Opinion
FBTCV156047815S
11-16-2016
James Perkins v. Town of Redding
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Edward T. Krumeich, J.
Defendant James P. Redeker, Commissioner of Transportation for the State of Connecticut (" the State"), has moved to dismiss the First Count of the complaint filed by plaintiffs James Perkins and Regina Taft, on the ground that the Court lacks subject matter jurisdiction because the State has not waived sovereign immunity. For the reasons stated below, the Court grants the motion to dismiss the First Count.
The failure to waive sovereign immunity implicates the subject matter jurisdiction of the Court and may properly be raised in a motion to dismiss. See Frandy v. Commissioner of Transportation, 132 Conn.App. 752, 34 A.3d 418 (2011); Amore v. Frankel, 228 Conn. 358, 374, 636 A.2d 786 (1994).
In Mills v. Commissioner of Transportation, 142 Conn.App. 785, 788-89, 68 A.3d 118 (2013), the Appellate Court reiterated the well-settled requirements for waiver of sovereign immunity in highway defect cases:
" The legislature waived the state's sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144." . . ." [S]tatutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity."
. . .
The notice requirement contained in § 13a-144 is a condition precedent and prevents the destruction of sovereign immunity if its requirements are not met . . . " [I]njured parties, to meet the requirements of [§ 13a-144], must either individually or through a representative, notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition." . . . " 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 . . . permit[s] the commissioner to gather information to protect himself in the event of a lawsuit . . . [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and . . . this question must be determined on the basis of the facts of the particular case." 142 Conn.App. at 789-90 (citations omitted).
In Mills the Court upheld dismissal of a case brought by a plaintiff who had written a letter to the Commissioner of Transportation that provided all the details relating to the accident required in a notice pursuant to C.G.S. § 13a-144, except that it referred to an intention to sue the town and did not notify the Commissioner of plaintiff's intention to sue the state; the Mills Court held this was a fatal defect and upheld dismissal of the complaint against the State despite actual notice of the accident: " In the present case, nowhere in the notice letter does the plaintiff allege that he filed or intended to file a claim against the state. The plaintiff plainly and repeatedly notified the defendant " of [a] [c]laim for [d]amages against the [c]ity of Milford. Because the notice requirements of § 13a-144 are strictly construed, we conclude that the letter fails to satisfy the statutory requirements as our Supreme Court has interpreted them." 142 Conn.App. at 790.
Here, plaintiffs gave notice to the Claims Commissioner, but not to the Commissioner of Transportation, and argue that in the normal course the State would have transmitted the notice to the proper official referred to in the notice. Even if plaintiffs provided proof that the notice to the Claims Commissioner was later forwarded to the Commission of Transportation, which proof was not submitted to the Court, this still would not suffice to satisfy the notice requirements of § 13a-144. In Warkentin v. Burns, 223 Conn. 14, 17, 610 A.2d 1287 (2012), the Supreme Court held that there was not sufficient notice of a claim under § 13a-144 despite proof the Commissioner of Transportation received actual notice of the accident and plaintiff's intent to sue from third-party sources, but not from the plaintiff.
In Carroll v. Burns, 1996 WL 502476 *1 (Conn.Super.Ct. 1996), Judge Hodgson granted a motion to dismiss for failure to satisfy C.G.S. § 13a-144 where, as here, the notice of intent to sue was sent to the Claims Commissioner rather than the Commissioner of Transportation: " [t]his position cannot be approved without failing to give effect to the words of the statute, which unambiguously require notice to the commissioner of transportation, not to other state officials."
The court in Carroll also rejected an argument by analogy to the municipal highway liability statute, 13a-149, also advanced by plaintiffs here, noting that " § 13a-144 does not contain a savings clause such as that found in the municipal highway liability statute, 13a-149, and therefore the notice requirement must be strictly construed."
Because plaintiffs failed to send notice under C.G.S. § 13a-144 to the proper person, the Court is without subject matter jurisdiction over plaintiffs' claims against the Commissioner of Transportation and the motion to dismiss must be granted.
The court need not reach the second argument advanced by the State that § 13a-144 does not apply because the alleged defect did not occur " on a road which it is the duty of the Commissioner of Transportation to keep and repair . . ."