No. CV 98 0419529 S
June 20, 2003
MEMORANDUM OF DECISION
Pursuant to Practice Book § 10-30, the defendant James F. Sullivan, Commissioner of Transportation, has filed a motion to dismiss claiming that the plaintiff's statutory notice is defective for the reason that said notice fails to adequately describe the location of an alleged highway defect. Consequently, a statutory precedent to suit against the State of Connecticut has not been met and sovereign immunity, therefore, bars the plaintiff's action.
This is an action for damages that arises out of an alleged motor vehicle accident which occurred November 11, 1996 in North Branford, Connecticut, on Middletown Avenue. In December 1998, the plaintiff instituted the present action against the Commissioner of Transportation to recover for injuries allegedly sustained in said accident. In the plaintiff's Notice of Defective Highway Claim, which purports to comply with the notice requirements of General Statutes § 13a-144, the plaintiff states that the injury occurred:
On Middletown Avenue in the southbound lane at a location approximately 1 tenth of a mile south of Maltby Road and more particularly described as follows: approximately one hundred twenty-six feet (126') south of SNET pole #1034; approximately three feet four inches (3'4") north of SNET pole #1033; approximately eight feet (8') east of the western curbside of Middletown Avenue; approximately twenty-two feet nine inches (22'9") west of the eastern curbside of Middletown Avenue.
The plaintiff's complaint states that she struck a patch of ice, causing her to lose control of her vehicle and drive off the road subsequently striking a telephone pole. The complaint does not assign a number to the telephone pole that she struck. CT Page 7389-em
On April 9, 2003, the plaintiff disclosed John Fitzgerald, a licensed professional engineer and land surveyor, as an expert in this matter. At that time the plaintiff provided a copy of Fitzgerald's report, which included a drawing depicting the road upon which the accident occurred, indicating the area where the ice patch that allegedly caused the plaintiff's motor vehicle to swerve was located. Fitzgerald also notes on his drawing the area of the ice patch that the police identified in their investigation of the accident. The ice patch identified by the plaintiff in her notice to the defendant is approximately 120 feet from the area noted by the police in their report of the accident. Fitzgerald notes that his report "must be considered to be preliminary at this point," and further states that, "The ice patch shown on the police accident report has been placed on the diagram, simply showing it to cross the roadway and then run longitudinal to the roadway towards the utility pole. This is merely a pictoral representation, and there is no indication of where within the roadway the ice patch existed."
The defendant therefore argues that the identification of a location in the plaintiff's notice which differs from the actual location of the alleged defect does not meet the statutory requirements of General Statutes § 13a-144 and does not permit the defendant to gather information to protect himself in the event of a lawsuit. Therefore, the defendant continues, the notice of defect filed by the plaintiff is patently insufficient as a matter of law, depriving the court of subject matter jurisdiction.
The court's review of the police accident report which has been submitted as an exhibit indicates that the plaintiff struck SNET pole 1031 after skidding on an "Icy patch." The police report does not contain any measurements of distances other than the accident occurred on Middletown Avenue "1 tenth of a mile south of Maltby Lane." The police report additionally notes that the Department of Transportation was twice notified within an hour "about the icy road."
Prior to analyzing the defendant's claim, the court reviews the standards for a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn. Sup. 336, 18 Conn. L. Rptr. 409 (1997), Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the CT Page 7389-en record." Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 182 (1999), Bradley's Appeal from Probate, 19 Conn. App. 456, 461-62 (1989). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, at 183, Mahoney v. Lensink, 213 Conn. 548, 567 (1990).
It is well established principle that "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).
The state is immune from suit unless it consents to be sued by appropriate legislation waiving such sovereign immunity. White v. Burns, 213 Conn. 307, 567 A.2d 1195 (1990). Section 13a-144 constitutes only a limited waiver of the state's sovereign immunity in cases involving alleged highway defects. Lussier v. Department of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994), citing Lacasse v. Burns, 214 Conn. 464, 468-70, 572 A.2d 357 (1990). "Furthermore, because the statute constitutes a break with common law, it must be strictly construed." Id. at 349; DeFonce Construction Corp. v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985), superseded by statute as stated in Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn. App. 175, 611 A.2d 891 (1992). The statutorily required notice is a condition precedent to maintaining a suit against the state, and if this requirement is not met, no cause of action exists. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992). If the notice fails to comply with the terms of the statute by omitting one of the required pieces of information, the omission would render the notice insufficient as a matter of law. Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952).
General Statutes § 13a-144 provides in relevant part:
Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above CT Page 7389-eo the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.
No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.
