Opinion
No. CV03 0283303-S
September 9, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS #109
The plaintiff, Lucy Tine, filed a one-count complaint against the defendant, City of Meriden, to address injuries she alleges she sustained on January 8, 2001, after slipping and falling on a city-owned parking lot covered with ice and snow. The plaintiff alleges that her injuries and losses were caused by the negligence of the City of Meriden and/or its agents, servants and/or employees. Attached to the complaint is Exhibit A which indicates that on April 27, 2001, the plaintiff provided notice to the defendant regarding her intent to file an action pursuant to General Statutes § 7-465, an indemnification statute which requires a city to pay for injuries resulting from the negligence of a city employee. The plaintiff, however, in her complaint alleges the action is brought pursuant to General Statutes § 13a-149 which provides a statutory form of recovery for any person injured by means of a defective road or bridge from the party bound to keep it in repair.
Sec. 7-465. Assumption of liability for damage caused by employees or members of local emergency planning districts. Joint liability of municipalities in district department of health or regional planning agency, provides in pertinent part, as follows: (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefore arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued.
Sec. 13a-149. Damages for injuries by means of defective roads and bridges, provides in pertinent part, as follows:
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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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 . . .
The defendant filed a motion to dismiss claiming that this court lacks subject matter jurisdiction over the present matter because the plaintiff failed to give notice within ninety days as required by General Statutes § 13a-149. The plaintiff acknowledges that she did not comply with § 13a-149 because she intended to file suit pursuant to and complied with § 7-465 which requires written notice of an intention to file suit within six months following the injury.
See note 2, supra.
See note 1, supra.
"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Beizer v. Department of Labor, 56 Conn.App. 347, 361-62 (2000). "[I]n reviewing a motion to dismiss, [the court] take[s] 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.) Prigge v. Ragaglia, 265 Conn. 338, 340, 828 A.2d 542 (2003).
It is the law that a plaintiff who fails within ninety days to provide the municipality with the statutorily required notice under § 13a-149 will be barred from any recovery. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991). The plaintiff by way of affidavits explains that the reference to § 13-149 in the complaint was merely an uncorrected drafting error. An action under § 7-465 may proceed, she argues, because she provided the defendant with statutory notice under § 7-465, and the complaint, although erroneously referencing the wrong statute, contains general allegations of negligence appropriate for a § 7-465 proceeding. Under the guidelines that every presumption favoring jurisdiction should be indulged and that the complaint is to be construed in a manner most favorable to the pleader, the plaintiff's reference to General Statutes § 13-149 is a defect that does not implicate the power of the court to entertain an action pursuant to § 7-465.
The defendant further argues in support of dismissal that General Statutes § 7-465 is an indemnification statute that does not authorize a direct action against a municipality. In essence, the defendant argues that the plaintiff does not state a legally sufficient cause of action under General Statutes § 7-465. This argument does not attack the jurisdiction of this court and is more properly raised by a motion to strike. "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266 (2004).
The motion to dismiss is denied.
The plaintiff's request to amend the complaint is granted. The plaintiff is to file an amended complaint within fifteen (15) days from the date of this decision. Practice Book § 10-60(a)(1).
BY THE COURT
Tanzer, Judge