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*********************************************** 
WILLIAM DOBIE v. CITY OF NEW HAVEN ET AL.

(SC 20623)

Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js.

Syllabus

Pursuant to statute (§ 52-557n (a) (1)), ‘‘[e]xcept as otherwise provided by

law, a political subdivision of the state shall be liable for damages to

person or property caused by . . . [t]he negligent acts or omissions of

such political subdivision or any employee . . . thereof acting within

the scope of his employment or official duties . . . provided, no cause

of action shall be maintained for damages resulting from injury to any

person or property by means of a defective road . . . except pursuant

to section 13a-149.’’

Pursuant further to statute (§ 13a-149), ‘‘[a]ny person injured in person or

property by means of a defective road . . . may recover damages from

the party bound to keep it in repair.’’

The plaintiff sought to recover damages for personal injuries he sustained

in connection with an incident on a municipal road maintained by the

named defendant, the city of New Haven. The plaintiff had been driving

his vehicle behind a snowplow, operated by a city employee, that dislodged a manhole cover a few seconds before the incident. The plaintiff

alleged in his complaint, pursuant to § 52-557n (a) (1), that the snowplow

operator had negligently dislodged the manhole cover, which then

became airborne, lodged under the plaintiff’s vehicle, and caused the

plaintiff to lose control of his vehicle and to sustain injuries. The city

filed a pretrial motion to dismiss, claiming that the trial court lacked

subject matter jurisdiction because § 13a-149 provided the exclusive

remedy for the plaintiff’s injuries, and the plaintiff had failed to comply

with that statute’s notice provisions. The trial court denied the pretrial

motion, reasoning that the complaint alleged that the plaintiff’s injuries

were caused by the negligence of the snowplow operator rather than

by a defect in the road. At trial, however, the plaintiff’s testimony differed

from the allegations in his complaint, insofar as he testified that his

injuries occurred when he drove his vehicle into the open manhole itself

and that the manhole cover never lodged under his vehicle. The jury

returned a verdict for the plaintiff, and the city filed a posttrial motion

to dismiss, renewing the claims that it had raised in its pretrial motion.

The trial court denied the posttrial motion to dismiss and rendered

judgment in accordance with the jury verdict. The city thereafter

appealed to the Appellate Court from the trial court’s judgment. Before

the Appellate Court, counsel for the city conceded that the trial court

had properly denied the city’s pretrial motion to dismiss. Nevertheless,

the Appellate Court reversed the trial court’s judgment, concluding, inter

alia, that the plaintiff’s sole remedy was an action pursuant to § 13a149 and that, because the plaintiff had failed to satisfy the notice requirements of that statute, the trial court lacked subject matter jurisdiction.

On the granting of certification, the plaintiff appealed to this court. Held:

1. The concession by the city’s counsel before the Appellate Court that the

trial court had properly denied its pretrial motion to dismiss did not

constitute a concession that the trial court had correctly decided the

city’s posttrial motion to dismiss:

The rules and procedures that apply to a trial court’s determination

concerning its subject matter jurisdiction depend on the state of the

record at the time the motion to dismiss for lack of jurisdiction is filed.

The trial court, in deciding the city’s posttrial motion, was required to

consider any undisputed facts established at trial, and the facts established at trial differed from those that the plaintiff alleged in his complaint

and included the plaintiff’s own testimony that his injuries occurred

when he drove his vehicle into the uncovered manhole and that the

manhole cover had not lodged under his vehicle.

Accordingly, the record before the trial court when it addressed the
city’s pretrial motion and the record before the court when it addressed

the city’s posttrial motion did not involve the same underlying facts,

and, thus, there was no merit to the plaintiff’s claim that counsel’s

concession that the trial court had properly denied the city’s pretrial

motion equated to a concession that the court properly denied the city’s

posttrial motion.

2. The Appellate Court correctly concluded that § 13a-149 was the plaintiff’s

sole remedy under the facts and circumstances of the case, and, because

the plaintiff had not complied with the notice requirements of that

statute, the Appellate Court properly reversed the trial court’s judgment

and remanded the case with direction to grant the city’s posttrial motion

to dismiss:

It was of no consequence that the city employee’s negligence may have

caused the removal of the manhole cover, as the statutes and case law

made clear that, if a plaintiff’s damages result from injury to person or

property by means of a defective road, irrespective of whether those

means were created negligently, the plaintiff’s exclusive remedy is

§ 13a-149.

