dissenting in part. I respectfully dissent. I disagree with the majority only as to part II: whether the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for finding the defendant liable under General Statutes § 13a-144.
The state of Connecticut is not liable for simple negligence in the repair and construction of its roads. The state is immune to suit on such a ground. The plaintiffs’ sole right to recover damages for any injuries which they may prove exists by virtue of § 13a-144, the “defective highway statute.” Apart from the statute the plaintiffs had no right to recover damages from the defendant. The plaintiffs, of course, made no claim to the contrary but based their case on the defective highway statute.
It was apparently undisputed that the plaintiffs had complied with the requirements of the statute as to notice. And the defendant does not argue that the evidence would not warrant a finding that the plaintiffs were injured when the automobile in which they were riding passed over an ice patch, swerved out of control, and collided with a bridge abutment. Nor does he contend that the defect, the ice patch, could not have been found to be a remediable defect of which the defendant by the exercise of proper care and diligence might *177have had reasonable notice. The ground argued by the defendant is that the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for recovery under § 13a-144.
In actions against the state for defective highways there can be no recovery unless the defect was the sole cause of the injury. In other words, where the wrongdoing of a third person combines with the defect in the highway to cause the injury, the state is not liable. Consequently, if any negligence of the state police contributed to the accident, the plaintiffs could not recover because by reason of that negligence it could not be found that the defect in the highway was the sole cause of the injury.
The plaintiffs, to be entitled to a verdict, had to prove first, that the highway at the place and time in question was defective from the icy condition as alleged in the complaint; second, that the defendant’s actual or constructive notice of this condition came a sufficient length of time before the claimed injuries occurred so that the defendant, if in the exercise of reasonable care, could have remedied the particular defective condition prior to the collision; third, that the plaintiffs sustained injuries and that the particular defective condition as alleged was the sole proximate cause of the plaintiffs’ collision and injuries. Since there is neither law nor fact to support the majority opinion, I would find that the trial court erred in instructing the jury that the negligence on the part of the police could provide a basis for recovery under § 13a-144.