Opinion
No. CV08-5021864 S
February 1, 2011
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS #151
FACTS
On July 21, 2008, the plaintiff, Gabriel Fusco, filed a two-count complaint against Ralph J. Carpenter, the commissioner of transportation for the State of Connecticut, and the City of Milford. The plaintiff alleges the following. On January 11, 2008, at approximately 8:30 a.m., the plaintiff walked in a westerly direction from a sidewalk, towards Boston Post Road, at a point near 886 Bridgeport Avenue, in the City of Milford. A sinkhole existed at the tree line abutting the sidewalk into which he fell. In count one, the plaintiff further alleges that the defendant, the commissioner of transportation, had a duty to maintain all state highways, bridges and sidewalks including the tree line in question pursuant to General Statutes § 13a-144 and as a result of the defendant's negligence in maintaining the tree line, the plaintiff suffered several injuries.
On September 15, 2009, the plaintiff filed an amended complaint, count one of which mirrors count one of the original complaint. On September 14, 2010, the defendant filed a motion to dismiss count one and a memorandum of law in support of the motion to dismiss which included the following: a partial transcript of the deposition of the plaintiff, a photograph of the scene of the injury, a hand drawn diagram of the scene and a claim notice. On December 13, 2010, the plaintiff filed an objection to the defendant's motion to dismiss and a memorandum of law in support thereof which included supplemental answers to the plaintiff's interrogatories and the defendant's answers to the plaintiff's request to admit. On December 16, 2010, the defendant filed a reply to the plaintiff's objection to the defendant's motion to dismiss. This court heard oral argument on this matter at short calendar on December 20, 2010.
DISCUSSION
"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." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007). "[I]f the complaint is supplemented by undisputed facts establish by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplemental undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
The defendant argues that the plaintiff was not a traveler upon the state highway and that such status must be attained before the duty owed by the defendant as commissioner can become applicable to an individual. Secondarily, the defendant argues that the plaintiff provides no statutory authority that gives the defendant with a duty to maintain the sidewalk where the plaintiff suffered his injuries. The plaintiff argues that the defendant had a duty to maintain the sidewalk under General Statutes § 13a-144. The plaintiff further argues that he was a traveler upon the state highway because he was walking upon a sidewalk abutting the state highway with the intention to cross the state highway.
The court need not address the defendant's second argument because the plaintiff relies on § 13a-144. The court need not address whether the defendant had a duty to maintain the sidewalk in question because the plaintiff submits the defendant's answers to the plaintiff's request to admit. Therein, the defendant admits to having a duty to maintain the tree line in question under § 13a-144. The court shall deem the duty argument conceded by the defendant due to the defendant's admission of the duty.
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 . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court . . . The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway." "A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute . . . To qualify, a plaintiff is not obliged to remain seated in a vehicle proceeding on the highways. Reasonable latitude is allowed to meet the exigencies of travel . . . Nor does the defect have to be on the actual traveled portion of the highway." (Citation omitted; internal quotation marks omitted.) Baker v. Ives, 162 Conn. 295, 299, 294 A.2d 290 (1972). "Any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce the result, would generally constitute a defect in the highway." Hewison v. New Haven, 34 Conn. 136, 142 (1867). "This statute affords a right of recovery similar to that against the municipalities under [General Statutes §] 13a-149 and is subject to the same limitations." Baker v. Ives, supra, 162 Conn. 298. "One of the essential elements of liability . . . is that the person claiming damages has been injured in connection with his use of the highway for travel . . . A traveler is one who passes from place to place, whether for pleasure, instruction, business or health . . . If the plaintiff was not on the highway at the time of his injury, he cannot be using the highway to pass from place to place and is therefore not a traveler . . ." (Citations omitted; internal quotation marks omitted.) Skiba v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 00 0499721 (May 16, 2001, Shapiro, J.). "The statute . . . is designed to protect travelers only." (Internal quotation marks omitted.) Anderson v. Argraves, 20 Conn.Sup. 138, 143, 127 A.2d 620 (1956), aff'd, 146 Conn. 316, 150 A.2d 295 (1959). The commissioner's duty under § 13a-144 "extends to pedestrian travel as well as to vehicular traffic." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999). Section 13a-144 "is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state." (Internal quotation marks omitted.) Kozlowski v. Commissioner, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Tyson v. Sullivan, 77 Conn.App. 597, 602, 824 A.2d 857 (2003), app. denied, 265 Conn. 906, 831 A.2d 254 (2003).
The plaintiff relies on the facts of Baker v. Ives to support the argument that he attained the status of traveler upon the state highway by walking along the sidewalk abutting a state highway. In Baker, the plaintiff was driving his vehicle on the state highway and subsequently "left the paved portion of the state highway and drove onto . . . a . . . parking strip located between the paved portion of the highway and the sidewalk." Baker v. Ives, supra, 162 Conn. 301. The plaintiff in Baker then departed from her car and was injured on a grassy area between her car and the sidewalk. That court held that she was a traveler upon the state highway because her walking upon the grassy area was incidental to her travel upon the state highway. The facts in Baker are distinguishable because the Baker plaintiff was a driver upon the state highway before being injured. In Ferreira v. Pringle, 255 Conn. 330, 352, 766 A.2d 400 (2001), the plaintiff suffered his injuries after disembarking from a bus. The court held that the plaintiff was a traveler because he was a passenger on a bus that traveled directly upon the highway prior to his injuries.
The statute at issue in Ferreira v. Pringle, § 13a-149, is treated the same as § 13a-144 when analyzing whether an individual is a traveler upon the highway at issue. The statutes provide for the same duty, however, § 13a-149 applies to municipalities whereas § 13a-144 applies to the commissioner of transportation. See Baker v. Ives, supra, 162 Conn. 298.
Here, the plaintiff alleges that he attained traveler status because he intended to walk across the state highway. The cases in which an individual is deemed a traveler upon a particular highway share one common fact: the injured party is directly upon the highway prior to being injured, either as a pedestrian or in a vehicle. It logically follows that one must be on the highway prior to being a pedestrian in a nearby area for a court to determine that the individual used the nearby area incidental to his or her travel upon the highway. The plaintiff, however, fails to carry his burden to show that he was directly upon the state highway as a pedestrian or in a vehicle prior to suffering his injuries. As there is nothing in the pleadings to support the conclusion that he attained the status of traveler upon the state highway, there is no basis from which it could be concluded that the defendant's duty under § 13a-144 applies to the plaintiff. Therefore, sovereign immunity applies to this suit and thereby prevents the plaintiff from bringing a claim against the defendant under § 13a-144.
For the foregoing reasons, the court grants the defendant's motion to dismiss count one of the plaintiff's amended complaint.