Moreover, in light of its prior holdings that depressions in roadways,

such as potholes, constitute highway defects, this court concluded that

an uncovered, open manhole constitutes a highway defect as a matter

of law.

Furthermore, there was no merit to the plaintiff’s claim that requiring

his action to be brought under § 13a-149 left him without a remedy, the

plaintiff having confused the idea of being left without a remedy and

the difficulty in successfully proving the elements of the remedy afforded

to him by law, as the plaintiff plausibly could have contended, on the

basis of the evidence adduced at trial, that the city might have had notice

of the uncovered manhole and a reasonable opportunity to fix that defect

if the snowplow driver had stopped his truck immediately after hitting

the manhole cover, and the plaintiff’s failure or inability to prove those

elements or any other element of the statute did not negate the legislature’s choice to make § 13a-149 the exclusive remedy by which a plaintiff

may recover for damages resulting from injury to person or property by

means of a highway defect.

Argued December 21, 2022—officially released April 18, 2023

Procedural History

Action to recover damages for personal injuries sustained as a result of the named defendant’s alleged negligence, and for other relief, brought to the Superior

Court in the judicial district of New Haven and tried

to the jury before Ozalis, J.; verdict for the plaintiff;

thereafter, the court denied the named defendant’s

motions to set aside the verdict and to dismiss, and

rendered judgment in accordance with the verdict, from

which the named defendant appealed to the Appellate

Court, Elgo, Cradle and Alexander, Js., which reversed

the trial court’s judgment and remanded the case with

direction to grant the named defendant’s posttrial

motion to dismiss and to render judgment thereon, and

the plaintiff, on the granting of certification, appealed

to this court. Affirmed.

Brendan K. Nelligan, with whom, on the brief, was

Leann Riether, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, was

Beatrice S. Jordan, for the appellee (named defendant).
Opinion

D’AURIA, J. In this certified appeal, we are asked to

decide whether an open manhole on a public roadway,

uncovered after a snowplow driver negligently knocked

off its cover only seconds before a motorist drove into

the manhole, constitutes a ‘‘highway defect,’’ making

General Statutes § 13a-149, our highway defect statute,

the motorist’s exclusive remedy for injuries he sustained as a result. The plaintiff, William Dobie, appeals

from the judgment of the Appellate Court, which

reversed the trial court’s judgment, rendered after a

jury verdict in his favor, on one count of negligence as

against the named defendant, the city of New Haven.1

The Appellate Court held that the highway defect statute was in fact the plaintiff’s exclusive remedy. Dobie

v. New Haven, 204 Conn. App. 583, 595, 254 A.3d 321

(2021). We affirm the Appellate Court’s judgment.

The following undisputed facts and procedural history are relevant to this appeal. The plaintiff was driving

his vehicle the morning after snow had fallen. Patches

of snow remained on the roadways. As he operated his

vehicle on Canner Street, a municipal roadway in New

Haven, the plaintiff followed a snowplow operated by

an employee of the defendant. The snowplow proceeded

through an intersection, with the plaintiff’s vehicle following approximately two to three car lengths behind.

The plaintiff heard a loud bang and, seconds later, his

vehicle fell into an open manhole. The vehicle was damaged and rendered inoperable, and he sustained injuries. When his vehicle came to rest about ten feet past

the open manhole, the plaintiff observed a manhole

cover in the roadway between the manhole and his

vehicle. The snowplow then came back around the

block and stopped at the accident location. The driver

told the plaintiff that the snowplow had hit the manhole

cover and knocked it off.

The plaintiff brought this civil action and, in his summons, designated the case type as ‘‘T 12,’’ which represents the description for ‘‘Defective Premises - Public

- Other.’’ The operative complaint alleged one count of

negligence on the part of the defendant’s snowplow

operator pursuant to General Statutes § 52-557n, which

governs tort liability of political subdivisions of the

state and their employees, officers, and agents. The

complaint alleged that the snowplow operator, as an

employee of the defendant, had negligently operated

his vehicle by dislodging a manhole cover, which then

lodged under the plaintiff’s vehicle, causing him to lose

control of it. The plaintiff did not bring a separate negligence action against the snowplow operator. The defendant moved to dismiss the complaint for lack of subject

matter jurisdiction, arguing that the single negligence

count ‘‘allege[d] facts that state a claim of injury arising

out of a highway defect, for which . . . § 13a-149 provides the exclusive remedy. The court lacks subject
matter jurisdiction because the plaintiff failed to give

notice of his injuries pursuant to § 13a-149.’’ The trial

court sustained the plaintiff’s objection to the defendant’s motion to dismiss, concluding that ‘‘[t]he [operative] complaint allege[d] that the plaintiff’s injuries were

caused by the negligence of the snowplow driver rather

than by a defect in the road.’’ (Internal quotation marks

omitted.) Dobie v. New Haven, supra, 204 Conn. App.

