Opinion
HHDCV166065237S
11-08-2016
Sonia Ramirez v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#113)
Sheila A. Huddleston, Judge.
The plaintiff, Sonia Ramirez, originally brought this action in two counts under the municipal highway defect statute, General Statutes § 13a-149, against the defendants, the city of Hartford (city) (first count), and the Metropolitan District Commission (MDC) (second count). The MDC moved to dismiss the second count, asserting that the plaintiff failed to give the MDC notice of her claim as required by § 13a-149. The plaintiff objected asserting that notice provided to the MDC by the city's liability claims manager sufficed to satisfy the statutory notice requirement. The court agrees with the MDC that the plaintiff failed to give it the notice required by § 13a-149 and that notice by a third party does not cure that defect. Because notice is a jurisdictional requirement, the plaintiff's failure to put the MDC on notice of her claim deprives the court of jurisdiction. Accordingly, the MDC's motion to dismiss the second count is granted.
The plaintiff subsequently obtained permission to add a third defendant, the organization that had organized the parade in which she was participating when she was injured. After the motion to dismiss was filed, the plaintiff filed an amended complaint, adding a third count addressed to the Connecticut Institute for Community Development. The first and second counts of the amended complaint are identical to the same counts in the original complaint. The court accordingly deems the motion to dismiss to be directed to the currently operative complaint as well as the original complaint.
Undisputed Facts and Procedural History
The complaint, including exhibits attached to and incorporated into it, alleges that the plaintiff tripped and fell on June 7, 2015, while walking in a parade on the city's Main Street when she stepped into an uncovered water main hole in the street. She gave notice of her injury and claim in writing to the city clerk in. Hartford on June 8, 2015. On July 15, 2015, Constitution State Services, the city's claims manager, sent notice of the claim to the MDC, asserting that the MDC was responsible for maintaining the hole. The plaintiff subsequently served the complaint in this action on the city and the MDC on January 8, 2016, and filed this action in court on January 13, 2016. The first count alleged that the city breached its duty under § 13a-149, or alternatively, was liable in negligence under General Statutes § 52-557n. The second count alleged that the hole that caused the plaintiff's fall was in the possession of, and under the control of the MDC, which had a duty to maintain the hole and the area of the street where the hole existed. Although all other allegations of the second count concern the MDC, paragraph 17 of the second count alleges that " [t]he defendant, CITY OF HARTFORD, was given timely and proper notice of the defective condition of the street and hole and of the plaintiff's injuries as required by Connecticut General Statutes § 13a-149, a copy of which is attached hereto as Exhibit B." Exhibit B to the complaint is a copy of the claim letter sent by Constitution State Services to the MDC on July 15, 2015. The complaint does not allege that the plaintiff or her authorized representative gave notice of her intention to file a claim against the MDC to the MDC within the ninety days following the plaintiff's alleged fall.
The MDC moved to dismiss the second count. With its memorandum of law in support of the motion, it provided an affidavit by John Mirtle, who attested as follows: He is the district clerk for the MDC, which is a political subdivision of the state and is responsible for operating and maintaining hundreds of miles of sewer and water mains under the streets in Hartford and surrounding areas. The MDC did not receive notice of the alleged incident involving the plaintiff from the plaintiff or her legal representative within the ninety-day period following June 7, 2015, the alleged date of the incident. The MDC did receive a notice from Connecticut State Services, a third-party administrator for the city, dated July 15, 2015, which demanded that the MDC provide defense and indemnification to the city for the plaintiff's claim.
The plaintiff objected to the MDC's motion. She did not dispute the facts stated in Mirtle's affidavit, but argued that notice to the MDC through the city's third-party administrator is sufficient under Dawson v. City of New Haven, Superior Court, judicial district of New Haven, Docket No. CV-08-5016831-S (February 17, 2010, Silbert, J.) (49 Conn.L.Rptr. 311, ), which held that the savings clause in § 13a-149 should apply to save the plaintiff's action. The MDC argued, in response, that Dawson concerns the sufficiency of detail in a notice, rather than the failure to give notice in the first place.
