amended it on a number of occasions, albeit in some instances by technical amendments. Amendments that are hardly technical, however, include adding the right to trial by a jury as well as to court; see General Statutes (Sup. 1943) § 304g; adding what is substantially the last sentence of the present § 13a-144; see General Statutes (Sup. 1953) § 964c; adding “or sidewalk” to the language “Any person injured ... by means of any defective road, bridge . . .” immediately after “bridge”; see General Statutes (Sup. 1955) § 1193d; see Public Acts, Spec. Sess., February, 1965, No. 574, § 50; increasing the statute of limitations within which to bring an action under the statute from one year to two years, as well as requiring the notice mandated under the statute to be given “in writing”; see Public Acts 1971, No. 38, §. 1; and increasing the time from sixty days to ninety days within which to give the commissioner notice and a general description of the injury claimed, as well as the cause of the injury and the time and place of its occurrence. See Public Acts 1976, No. 76-222, § 1. In view of the long established judicial interpretation of this statute starting with Perrotti, it is fair and reasonable to assume that the legislature has approved of the sole proximate cause standard in our judicial interpretation of this statute.

Finally, we should look to the question of stare deci-sis in this case where the plaintiffs have argued that they are not requesting that we overturn precedent for new policy reasons, but rather that compelling reasons have been given to us to overrule precedent under the exception to stare decisis because of “an old mistake” in statutory interpretation so that we may “correct a past error.” Ordinarily, in view of what we have said earlier in this opinion, we would not even reach this issue, but it is prudent for us to discuss it. It is true, as the plaintiffs argue, that there is a well recognized exception to stare decisis under which a court will examine and overrule a prior decision that is clearly wrong. See Schott Optical Glass, Inc. v. United States, 750 F.2d 62, 64 (Fed. Cir. 1984). “Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change. . . . [W]e also recognize that stability should not be confused with perpetuity. If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. The true doctrine of stare decisis is compatible with the function of the courts. The doctrine requires a clear showing that an established rule is incorrect and harmful before it is abandoned.” In re Stranger Creek & Tributaries in Stevens County, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970).

This court has said that there is no question but that “[a] decision of this court is a controlling precedent until overruled or qualified.” Herald Publishing Co. v. Bill, supra, 61-62. We have also stated that “[i]f . . . stare decisis is to continue to serve the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence — a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . This is especially true when the precedent involved concerns the interpretation or construction of a statute.” Id., 62; see Burger & Burger, Inc. v. Murren, 202 Conn. 660, 662, 522 A.2d 812 (1987); W. Maltbie, Connecticut Appellate Procedure p. 226. It must also, however, be acknowledged that “[ijt is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience.” Barden v. Northern Pacific R. Co., 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894). The United States Supreme Court has said that when it has become “convinced of former error,” it has “never felt constrained to follow precedent.” Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 987 (1943), reh. denied, 322 U.S. 769, 64 S. Ct. 1052, 88 L. Ed. 1594 (1944).

In this appeal, this court, in the proper performance of its judicial function, has reexamined the challenged precedent. Aware that neither reason nor authority in the law “offers the slightest encouragement to the notion that time petrifies into unchanging jurisprudence a palpable fallacy’ ’; see Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 511, 208 A.2d 193 (1965); our reexamination, we submit, has been thorough and sound. We have determined that the challenged precedent involves no “fallacy” and therefore no “palpable fallacy.” There may well be precedent that, when challenged and reexamined, mandates that “[¡Judicial honesty dictates corrective action.” Olin Mathieson Chemical Corporation v. White Cross Stores, 414 Pa. 95, 100, 199 A.2d 266 (1964). This appeal presents no such case. Perrotti was correctly decided. That decision and its progeny remain sound. Sole proximate cause remains the standard of causation under § 13a-144.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 13a-144 provides: “damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

         General Statutes (1887 Rev.) § 2673 provided: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city, corporation, or borough, unless written notice of such injury, and the nature and cause thereof, and of the time and place of its occurrence shall, within sixty days thereafter, or if such defect consist of snow or ice, or both, within fifteen days thereafter, be given to a selectman of such town or to the clerk of such city, corporation, or borough; and when the injury is caused by a structure legally placed on such road by a railroad company, it and not the party bound to keep the road in repair, shall be liable therefor.”