586.

The matter proceeded to a jury trial during which

the plaintiff’s testimony differed from the allegation in

his complaint. Specifically, the plaintiff testified that he

drove over the dislodged manhole cover after driving

into the manhole itself. As a result of having driven into

the open manhole, the plaintiff sustained injuries and

his vehicle was damaged. The plaintiff further testified

that the manhole cover did not become lodged under

his vehicle at any point. There also was no evidence at

trial that driving over the manhole cover itself caused

any damage to the plaintiff’s vehicle or caused him to

lose control of his vehicle. The jury returned a verdict in

the plaintiff’s favor, finding that the snowplow operator

was negligent and that his negligence proximately

caused the plaintiff’s injuries.

The defendant filed a posttrial motion to dismiss,

renewing its claim that the trial court lacked subject

matter jurisdiction because § 13a-149 provides the sole

remedy for the plaintiff’s injuries and the plaintiff failed

to comply with the statute’s notice requirements. The

defendant claimed that the plaintiff’s testimony at trial

established that he was injured by means of an open

manhole, which the defendant argued is a highway defect.

The court denied the defendant’s motion, ruling that

the evidence at trial clearly established that the plaintiff

was asserting a negligence claim against the city, not

a defective highway claim.2 The defendant appealed.

In its brief to the Appellate Court, the defendant contested the trial court’s denial of its pretrial and posttrial

motions to dismiss. However, at oral argument before

the Appellate Court, the defendant’s appellate counsel

conceded that the trial court had correctly decided the

pretrial motion because, if the manhole cover had

become airborne and struck the plaintiff’s vehicle, as

the plaintiff pleaded in his complaint, then the complaint would have appropriately alleged a claim for negligence under § 52-557n (a).

The defendant contended before the Appellate Court

that, because the evidence at trial had established that

the plaintiff sustained injuries when he drove into the

uncovered manhole, his damages, as a matter of law,

resulted from injuries to his person or property by

means of a ‘‘highway defect’’ within the meaning of

§ 13a-149. Id., 587–88. Specifically, the defendant argued

that the uncovered manhole was an ‘‘object in the travel

path that necessarily obstructed/hindered the use of the
road for the purpose of traveling,’’ the definition of

highway defect that this court has consistently used.

See, e.g., McIntosh v. Sullivan, 274 Conn. 262, 268–69,

875 A.2d 459 (2005); Hewison v. New Haven, 34 Conn.

136, 142 (1867). Because the plaintiff did not comply

with the notice requirements of that statute, the defendant claimed that the trial court improperly denied its

posttrial motion to dismiss. Dobie v. New Haven, supra,

204 Conn. App. 588.

The Appellate Court agreed with the defendant and

reversed the trial court’s judgment, holding that ‘‘the

plaintiff’s injuries were caused by a collision between

his vehicle and an object in the traveled path that necessarily obstructed or hindered the use of the road for

the purpose of traveling—namely, an open manhole.’’

Id., 595. As a result, the court held that the plaintiff’s

sole remedy was an action pursuant to the highway

defect statute. Id. The Appellate Court further held that,

because the plaintiff had failed to comply with the

notice provisions of § 13a-149, the trial court lacked

subject matter jurisdiction over the action. Id. Therefore, the Appellate Court reversed the trial court’s judgment and directed the trial court on remand to grant the

defendant’s posttrial motion to dismiss and to render

judgment accordingly. Id.

The plaintiff sought certification to appeal, which

we granted on the following two issues: (1) ‘‘Did the

Appellate Court correctly conclude that . . . § 13a-149

was the plaintiff’s sole remedy under the facts and circumstances of the case?’’ And (2) ‘‘[d]id the Appellate

Court correctly conclude that the trial court had improperly denied the defendant’s posttrial motion to dismiss

when the defendant conceded at oral argument that the

trial court had properly denied the defendant’s pretrial

motion to dismiss?’’ Dobie v. New Haven, 338 Conn.

901, 258 A.3d 90 (2021). We answer both questions in

the affirmative and therefore affirm the Appellate

Court’s judgment.

