In a 2007 case,[1]
the plaintiff, a mini-bicyclist, sued defendant, a paving contractor that
recently repaved a road under an agreement with the City of Meriden, alleging
that he was injured when his minibike struck a manhole cover that was raised
approximately two inches above the street and that the contractor was negligent
in causing his injuries. The court held
that the contractor owed no duty to make the manhole safe for the
mini-bicyclist and granted the contractors motion for summary judgment.
The
Connecticut Supreme Court has often observed that the law does not recognize a
duty in the air.[2] No matter how horrendous an injury the
plaintiff may have suffered, that plaintiff still must jump through all the
legal hoops before he can recover.
In a
negligence action, the plaintiff must meet all of the essential elements of the
tort in order to prevail. These elements
are: duty; breach of that duty; causation; and actual injury. Duty is a legal conclusion about
relationships between individuals, made after the fact, and is imperative to a
negligence cause of action. The nature
of the duty, and the specific persons to whom it is owed, are determined by the
circumstances surrounding the conduct of the individual. Although the determination of whether a duty
exists is ordinarily a question of law, under some circumstances, the question
involves elements of both fact and law.[3]
Liability
for an injury due to defective premises does not depend on title, but on
possession and control.[4] The word “control” has no legal or technical
meaning distinct from that given in its popular acceptation, and refers to the
power or authority to manage, superintend, direct or oversee. The question of whether a defendant maintains
control over property sufficient to subject him to liability normally is a jury
question. Where the evidence is such
that the minds of fair and reasonable persons could reach different conclusions
on the question of control, then the issue should properly go to the jury for
its determination.[5] It is this question of possession and control
that determines who owes the plaintiff a duty in a premises liability case.[6]
In Guerra
v. City of Meriden, the plaintiff, Bismark Guerra, filed suit against
defendant CT Paving, LLC and the City of
The
plaintiff further alleged that his injuries were caused by CT Paving in that it:
(1) failed to warn him of the raised manhole cover; (2) failed to reasonably
inspect the manhole cover; (3) left the premises in the aforesaid dangerous
condition of the raised manhole cover; (4) caused or allowed and permitted the
highway to be dangerous for the plaintiff; and (5) failed to remedy the
dangerous raised manhole cover, when it was reasonably necessary under the
circumstance.
CT Paving
argued that it owed no duty to the plaintiff because it did not possess or
control the street where the plaintiff’s injuries occurred, did not create the
defective condition, and did not have any duty to erect or maintain safeguards,
warnings or signs in the vicinity of the manhole.
The
evidence submitted in the Guerra case is as follows: CT Paving was under
contract with the city to pave city streets.
Before CT Paving began paving North Second Street, the city had
excavated the old blacktop, which involved stripping the street down
completely, leaving just a layer of process stone, with manholes and catch
basin exposed several inches above the stone.
CT Paving was not involved at all in the excavation process. The city put large orange signs at each end
of the street to warn the public that there were raised structures in the
roadway, and also painted the manholes and catch basins orange and placed a
cone on each one.
CT Paving
began paving
The paving
work was done pursuant to a work order and based on CT Paving’s contract with
the State of
Based on
this undisputed evidence, the court found that there was no genuine issue
regarding control and possession.
Pursuant to the agreement with the city and CT Paving, CT Paving was
only responsible for paving the street, and city employees were present at all
times during the paving. In addition, CT
Paving had been instructed to discontinue paving and had left the street, which
was still closed, in the control of the city, which subsequently reopened it to
traffic prior to the plaintiff’s injury.
The court thus found, as a matter of law, that CT Paving did not owe the
plaintiff a duty, based on possession and control, to keep the street in a
reasonably safe condition.
The court
further found that CT Paving did not have a duty based on the theory that it
created a dangerous condition in the road.
Although a person creating a dangerous condition in a highway does have
a duty to use reasonable care to protect others from the condition,[8]
the undisputed evidence showed that the condition complained of – the raised
condition of the manhole above the surface of the road, was created by the
city, not CT Paving.
The court
additionally found that CT Paving did not show any failure to exercise
reasonable care in the paving of North Second Street. There was no claim that CT Paving was in any
way negligent in paving the street. The
plaintiff claimed that CT Paving should have taken additional steps between
applying the two courses of blacktop to ensure the safety of the plaintiff and
other individuals traveling on the street during the interim. The undisputed evidence made clear, however,
that CT Paving’s contract with the city did not require CT Paving to take any
such safety measures, which were mutually understood to be the responsibility
of the city. Accordingly, CT Paving did
not have any duty as a contractor to make the manhole safe for the plaintiff.
While it
may seem that there should be a remedy for every wrong, and that the plaintiff
should have been entitled to protection, “this is an ideal limited perforce by
the realities of this world. Every
injury has ramifying consequences, like the ripplings of the water, without
end. The problem for the law is to limit
the legal consequences of wrongs to a controllable degree.”[9] Because foreseeability is a necessary
component of duty, the absence of foreseeability forecloses the existence of a
duty of care. The converse, however, is
not true: the conclusion that a particular injury to a particular plaintiff or
class of plaintiffs possibly is foreseeable does not, in itself, create a duty
of care. Many harms are quite literally
foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for duty is
not sacrosanct in itself, but is only an expression of the sum total of those
considerations of policy which lead the law to say that the plaintiff is
entitled to protection. “The law does
not recognize a duty in the air.”[10]
[1] Guerra
v. City of
[2] See, e.g., Waters v. Auturoi, 236
[3] See LaFlamme v. Dallessio, 261