Opinion
No. CV 03 0284483
October 30, 2007
MEMORANDUM OF DECISION MOTION TO REARGUE NO. 140
I. BACKGROUND
The defendants in this matter, Paul Hollman and Sylvia Hollman (the Hollmans), filed a motion to dismiss this action on July 6, 2007, for lack of subject matter jurisdiction. The plaintiff, Dorothy White (White), filed an objection to the motion to dismiss on August 22, 2007. The matter was heard on August 27, 2007, and the motion to dismiss was granted by the court. Subsequently, on September 10, 2007, White filed a motion to reargue, which was granted on September 11, 2007. The motion to dismiss was reargued before the court on October 1, 2007. Upon further review, the court finds that the motion to dismiss was improvidently granted.
White claims that she fell on property owned by the Hollmans, due to their positive acts of negligence. The specific location of her fall occurred within a right of way owned by the city of Meriden, on the strip of land between the sidewalk and the roadway. The Hollmans claim that the exclusive remedy for White's injuries lies with Meriden pursuant to the defective highway statute, General Statutes § 13a-149. Since White acknowledges that Meriden was neither a defendant nor provided notice of the defect, as required by the defective highway statute, the Hollmans claim that the court lacks subject matter jurisdiction in this case, citing Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). White, however, claims an exception to the exclusive remedy rule for highway defects, as provided in the case of Gambardella v. Kaoud, 38 Conn.App. 355, 660 A.2d 877 (1995).
During the original argument on the motion to dismiss, White claimed that she had alleged affirmative acts of negligence by the Hollmans, within the scope of the Gambardella exception. She claimed that Meriden had repaired the street and had left a "giant mess" within its right of way, between the sidewalk and street. Further, White claimed that after the street was repaired, a truck wheel created a rut within the right of way, that the Hollmans knew this rut existed and that they failed to repair the defective condition in violation of their duty to maintain the area pursuant to a Meriden city ordinance. The truck that allegedly caused the defective condition was privately owned and was not caused by any act of the municipality, its agents or employees. None of these allegations of fact, however, appeared in White's amended complaint, filed on May 9, 2005. For this reason, the court dismissed the action.
In her motion to reargue, White claims that it was improper to dismiss this action due to the insufficiency of the allegations in the complaint. She argues that facts could be alleged that would satisfy the Gambardella test for an exception to the exclusive remedy rule for highway defects, as provided by General Statutes § 13a-149. In particular, White claims that the Hollmans negligently omitted to remedy a known defect on their property that occurred after Meriden completed its highway construction project and that this negligent omission was in dereliction of their duty to maintain the property, as imposed by a municipal ordinance.
II. DISCUSSION A. Motions to Dismiss and Strike Distinguished
"The motion to dismiss is governed by Practice Book §§ 10-30 through 10-34. Properly granted on jurisdictional grounds, it essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court. By contrast, the motion to strike attacks the sufficiency of the pleadings . . .
"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." (Citations omitted; emphasis in original.) Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).
"The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling . . . The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings." (Citation omitted.) Id., 249.
B. A Gambardella Claim May Be Alleged CT Page 18269
In Gambardella v. Kaoud, supra, the plaintiff alleged that her injuries were caused by the defendants' negligence because they caused "debris to accumulate on [their] walkway, thereby covering and concealing from view the cracked surface thereof . . . This allegation is of a positive act by the defendants, which, if proved at trial, could form the basis for the defendants' liability in negligence or public nuisance . . ." (Citations omitted; internal quotation marks omitted.) Gambardella v. Kaoud, supra, 38 Conn.App. 359. White claims that she should be able to allege facts within the Gambardella exception, although she has not, as yet, formally done so in an amended complaint.The Hollmans claim that the case of Ferreira v. Pringle, supra, compels a dismissal of the present case for lack of subject matter jurisdiction. In Ferreira, the plaintiff fell on the remnant of a metal sign post left in the grassy area next to the roadway. The plaintiff sued employees of the municipality for their negligence under General Statutes section 52-557n(a)(1)(A). The Supreme Court found that "[t]he plaintiff's complaint was brought under § 52-557n(a)(1)(A), which imposes liability on a town for the negligence of its employees, officers, or agents while acting within the scope of their employment or contractual duties." Ferreira v. Pringle, supra, 255 Conn. 353. Therefore, the court concluded "that a plain reading of the plaintiff's complaint reveals that the allegations against the defendants were asserted as a basis for imposing liability on the town. As such, the plaintiff's exclusive remedy is an action under § 13a-149." Id. Upon this finding and conclusion, the Supreme Court affirmed the trial court's dismissal of the action, holding that the exclusive remedy was under the highway defect statute, § 13a-149, for which no proper notice had been given.
The present case is distinguishable from Ferreira. In Ferreira, the plaintiff brought suit against municipal employees and agents in an effort to hold the town of Milford liable for a highway defect, allegedly caused by their negligent acts. It was, at its essence, a highway defect case brought under color of a municipal liability case. Therefore, the Supreme Court properly dismissed the case because the plaintiff could not state a cause of action, absent proper notice pursuant to General Statutes § 13a-149. Here, the plaintiff is suing a private landowner, and claims she will allege positive acts of negligence.
III. CONCLUSION
Since it is possible that a cause of action may be alleged under the CT Page 18270 Gambardella exception to the exclusive remedy rule for highway defects, the motion to dismiss was improvidently granted and is now denied.