Opinion
FBTCV166059805
06-01-2017
Edgar Membrino v. Town of Fairfield et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #112
Michael P. Kamp, J.
The issue before the court is the defendant's motion to dismiss count two of the plaintiff's operative complaint on the ground that it is barred by the doctrine of sovereign immunity. For the reasons set forth below the court grants the defendant's motion.
FACTS
On October 11, 2016, the plaintiff, Edgar Membrino, filed a three-count complaint against three defendants: the Town of Fairfield, the State of Connecticut, and the Greater Bridgeport Transit Authority. In count one of the complaint, the plaintiff alleges the following facts. On or about September 22, 2014, the plaintiff, while waiting for the city bus, was struck after the bus stop sign suddenly and without warning fell onto his left shoulder, causing serious, severe, painful and permanent injuries. In count two, the plaintiff asserts a cause of action for common-law negligence against the defendant and alleges that " [a]t all times pertinent hereto the Department of Transportation for Connecticut placed and was responsible for the maintenance, repair and upkeep of the city bus sign located across the street from 234 Post Road in Fairfield, Connecticut." In counts one and three, the plaintiff alleges causes of action for common-law negligence against the Town of Fairfield and the Greater Bridgeport Transit Authority, respectively.
The present motion to dismiss was filed by, and therefore only concerns, the defendant State of Connecticut. Accordingly, the State of Connecticut will be referred to herein as the defendant.
On November 9, 2016, the defendant moved to dismiss count two of the plaintiff's Complaint on the ground that the claim is barred by the doctrine of sovereign immunity and, therefore, the court is deprived of subject matter jurisdiction to hear the action. On January 27, 2017, the plaintiff filed an objection to the motion to dismiss and attached thereto as Exhibit 1 copies of the following documents: (1) a letter dated December 4, 2014, and addressed to the " Commissioner, Connecticut Department of Transportation"; (2) a return receipt addressed to the " Commissioner, Connecticut Dept. of Transportation"; and (3) Egri v. Foisie, 83 Conn.App. 243, 848 A.2d 1266 (2004). Thereafter, on February 6, 2017, the defendant filed a reply to the plaintiff's objection. The court heard oral arguments at short calendar on February 14, 2017.
Subsequently, on November 21, 2016, the plaintiff filed an amended complaint containing two additional counts against the Town of Fairfield. The defendant filed an objection to the amended complaint on November 28, 2016, and argued that the court cannot take any action with respect to the amended complaint while the present motion to dismiss is pending, and that the plaintiff cannot amend his complaint as a matter of right pursuant to Practice Book § 10-59 because the amended complaint was filed more than 30 days after the return date. On February 10, 2017, the plaintiff then filed a request for permission to amend the complaint, and on February 14, 2017, the defendant filed a second objection reasserting its previous arguments. " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). Accordingly, the court will first address the present motion to dismiss with respect to the operative complaint filed October 11, 2016, before ruling on the plaintiff's request for leave to amend.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " [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.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). Additionally, " [l]ack of a statutory waiver of [sovereign] immunity is a jurisdictional defect properly raised by a motion to dismiss." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
In its memorandum of law in support, the defendant argues that count two of the plaintiff's complaint must be dismissed because it is barred by the doctrine of sovereign immunity. Specifically, the defendant argues that the operative complaint does not properly plead that the plaintiff obtained permission from the claims commissioner to bring suit against the state pursuant to General Statutes § 4-160. Moreover, the defendant argues that the three recognized exceptions to state sovereign immunity--namely, statutory waiver, a claim for declaratory or injunctive relief with respect to an officer's violation of the plaintiff's constitutional rights, or a claim for declaratory or injunctive relief with respect to wrongful conduct in excess of an officer's statutory authority--are inapplicable in the present case and, accordingly, that count two must be dismissed.
In response, in his memorandum of law in opposition, the plaintiff argues that he complied with the requirements of General Statutes § 13a-144, which operates as a statutory waiver of state sovereign immunity. In particular, the plaintiff contends that he gave notice of the claim to the commissioner of the Department of Transportation within ninety days and, in addition, filed suit within the two-year limitation provided by the statute. The plaintiff also maintains that the failure to specifically cite to § 13a-144 in his complaint is not a fatal defect because the defendant had notice of the suit and there exists a proper cause of action. As a result, the plaintiff argues that the issue at hand is properly one of legal sufficiency, not subject matter jurisdiction, and, therefore, should be addressed through a motion to strike rather than a motion to dismiss. In its reply to the plaintiff's objection, the defendant contends that the issue of subject matter jurisdiction is properly before the court because the plaintiff incorrectly brought suit against the State of Connecticut, rather than against the Commissioner of Transportation as required by § 13a-144. Furthermore, the defendant argues, as an alternative ground, that count two must be dismissed because the operative complaint does not allege a cognizable highway defect within the purview of § 13a-144.