In Salemme v. Seymour, 262 Conn. 787, 793, 15 A.2d 1188 (2003), the court examined the requirements which must be satisfied as a condition precedent to maintaining a suit under General Statutes § 13a-149, the statute governing claims of defective highways against a municipality. The court stated that in order to maintain a defective highway claim:
"[a] plaintiff must provide a municipality with notice that meets the statutory requirements . . . 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 . . . A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality." (Citations omitted.) Martin v. Plainville, supra, 240 Conn. 109.
"In determining whether the notice is sufficient, we must look to the purpose of the statute . . . 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 CT Page 7389-ep circumstances surrounding the claim in order to protect its financial interests . . . More specifically, as we recently stated in Sanzone v. Board of Police Commissioners, [ 219 Conn. 179, 198, 592 A.2d 912 (1991)], 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." (Citations omitted; internal quotation marks omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993); id. (notice sufficient despite incorrect citation to statute that was basis for plaintiff's claim).
The defendant argues that Salemme v. Seymour, supra, 262 Conn. 787, is not appropriate authority for the issues in the present case. Salemme involved the review of a notice under § 13a-149, while the present case pertains to notice under § 13a-144, and that the two statutes are separate and distinct, subject to separate standards and interpretations. The court in Salemme noted:
Sec. 13a-149. Damages for injuries by means of defective roads and bridges reads 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. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall beheld 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.
We note that § 13a-149 is liberally construed, particularly when compared to General Statutes § 13a-144, the companion statute providing for liability as a result of defects on state highways. The state highway notice requirement must be strictly construed since § 13a-144, unlike § 13a-149, does not contain a savings clause. Pratt v. Old Saybrook, supra, 225 Conn. 183; see also, Bresnann v. Frankel, 224 Conn. 23, 26 n. 3, 615 A.2d 1040 (1992). Accordingly, we note that courts called upon to construe these statutes should be aware of this analytical dichotomy, and recognize the limited precedential value of a § 13a-144 case in the § 13a-149 context, and vice versa.
In Salemme, the issue was whether the savings clause of § 13a-149 saved a vague description in the notice of the location of the defect. The court affirmed the principles stated in Greenberg v. Waterbury, 117 Conn. 67, 167 A. 83 (1933), that a liberal construction be given the savings clause, and that "the savings clause operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice of the accident location." Salemme CT Page 7389-eq v. Seymour, supra. The defendant concludes that a liberal construction is not applicable to the notice requirement under § 13a-144, as § 13a-144 does not contain a savings clause similar to § 13a-149.
The defendant in arguing that the notice required under § 13a-144 should be strictly construed cites Bresnan v. Frankel, supra, 224 Conn. 23; Ozmun v. Burns, 18 Conn. App. 677, 559 A.2d 1143 (1989); Collins v. Meriden, 41 Conn. Sup. 425, 580 A.2d 549 (1990); Schaap v. Meriden, supra, 139 Conn. 254; Murray v. Commissioner, 31 Conn. App. 752, 626 A.2d 1328, as examples where a plaintiff's description of the location of the defect was insufficient under the notice requirements of § 13a-144. The defendant argues that the plaintiff's description of the location in the present case is not vague, but, in fact, is inaccurate and misleading and patently defective. Ozmun v. Burns, supra 18 Conn. App. 680-81; Serrano v. Burns, 70 Conn. App. 21, 796 A.2d 1258 (2002).
The plaintiff, in arguing that precision in describing the location of a defect is not essential to comply with § 13a-144, points to Lussier v. Department of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), where the court stated:
"The `requirement as to notice 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.' (Emphasis added.) LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952); see Murray v. Milford, 380 F.2d 468, 473 (2d Cir. 1967). The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947)." Warkentin v. Burns, 223 Conn. 14, 18 (1992).
"The purpose of the requirement of notice is `to furnish the party against whom a claim was to be made 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 CT Page 7389-er 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.' Cassidy v. Southbury, 86 Conn. 45, 49, 84 A. 291 ; Sizer v. Waterbury, [ 113 Conn. 145, 156, 154 A. 639 (1932)]; Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 . 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 the cases make clear that this question must be determined on the basis of the facts of the particular case." Morico v. Cox, supra.
Lussier v. Department of Transportation, supra, 228 Conn. 354.
