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The highway defect statute has provided personal injury lawyers with an avenue to sue the state when otherwise they would be immune from doing so.

So if a highway is in some sort of disrepair that state officials know about and someone gets hurt, that plaintiff is likely to get their day in court.

But unsurprisingly there are unique circumstances that cause courts to take a closer look at whether a particular case falls under the state’s highway defect statute.

Whether or not an alleged design flaw in the construction of a highway can constitute a defect is an ongoing debate at the center of a lawsuit going before the state Supreme Court April 30.

The lawsuit stems from a fatal accident occurring nearly a decade ago on Route 44, known as Avon Mountain Road, in Avon.

On July 29, 2005, a dump truck underwent break failure and barreled out of control down the steep road, slamming into a bus and 18 cars during a fiery chain-reaction crash that killed four people. Thirty people altogether were involved in the crash, 15 of whom were taken to the hospital.

David Wilcox, an owner of the Mack truck, was charged with manslaughter after a yearlong investigation. Investigators blamed the crash on the shoddy maintenance of the truck and the driver’s inexperience.

Ellen Stotler, the widow of Paul “Chip” Stotler, and Michael Cummings, who was badly injured in the crash, sued the state Department of Transportation under the highway defect statute. Their lawyers argue that Route 44 going into Avon suffered design defects because of its steep grade and was not safe for public travel.

“Our position is that the entire layout of the road was defective from its inception,” said Joel Faxon, of Stratton Faxon in New Haven, who represents Stotler. “There were many safety features that should’ve been installed that weren’t installed that led to it being defective.”

Faxon said the defective design was the “sole proximate cause” of the crash.

Specifically, Faxon, along with Cummings’ lawyer, Thomas Donohue Jr., of Killian & Donohue in Hartford, claim that there should’ve been a brake check area at the top of the mountain and a runaway truck ramp at the bottom.

A runaway truck ramp was added by the state in 2008, three years after the crash.

“Highway designers throughout the country—their position on this type of roadway—you need a runaway truck ramp,” said Faxon. “For whatever reason, our state did not implement it until after this happened.”

Donohue, in his brief to the state Supreme Court justices, argues that conditions such as roadway design, layout and the absence of safety measures “fit comfortably within the body of actionable highway defects recognized either expressly or implied by our case law.”

However, so far not all of Connecticut’s courts agree with Faxon and Donohue. Initially, the state moved to dismiss the suits, arguing that they were barred by the doctrine of sovereign immunity. They claimed a design flaw wasn’t a defect.

The trial court denied the motions to dismiss, interpreting the complaints as alleging that the plan of design of the roadway, especially its steep downhill grade, was defective, which, for trucks, created an unacceptable risk of brake failure. As such, the highway defect claim fell within the statute and the case could proceed to trial.

The lawyer for the state, Ronald Williams Jr., of Williams & Williams in Trumbull, then appealed to the state Appellate Court. The appellate judges agreed with Williams and gave orders to the trial court to dismiss the case.

The Appellate Court determined that such safety measures were extrinsic to the roadway and that the lack of safety measures was not actionable under the highway defect statute.

“The plaintiff’s claim here relates to an alleged defect in the plan pursuant to which the highway was constructed, rather than a claim that a defect in such plan or design resulted in an otherwise actionable hazard, namely, one that was in or near the roadway and which actually obstructed travel,” wrote Judge Carmen Espinosa for the Appellate Court in 2012.

Faxon and Donohue then petitioned the state Supreme Court to look at the case, which it agreed to do.

Williams, the defense lawyer, maintains that the Appellate Court interpreted the state’s highway defect statute correctly.

“The court has previously held that designed defects ordinarily are not cognizable in a highway defect claim,” said Williams. “The only exception is where the design creates an actual defect in the road itself. In this case, the absence of a brake check and [runaway truck] ramp do not create a defect in the road itself.”

Williams pointed to a state Supreme Court decision from 2005 called McIntosh v. Sullivan. In that case, the plaintiff was driving on the eastbound lane of a connector between exit 23 of Interstate 84 and Route 69 in Waterbury when his automobile was struck by a large quantity of rocks, boulders, ice and dirt that had dislodged from a cliff above the highway causing the plaintiff serious injuries.

Williams said that one of the claims in that case was that there should have been a barrier alongside the road to block any rocks or other debris that fell from the abutting cliff. The state Supreme Court justices ultimately held in that case that a lack of a barrier was a design defect which doesn’t create a defect in the road itself.

“The plaintiff’s allegations are insufficient to establish an actionable claim under [the statute] because the rocks and debris located above the highway did not impede or obstruct travel thereon,” Justice Richard Palmer ruled.

The plaintiffs lawyers in the pending Avon Mountain case are attempting to distinguish McIntosh from their claim.

McIntosh was really involving objects on the road or debris on the road that would create a defect,” said Faxon. “In that case [the road] was only defective in limited circumstances. In our case … our position was the roadway was always defective.”

Williams, however, is confident that the justices will uphold the state Appellate Court and point to McIntosh in doing so.

“We won 3-0 in the Appellate Court based on McIntosh,” said Williams. “I presume the Supreme Court is going to follow that rule.”

Williams disagrees with the plaintiffs that the proximate cause of the crash was the highway conditions. He said state DOT records show that between 1995 and 2005 there were five truck accidents related to brake failure there, or one brake failure accident for every 410,260 times a truck went down the hill.

“Their claim arguing the defect itself was the sole cause of the accident is just preposterous,” said Williams. “The truck had huge massive mechanical defects. … The brakes just exploded going down the road.”•