I

Because it helps to frame the first certified issue, we

address the second certified issue first. Specifically, the

plaintiff argues that the defendant’s pretrial and posttrial motions to dismiss for failure to bring this action

pursuant to the highway defect statute were indistinguishable. Therefore, he argues that the defendant’s

concession at oral argument before the Appellate Court

that the trial court properly denied the pretrial motion,

along with the defendant’s failure to meaningfully distinguish between the motions to dismiss, equates to a

concession that the trial court also properly denied the

posttrial motion to dismiss. The defendant responds

that the record before the trial court at the time of

the posttrial motion ‘‘presented a markedly different

situation’’ that required the court to consider undisputed facts established at trial, not merely the allega-
tions in the complaint. We agree with the defendant.

First, we must acknowledge that ‘‘[t]rial courts

addressing motions to dismiss for lack of subject matter

jurisdiction . . . may encounter different situations,

depending on the status of the record in the case. . . .

[L]ack of subject matter jurisdiction may be found in

any one of three instances: (1) the complaint alone;

(2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution

of disputed facts. . . . Different rules and procedures

will apply, depending on the state of the record at the

time the motion is filed.’’ (Internal quotation marks

omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009).

When deciding the defendant’s pretrial motion to dismiss, the trial court properly considered only the allegations of the complaint, construing the facts alleged in

the manner ‘‘most favorable to the [plaintiff].’’ (Internal

quotation marks omitted.) Id. The plaintiff’s complaint

alleged that the snowplow had hit the manhole, causing

the manhole cover to propel into the air and lodge under

the plaintiff’s vehicle, which caused him to lose control

of the vehicle. By contrast, when deciding the defendant’s posttrial motion to dismiss, the court was obliged

to consider any undisputed facts established at trial.

The facts established at trial differed from the facts

alleged in the plaintiff’s complaint. Specifically, based

on the plaintiff’s own testimony, it was undisputed that

the plaintiff had driven his vehicle into the open manhole, causing injury to himself and damage to the vehicle. The manhole cover did not lodge under his vehicle.

The record before the trial court when it addressed the

pretrial motion and the posttrial motion did not involve

the same underlying facts. Thus, the defendant’s concession that the trial court had decided the pretrial

motion to dismiss properly does not constitute a concession that it decided the posttrial motion to dismiss

properly as well.

II

The principal issue in this appeal requires this court

to review the trial court’s ruling on a motion to dismiss.

Our standard of review is well established. ‘‘A motion

to dismiss . . . properly attacks the jurisdiction of the

court, essentially asserting that the plaintiff cannot as

a matter of law and fact state a cause of action that

should be heard by the court.’’ (Internal quotation

marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866

A.2d 599 (2005). A trial court’s determination of its

subject matter jurisdiction is a question of law that

we review de novo. See, e.g., Angersola v. Radiologic

Associates of Middletown, P.C., 330 Conn. 251, 264, 193

A.3d 520 (2018).

The applicable law governing a municipality’s liability
for negligence and highway defects is also well established. At common law, municipalities could not be held

liable for the negligence of their employees. See, e.g.,

Spears v. Garcia, 263 Conn. 22, 29, 818 A.2d 37 (2003).

Similarly, as a general matter, a municipality was immune

from liability for highway defects. See, e.g., Hornyak

v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949) (‘‘[a]

town is not liable for highway defects unless made so

by statute’’).

The legislature has abrogated both principles in a

limited fashion. ‘‘[Section] 52-557n abandons the common-law principle of municipal [governmental] immunity and establishes the circumstances in which a

municipality may be liable for damages. . . . One such

circumstance is a negligent act’’ of a municipal employee.

Ventura v. East Haven, 330 Conn. 613, 629, 199 A.3d

1 (2019). A municipality’s immunity from liability for

highway defects also ‘‘has been legislatively abrogated

by § 13a-149, which allows a person to recover damages

against a municipality for injuries caused by a defective

highway.’’ Martin v. Plainville, 240 Conn. 105, 109, 689

A.2d 1125 (1997).

The plaintiff brought his claim under § 52-557n (a)

(1), the municipal negligence statute, which provides

in relevant part: ‘‘Except as otherwise provided by law,

a political subdivision of the state shall be liable for

damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or

any employee, officer or agent thereof acting within

the scope of his employment or official duties . . . .’’

