Emergency personnel and vehicles work an accident in Avon, Conn., that occurred Friday, July 29, 2005. At least five people were killed and several others injured in the multiple vehicle accident.
Emergency personnel and vehicles work an accident in Avon, Conn., that occurred Friday, July 29, 2005. At least five people were killed and several others injured in the multiple vehicle accident. ()

Plaintiffs lawyers hoped the state’s defective road statute would provide an avenue for lawsuits against the state in the aftermath of the 2005 fiery crash at the bottom of Avon Mountain that killed four people and injured 19 others.

The state Supreme Court, however, just put an end to that hope when it dismissed two lawsuits that were brought against the state by Ellen Stotler, the wife of Paul “Chip” Stotler, who was killed in the crash, and Michael Cummings, who was badly injured.

There has long been debate over what constitutes a defective road under the statute. Most courts have interpreted the defective road statute to cover instances only when a highway or adjacent structure—such as a sign post—is in disrepair. But in this case, the plaintiffs contended the basic design of the road and the lack of safety features made it unsafe for public travel.

“We’re very disappointed in the court’s ruling because it serves to immunize the state for its catastrophe that it knew would happen,” said Joel Faxon, of the Faxon Law Group in New Haven, who represented Stotler’s estate. “The state DOT had been warned repeatedly about the defective design of the road and decided to do nothing about it. There had been many prior accidents at that location, but unfortunately it took multiple deaths and injuries to bring about change in the highway design.”

The plaintiffs alleged that the hilly portion of Route 44 where the accident occurred was designed so that the road was dangerously steep and lacked adequate safety measures. Lawyers for the plaintiffs claimed that there should have been a brake check area at the top of the mountain and a runaway truck ramp at the bottom. A ramp was added by the state in 2008, three years after the crash.

Despite what the plaintiffs lawyers called a defective highway “from its inception,” a lawyer for the state said the law is crystal clear in these kinds of cases. Ronald Williams Jr., of Williams & Williams in Trumbull, said the typical highway defect is a pothole or ice on the road that is known about but hasn’t yet been remedied.

He said courts in Connecticut have ruled the same way in these cases “for over 100 years.” He said for a design defect to make it to court, like the plaintiffs sought in this case, it would have to be a visible defect. In this instance, there was nothing there.

“It’s got to create an obstruction in the road,” Williams explained. “The absence of something obviously doesn’t do it.”

The justices agreed with Williams in ruling that the alleged poor design of the road and lack of warning signs and other safety measures did not make the roadway “defective” under Connecticut’s highway defect statute.

In the 5-1 ruling, Chief Justice Chase Rogers wrote that the allegations did not fall within the exemptions to the state government’s basic immunity from lawsuits. If allowed to bring suit in this case, Rogers opined that the plaintiffs’ argument would lead to a plethora of lawsuits over road design, defeating the original purpose of the highway statute, which was to limit the state’s liability.

“Under the theory of liability the plaintiff advocates in the present case, virtually every design defect claim pertaining directly to the layout of the road would be actionable under the defective highway statute,” Rogers wrote in Stotler v. Department of Transportation. The court decided the companion Cummings case in the same manner.

Rogers said that were the justices to decide a highway’s layout across a 10 percent downhill grade was actionable in court, “then conceivably any highway design could be described as a defective ‘condition’ intrinsic to the highway.

“This result would hamstring states and municipalities in discharging their respective ‘duty to plan highways for the safety of the traveling public,’” Rogers added.

On July 29, 2005, the brakes on a dump truck failed and it barreled out of control down the steep road, slamming into a bus and 18 cars during a fiery chain-reaction crash. Thirty people were involved in the crash, 15 of whom were taken to the hospital. Stotler, of Avon, Barbara Bongiovanni, of Torrington, and Maureen Edlund, of Canton, died in the crash. The truck’s driver, Abdulraheem Naafi, of Hartford, also died.

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.

Wilcox, then 74, pleaded guilty to four counts of second-degree manslaughter, five counts of first-degree assault and pleaded no contest to insurance fraud. He was sentenced to six years behind bars.

Wilcox’s wife, Donna, was charged with insurance fraud and attempted larceny. The truck was uninsured at the time of the crash and she tried getting insurance afterward. Wilcox’s son Shawn was charged with tampering with evidence. Both wife and son were sentenced to probation.

Cummings was represented by Thomas Donohue Jr., of Killian & Donohue in Hartford. “We’re very disappointed” by the Supreme Court ruling, said Donohue. “They cut us off even from a trial on the merits.”

Donohue is hopeful lawmakers step in and clarify the highway defect statute so future claims such as this one can get to a jury. “I think it’s a dusty old statute that’s been around for a very long time,” said Donohue. “It’s been a subject of a great deal of judicial interpretation. I hope going forward the Legislature will revisit it. It would be helpful for everyone to have a little more clarity as to what are defects and what is actionable and what’s not.”

State Rep. Matt Ritter, D-Hartford, who is currently vice chairman of the General Assembly’s Judiciary Committee, said he has not yet heard any rumblings about lawmakers looking at this issue next session, but said often they are not approached until after election season.

“I wouldn’t be surprised if someone brought it up by next year,” said Ritter. “My guess is if some people feel this decision needs to be looked at, it will be brought to the right people’s attention.”

Faxon said the Legislature discussed these issues after the 2005 crash and his client testified in favor of a bill that would have made it easier to bring suit against the state in this instance.

“They had no interest whatsoever,” said Faxon. He doubts lawmakers will have any interest this time around.

“Obviously the only fix here is a legislative one and in this fiscal environment that’s probably impossible,” said Faxon.

Given the law, Williams, the lawyer for the state, said he was not surprised by the case’s ultimate result.

“It’s pretty much what I thought [the justices] would do,” said Williams. “They asked pointed questions to the plaintiffs’ attorneys about what exactly is the defect and why is that not a design defect that is barred under the law.”

Williams had pointed to an earlier state Supreme Court opinion, 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 that a lack of a barrier was a design defect which doesn’t create a defect in the road itself.

“[The Avon Mountain cases] are just a continuation of what the rule has always been,” said Williams.

Justice Dennis Eveleigh was the lone dissenter in both Supreme Court rulings. He wrote that the majority had an “overly narrow interpretation of what may constitute a design defect.”

“A road with an extremely steep downhill grade that is traversed by large trucks, without warning signs and with no truck runoff is defective in the same way that a staircase with no railing is defective,” wrote Eveleigh. “To recognize that people will occasionally slip while descending stairs is to recognize reality.…

“Along those same lines, when trucks descend a mountain road with a steep declining grade, occasionally their brakes will fail,” continued Eveleigh. “In the absence of a truck runoff, an accident is all but certain to occur as a result. Both of these aforementioned risks are inherent to the respective chosen designs.”

While lawsuits against the state were not permitted, suits were brought against Wilcox and his business, American Crushing & Recycling, that owned the dump truck that caused the accident.

Faxon said Wilcox had not kept up with the insurance on the truck so all of his possessions and corporate assets were seized by then-state Attorney General Richard Blumenthal and plaintiffs lawyers. Those assets were given over to a trustee; they were liquidated and Stotler and other plaintiffs received a proportionate share of that money.

“For the magnitude of the loss here, the compensation was extraordinarily small,” said Faxon.•