Opinion
No. CV 03-0090924-S
April 27, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS ( # 117)
This is an action brought by the plaintiff, Derrick Betton, against the defendant, State of Connecticut. On November 10, 2003, the plaintiff filed an amended one-count complaint against the defendant, though James F. Byrnes, Jr., Commissioner of Transportation for the State of Connecticut, for injuries he allegedly sustained as a result of an automobile accident that occurred on Route 220 in Enfield, Connecticut (highway). The plaintiff alleges that on September 7, 1996, he was a passenger in a motor vehicle traveling on the highway when a dead and/or decayed tree limb crashed into the vehicle and injured him.
On November 24, 2003, the court clerk granted the plaintiff's motion to substitute first named defendant, James Byrnes, commissioner of transportation for the State of Connecticut, for the defendant State of Connecticut.
As authorized by Special Act 2003, No. 03-18, § 1, the plaintiff brings this claim for injuries that were caused by the alleged negligence of the defendant for failing to keep the highway in a reasonably safe condition pursuant to General Statutes §§ 13a-140, 13a-144 and 13a-149. Specifically, the plaintiff alleges that the defendant was negligent in the following ways: (1) the dead limbs and/or trees in the westbound lane of the highway created a hazardous condition for travelers; (2) no attempt was made to remove the branches or cut the limbs of the dead tree; (3) there were no signs to warn travelers of the dangerous condition; (4) the highway was not reasonably safe for travel; and (5) the defendant knew, or should have known by way of inspection that the dangerous condition existed and should have removed the dead trees and limbs from the highway. The defendant suffered extensive injuries, which were exasperated by his preexisting disease.
Special Act 03-18, § 1, provides: "Notwithstanding any provision of the general statutes, Derrick Betton is authorized to institute and prosecute to final judgment a civil action against the Commissioner of Transportation to recover damages for injuries sustained by him on September 7, 1996, allegedly caused by the negligence of the commissioner in failing to inspect and remove a dead tree within the limits of a state highway. The General Assembly deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose. The state waives its immunity from liability and from suit in such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The state shall be barred from setting up the fact that the claim had once been considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding as defenses to such action. The rights and liability of the state in such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances. The provisions of subsections (d) to (j), inclusive, of section 4-160 of the general statutes shall be applicable to such action."
Section 13a-140(a) provides in relevant part: "The commissioner may cut, remove or prune any tree, shrub or other vegetation situated wholly or partially within the limits of any state highway so far as is reasonably necessary for safe and convenient travel thereon."
Section 13a-144 provides in relevant part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglector default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court."
Section 13a-149 provides in relevant part: "Any 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."
The plaintiff suffers from Von Willebrand's disease, which is a bleeding disorder.
On July 27, 2004, the defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction. The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss on August 27, 2004. On September 20, 2004, the defendant filed a reply. Both the defendant and the plaintiff filed supplemental briefs on December 2, 2004 and December 16, 2004 respectively.
Attached to the motion to dismiss were exhibits detailing the procedural history of this claim prior to the enactment of Special Act 03-18. In November 1996, the plaintiff originally brought an identical claim to the Superior Court in the judicial district of Litchfield, Betton v. Burns, Superior Court, Docket No. CV 96 0072640. The complaint alleged that the plaintiff was injured when the vehicle that he was traveling in "struck some downed branches that lay upon the traveled portion of the roadway, which in turn pulled a limb off a tree so that it crashed into the vehicle." Concurrently, the plaintiff brought the same claim before the claims commissioner in December 1996. The claim for damages presented to the claims commissioner alleged that the plaintiff was injured when "tree limbs and/or branches smashed upon/or through the vehicle."
On July 16, 1999, the defendant moved for summary judgment on the ground that (1) the plaintiff's deposition testimony was that a tree limb fell onto the car; and a tree limb that hangs over a highway and falls onto a motor vehicle does not come within the purview of the highway defect statutes; and (2) the defendant had no prior notice of the defect. The defendant cited a Connecticut Supreme Court case for this proposition, Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979). On July 20, 1999, a trial court management conference was held with the court, Walsh, J. at which time the plaintiff apparently decided to withdraw the action as evidenced by a copy of the withdrawal dated July 23, 1999, attached as Exhibit A-6, to the defendant's motion. This withdrawal was however never with the court, see the case history Def's Exh. A-7. The case history and docket log attached as Exhibits A-7 A-8 to this motion show the case was dismissed by the court Depentima, J. on January 20, 2000. These same exhibits evidence the court never ruled on the motion for summary judgment. On March 15, 2002, the claims commissioner issued a memorandum of decision dismissing the claim on the ground that it did not have jurisdiction. It determined that based on the evidence presented, the injury was caused by a branch/limb obstructing the highway and that, therefore, the plaintiff's claim was otherwise authorized by law pursuant to § 13a-144.