(Emphasis added.) This statute provides a specific

exception, however, namely, that ‘‘no cause of action

shall be maintained for damages resulting from injury

to any person or property by means of a defective road

or bridge except pursuant to section 13a-149.’’ General

Statutes § 52-557n (a) (1). ‘‘We have construed § 52-

557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the

defective highway statute is the plaintiff’s exclusive

remedy.’’ Ferreira v. Pringle, 255 Conn. 330, 341, 766

A.2d 400 (2001). Section 13a-149, in turn, provides in

relevant part that ‘‘[a]ny 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. . . . No action for any such injury shall be maintained against any . . . city . . . unless written 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, shall, within ninety days thereafter be

given to . . . the clerk of such city . . . .’’ If a plaintiff

fails to comply with the notice provisions of the statute,

the trial court does not have subject matter jurisdiction

over the matter. See Ferreira v. Pringle, supra, 344.

The plaintiff argues that he properly brought his

action under § 52-557n, alleging that the circumstances
of the present case clearly implicate the negligent operation of a motor vehicle. Therefore, he contends, this

case is not governed by § 13a-149. Specifically, the plaintiff argues that, because the snowplow driver, an

employee of the defendant, knocked the cover off the

manhole, the operative issue is the driver’s negligence,

and, therefore, it was proper to litigate the plaintiff’s

claim as a negligence action brought pursuant to § 52-

557n. The defendant counters that an uncovered manhole is ‘‘[an] object in, upon, or near the traveled path,’’

the definition our case law gives to the phrase highway

defect and, therefore, that the plaintiff’s claimed damages ‘‘result[ed] from injury . . . by means of a defective road’’ and is governed exclusively by § 13a-149.

The problem with the plaintiff’s argument is that,

under our statutes and case law, the fact that a municipal employee’s negligence might have caused the defect

has been taken out of the equation. If the plaintiff’s

damages ‘‘result[ed] from injury to any person or property by means of a defective road,’’ irrespective of

whether those ‘‘means’’ were created negligently, then

his remedy is exclusive: ‘‘[N]o cause of action shall be

maintained . . . except pursuant to section 13a-149.’’

(Emphasis added.) General Statutes § 52-557n (a) (1).

‘‘[T]he manner in which a defect is created in and of

itself has no bearing on the town’s liability under the

statute.’’ Machado v. Hartford, 292 Conn. 364, 378, 972

A.2d 724 (2009). That is to say, even if we accept, as

we must, the jury’s finding that the snowplow driver

was negligent, the highway defect statute still provides

the plaintiff’s exclusive remedy for injuries sustained

as a result ‘‘of a defective road or bridge . . . .’’ General

Statutes § 13a-149. This brings the plaintiff’s claim both

within the exception to § 52-557n, governing the defendant’s liability for its employees’ negligence, and within

§ 13a-149, governing the defendant’s liability for highway defects. The dispositive question, then, is whether

the ‘‘means’’ by which the injury was caused in fact

was a ‘‘defective road.’’ Two of our precedents most

particularly illustrate this point.

The plaintiff in Machado brought an action against

the defendant municipality for injuries she sustained

when the car she was driving hit a large depression in

the road that developed as a result of road repairs

a third-party contractor had performed. Machado v.

Hartford, supra, 292 Conn. 366. After hitting the depression, the plaintiff’s car became airborne, landing on a

manhole cover projecting six to eight inches above the

roadway. Id. The plaintiff brought a highway defect

claim pursuant to § 13a-149. Id. The defendant claimed

that it could not be liable because the trial court found

that the third party’s negligence had caused the plaintiff’s injuries. Id. This court disagreed with the defendant, holding that ‘‘[i]t is settled law in this state that

the liability of [a town] under § 13a-149 is purely for

breach of a statutory duty and does not arise from
negligence. . . . Such liability represents a penalty for

the town’s failure to perform adequately its statutory

duty to repair its roads, and it is solely the town’s failure

in that regard that renders it liable. . . . Accordingly,

because municipal liability under § 13a-149 is predicated exclusively on the town’s failure to carry out its

statutory duty, it follows that the manner in which a

defect is created in and of itself has no bearing on the

town’s liability under the statute. Rather, it is the

existence of the defect and the town’s actual or constructive knowledge of and failure to remedy that defect

that are of primary importance in making out a prima

facie case of municipal liability under § 13a-149.’’

(Citations omitted; emphasis altered; internal quotation

marks omitted.) Id., 377–78.

The court went on to explain that, ‘‘[w]hen the defect,

once created, causes the accident in the absence of any

other intervening factors . . . the injuries in that case

would be caused solely by means of the defect, even

though that defect may originally have been created by

the negligence of a third party.’’ (Emphasis in original.)