       This statute, as enacted in 1915, provided: “Section 1. Any person injured in person or property through the neglect or default of the state or any of its employees by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair, or by reason of the want of any railing or fence on the side of such bridge or part of such road so raised above the adjoining ground as to be unsafe for travel, which railing or fence it is the duty of said highway commissioner to erect and maintain, or, in case of death by such injury, his executor or administrator, may bring a civil action to recover damages sustained thereby against the highway commissioner in the superior court or, in any case within its jurisdiction, the court of common pleas in the county wherein the injury was sustained. No such action shall be brought except within one year from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given within sixty days thereafter to the highway commissioner.
      “Sec. 2. Such action shall be tried to the court, and if the court shall find for the plaintiff, the amount of the judgment rendered therein shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the highway commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant.
      “Sec. 3. This act shall not be construed to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this act, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid.
      “Sec. 4. The highway commissioner, with the approval of the attorney-general and the consent of the court before which any such action may be pending, may make an offer of judgment in settlement of any such claim.”

        Perrotti v. Bennett, 94 Com. 533,109 A. 890 (1920), was brought under the trunk line statute. General Statutes (1918 Rev.) § 1515. That statute, entitled “Damages for injuries sustained on state highways,” was substantially the same as when it was enacted in 1915. See footnote 3, supra.

       We do not here set out the entire predicate to state liability in those cases involving the existence and notice of a defect, the requisite statutory notice required to be given the commissioner under General Statutes § 13a-144. Reference may be made to such cases as Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), and Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519 (1947).

       The municipal highway liability statute still does not contain a subrogation clause. General Statutes § 13a-149.

       We have had occasion to note the definition of “such.” In Verrastro v. Sivertsen, 188 Conn. 213, 221 n.7, 448 A.2d 1344 (1982), we said: “The common definition of the word ‘such’ includes ‘having a quality already . . . specified ... of the sort . . . previously indicated or implied . . . previously characterized or specified’; and ‘AFOREMENTIONED.’ Webster, Third New International Dictionary.” See LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 27, 420 A.2d 905 (1979).

       This, of course, assumes that the plaintiff has not been shown to be guilty of contributory negligence.

       In this regard, the plaintiffs quote the following from Jones v. Liberty Glass Co., 332 U.S. 524, 533-34, 68 S. Ct. 229, 92 L. Ed. 142 (1947), reh. denied, 333 U.S. 850, 68 S. Ct. 657, 92 L. Ed. 1132 (1948): “[T]he doctrine of legislative acquiescence is at best only an auxiliary tool for use in interpreting amMguous statutory provisions.” (Emphasis added.) They also argue that “[a]t best, legislative silence as a tool of statutory construction, should be used only as confirmation that an otherwise well-supported statutory interpretation is reasonable.” We conclude that General Statutes § 13a-144 is not ambiguous, that our construction of it is reasonable and sound and that the effect of legislative silence and/or acquiescence is appropriately to be discussed.

       The relevant portion of Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920), appears on page 542 of that decision and is the following: “We do not share the plaintiff’s view that the trunk-line statute (Chapter 76, Revision 1918) affords a right of recovery upon a different basis from the statute imposing liability against towns for damages from defective highways (Revision 1918, § 1414). We think the legislative intent was to impose upon the highway commissioner, as the representative of the State, the same burden theretofore laid upon the towns as respects these highways, and that the limitations upon municipal liability apply equally to State liability.”

       In Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987), we were called upon to depart from our earlier interpretation of General Statutes § 12-62 in our earlier decision in Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981). We declined to do so.

       The statute was also amended in 1967 (Public Acts 1967, Nos. 246 and 414), in 1969 (Public Acts 1969, No. 768, § 108), and in 1974 (Public Acts 1974, No. 74-183, § 201).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Rowan Construction Corporation v. Zef Hassane
    (13579)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued November 2, 1989
    decision released January 2, 1990

      Lawrence D. Church, with whom, on the brief, was Cheryl Brienza Cook, for the appellant-appellee (defendant).

      Mark F. Katz, for the appellee-appellant (plaintiff).
   Per Curiam.