In summary, the plaintiff brought a claim simultaneously in Superior Court and before the claims commissioner. In Betton v. Burns, Superior Court, Docket No. CV 96 007260, in support of its motion for summary judgment, the state argued that the plaintiff's claim did not come within the purview of § 13a-144, and that therefore the court lacked subject matter jurisdiction. Alternatively, before the claims commissioner, the state argued that the claim did come within the purview of § 13a-144, and that therefore the claims commissioner lacked jurisdiction over the claim. While the claim before the claims commissioner was pending, the plaintiff voluntarily decided to withdraw his action in Superior Court before the court ruled on the defendant's motion. The claims commissioner subsequently dismissed the claim on the ground that the evidence presented showed that the injury was caused by branches/limbs obstructing the highway and not as the plaintiff claimed by falling from a tree. The claims commissioner does not have jurisdiction to hear a claim that comes within the purview of § 13a-144. Regrettably, the plaintiff had already decided to withdraw his claim from Superior Court. The plaintiff then went before the General Assembly and requested a special act that would enable him to bring his claim directly to Superior Court, which resulted in the enactment of Special Act 03-18, § 1. The plaintiff continues to assert the allegation that the injury was caused by a tree branch falling onto the vehicle in which he was a passenger.
"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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "When the constitutionality of a statute implicates the jurisdiction of the court . . . a motion to dismiss may properly serve as a vehicle for presenting such an issue." (Internal quotation marks omitted.) Estate of Albair v. University of Connecticut Health Center, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 96 0565152 (February 24, 1997, Hennessey, J.) ( 19 Conn. L. Rptr. 202). Moreover, "the doctrine of sovereign immunity implicates subject matter jurisdiction and is [also] a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 113, 856 A.2d 335 (2004).
The defendant moves to dismiss the complaint on the ground that Special Act 03-18, § 1 is unconstitutional because it lacks a public purpose, which is in violation of article first, § 1 of the state constitution. Specifically, the defendant argues that the act lacks a public purpose related, in part, to the following: (1) the plaintiff voluntarily withdrew an earlier superior court action; (2) the plaintiff litigated this issue before the claims commissioner and lost on the merits; and (3) the General Assembly failed to accurately make findings relative to (2) and (3). Alternatively, the defendant contends that Special Act 03-18 is invalid because the legislature does not have the authority to waive common-law doctrines of sovereign immunity on an individual basis and has exceeded its authority, which is essentially a separation of powers argument.
Hereinafter Special Act 03-18, § 1, will be referred to as Special Act 03-18, without reference to the particular section number.
Article first, § 1, of the constitution of Connecticut provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
In response, the plaintiff argues that Special Act 03-18 does serve a proper public purpose and is therefore constitutional as it: (1) remedies an injustice done by the state; (2) corrects the mistake of a state official; and (3) recognizes an honorary obligation of the state. Additionally, the plaintiff makes the following assertions: (1) the motion for summary judgment was never ruled on; (2) the legislature acted within its authority; (3) the legislature properly considered the plaintiff's request; and (4) the plaintiff's counsel accurately described the facts relating to its request for the special act, Lastly, the plaintiff argues that the act does not violate the doctrine of separation of powers.
SOVEREIGN IMMUNITY
The Connecticut Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Bloom v. Gershon, supra, 271 Conn. 107. "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "[I]n the absence of legislative authority . . . [the Supreme Court has] declined to permit any monetary award against the state or its officials [or agents]." (Internal quotation marks omitted.) Bloom v. Gershon, supra, 271 Conn. 107. "When sovereign immunity has not been waived, the . . . [claims] commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The . . . commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. General Statutes § 4-160(a)." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004). "Section 4-142 thereof establishes the office of a claims commissioner who shall hear and determine all claims against the state except . . . (2) claims upon which suit otherwise is authorized by law . . ." (Internal quotation marks omitted.) Duguay v. Hopkins, 191 Conn. 222, 229, 464 A.2d 45 (1983). Section 13a-144 waives sovereign immunity and is otherwise "authorized by law," and therefore a claimant is not required to bring this claim before the claims commissioner.