Id., 380. Just as a third party’s negligent performance

of the road repairs created the defect in Machado, the

negligence of the defendant’s employee in the present

case created the defect at issue. Both scenarios implicate § 13a-149.

In Ferreira, the plaintiff brought an action pursuant

to § 52-557n (a) for injuries he sustained after tripping

on a remnant of a severed steel signpost that was

embedded in a grassy embankment on the side of a

public roadway. Ferreira v. Pringle, supra, 255 Conn.

332, 335. The plaintiff alleged that the defendant municipal employees, in the course of their employment, had

been negligent in maintaining the grassy embankment

on the shoulder of the road, thereby causing his injuries.

Id., 335–36. The trial court dismissed the action for lack

of subject matter jurisdiction, holding that, even when

accepting as true all of the plaintiff’s allegations, including his allegations of the defendants’ negligence, his

injuries as a matter of law resulted from a highway

defect—the embedded steel signpost—and § 13a-149

was his exclusive remedy. Id., 337–38. This court upheld

the trial court’s dismissal of the action, holding that the

‘‘facts conclusively establish[ed], as a matter of law, that

the condition allegedly causing the plaintiff’s injuries

constitute[d] a highway defect . . . .’’ Id., 345. Although

the plaintiff had filed a notice of intention to sue the

town and its employees pursuant to General Statutes

§ 7-465 ‘‘ ‘and other relevant statutes’ ’’ for injuries he

sustained as a result of the allegedly negligent maintenance of the grassy highway shoulder; id., 332–33; he

failed to comply with the notice requirements of § 13a149. Id., 332. Thus, we held that the trial court lacked

jurisdiction over the action. Id., 332, 354–55.

Our case law, therefore, makes clear that, when applying
§ 13a-149, courts have not had to hypothesize as to what

created the highway defect that caused a plaintiff’s

injuries, which would create an additional burden that

the statute does not require. Instead, the question simply is whether the plaintiff was injured ‘‘by means of a

defective road . . . .’’3 General Statutes § 13a-149.

What constitutes a ‘‘defective road,’’ or what is more

commonly referred to as a ‘‘highway defect,’’ and, therefore, which statute governs a motorist’s claim for damages against a municipality, have been the subject of a

great deal of litigation. We have long held that a ‘‘highway defect is [a]ny object in, upon, or near the traveled

path, which would necessarily obstruct or hinder one

in the use of the road for the purpose of traveling

thereon, or which, from its nature and position, would

be likely to produce that result . . . .’’ (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255

Conn. 342; see also id., 356 (‘‘[t]he term ‘defect’ and the

adjective ‘defective’ have been used in statutes defining

the right to recover damages for injuries due to public

roads or bridges in Connecticut since 1672’’). ‘‘Whether

a condition in a highway constitutes a defect must be

determined in each case on its own particular circumstances.’’ (Internal quotation marks omitted.) Giannoni

v. Commissioner of Transportation, 322 Conn. 344,

360, 141 A.3d 784 (2016). This determination ‘‘may involve

issues of fact, but whether the facts alleged would, if

true, amount to a highway defect according to the statute is a question of law . . . .’’ (Internal quotation

marks omitted.) Ferreira v. Pringle, supra, 341–42.

Many of our highway defect cases have arisen as a

result of conditions caused by snowy or icy roadways.

In those cases, it was undisputed that the defect at

issue fell within the scope of § 13a-149. See, e.g., Pratt

v. Old Saybrook, 225 Conn. 177, 178–79, 621 A.2d 1322

(1993); Lukas v. New Haven, 184 Conn. 205, 206–207,

439 A.2d 949 (1981). In other cases, this court has held

that falling tree limbs; see Comba v. Ridgefield, 177

Conn. 268, 269–70, 413 A.2d 859 (1979); and falling rocks

and debris; see McIntosh v. Sullivan, supra, 274 Conn.

285; that strike traveling cars are not considered highway defects. Several cases have established that manhole covers may constitute highway defects in certain

circumstances. See, e.g., Machado v. Hartford, supra,

292 Conn. 366 (defendant city was liable for injuries

plaintiff sustained when vehicle ‘‘hit a large depression

in the roadway’’ and then collided with exposed manhole cover); Federman v. Stamford, 118 Conn. 427,

429–30, 172 A. 853 (1934) (improperly installed manhole

cover); Dudley v. Commissioner of Transportation,

191 Conn. App. 628, 646, 216 A.3d 753 (‘‘allegedly defective manhole cover is within the definition of ‘highway

defect’ ’’), cert. denied, 333 Conn. 930, 218 A.3d 69

(2019).