" It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued." (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 348, 141 A.3d 784 (2016). " The state highway liability statute is a legislative exception to the common-law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common-law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common-law theory . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command." (Citations omitted; emphasis added.) White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). " There being no right of action against the sovereign state at common law, the plaintiff must prevail, if at all, under § 13a-144." Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972).
General Statutes § 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. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner." (Emphasis added.)
" The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required . . . The [notice] requirement . . . was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit ." (Citation omitted; emphasis added; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 9, 866 A.2d 599 (2005). Accordingly, " [i]t is undisputed that the state can act only through its officers or agents . . . and that the highway commissioner, as a representative of the state, is the party upon whom the legislature intended to impose legal responsibility under § 13a-144." (Citation omitted.) Lussier v. Department of Transp., 228 Conn. 343, 351, 636 A.2d 808 (1994).
In Lussier v. Dept. of Transportation, supra, 228 Conn. 344, the Supreme Court addressed whether a defect in the civil summons form that listed the defendant as the " State of Connecticut, Department of Transportation, " deprived the court of subject matter jurisdiction. The plaintiff's decedent was killed after her vehicle, due to icy conditions, struck the guardrails on the side of the highway and slid down an embankment. Id., 345. In the complaint, the plaintiff alleged that the defendant, " Emil H. Frankel, or a predecessor, was the commissioner of transportation of the state of Connecticut (commissioner) at the time of the accident and that it is the commissioner's duty pursuant to General Statutes § 13a-144 to keep and maintain in a reasonably safe condition all highway bridges and sidewalks in the state highway system, " and that the commissioner " had breached this statutory duty in one or more ways." (Footnotes omitted.) Id., 345-46.
Although the caption of the complaint properly denoted the defendant as " Emil H. Frankel, Commissioner of Transportation of the State of Connecticut, " the writ of summons listed the defendant as the " State of Connecticut, Department of Transportation, by serving the Commissioner of the Department of Transportation, Emil H. Frankel, 24 Wolcott Hill Road, Wethersfield, CT 06109." Lussier v. Dept. of Transportation, supra, 346-47. In addition, service was made on both the associate. attorney general and the senior clerk at the office of the commissioner. Id., 347. Counsel for " the State of Connecticut, Department of Transportation" entered an appearance and, thereafter, moved to dismiss the complaint and argued, among other things, that the action was barred under the doctrine of sovereign immunity. Id. The trial court found that " by failing to name the commissioner of transportation as the defendant in the summons, the plaintiff had failed to sue the appropriate party pursuant to § 13a-144, " and therefore dismissed the complaint. Id. On appeal, the plaintiff argued that the failure to name the commissioner as the defendant in the summons was a " mere circumstantial defect" with no bearing on the court's subject matter jurisdiction. Id., 348. Ultimately, the court held that " in this case, where the proper party, Emil Frankel, has been noticed, served, named in the complaint caption, identified as the responsible party within the text of the complaint, and correctly listed on the summons as agent for the department . . . [t]he designation of the department is a defect in the summons that constitutes a misnomer, " and, therefore, " the trial court should not have dismissed the complaint on the basis of sovereign immunity." Id., 352-53.
In contrast, in the present case, service of process was made solely at the Connecticut Attorney General's office, and not at the office of the Commissioner of Transportation. In addition, the civil summons, filed on October 11, 2016, lists the defendant as the " State of Connecticut, Attorney General, 55 Elm Street, Hartford, CT 06106." The complaint caption also denotes the defendant as the " State of Connecticut, " with no mention of the Commissioner. Moreover, the operative complaint does not include any reference to the Commissioner as the responsible party pursuant to the statute, and instead only alleges that the " Department of Transportation for Connecticut placed and was responsible for the maintenance, repair and upkeep of the city bus sign." Therefore, it is not clear that the plaintiff intended to sue the Commissioner of Transportation, as required by § 13a-144, rather than just the State of Connecticut. See Pack v. Burns, 212 Conn. 381, 386, 562 A.2d 24 (1989) (finding that, despite defect in text of writ, plaintiff intended to sue commissioner where service of process was made at office of commissioner of transportation and complaint stated that " [t]he commissioner of transportation is responsible for the maintenance of all highways, bridges and sidewalks . . . and it is the duty of such commissioner to keep and maintain the highways, bridges and sidewalks in a reasonably safe condition" [emphasis in original; internal quotation marks omitted]). Although the plaintiff argues that he has complied with the statutory requirements of § 13a-144, " [t]hat the initial notice of claim was served on the commissioner does not overcome the plaintiff's misconstruction of the proper defendant in the subsequent process." Ritch v. State, Superior Court, judicial district of Fairfield, Docket No. CV-09-6005060-S (August 10, 2012, Tyma, J.) (54 Conn.L.Rptr. 508, ). Accordingly, the defendant has not statutorily waived sovereign immunity and, as a result, the court lacks subject matter jurisdiction with respect to the plaintiff's present action.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss count two of the plaintiff's operative complaint is granted.