The court, in determining that the description of the defect location given in the plaintiff's notice in the present case is not patently defective or misleading, relies upon the reasoning set forth in Serrano v. Burns, supra, 70 Conn. App. 26. In Serrano, the plaintiff filed an amended complaint alleging that she had suffered injuries as a result of slipping and falling on ice and snow while walking in a public parking lot located at a rest stop off of Interstate 91 in Middletown. In an attempt to comply with the notice provisions of § 13a-144, the plaintiff timely sent a letter to the defendant, which set forth the plaintiff's name, the time and date of the incident, the cause of the injury, a general description of the injury and the place of its occurrence. The issue in this case rises because the letter indicated that the place of occurrence was the "State of Connecticut Rest Area, Middletown, Connecticut, between exits 19 and 20 on Interstate 91 (rear lot)" whereas other documentation indicated that the fall occurred on a handicapped sidewalk ramp.
Thereafter, the defendant filed a motion for summary judgment on the ground that the statutory notice was defective as a matter of law both because the plaintiff failed to describe the precise location of the alleged highway defect and because the plaintiff identified the wrong location. In support of its motion, the defendant filed a copy of the plaintiff's § 13a-144 notice of claim, a portion of the plaintiff's deposition and a copy of a February 24, 1998 brief filed by the plaintiff in the Appellate Court. The defendant claimed that the notice of claim indicated that the injury occurred in the "rear lot" while the other two documents submitted indicated that the injury occurred not in the parking lot but on a handicapped sidewalk ramp, a location that was not as precise and, in fact, different from the "rear lot" location identified in CT Page 7389-es the notice of claim. The trial court agreed and granted the defendant's motion for summary judgment after concluding that (1) it could not find that a fall on a handicapped sidewalk ramp is the same as a fall in the rear parking lot and (2) the description of the place of injury patently failed to meet the test set forth in Lussier v. Dept of Transportation, supra, 228 Conn. 343, for satisfying the requirements of § 13a-144. The Appellate Court reversed the trial court, finding that the defendant "has offered no proof that the `rear lot' of a particular rest stop encompasses such an expansive area that it fails to guide him in making an intelligent inquiry into the case. Given the record before us, the defendant is not being asked to range over a six-mile stretch of roadway or check a score of manhole covers or several rest areas to try to locate where it was that the plaintiff fell and was injured. A notice providing that broad of a description would be patently defective."
In Serrano v. Burns, supra 70 Conn. App. 25, 26, the court stated:
The test as to whether a notice of claim is patently defective is not whether the written description is exactly the same as the other evidence of the place of injury but rather, as set forth in Lussier v. Dept of Transportation, supra, 228 Conn. 357, whether it provides "sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently." "The purpose of the requirement of notice is to furnish the party against whom a claim was to be made 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. (Internal quotation marks omitted.) Id., 354. Accordingly, "the sufficiency of notice is to be tested with reference to the purpose for which it is required . . ." (Citation omitted; internal quotation marks omitted.) Tedesco v. Dept. of Transportation, 36 Conn. App. 211, 213, 650 A.2d 579 (1994).
"There are many circumstances when precision will be difficult, if not impossible to achieve . . . [Contrary to the assertions of the defendant] precision is, therefore, not essential in order to CT Page 7389-et comply with [the notice provisions of] § 13a-144." Lussier v. Dept. of Transportation, supra, 228 Conn. 356. What is required is "reasonable definiteness." Id. "The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person." (Internal quotation marks omitted.) Id., 354.
"Ordinarily, the question of the adequacy of notice is one for the jury . . ." (Internal quotation marks omitted.) Murray v. Commissioner of Transportation, 31 Conn. App. 752, 755, 626 A.2d 1328 (1993). "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 the cases make clear that this question must be determined on the basis of the facts of the particular case." (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354, quoting Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947).
In adopting the reasoning set forth above in Serrano, the court determines that in the present case, the plaintiff's notice is dissimilar to the notices in other cases in which the common thread is that the court found that the notice at issue identified the wrong location. See, e.g., Ozmun v. Burns, 18 Conn. App. 677, 679 n. 3, 680-21, 559 A.2d 1143 (1989) (notice describing location using "north" in place of "south" and "east" in place of "west" erroneous because notice described location where accident did not occur); Zotta v. Burns, 8 Conn. App. 169, 170, 511 A.2d 373 (1986) (location identified as "route 6 in Bolton" and accident occurred on "Camp Meeting Road in Bolton"). In both Ozmun and Zotta the court determined that the notices at issue were patently defective because they directed the commissioner to locations markedly different from the ones where the injuries actually had occurred. That is not the case here. The notice at issue did not pinpoint the wrong area by referring to erroneous exit numbers or stating the wrong route number. The plaintiff's description of the location where her injury occurred is not so indefinite as to render her notice of claim patently defective or so vague in its breadth that the commissioner could not reasonably be expected to make a timely investigation based on the information provided.
Accordingly, for the reasons set forth herein, the defendant's motion to dismiss is hereby denied. CT Page 7389-eu
By Judge Richard E. Arnold