Given that we have held that depressions in a road-
way—potholes—are highway defects, we have no trouble concluding that it logically follows that an

uncovered, open manhole, as a matter of law, is also

a highway defect. See Cuozzo v. Orange, 315 Conn.

606, 617–18, 109 A.3d 903 (2015) (accepting that pothole

is highway defect but focusing analysis on whether

driveway at issue was private or public roadway); Steele

v. Stonington, 225 Conn. 217, 221, 622 A.2d 551 (1993)

(§ 13a-149 was plaintiff’s sole remedy for injuries

caused by ‘‘series of potholes and bumps in the road’’

that caused him to lose control of his motorcycle (internal quotation marks omitted)).

The plaintiff argues that requiring his claim to be

brought as a highway defect action would ‘‘yield

unworkable results.’’ He hypothesizes that, under the

Appellate Court’s reasoning, if a motorist’s vehicle hit

a municipal vehicle that had passed a stop sign without

stopping, the municipal vehicle would be ‘‘obstructing

the roadway,’’ as defined by § 13a-149, or that, if a hose

fell from a firetruck and struck a vehicle traveling

behind the firetruck, § 13a-149 also would be implicated. The plaintiff is mistaken. In Comba v. Ridgefield,

supra, 177 Conn. 268, this court held that a tree limb

that hung over the traveled portion of a highway and

broke off, falling onto the plaintiff’s vehicle, was not a

‘‘defect’’ within the meaning of § 13a-149. Id., 271–72.

Although this court has recognized that a ‘‘defect need

not be a part of the roadbed itself,’’ objects that ‘‘have

no necessary connection with the roadbed or public

travel, which expose a person to danger . . . do not

ordinarily render the road defective.’’ Id., 270; see also

Hewison v. New Haven, supra, 34 Conn. 143. This distinguishes the present case from the fallen tree limb in

Comba, and the hose that fell off a firetruck in the

plaintiff’s hypothetical. Additionally, this court has never

held that a moving vehicle can be a highway defect,

and, contrary to the plaintiff’s assertions, our holding

today does not necessitate that conclusion. There is no

claim in this case that the plaintiff was harmed directly

by a moving vehicle. Here, the plaintiff’s damages

resulted from injuries to his ‘‘person or property by

means of’’ an open manhole, i.e., a hole in the roadbed

itself.

4 General Statutes § 13a-149.

Relying on Prato v. New Haven, 246 Conn. 638, 717

A.2d 1216 (1998), the plaintiff also argues that he would

be ‘‘left without a remedy’’ if he were compelled to

bring an action under § 13a-149. In Prato, this court

held that a plaintiff who had sustained injuries in a

bonfire explosion on a city street could not recover

under § 13a-149. See id., 639–40, 648. The court held

that, because the injuries happened ‘‘within, at most, a

few minutes of the ignition of the bonfire,’’ the defendant municipality did not have, and could not have had,

notice of the alleged defect. Id., 640. The plaintiff’s

argument, however, confuses the idea of being ‘‘left

without a remedy’’ with the difficulty in successfully
proving the elements of the remedy that the law

affords him.

To prove liability under the highway defect statute,

a plaintiff must prove ‘‘(1) that the highway was defective as claimed; (2) that the defendant actually knew

of the particular defect or that, in the exercise of its

supervision of highways in the city, it should have

known of that defect; (3) that the defendant, having

actual or constructive knowledge of this defect, failed

to remedy it having had a reasonable time, under all

the circumstances, to do so; and (4) that the defect

must have been the sole proximate cause of the injuries

and damages claimed . . . .’’ (Emphasis omitted; internal quotation marks omitted.) Machado v. Hartford,

supra, 292 Conn. 376. ‘‘It is the settled law of our state

that [i]n a case seeking recovery for damage from

defects in a highway, it is a prerequisite of liability that

the authority charged with maintenance shall have had

either actual notice of the defect or constructive notice

through its existence for such a length of time that it

would have been known in the exercise of reasonable

care, and a reasonable opportunity afforded to remedy

it.’’ (Internal quotation marks omitted.) Baker v. Ives,

162 Conn. 295, 305, 294 A.2d 290 (1972).

Based on the evidence presented at trial in the negligence action, which the plaintiff could have supplemented had he pursued this action as a highway defect

case, he plausibly could have contended that the defendant had notice of the uncovered manhole. For example, the plaintiff testified that, soon after his vehicle

went into the open manhole, the snowplow driver, having circled the block, approached to inform the plaintiff

that, while plowing, he had knocked the cover off the

manhole. This court has previously held, in a highway

defect case involving a manhole, that the fact that ‘‘the

defective condition [that] produced [the] plaintiff’s

injury was due to the act of [the defendant municipality’s] own representatives . . . in itself would be sufficient to impute to [the municipality] notice of that