The plaintiff, Rowan Construction Corporation, instituted this action to recover a deposit made pursuant to a contract to purchase real estate from the defendant, Zef Hassane, and the defendant counterclaimed for unspecified damages. In accordance with the attorney state trial referee’s report, judgment was rendered for the defendant on both the complaint and the counterclaim. The plaintiff appealed this judgment to the Appellate Court which rendered an amended judgment for the defendant on the counterclaim. Rowan Construction Corporation v. Hassane, 17 Conn. App. 71, 549 A.2d 1085 (1988). We granted certification on the defendant’s appeal and the plaintiff’s cross appeal, limited to the following questions: (1) Did the Appellate Court err in concluding that the plaintiff’s objection to the report of the trial referee was untimely; and (2) If the objection was untimely, did the Appellate Court err in concluding that plenary review of the plaintiff’s objection was nonetheless warranted?

The underlying facts are set forth fully in the decision of the Appellate Court. Id., 73-75. For the purpose of this appeal, we are concerned with the following. At the close of the pleadings on the plaintiff’s complaint and the defendant’s counterclaim, the court, sua sponte, assigned the action to an attorney state trial referee for hearing. Id., 73. In a finding of fact and decision, dated January 8, 1986, the referee “found” for the defendant on the complaint and on the counterclaim, assessing the defendant’s damages at $55,682.93. Both parties moved to correct these findings and on May 21,1987, the referee filed a corrected finding, increasing the award of damages on the counterclaim to $120,682.93. Id., 74. The plaintiff appealed to the Appellate Court from the judgment rendered on the referee’s corrected report claiming, inter alia, error in accepting the report of the referee and in awarding damages to the defendant. Id., 72.

The plaintiff’s challenge in the Appellate Court to the trial court’s acceptance of the referee’s report was based on two objections it had filed to that report. On May 28, 1987, the plaintiff had filed an “objection to state trial referee reference” of the case on the sole ground that the matter had been referred without its express consent. Id., 74. The plaintiff had filed a further objection to the referee’s report on June 15,1987, that reiterated its objection of May 28, and included substantive objections to the report specified in Practice Book § 440. The Appellate Court found that the May 28 objection to the referee’s report was implicitly overruled on August 6,1987, by the rendering of judgment in accordance with the referee’s reports. Id., 78. The court stated that the objection to the referee’s report filed on May 28, 1987, was not a basis for challenge contemplated by Practice Book § 440. Id., 79. The court concluded, therefore, that the timely filing of the May 28 objection did not prevent the June 15 objection from being untimely. The court thus held that the June 15 objection, which included the substantive challenges to the report, was clearly untimely because it was not filed within two weeks of the date of the referee’s corrected report as mandated by Practice Book § 441. Id., 78.

Despite its finding that the plaintiff made no valid objection to the acceptance of the referee’s report, the Appellate Court nevertheless concluded that the trial court had “erred substantially” when it rendered judgment in the amount of $120,682.93, citing Practice Book § 4185 as its authority to find error in the judgment even though the procedural problems would ordinarily bar the plaintiff’s claim on appeal. Id., 79. The court found error in the measure of damages on the counterclaim and remanded the case with direction to render judgment on the counterclaim in a lesser amount. Id., 81. On certification to this court, the defendant claims that the Appellate Court correctly concluded that the plaintiff’s objection to the acceptance of the referee’s report was untimely, but erred in concluding that plenary review of the plaintiff’s objection was nonetheless warranted. The plaintiff claims, conversely, that the Appellate Court erred in its ruling on the timeliness of the plaintiff’s objection to the referee’s report, but correctly concluded that review of this objection was warranted, despite the untimely objection.

Of primary significance in this case is the defendant’s failure to object in the trial court, on the ground of untimeliness, to the plaintiff’s June 15 objection to the referee’s corrected finding. The first time the defendant raised this objection was in his brief to the Appellate Court. We conclude, therefore, that Lo Sacco v. Young, 210 Conn. 503, 555 A.2d 986 (1989), decided after the Appellate Court’s opinion in this case, is, by clear and cogent analogy, dispositive of the issues before us.

In Lo Sacco, the sole issue was whether the Appellate Court had erred in limiting its review of the plaintiff’s claims to plain error based on the plaintiff’s untimely filing of a motion to set aside the verdict and for a new trial, even though the defendants had not objected to the untimely motion. The Appellate Court declared, sua sponte, that the untimeliness of the plaintiff’s motion was dispositive of the appeal, noting that Practice Book § 320 required such a motion to be filed within five days from the day the verdict is accepted or the judgment is rendered, which the plaintiff had failed to do. The court found no plain error and the plaintiff appealed to this court. Id., 505. We agreed with the defendant’s contention that the filing deadline in Practice Book § 320 is a mandatory requirement. Id., 507. We then stated that the more important question before us was whether the time limit under Practice Book § 320 was a substantive requirement or a procedural requirement. Id., 507-508. We stated that “[i]f it is the former, noncompliance with the rule is a jurisdictional defect that may be raised on the court’s own motion, but if it is the latter, any defect caused by noncompliance with the rule may be waived by the opposing party and thus may not be raised by the court sua sponte.” Id., 508. We then concluded that the time limitation of Practice Book § 320 is procedural rather than substantive, and that the Appellate Court had erred in raising the timeliness issue sua sponte, because the defendants had waived the nonjurisdictional defect. Id., 508-509.