Oral argument on the motion to dismiss was heard on July 25, 2016. For the reasons stated below, the motion to dismiss is granted.
Applicable Legal Principles
A motion to dismiss tests whether, on the face of the record, the court is without jurisdiction. Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79, 74 A.3d 1242 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . 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 counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; footnote omitted.) Id., 651-52.
The plaintiff expressly based her action on General Statutes § 13a-149, which 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 . . . No action for any such injury shall be maintained against any town, city, corporation or borough, 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, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation." Section 13a-149 further contains the following savings clause: " No notice given under the provisions of this section shall be held invalid or insufficient by reason of an 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, city, corporation or borough was not in fact misled thereby."
A defective highway claim under § 13a-149 is an action for a breach of a statutory duty, not a negligence action. Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981). The statute is the exclusive remedy for a party who claims to have been injured because of a defective road. Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). " Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiff's ability to recover when he or she is injured on a public highway." Prato v. New Haven, 246 Conn. 638, 647, 717 A.2d 1216 (1998). " As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements." Martin v. Town of Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
The MDC is a municipal corporation created in 1929 by a special act of the legislature with prescribed duties to maintain the roadways. Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 159, 7 A.3d 414 (2010), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011). As such, it is potentially liable under § 13a-149 for defective conditions in roadways if it is the party bound to keep that portion of the roadway in repair. See, e.g., Bartlett v. Metropolitan District Commission, supra, 163 (" [i]f § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction, " quoting Bellman v. West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 [2006]).
In Bresnan v. Frankel, 224 Conn. 23, 27, 615 A.2d 1040 (1992), a case brought under the state defective highway statute, General. Statutes § 13a-144, the Supreme Court held that " statutory notice must be furnished by the injured parties, either individually or through a representative . . . Information provided by third party sources to the commissioner, no matter how precise, cannot cure defects in the plaintiff's notice." (Citations omitted; emphasis in original; internal quotation marks omitted.) In Bellman v. West Hartford, supra, 96 Conn.App. 397-98, the Appellate Court held that the same principle applied to the statutorily mandated notice in § 13a-149. Relying on Bresnan and Bellman, several trial courts have dismissed claims against the MDC where a plaintiff gave notice to a city or town and a third party forwarded notice of the claim to the MDC. See, e.g., Rodriguez v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-11-6022864, (January 4, 2012, Woods, J.); Ortiz v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV-06-5003820 (June 12, 2009, Wagner, J.T.R.) (48 Conn.L.Rptr. 30, ); Rodriguez v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV-02-0819336-S (November 20, 2002, Cohn, J.) (33 Conn.L.Rptr. 396, ). Similarly, claims under § 13a-149 against municipalities have been dismissed where the plaintiff relied on notice provided to the municipality by a third party, such as a police report. See Kilgoar v. Miscio, Superior Court, judicial district of New Haven, Docket No. CV-09-6004614-S, (February 26, 2010, Lager, J.).
The plaintiff's reliance on Dawson v. New Haven, supra, Superior Court, Docket No. CV-08-5016831-S, is unavailing. In Dawson, the plaintiff provided timely notice to the city of a claim arising from an injury she allegedly sustained on a city sidewalk, but her notice failed to indicate the cause of the plaintiff's injury with sufficient specificity. The plaintiff opposed a motion to dismiss by arguing that the city had also received notice of the plaintiff's claim from an insurer of the owner of property adjacent to the sidewalk, within the statutory time period, that provided the required information. The trial court denied the motion to dismiss in reliance on cases dealing with the savings clause in § 13a-149. The savings clause, quoted above, pertains only to " an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence"; it does not apply to the failure to give any notice at all. As other trial courts have held, Bresnan and Bellman stand for the principle that the statutory notice must be given by the plaintiff or her authorized representative. No such notice was given in this case. Indeed, until the complaint was served, the MDC had no notice that the plaintiff intended to assert a claim directly against the MDC; all it had was a claim for indemnification by the city. The plaintiff's failure to give notice directly to the MDC deprives the court of jurisdiction over her claim against the MDC. Accordingly, the MDC's motion to dismiss the second count is granted.