Whether the plaintiff's claim comes within the purview of § 13a-144 is a question of law. The Connecticut Supreme Court has answered the question of whether a falling tree branch constitutes a defect that comes within the purview of § 13a-144 in the negative. Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979); see also Tyson v. Commissioner of Transportation, 77 Conn.App. 597, 605-06, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). The plaintiff continues to make the assertion that the tree limb/branch that caused the injury fell from a tree onto the vehicle. Based on the evidence presented, however, the claims commissioner held that the branches/limbs were obstructing the highway at the time the accident occurred. "The Superior Court does not have jurisdiction to review decisions of the claims commissioner. The commissioner of claims performs a legislative function directly reviewable only by the General Assembly." (Internal quotation marks omitted.) Estate of Albair v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV 96 0565152. Based on its finding, the claims commissioner dismissed the claim as it is was otherwise authorized by law pursuant to § 13a-144. As such, the claim should have been brought directly in Superior Court. Although this court does not have jurisdiction to review the claims commissioner's decision, it does "have jurisdiction to review the constitutionality of special acts of the General Assembly." Id.
"It is established . . . that a plaintiff could recover if injury was due to an overhanging tree branch which obstructed travel." (Emphasis added.) Bernard v. Freitas, Superior Court, judicial district of Danbury, Docket Nos. CV 97 0328642, CV 97 0328682 (November 29, 2000, Adams, J.) ( 29 Conn. L. Rptr. 51, 53).
CONSTITUTIONALITY: PUBLIC PURPOSE
"Article first, § 1, of the Connecticut constitution provides that `no man or set of men are entitled to exclusive public emoluments or privileges from the community.' A state statute is invalid under this clause only if it `directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby . . .' [I]f enacted [to further a public purpose] legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class." (Citations omitted; internal quotation marks omitted.) Commissioner of Public Works v. Middletown, 53 Conn.App. 438, 450, 731 A.2d 749, cert. denied, 250 Conn. 923, 738 A.2d 654 (1999). "Our Supreme Court has taken a broad view of the legislative goals that may constitute a public purpose . . . [A]n act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state . . . or when the principal reason for the appropriation is to benefit the public." (Citation omitted; internal quotation marks omitted.) Id.
"To prevail under article first, § 1, of our constitution, the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual . . . If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1 . . . [L]egislative enactments carry with them a strong presumption of constitutionality, and . . . a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt." (Citations omitted; emphasis in original; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 257-58, 690 A.2d 368 (1997) ( Chotkowski III). "Because an enactment must serve a valid public purpose in order to avoid the prohibition against the granting of exclusive public emoluments and privileges contained in article first, § 1, of the state constitution, the determination of whether an enactment serves such a purpose is necessarily one of constitutional magnitude. It is the court's duty to ensure that legislative action falls within constitutional boundaries . . . even if that action involves a waiver of the immunity from suit enjoyed by the state under the common law. Consequently, the legislature cannot by mere fiat or finding, make public a truly private purpose . . . Its findings and statements about what is or is not public cannot be binding upon the court." (Citations omitted; internal quotation marks omitted.) Id., 258.
"[W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect. [W]e are not to assess [the constitutionality of an act] in the light of what we think of the wisdom and discernment of the law-making body in the particular instance. Rather we are bound to approach the question from the standpoint of upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained . . . [I]f we can discern any conceivable justification for [the] challenged legislation from the public viewpoint . . . we are bound to uphold it against a constitutional challenge predicated on article first, § 1 . . .
"Although [w]e have taken a broad view of the legislative goals that may constitute a public purpose . . . [b]ecause the elements of a public purpose vary as much as the circumstance in which the term is appropriate, each case must be determined on its own peculiar facts . . . In general, however, we have found that an act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state . . . or when the principal reason for the appropriation is to benefit the public . . . Furthermore, an enactment will be deemed to serve a valid public purpose, even though it confers a direct benefit upon a particular individual, if it remedies an injustice done to that individual for which the state itself bears responsibility . . . In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state." (Citations omitted; internal quotation marks omitted). Chotkowski III v. State, supra, 240 Conn. 259-60; see also Sanger v. Bridgeport, 124 Conn. 183, 198 A. 746 (1938).
"By contrast, we have consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution." (Internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 734. For example, "legislation cannot survive a constitutional challenge under article first, § 1, if it excuses a party's failure to comply with a statutory notice requirement simply because the noncompliance precludes consideration of the merits of the party's claim . . . Similarly, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment." (Citation omitted; internal quotation marks omitted.) Id.
The Connecticut Supreme Court has consistently invalidated special acts that do not serve a legitimate public purpose and run afoul of article first, § 1. Merly v. State, 211 Conn. 199, 215, 558 A.2d 977 (1989); Hillier v. East Hartford, 167 Conn. 100, 110, 355 A.2d 1 (1974); Tough v. Ives, 162 Conn. 274, 294, 294 A.2d 67 (1972); Vecchio v. Sewer Authority, 176 Conn. 497, 507, 408 A.2d 254 (1979). Conversely, the Supreme Court has allowed a special act to survive a constitutional challenge, but only in cases where a state actor/agency had been involved in disrupting the course of the action, Chotkowski III v. State, supra, 240 Conn. 263; Sanger v. Bridgeport, supra, 124 Conn. 183.