We turn now to the certified questions before us. We first must note that in applying the rationale of Lo Sacco to this case, we make no distinction between the term “must” in Practice Book § 320 involved in Lo Sacco and the term “shall” in Practice Book § 441 involved in this case. “We have held other rules of practice that employ the term ‘must’ or a similar term to be mandatory. See Hughes v. Bemer, 200 Conn. 400, 402-403, 510 A.2d 992 (1986); see also Blonder v. Hartford Helicopters, Inc., 209 Conn. 618, 619-20,- 552 A.2d 427 (1989); Burton v. Planning Commission, 209 Conn. 609, 613-14, 553 A.2d 161 (1989).” Lo Sacco v. Young, supra, 507. We thus conclude that the Appellate Court was correct in finding that the plaintiffs objection to the referee’s report was untimely. The court erred, however, in not finding this delay to be a procedural defect waived by the defendant’s failure to object to the untimeliness in the trial court. This error does not require reversal of the Appellate Court’s decision since that court, even though it erred in using the plain error standard of review, reached a result which the plaintiff-cross appellant seeks to sustain in this court. The defendant, likewise, cannot claim that a decision reached under the rigorous plain error standard would not necessarily have been reached under the ordinary civil standard of review. Although the court’s conclusion that plenary review of the plaintiff’s objection was warranted was erroneous, it is academic in view of our decision in this case.

The judgment of the Appellate Court is affirmed.

       Practice Book § 440 provides in relevant part: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.”

       “[Practice Book] § 441. time to file objections
      “Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision on the motion.”

       “[Practice Book] § 4185. (Formerly Sec. 3063). errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”


author: Covello, J. Peters, C. J., Hull, J.,

text:
    Phillip E. Quinnett, Administrator (Estate of Benjamin L. Quinnett) v. Virginia Newman et al.
    (13704)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued October 6, 1989
    decision released January 2, 1990

      F. Timothy McNamara, for the appellant (plaintiff).

      Thomas J. Keramidas, for the appellees (defendant Brett Kerr et al.).
   Covello, J.

The plaintiff, Phillip E. Quinnett, as administrator of the estate of his five year old son, Benjamin L. Quinnett, brought this action seeking damages for the wrongful death of his son. The dispositive issue is whether a common law cause of action in negligence or public nuisance exists against a commercial vendor who sells intoxicating liquor to an adult who thereafter, by reason of his intoxication, injures another. We conclude that neither a common law negligence action nor a public nuisance action against the vendor exists under such circumstances, the legislature having filled this field through the enactment of General Statutes § 30-102. Therefore, we find no error.

The jury might reasonably have found that on December 1, 1983, at approximately 5:15 p.m., Gary Mas-trobattisto stopped at Gindee’s bar in New Haven, an establishment operated by the defendants Virginia Newman and Gindee’s Corporation, where he remained for two to three hours. During that time, Mastrobat-tisto consumed three shots of tequila and six twelve ounce bottles of beer. He thereafter drove to Pickles bar in Branford, an establishment operated by the defendants Brett Kerr and Pacarrie, Inc. (defendants), where he remained for an additional two to three hours. While there, Mastrobattisto drank three more shots of tequila and six more twelve ounce bottles of beer. Shortly after leaving Pickles bar, Mastrobattisto drove his vehicle across the highway into the lane for oncoming traffic and struck the car carrying the plaintiffs decedent, causing the injuries that thereafter led to his death.

