PALMER, J.
The defendant town of Greenwich (town)
The following relevant factual allegations and procedural history are set forth in the opinion of the Appellate Court. "In the early morning of September 3, 2006, Leo G. Brown was operating a tractor trailer in a westerly direction on Interstate 95 in [the town of] Greenwich.... Brown lost control of the tractor trailer, struck a jersey barrier and bridge railing, and eventually came to a stop in the right and center lanes of [the roadway]. Following the accident, Robert Lucas, a member of the Cos Cob fire police patrol, a volunteer organization operating in conjunction with the Greenwich fire department, responded to the scene. While assisting with the accident cleanup, Lucas parked a ... fire truck diagonally across the center and right lanes ... and also placed safety cones along the road to alert oncoming vehicles of the accident. Shortly thereafter, William Kumah, who also was driving his automobile ... on Interstate 95 in Greenwich, collided with the parked fire truck, sustaining serious physical injuries....
"Subsequently, the plaintiffs commenced this action against the town [among others] based on Lucas' conduct in responding to the accident. In support of their claims, the plaintiffs maintained, inter alia, that the town was negligent and careless
The plaintiffs appealed to the Appellate Court from the judgment of the trial court, arguing, inter alia, that the trial court improperly had determined that their nuisance claims must be stricken in light of the Appellate Court's decision in Himmelstein. Id., at 262, 14 A.3d 1012. The Appellate Court agreed, concluding that its decision in Himmelstein did not bar the plaintiffs' nuisance claims in the present case because Himmelstein involved materially different factual allegations from those of the present case that render it distinguishable. Id., at 262-63, 14 A.3d 1012. Specifically, the Appellate Court concluded that Himmelstein does not control the plaintiffs' nuisance claims because the plaintiff in Himmelstein, in contrast to the plaintiffs in the present case, had alleged, in support of his nuisance claim, that the defendant municipality was the party responsible for maintaining the road on which the injury occurred, thereby bringing his nuisance claim squarely within the ambit of § 13a-149. See id.
On appeal to this court following our granting of certification,
Before discussing the merits of the town's claim, we set forth certain principles that guide our analysis. "A motion to strike attacks the legal sufficiency of the allegations in a pleading.... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action.... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.... Moreover, [w]hether a highway is defective 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.... Because a motion to strike challenges the legal sufficiency of a pleading... and, consequently, requires no factual findings by the trial court, our review of the court's ruling [on a motion to strike] is plenary." (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, supra, 304 Conn. at 307, 39 A.3d 1065. In addition, whether § 52-557n (a)(1) relieves the town of liability for damages caused by its creation of a nuisance on a state highway presents a question of statutory interpretation over which our review is plenary.
The town maintains that § 52-557n (a)(1) bars the plaintiffs' nuisance claims because the statute expressly provides that § 13a-149 is a plaintiff's exclusive remedy for injuries resulting from a "defective road or bridge," and William Kumah's injuries are alleged to have been caused by a defective road. In the town's view, the fact that the William Kumah's alleged injuries were sustained on Interstate 95, a state highway — a fact that shields the town from liability under § 13a-149 — is irrelevant to our analysis because the language of § 52-557n (a)(1) evinces an intent by the legislature to encompass all roads and bridges, including those maintained by the state, within the purview of that provision. We disagree with the town's reading of § 52-557n (a)(1). In our view, it is far more reasonable to construe § 52-557n (a)(1) as pertaining to municipal roads and bridges only. This is so not simply because § 52-557n is concerned with municipal liability and immunity only; see footnote 3 of this opinion; but because § 13a-149, which, under § 52-557n (a)(1), is the plaintiffs' exclusive remedy for damages caused by a defective road or bridge, itself applies only to those roads and bridges that a municipality is "bound to keep ... in repair." General Statutes § 13a-149. By virtue of this scheme, it is apparent that the legislature sought to ensure that a person who sustains injuries or property damage as a result of a nuisance created by a municipality may recover against the municipality either by way of an action sounding in nuisance or, if the nuisance was created on a road or bridge that the municipality was legally responsible for maintaining, under § 13a-149.
Reading § 52-557n (a)(1) to include state roads and bridges would defeat this obvious legislative purpose when, as the plaintiffs alleged, the municipality created the nuisance on a state highway. Moreover, if a plaintiff is injured on a state highway as a result of a nuisance that a municipality creates, and the plaintiff's injuries are sustained before the state had actual or constructive notice of the alleged nuisance, the plaintiff could be left without any recourse at all. This is so because, in such circumstances, the plaintiff would have no remedy against either the municipality or the state: the municipality would not be liable because the accident occurred on a state road, and the state would have no liability because it lacked notice of the defect, a condition precedent to an action
Our interpretation also is consistent with the principle that, "[i]n determining whether ... a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." Vitanza v. Upjohn Co., 257 Conn. 365, 381, 778 A.2d 829 (2001); see also id. ("[i]nterpreting a statute to impair an existing interest or to change radically existing law is appropriate only if the language of the legislature plainly and unambiguously reflects such an intent" [internal quotation marks omitted]). Thus, "[a]lthough the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed." (Internal quotation marks omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). Prior to the enactment of § 52-557n (a)(1), a person who sustained injuries on a municipal road by means of a nuisance created by the positive acts of a municipality could recover against the municipality either by way of a common-law nuisance action or an action pursuant to the municipal highway defect statute. See, e.g., Grady v. Somers, supra, 294 Conn. at 335-36 n. 10, 984 A.2d 684 (observing that liability in nuisance represented common-law exception to governmental immunity of municipalities); Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963) ("[i]t is true that a common-law action lies against a municipality
Section 52-557n (a)(1) abrogated the common law, however, by making § 13a-149 the exclusive remedy against a municipality for damages resulting from injury to any person or property caused by a defective road or bridge. In accordance with settled precedent concerning our interpretation of statutes abrogating the common law, we will not presume that the legislature intended to change the common law by barring recovery against the town in the circumstances of the present case in the absence of statutory language indicative of such intent.
