Attorney General: Honorable Arthur J. Rocque, Jr., Department of Environmental Protection, 2001-010 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 3, 2001

Honorable Arthur J. Rocque, Jr.
Department of Environmental Protection
79 Elm Street
Hartford, CT 06106

Dear Commissioner Rocque:

You have asked the extent of the responsibility and potential liability of the Department of Environmental Protection (hereinafter "DEP"), regarding the marking, through signage (beacons) and/or barrier floats, of potentially hazardous state-owned dams. The issue involved affects 15 to 20 sites statewide. This opinion is limited to water retention dams only.

After reviewing the relevant law, we conclude that the DEP should mark the dams to protect the public's safety and to lessen the state's potential liability should an accident occur. Failure to provide such warnings could under certain circumstances expose the state to liability, particularly in the event that an injury is sustained as a result of an unmarked dam.

A dam is a structure generally not intended for recreational use. Depending on the factual circumstances, a member of the public present on a state-owned dam without the permission of the State could be considered a trespasser.1 However, in circumstances where the State owns not only the dam but also the adjacent waterways, it may invite members of the public onto the waterway for recreational use. In such cases, the legal status of a member of the public present on the dam might, depending on the specific facts involved, be considered that of a "public invitee."2

If a member of the public on or near a state owned dam is considered a trespasser, the general rule regarding the duty of care owed to such a person is that a "possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser but has a duty to refrain from causing injury to a trespasser intentionally or by willful, wanton or reckless conduct." Mafucci v. Royal Park Limited Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998). Connecticut courts, however, have recognized several exceptions to this general rule regarding trespassers.

A duty of care arises where a possessor of land has created and maintained on its premises a condition "which in the exercise of due care it should have known would be likely to cause death or serious bodily harm to trespassers when it knew that trespassers used that limited portion of the premises under such circumstances that they would not discover the condition in time to avoid injury." Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 429, 216 A.2d 818 (1966). Under these circumstances, a landowner is required to use reasonable care to give an adequate warning. Section 335 of Restatement (Second) of Torts, Comment e.3

Similarly, Restatement (Second) of Torts § 337 subjects a possessor of land to liability from failing to warn known trespassers about to come into contact with a "highly dangerous artificial condition" maintained by the possessor upon the land, if the condition is such that the trespasser will not discover it or realize the risk involved. Comment a, Restatement (Second) of Torts § 337.4 Section 339 of the Restatement (Second) of Torts imposes a duty on a possessor of land to trespassing children where there are known dangerous artificial conditions on the property.5

The word "artificial" is defined in Black’s Law Dictionary as meaning, "as opposed to nature, means created or produced by man." BLACK'S LAW DICTIONARY 103 (5th ed.). Under the circumstances presented here, a dam is a man-made barrier to the free flow of water. Hence, it may be considered an artificial condition within the Restatement (Second) of Torts.

If a member of the public on or near a state owned dam is considered an invitee, the general rule is that a possessor of land is subject to liability to such a person only for harm sustained while the invitee is on the land within the scope of his invitation. Comment l, Restatement (Second) of Torts § 332. Sections 343 and 343A of the Restatement (Second) of Torts outline the duty owed by a possessor of land to invitees for known dangerous conditions on the land6 and known or obvious dangers on the land.7 A governmental agency which maintains the land on which the public is invited is considered to have a heightened duty to anticipate potential harm where the public is invited (Comment g, Restatement (Second) of Torts § 343A.). As a governmental agency, the DEP thus has a responsibility to warn the public of the existence of dangerous conditions.

Because there is a danger of injury at unmarked, state owned dams, especially where the presence of the dam is difficult to discern, the DEP should post signs warning of the existence of the dams. Under the general law concerning land owner liability outlined above, whether individuals are considered trespassers or invitees, the failure to post signs warning of the existence of dams could expose the State to potential liability for any injuries sustained by such persons at the dams.8

You express concern that posting warning signs could increase DEP’s potential liability. We disagree. "[S]ubsequent remedial measures are not admissible as evidence of prior negligence." Tait Colin C, & LaPlante Joseph A., Handbook of Connecticut Evidence § 11.5.4(a) 2nd ed. 1988, citing Shegda v. Hartford-Connecticut Trust Co., 131 Conn. 186, 188, 38 A.2d 668 (1944). On a prospective basis, moreover, the posting of highly visible and strategically placed warning signs may reduce or eliminate state liability. Morin v. Bell Court Condominium Association, Inc., 223 Conn. 323 (1992), Warren v. Stancliff, 157 Conn. 216 (1968).

More important, it is essential from a public safety standpoint that the dams be marked to warn members of the public of their existence and potential hazard. In order to protect the public from physical harm and the DEP from possible liability, the DEP should post appropriate signs or beacons warning of the existence of the dams.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Linda A. Russo
Assistant Attorney General

RB/LAR/lr


1"Trespasser" is defined as "a person who enters or remains upon the land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts § 329. "The determining factor is the presence or absence of a privilege to enter or to remain on the land, ... the status of an accidental trespasser is still that of a trespasser." Comment C, Restatement (Second) of Torts § 329.

2"Public invitee" is defined as "[a] person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." Restatement (Second) of Torts § 332.

3Section 335 - Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area. A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if:

(a) the condition

(i) is on which the possessor has created or maintains and

(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and

(iii) is of such a nature that he has reason to believe such trespassers will not discover it, and

(b) the possessor has bailed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

4Section 337 - Artificial Conditions Highly Dangerous to Known Trespassers. - A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if:

(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and

(b) the condition is of such nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.

5Section 339 - Artificial Conditions Highly Dangerous to Trespassing Children - A possessor of land is subject to liability for physicial harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

6Section 343 - Dangerous Conditions Known to or Discoverable by Possessor. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

7Section 343A - Known or Obvious Dangers. (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowlege or obviousenss. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

8We do not address the effect, if any, of Conn. Gen. Stat. § 52-557g, the recreational use statute, on the state's potential liability.


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