The suit involving Gindee’s bar was resolved by stipulated judgment. The case involving Pickles bar was thereafter submitted to the jury solely on the issues of wanton and reckless misconduct. See Kowal v. Hofner, 181 Conn. 355, 359-62, 436 A.2d 1 (1980). The trial court, J. Flanagan, J., directed the jury to render a verdict for the defendants on the remaining counts of the complaint, concluding that, as a matter of law, there is no cause of action based upon negligence or public nuisance in selling alcohol to an adult who thereafter injures another by reason of his intoxication. The jury returned a verdict in favor of the defendants on the recklessness count and as directed by the court on the remaining counts. The trial court denied the plaintiffs motion to set aside the verdicts on counts one, two, three and four and thereafter rendered judgment for the defendants. The plaintiff appealed to the Appellate Court. We then transferred the appeal to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff claims that the trial court erred: (1) in failing to charge the jury as requested on the issues of negligence and public nuisance; (2) in directing a verdict in favor of the defendants on those counts that alleged negligence and a public nuisance; and (3) in denying his motion to set aside the verdicts. We find no error.

At common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated. “While such acts may constitute the breach of a duty owed to others, the cause of action in a variety of factual settings has uniformly failed for the reason that the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofner, [supra, 357-58]; Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980); Nelson v. Steffens, 170 Conn. 356, 358-59, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967).” Ely v. Murphy, 207 Conn. 88, 92-93, 540 A.2d 54 (1988).

In Ely v. Murphy, supra, we recognized a limited exception to this long-standing proposition and held that the consumption of alcohol by a minor did not “constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.” Id., 95. The basis of this holding lay in the fact that minors, by reason of their youth, lacked the legal capacity “voluntarily” to consume alcohol and, therefore, the fact that they did so, did not, as a matter of law, break any chain of proximate causation that might otherwise exist. Id.

The plaintiff argues, however, that so long as the defendant sellers’ conduct was a substantial factor in producing the plaintiff’s injury, it becomes a question of fact in all events as to whether the subsequent consumption of alcohol breaks the chain of proximate causation. See, e.g., Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29-30, 266 A.2d 370 (1969). “However, proximate causation is [also] a matter of public policy and therefore subject to the changing attitudes and needs of society. [W. Prosser, Torts (4th Ed. 1971), pp. 206, 244-45.]” Vance v. United States, 355 F. Sup. 756, 761 (D. Alaska 1973). Despite the assertions made by the minority in their dissenting opinions, the issue is not whether one disapproves of irresponsible drinking and its too often tragic results on the highways and roadways of our state, but rather, whether this court can intrude where the legislature has so clearly chosen to act. To the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the policy issue in question.

“In Connecticut, as far back as 1872, it came to be felt that the . . . common-law rule [limiting the liability of purveyors of alcohol] was to some extent overly harsh and should be modified by statute. . . . The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for ‘any damage or injury to any other person, or to the property of another’ done by the intoxicated person ‘in consequence’ of his intoxication. Thus, this act, in situations where it was applicable, displaced the common-law rale that the proximate cause of intoxication was not the furnishing of the liquor but its consumption.” Nolan v. Morelli, supra, 437. The modern version of this so-called civil damage or dram shop act is General Statutes § 30-102. Despite numerous amendments throughout its one hundred twenty-nine year history, the act’s applicability remains essentially unchanged.

Unlike the social host-minor guest situation found in Ely v. Murphy, supra, which is not addressed in § 30-102, we are here confronted with a tavern seller-adult patron situation, the precise factual circumstance contemplated by § 30-102. This being the case, we defer to the legislative policy as it is articulated by § 30-102 and leave the plaintiff to the remedy set forth therein.

It appears that an important reason for the plaintiff to seek to abrogate the common law rule is to avoid the financial limitations imposed by § 30-102. “Changing the limitation is a matter for the legislature. If the damage limitation is inadequate, then the proper remedy is to increase the statutory limitation by legislative enactment rather than by overturning established judicial principles and precedents.” Nelson v. Steffens, 170 Conn. 356, 361, 365 A.2d 1174 (1976), overruled on other grounds, 207 Conn. 88, 95, 540 A.2d 54 (1988).

The plaintiff further claims that the trial court erred in refusing to charge the jury as requested on public nuisance and in directing a verdict in favor of the defendants on those counts of the complaint that alleged the defendants’ creation of a public nuisance. He argues that the sale of substantial amounts of alcohol to one who thereafter operates a motor vehicle upon a public highway is analogous to the types of acts that have been held to be public nuisances.

A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). The term nuisance refers to the condition that exists and not to the act or failure to act that creates it. If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable. DeLahunta v. Waterbury, 134 Conn. 630, 633-34, 59 A.2d 800 (1948). If the condition claimed to be a nuisance arises out of the creator’s unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance. Kostyal v. Cass, 163 Conn. 92, 98-99, 302 A.2d 121 (1972). “[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter.” Id., 99.

