Opinion
No. CV 11 6018454
October 7, 2011
MEMORANDUM OF DECISION Re MOTION TO DISMISS
The plaintiff, Cheryl Taufik, commenced this action on March 1, 2011, pursuant to General Statutes § 13a-149 against the defendant, the city of West Haven, alleging in her single count complaint that she sustained injuries as a result of a fall on a city street on August 20, 2010. The plaintiff filed a timely notice of claim with the defendant pursuant to the statute. On June 30, 2011, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the court lacks jurisdiction over the subject matter because the plaintiff's notice of claim was deficient as a matter of law. In its memorandum of law, the defendant claims that there are three deficiencies: the plaintiff does not state the condition that caused her to trip and fall, she does not state a specific time of day or night and that she did not describe adequately the type of injuries sustained. In her memorandum filed July 13, 2011, the plaintiff counters that the notice was not deficient, and even if it were inadequate, the savings provision contained in the statute applies to her claim. The defendant filed a reply on July 15, 2011. The court heard the parties' argument on July 18, 2011.
LEGAL ANALYSIS
"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); see Practice Book § 10-31(a). [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (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). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).
"A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, `[a]ny 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 . . .' [I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
"As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident." Id., 354. When a plaintiff "fail[s] to comply with the notice requirements of § 13a-149, the trial court lack[s] subject matter jurisdiction over the action." Id. "The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof." Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). "The notice need not be expressed with the fullness and exactness of a pleading." (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 356, 636 A.2d 808 (1994) (pertaining to notice requirement of General Statutes § 13a-144). "Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet [the statutory requirements], the question of its adequacy is one for the jury and not for the court . . ." (Internal quotation marks omitted.) Id., 354.
"The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . . More specifically . . . the statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." (Citation omitted; internal quotation marks omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993).
It is significant that the legislature provided a liberal saving clause in order to validate the content of a defective notice. Id. "Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim. The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate. It provides: 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. General Statutes § 13a-149." (Internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 793-94, 817 A.2d 636 (2003). Our Supreme Court has interpreted this savings provision as applying when a requirement is inaccurate or vague or incomplete, but as inapplicable when a requirement is entirely absent. Martin v. Plainville, supra, 240 Conn. 113. The court has "emphasize[d] that `entirely absent' means exactly that; one of the five essential elements . . . must be completely, totally and unmistakably omitted from the plaintiff's notice. In the absence of such an omission, the savings clause of § 13a-149 could apply, depending on the facts adduced at trial." (Citation omitted; internal quotation marks omitted.) Salemme v. Seymour, supra, 262 Conn. 794.
In the present case, the defendant claims that the plaintiff's notice was deficient for three reasons, which the court will address in turn. First, the defendant claims that the notice is deficient because the plaintiff does not state what condition on the road caused her to trip and fall. "The cause of the injury required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury." (Internal quotation marks omitted.) Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 (1937). The plaintiff maintains that the notice is sufficient for its intended purpose, which is to provide the defendant with reasonable guidance to investigate the claim, and that it can be inferred from a reasonable reading of the plaintiff's notice as a whole that she claims that she tripped and fell as a result of a defect in the road. The defendant argues in response that a detailed description of the location of the fall does not overcome the plaintiff's failure to state in the notice that she was caused to fall on a "depression" in the road, which is a fact that she alleges in her complaint, but failed to state in the notice. The defendant maintains that this failure constitutes an omission, as opposed to an inaccuracy, and is therefore a fatal deficiency.
The plaintiff's notice provides, in relevant part: "PLACE OF INJURY: The east bound, left turn only lane, of Captain Thomas Boulevard, just west of its intersection with Campbell Avenue, West Haven . . . The specific area on said city street . . . is 87 feet south, southwest of light pole number 89; 22 feet southeast of light pole number 88; and 122 feet east of light pole number 87. CAUSE OF INJURY: The claimant was crossing from the south side of Captain Thomas Boulevard to the bus stop on the north side of the road, when she tripped and fell in the road."
"[T]he legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff." Pratt v. Old Saybrook, supra, 225 Conn. 183. Such liberal construction favors reading both the place of the injury and the cause of the injury together in the present case to determine whether the plaintiff patently failed to state an essential element of the notice requirement. In light of the detailed description of the place of the injury, which a fact finder could conclude is sufficient for a reasonable investigator to locate and remedy any condition present that may endanger the public, the court cannot conclude, as a matter of law, that the plaintiff's general description of her fall patently fails to describe its cause. It should be left to the trier of fact to determine, based on the evidence, whether the defendant was given sufficient notice of the "depression" in the road as alleged in the complaint.
The second deficiency claimed by the defendant is the plaintiff's failure state the specific time of the incident, as her notice provided only the date. Such a deficiency generally is not a fatal defect in the notice. See Lilly v. Woodstock, 59 Conn. 219, 22 A. 40 (1890). The defendant has proffered no reason why it should be deemed fatal in this case.
Finally, the defendant claims that the plaintiff's notice did not describe adequately the type of injuries that she sustained. The plaintiff emphasizes that the statute requires only a general description of the injuries sustained. The defendant counters that some of the allegations in the plaintiff's complaint, including loss of consciousness, fractures and hip pain, were not included in the notice of claim, which "point[s] out the lack of information about her injuries [that] were provided to the defendant in [the notice]."
"As a matter of fundamental fairness, a municipality should be sufficiently apprised of a general description of a plaintiff's alleged injuries so that it can assess its exposure and allocate resources . . . to facilitate an appropriate investigation and the hastening of a possible settlement . . . Indeed, the entire strategy of a town's legal defense might well be predicated on the nature of the injuries alleged. For example, a town might handle a claim alleging a hairline fracture of the small toe quite differently than one alleging a serious injury to the brain. The requirement that the plaintiff give a general description of the injury is a reasonable compromise between the giving of no description and the giving of a very specific one." (Citations omitted; internal quotation marks omitted.) Martin v. Plainville, supra, 240 Conn. 111-12. Our Supreme Court has upheld dismissals based on the court's conclusion that a notice was deficient as a matter of law when it provided only that the plaintiff "fell and was injured"; Marino v. East Haven, supra, 120 Conn. 578; or that she had legal representation in connection with "injuries she sustained in a fall." Martin v. Plainville, supra, 107.
Here, the notice states in relevant part: "INJURIES, LOSSES AND DAMAGES: As a result of said incident the claimant sustained injuries to her left wrist, left forearm, left side of face, right hand, and bilateral knees." Such a description does not constitute a complete, total and unmistakable omission of an essential element of the plaintiff's notice. Compare with Tyson v. Sullivan, 77 Conn.App. 597, 608-609, 824 A.2d 857 (notice sufficient under § 13a-144 when it stated that plaintiff was "violently thrown about in his vehicle causing him to sustain injuries to his neck and back"), cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). Any deficiency in this description falls within the saving provision of § 13a-149. Insofar as the defendant's argument can be read as a claim that it has been misled because the plaintiff has alleged additional and more specific injuries in her complaint, the court notes that "whether the defendant was misled by [an] inaccurate [or incomplete] notice is a question of fact for the trier." Salemme v. Seymour, supra, 262 Conn. 797.
CONCLUSION
Accordingly, the court denies the defendant's motion to dismiss.