We find no merit in the town's contention that the decisions of the Appellate Court and this court in Himmelstein compel a different result. In support of this contention, the town notes that, in Himmelstein, as in the present case, the defendant town of Windsor ultimately was deemed not to be the party responsible for maintaining the road on which the plaintiff was injured, but the Appellate Court nevertheless concluded that the nuisance claim in that case was barred by the exclusivity provision of § 13a-149. See Himmelstein v. Windsor, supra, 116 Conn.App. at 40, 44, 974 A.2d 820. The town contends, therefore, that the decision of the Appellate Court in Himmelstein stands for the broad proposition that, "as long as a complaint alleges a physical impediment at street level, in the traveled portion of the roadway, that resulted in the roadway not being reasonably safe for travel"; (internal quotation marks omitted); then, as a matter of law, the plaintiff's exclusive remedy is an action under the state or municipal highway defect statute.
In reaching its determination in the present case, the Appellate Court explained its holding in Himmelstein as follows: "In Himmelstein, the plaintiff [Paul R. Himmelstein] brought [an action] against the town of Windsor and the Windsor police department after sustaining physical injuries when the bicycle [that] he was riding struck a Windsor police department radar trailer. [Himmelstein v. Windsor, supra, 116 Conn.App. at] 31 [974 A.2d 820]. In addition to alleging a breach of ... § 13a-149, [Himmelstein] sought recovery against the town [of Windsor] on a theory of nuisance. Id. In support of [both ] claims, [Himmelstein] alleged that the [t]own of Windsor ... [was] ... charged with the statutory duty of maintaining, repairing and otherwise rendering safe town streets, including the street on which [Himmelstein's] injuries were sustained. Himmelstein v. Windsor, Conn. Appellate Court Records & Briefs, March Term, 2009, Record p. 5. The town of Windsor filed a motion to strike [Himmelstein's] nuisance claim, arguing that, because the ... claim fell within the ambit of § 13a-149, that statute provided the exclusive remedy available to him. Himmelstein v. Windsor, supra, 116 Conn.App. [at] 31-32 [974 A.2d 820]. The trial court granted the motion to strike, and [Himmelstein] appealed to [the Appellate Court]. Id. [at], 32-33 [974 A.2d 820]. On appeal, [Himmelstein] argued that the [trial] court improperly granted the motion to strike, as his nuisance claim was legally
The Appellate Court noted further: "In the present case, unlike in Himmelstein, the plaintiffs have not alleged that Interstate 95 is a road that the town is `bound to keep ... in repair' pursuant to § 13a-149. Indeed, it would be disingenuous to conclude that the town is responsible for the upkeep, maintenance and repair of Interstate 95, a major thoroughfare spanning the state. Therefore, the plaintiffs' nuisance counts are clearly distinguishable from those asserted in Himmelstein, as the plaintiffs' nuisance counts [in the present case] do not fall within the scope of § 13a-149. As such, [the court] conclude[s] that the trial court improperly granted the town's motion to strike the plaintiffs' nuisance counts on the basis of [the Appellate Court's] decision in Himmelstein." Id., at 263-64, 14 A.3d 1012. Thus, for purposes of the present case, the Appellate Court clarified its decision in Himmelstein as having been based solely on a pleading deficiency, namely, Himmelstein's allegation that the town of Windsor was the party responsible for maintaining the road on which his injury occurred. See id., at 263, 14 A.3d 1012.
After granting Himmelstein's petition for certification to appeal, we also concluded that the trial court properly had stricken Himmelstein's nuisance claim because Himmelstein had alleged, in support of the claim, that the town of Windsor was the party responsible for maintaining the road on which the injury occurred, thus bringing the nuisance claim squarely within the purview of § 13a-149. See Himmelstein v. Windsor, supra, 304 Conn. at 311-12, 39 A.3d 1065. By resolving Himmelstein's claim based on the manner in which that claim had been pleaded, we avoided addressing the broader question presented by this appeal, namely, whether a municipality is liable for nuisances that it creates on roads or bridges that the municipality itself is not required to keep in repair. For the reasons previously set forth in this opinion, we answer that question in the affirmative.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
We note that the state is not a defendant in this action, perhaps because the plaintiffs have determined that the state did not have notice of the alleged nuisance when the accident in which William Kumah was injured occurred. We also note that the plaintiffs in the present case might not be deprived of a remedy altogether under the town's interpretation of § 52-557n (a)(1), but only because there are other defendants to this action who, according to the plaintiffs, bear responsibility for the accident along with the town. But for the fortuity that one or more of those defendants potentially might be liable under the particular facts and circumstances of this case, the plaintiffs would have no remedy at all under the statutory construction urged by the town.