Opinion
No. FST CV 04 5000028
May 2, 2005
MEMORANDUM OF DECISION
The defendants, the town of Darien and Stephen E. Korta, Commissioner of the Connecticut Department of Transportation, filed motion # 102 to dismiss two counts of this action for lack of subject matter jurisdiction on the basis that the statutory notices of injuries allegedly sustained by the plaintiff, Angus J. Cameron, were defective. The plaintiff's amended complaint of October 27, 2004, contains three counts. In the first count, the plaintiff alleges that he fell and was injured on May 15, 2003, while "walking on a sidewalk located on the westbound side of the [Noroton Heights Railroad Station] at a point where the sidewalk meets a ramp leading to and from the train platform," due to the town's "negligence."
In the second count, the plaintiff claims that the town of Darien is liable pursuant to General Statutes § 13a-149, which provides that a person injured by reason of a defective road, which term includes sidewalks, may recover from "the party bound to keep it in repair." In the third count of the amended complaint, the plaintiff alleges that the state Department of Transportation is liable for his fall and resultant injuries in accordance with General Statutes § 13a-144, which provides that a person injured by means of a defective highway or sidewalk may sue the Commissioner of Transportation if it is the duty of that department to maintain such roadway or sidewalk.
Both defendants moved to dismiss, as authorized by Practice Book § 10-30, because the required notices of the occurrence submitted by the plaintiff to the town of Darien and to the commissioner stated that the fall and resultant injuries occurred on May 15, 2002, exactly one year prior to the date of the accident as specified in the complaint. The plaintiff contends that the reference to 2002 was an obvious typographical error which did not mislead or prejudice either defendant because both defendants knew from other sources that the actual date of the fall and injuries was May 15, 2003.
The motion to dismiss is directed to the "statutory claims" contained in counts two and three and not to the first count of the amended complaint, which claims that the plaintiff fell and was injured on the sidewalk in question because of the "negligence" of the town of Darien. See Sanzone v. Board of Police Commissioners, 219 Conn. 172, 192, 592 A.2d 912 (1991).
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Citations omitted; internal quotation marks omitted.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). Moreover, "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a 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." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).
A motion to dismiss "admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . Motions to dismiss are granted solely on jurisdictional grounds." (Citations omitted.) Malasky v. Metal Products Corp., 44 Conn.App. 446, 451-52, 689 A.2d 1145 (1997). The issue in these motions to dismiss is whether the notices provided to the defendants by the plaintiff were so "patently defective" as to warrant a dismissal of the cause of action as a matter of law. Filippi v. Sullivan, 273 Conn. 1, 11, 866 A.2d 599 (2005). Otherwise, "the question of . . . adequacy [of the notice] is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).
As to the town of Darien, General Statutes § 13a-149 provides, in relevant part: "Any person injured in person . . . 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 town . . . 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 a selectman or the clerk of such town . . ."
The plaintiff points to the so-called savings clause contained in General Statutes § 13a-149, which reads: "No notice given under the provisions of this section shall be held invalid or insufficient by reason of a inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town . . . was not in fact misled thereby."
The court should construe notices pursuant to General Statutes § 13a-149 liberally. Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d 1322 (1993) ("[The savings] clause demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff."). "The sufficiency of the notice is to be tested by the purpose of the statute, and not by the requirements of a pleading . . .' The obvious purpose of [the statutory notice provision] is that the officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to enquire into the facts of the case intelligently.' . . . Notice `is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred.'" (Internal citations omitted.) Bassin v. Stamford, 26 Conn.App. 534, 539, 602 A.2d 1044 (1992). In Bassin, the court ruled that the notice was not invalid as a matter of law and "[w]hether notice is sufficient is normally a question of fact for the jury." Id., 539. Where the savings clause is invoked, "it then becomes an issue for the jury to determine whether the plaintiff did not intend to mislead the town or that the town was not in fact misled." Sizer v. Waterbury, 113 Conn. 145, 155, 154 A.2d 639 (1931); Shapiro v. Hartford, 4 Conn.App. 315, 317-18, 494 A.2d 590, cert. denied, 197 Conn. 810, 499 A.2d 61 (1985). Therefore, the town's motion to dismiss is denied.
As to the state department of transportation, the plaintiff contends that the notice that he provided to the commissioner pursuant to § 13a-144 was not patently defective. The principles governing resolution of the plaintiff's claim are well established. "[Section] 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).
General Statutes § 13a-144 does not contain a savings clause similar to the one in General Statutes § 13a-149. In Cyr v. Kosman, 14 Conn. L. Rptr. 388 (June 8, 1995, Sheldon, J.), the court addressed the difference between General Statutes § 13a-144 and General Statutes § 13a-149 by stating: "In ruling on a motion to dismiss due to inadequate notice under Section 13a-144, the courts have not inquired as to whether the commissioner was in fact misled or whether the notice was intended to mislead . . . Such an inquiry is only proper under statutes such as General Statutes § 13a-149, which contain savings clauses . . ."
General Statutes § 13a-144 provides in relevant part that: "any person injured in person or property through the neglect or default of the state by means of any defective highway, bridge or part of such road . . . may bring a civil action to recover damages sustained thereby against the commissioner . . . No such action shall be brought . . . unless notice of such injury and a general description of the same and of the cause thereof and of time and place of its occurrence has been giving in writing within ninety days . . ."
"It is well established law that the State is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases . . . Section 13a-144 creates a legislative exception to this common-law rule and therefore must be strictly construed . . . The statutorily required notice is a condition precedent to maintaining a cause of action, and if this requirement is not met, no cause of action exists . . . The sufficiency of the notice is tested with reference to the purpose for which it is required . . . The purpose of the notice requirement is to furnish the commissioner with such precise information as to time and place as will enable [the commissioner] to inquire into the facts of the case intelligently, and to protect the state's interests." (Citations omitted; internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992).
The issue on the motion to dismiss filed by the commissioner is whether this typographical error on the part of the plaintiff concerning the date of the accident or occurrence requires dismissal of the statutory cause of action set forth in count three of the amended complaint.
Because the statutory cause of action permitting the state department of transportation to be sued does not contain a savings clause, and the notice provision is to be strictly construed, the commissioner's motion to dismiss is granted. Giving the commissioner the wrong date of the accident by a year would prevent the commissioner from reasonably being expected to make a timely investigation based on the information provided by the plaintiff. Hence, the notice is patently defective.
Dated at Stamford, Connecticut, this 2nd day of May 2005.
William B. Lewis, J.T.R