[defective] condition.’’ Federman v. Stamford, supra,

118 Conn. 430.

The evidence at trial also demonstrated that the plaintiff plausibly could have established that the defendant

would have had a reasonable opportunity to fix the

defect. Jeffrey Pescosolido, the defendant’s Director of

Public Works, testified at trial that, when a snowplow

driver ‘‘hit[s] something abruptly,’’ hears ‘‘a large noise

or [feels] something [different] in the truck than [normal] or [sees] something,’’ the driver is supposed to

stop. Dale Keep, who testified for the plaintiff as an

expert in snowplow operation and road maintenance

involving snow and ice, stated that the snowplow driver

should have immediately stopped the plow to determine

what had happened. Based on this evidence, the plaintiff

could have plausibly demonstrated that, if the snow-
plow driver had stopped his truck immediately after

hitting the manhole cover, the defendant might have

had a reasonable opportunity to remedy the defect.

We do not suggest that it would have been easy for

the plaintiff to prove that the defendant had sufficient

notice of, and opportunity to cure, the defect in the

present case. Similarly, and without commenting on the

facts of this case, it can be very difficult to prove the

element of sole proximate cause under some circumstances. ‘‘[T]he municipal highway defect [statute]

require[s] that the highway defect is the sole proximate

cause of the plaintiff’s injuries, which precludes recovery against . . . a municipality in the event that the

injury was caused by a combination of the defect and

negligence on the part of the [plaintiff] or a third party.’’

Himmelstein v. Windsor, 304 Conn. 298, 313, 39 A.3d

1065 (2012); see also Williamson v. Commissioner of

Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988)

(‘‘if there is any negligence by the [plaintiff], even [1]

percent, she may not recover’’ (emphasis added; internal quotation marks omitted)). Additionally, if a plaintiff

fails to comply with the notice requirements of the

statute, he cannot maintain a cause of action. See, e.g.,

Ferreira v. Pringle, supra, 255 Conn. 355. A plaintiff’s

failure or inability to prove any of these or other elements, however, does not negate the fact that § 13a149 is the exclusive remedy the legislature has provided

by which he can recover for injuries resulting by means

of a highway defect. The plaintiff cites no highway

defect case—and we have found none—that says otherwise.

The Appellate Court correctly concluded that § 13a149 provides the plaintiff’s sole remedy because he sustained injuries that resulted from a highway defect—

an uncovered manhole. Therefore, because the plaintiff

did not comply with the notice requirements of the

statute, the Appellate Court properly reversed the trial

court’s judgment and remanded the case with direction

to grant the defendant’s posttrial motion to dismiss.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1 The plaintiff also named his insurance carrier, the Geico General Insurance Company, as a defendant in his complaint. At trial, the court directed

a verdict in favor of the insurer, which the plaintiff does not challenge in

this appeal. For purposes of this appeal, we refer to the city of New Haven

as the defendant.

2 The defendant also filed a posttrial motion to set aside the verdict,

arguing that the plaintiff had failed to prove that the snowplow driver was

negligent or that the plaintiff was an identifiable victim subject to imminent

harm. The trial court denied the motion. The Appellate Court concluded

that the posttrial motion to dismiss was improperly denied and did not

address the motion to set aside the verdict. See Dobie v. New Haven, supra,

204 Conn. App. 585 n.2. Therefore, the trial court’s ruling on that motion is

not before us in this certified appeal.

3 The plaintiff must also prove that the defendant municipality was ‘‘bound

to keep [the road] in repair.’’ General Statutes § 13a-149. That issue is not

contested in this case. Both parties agree that the defendant had the responsibility to maintain the roadway on which the plaintiff was injured.
4

In his reply brief to this court, the plaintiff resurrects the idea that

an ‘‘unsecured manhole cover’’ caused his injuries when his undisputed

testimony at trial showed that he was injured when his vehicle fell into the

open manhole in the road itself.