Several trial courts have followed the line of reasoning expressed in Chotkowski III and Sanger. See Philbrick v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 0829941 (January 18, 2005, Shapiro, J.) ("the legislature reasonably could have concluded that the failure to promptly provide what was requested [medical records] initially delayed the evaluation of her claim and contributed to some extent to the delay in the filing of her notice of claim"); Kinney v. State, Superior Court, judicial district of New Haven, Docket No. CV 01 0456273 (May 29, 2003, Arnold, J.) ("the state after choosing not to challenge prior determinations that judges were covered by workers' compensation, chose to appeal the plaintiff's claim in a case of first impression. The legislature intended that the plaintiff not be punished for selecting the forum of the Workers' Compensation Commission under the unsettled circumstances surrounding the choice of forum question which confronted the plaintiff at the time of her husband's death"); Estate of Albair v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV 96 0565152 ("the General Assembly's underlying purpose in granting the plaintiff permission to sue in the present case, i.e., the fact that the claims commissioner exceeded his authority under General Statutes § 4-160 by inquiring into the qualifications of the plaintiff's expert, serves a public purpose"); but see Maysonet v. Hartford Housing Authority, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0545863 (December 4, 1996, Lavine, J.) ( 18 Conn. L. Rptr. 346, 348) (allowing a public purpose to "exist in every case in which a defective notice had been given . . . would render the `public purpose' requirement of Merly and other cases a meaningless nullity").
In the present case, the plaintiff's claim was denied by the claims commissioner on the ground that it should properly be brought directly in Superior Court. At the time of the commissioner's decision, the plaintiff had decided to voluntarily withdraw his action in Superior Court before the court had ruled on the defendant's motion for summary judgment. Rather than request that the General Assembly reject the findings of the claims commissioner, the plaintiff requested a special act to allow him to bring an action against the state directly in Superior Court. The plaintiff correctly cites to Sanger for the proposition that a special act may have a valid public purpose when it corrects an error made by a governmental official, however, the factual circumstances of Sanger bear no relation to the present case. In Sanger, the plaintiff's claim was denied because of a defective notice, which was the direct result of a governmental official, who was given all of the facts necessary to provide notice to the city but then failed to adequately provide these facts in the notice. In the present case, the plaintiff was not prevented from going forward with his claim by anyone other than perhaps his counsel. The state did not disrupt the course of the action. The plaintiff also cites to Chotkowski III to support his assertion that a special act will be deemed constitutional if it remedies an injustice done by the state. While the plaintiff may have suffered an injustice, unlike the factual situations in both Sanger and Chotkowski III, the state does not bear responsibility for that injustice. Finally, it is abundantly clear to this court that the findings made by the General Assembly were manifestly and palpably incorrect, as it relied on the statement made by the plaintiff's counsel that the "case was knocked out" of Superior Court. This assertion made to the General Assembly was inaccurate. While the court recognizes the heavy burden that must be met by the defendant to prove the unconstitutionality of Special Act 03-18, it is satisfied that this burden has been met beyond a reasonable doubt. The court finds that Special Act 03-18 serves no legitimate public purpose and is therefore unconstitutional as an exclusive public emolument. Accordingly, the motion to dismiss is granted.
The court notes that this withdrawal was premature. The plaintiff was not prevented from going forward with his claim and having his day in court. Quite the contrary, the plaintiff's case was scheduled for trial. His voluntary withdrawal of the action was not predicated on any coercion by the state or the court but rather his own uncertainly about the merits of the case and being "taxed for costs."
The plaintiff also asserts the argument that Special Act 03-18 recognizes an honorary obligation of the state; however, as the injustice is not attributable to the state, this argument fails as well.
According to the General Assembly transcript excerpts submitted by the defendant, the plaintiff's counsel misrepresented the procedural history of the first case, Betton v. Burns, Superior Court, Docket No. CV 96 007260, to the judiciary committee. When asked specifically if "the State won on one ground in Litchfield Courthouse, Superior Court and then on the opposite grounds at the Claims Commissioner," the plaintiff's attorney replied, "exactly." Judiciary Committee Report No. 4069-01, concerning House Bill No. 5174, entitled "An Act Authorizing Derrick Betton to Bring a Civil Action Against the Commissioner of Transportation." This misrepresentation continued when the bill was before the House of Representatives. 356 H.R. Proc., Pt. 2, 2003 Sess., p. 6156.
The defendant argues in support of his motion to dismiss that the legislature exceeded its authority by enacting Special Act 03-18. Based on the foregoing, it is not necessary for the court to address the separation of powers argument advanced by the defendant.
Brunetti, J.