In order to establish a cause of action in nuisance, the plaintiff must prove that the inherently dangerous condition is a continuing one and was the proximate cause of the plaintiffs injuries and damages. State v. Tippetts-Abbett-McCarthy-Stratton, supra.

In the present context, the inherently dangerous condition claimed to constitute a nuisance is the intoxicated adult operator of the motor vehicle. The proximate cause of the adult motorist’s intoxicated condition, however, lies in his own immoderate use of the alcohol and not in its service to him by the defendant sellers. Ely v. Murphy, supra, 95. Since the alleged act of the purveyors’ cannot be the proximate cause of the injuries and damages that thereafter followed, the nuisance claim is fatally flawed and the trial court correctly struck this count from the amended complaint and properly withdrew it from the jury’s consideration.

There is no error.

In this opinion Shea and Callahan, Js., concurred.

Peters, C. J.,

dissenting. Although, I agree with the majority opinion’s resolution of the issue of nuisance, I respectfully dissent from its conclusion that the plaintiff cannot recover on a claim of negligence. I am unpersuaded that the result reached by the majority continues to find support in law or in reason.

I believe that the time has come for this court to recognize a common law cause of action, sounding in negligence, for the sale of intoxicating beverages to someone who, because of his intoxication, thereafter injures an innocent bystander on our public highways. Studies too numerous to replicate have demonstrated, time and time again, the strong connection between excessive consumption of alcohol and violent traffic accidents. See, e.g., Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) (Peters, C. J., dissenting); Slicer v. Quigley, 180 Conn. 252, 264-67, 429 A.2d 855 (1980) (Bogdanski, J., dissenting). The hapless victim in this case was simply another statistic in a long line of similar victims, killed by a driver who, after the con- . sumption of a great deal of liquor at a bar, crossed the median line on the highway and drove his car into oncoming traffic. Enough is enough. This court should no longer be the roadblock that prevents a jury from considering whether, as a matter of fact, a commercial vendor of alcohol has taken suitable precautions, has observed reasonable care, to avoid injury to those who are foreseeably at risk and whose injuries are in fact proximately caused by the sale of alcohol.

The existing state of the law does not, in my view, prevent us from joining the vast majority of state and federal courts that, since 1971, have rejected or modified judicial rules that provide immunity from damages for those who furnish alcoholic beverages in circumstances that proximately cause injury to innocent third parties. See cases listed in Ling v. Jan’s Liquors, 237 Kan. 629, 648-51, 703 P.2d 731 (1985), and in Slicer v. Quigley, supra, 269-71. Neither our case law nor our statutory law, fairly read, compels the result that the majority opinion reaches today.

Our modern case law on this issue has its roots in Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). Although that case contains a scholarly exegesis on the relationship between the law of negligence and the Dram Shop Act, its reasoning repeatedly notes the incongruity of imposing liability on a seller of alcohol for injuries suffered by the intoxicated party himself. See, e.g., id., 441. Those were the circumstances in Nolan, but they are not the circumstances of this case, which involves injury to an entirely innocent third party. On its facts, Nolan is therefore distinguishable.

Nolan v. Morelli, supra, casts a broader shadow only insofar as it emphasizes a common law theory of causation that purports to cut off all liability for negligent conduct upon the occurrence of any independent intervening acts. According to Nolan, no vendor could ever be liable in tort for furnishing intoxicating liquor, because, as a matter of proximate cause, any injury resulting from intoxication depended upon the intervening act of the purchaser’s raising his glass to consume the alcohol. Id., 436-37.

Subsequent cases have, however, reconsidered and abandoned this narrow view of proximate cause. Since 1969, this court has adopted the formulation of proximate cause contained in 2 Restatement (Second), Torts § 442B (1965). See, e.g., Kiniry v. Danbury Hospital, 183 Conn. 448, 455, 439 A.2d 408 (1981); Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 28, 266 A.2d 370 (1969). Contrary to Nolan, these cases stand for the proposition that the basic test of causation is whether a defendant’s negligent conduct created the risk of a particular harm and was a substantial factor in causing that harm. If that causal connection can be factually shown, an injured plaintiff may recover, unless the harm is intentionally caused by a third person or is outside the scope of the risk created by the negligent conduct. In Merhi, for example, we upheld the liability of a union that sponsored a picnic where alcohol was served, when an inebriated union member drove his car into a group of picnickers and injured one of them. Merhi v. Becker, supra, 522. More recently, in Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), we held that the negligent furnishing of alcohol to minors gave rise to a cause of action for the victim of the minor’s inebriated driving. We concluded that a minor is legally incapable of undertaking the measured responsibility for his ingestion of alcohol that would “constitute the intervening act necessary to break the chain of proximate causation . . . .” Id., 95.

As a common law matter, this case law development entirely undermines the proximate cause reasoning of Nolan v. Morelli, supra. It is illogical to continue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor’s negligence is otherwise established. In the criminal law, we have long acknowledged that intoxication may impair a defendant’s capacity to commit a crime requiring proof of specific intent. General Statutes § 53a-7; State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986); State v. Stevenson, 198 Conn. 560, 568-69, 504 A.2d 1029 (1986). If intoxication gives rise to a jury question about rational intent for criminal law purposes, it should similarly permit a jury to determine whether the drinker’s behavior undermined his capacity to take responsibility for his conduct for tort purposes.

The only issue that remains, therefore, is whether we should stay our hand because the legislature, in enacting the Dram Shop Act, General Statutes § 30-102, has filled the field. Like our Workers’ Compensation Act, this act embodies a tradeoff. Compared to a traditional common law action for negligence, the recovery allowed by the act is available upon a lesser showing of causality; Nolan v. Morelli, supra, 438; but is commensurately less generous in its award of damages. Unlike our Workers’ Compensation Act, however, § 30-102 contains no language comparable to General Statutes § 31-284 (a), expressly precluding common law liability. Indeed, General Statutes § 30-86 imposes criminal liability on someone who “sells or delivers alcholic liquor ... to any intoxicated person.” I do not believe that, read in its entirety, this legislative record demonstrates a conscious decision by the legislature to displace existing common law precedents or to enjoin further common law developments.

It is worth noting, finally, that the majority opinion contains the seeds of an anomalous distinction. Two classes of providers of alcohol may possibly incur liability for serving alcohol to adults who, after conspicuous inebriation, cause serious injuries to innocent third parties. The providers are, on the one hand, those who are in the business of selling and serving alcohol, and, on the other hand, those who entertain social guests. From any policy point of view, the merchants who trade in alcohol would normally, like other merchants of goods, be expected to undertake the greater liability for the injuries that they directly or indirectly cause. See, e.g., General Statutes § 42a-2-314. Today’s majority opinion, by contrast, offers substantial immunity only to those who are in the business, and can therefore take shelter under the Dram Shop Act. Yet those in the business not only stand to profit from pressing alcohol upon a customer who has already overindulged but are in the better position to acquire the training to recognize when their customer, and those with whom he may interact, are at risk. Absent a clearer signal from the legislature, I am persuaded that we should not assume so irrational a result.

Accordingly, I respectfully dissent.-

Hull, J.,

dissenting. I concur with the impeccable logic and strong dissent of the Chief Justice. As Victor Hugo said: “Greater than the tread of mighty armies is an idea whose time has come.” Histoire d’un Crime (1852). The theory on which the existing law is based is an aberration in negligence law and an affront to the memory of the five year old victim in this case.

Judges, like it or not, are part of society. As such, we cannot be blind to changing social mores. A national wave of revulsion has arisen against the frightful tragedies caused by drunken drivers. I take judicial notice of the efforts of MADD, SADD and RID, as well as certain determined Connecticut legislators, to curb such atrocities. The driver in this present case had consumed twelve bottles of beer and six shots of tequila at two bars before he lurched to his car to drive on the highway and snuff out an innocent life.

The continued existence of the present law is a blot on the social conscience and will, sooner or later, be corrected by this court. Why not now?

       General Statutes § 30-102 provides in relevant part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section.”

       General Statutes § 30-102 limits damages to $20,000 per injured person up to an aggregate amount of $50,000. See footnote 1, supra.

       In 1989, the state department of transportation released “Connecticut Traffic Accident Facts” indicating that, in 22 percent of the fatal accidents on Connecticut highways, the driver was influenced by alcohol or drugs. The National Safety Council’s Accident Facts, 1989 Edition, reports that each year, nationwide at least 24,000 people are killed and about 534,000 people are injured by alcohol-related motor vehicle accidents.