Filippi v. Sullivan

• Decision Date: 22 February 2005
• Docket Number: (SC 17068).
• Citation: 866 A.2d 599,273 Conn. 1
• Court: Connecticut Supreme Court
• Parties: MARK FILIPPI v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.

273 Conn. 1

866 A.2d 599

MARK FILIPPI v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.

(SC 17068).

Supreme Court of Connecticut.

Argued September 7, 2004.

Officially released February 22, 2005.

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

Michael J. Walsh, with whom, on the brief, was Ann Walsh Henderson, for the appellant (plaintiff).

Paul Nowosadko, with whom, on the brief, was Lorinda S. Coon, for the appellee (named defendant).

Opinion

PALMER, J.

The plaintiff, Mark Filippi, brought this defective highway action under General Statutes § 13a-144¹ against the named defendant, James F. Sullivan, the commissioner of transportation (commissioner),² seeking damages for injuries that the plaintiff had sustained in an automobile accident allegedly caused by the commissioner's negligent failure to post lane closure signs on a portion of Interstate 95 in East Lyme. The commissioner filed a motion to dismiss the action on the ground that the notice submitted by the plaintiff to the commissioner as required by § 13a-144 was patently defective and, therefore, insufficient as a matter of law. The trial court denied the motion to dismiss, and the commissioner appealed to the Appellate Court. On appeal, the Appellate Court concluded that the trial court improperly had determined that the notice was not insufficient as a matter of law and, therefore, reversed the trial court's denial of the commissioner's motion to dismiss. Filippi v. Sullivan, 78 Conn. App. 796, 807, 829 A.2d 77 (2003). We granted the plaintiff's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the plaintiff's written notice under . . . § 13a-144 was patently defective?" Filippi v. Sullivan, 266 Conn. 916, 833 A.2d 467 (2003). We answer that question in the negative and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts. "On March 15, 2000, the plaintiff was involved in a traffic accident while driving in a northerly direction on Interstate 95 between exits seventy-two and seventy-three. Department of transportation crews were performing roadwork and had closed the right lane on the northbound side [of Interstate 95] between exits seventy-three and seventy-five. Although signs indicating the lane closure had been placed between exits seventy-three and seventy-six, a resulting traffic jam extended beyond the sign pattern, and the plaintiff was injured in that unsigned area.

"As the plaintiff traveled along the highway, he drove around a [graded blind] curve and came upon the stopped traffic. The vehicle traveling behind him was unable to stop in time and violently struck the rear end of the plaintiff's vehicle causing the plaintiff's vehicle to collide with the vehicle in front of him. As a result of that collision, the plaintiff was left comatose for several weeks and suffered several other injuries, including a ruptured aorta and multiple spinal fractures, which have left the plaintiff disabled and wheelchair bound." Filippi v. Sullivan, supra, 78 Conn. App. 798.

Thereafter, pursuant to § 13a-144, the plaintiff filed timely written notice with the commissioner of his intent to assert a defective highway claim.³ The plaintiff subsequently commenced this action, alleging that the commissioner had breached his duty to maintain the highway in a reasonably safe condition in failing to post sufficient warning signs of the lane closure. The commissioner filed a motion to dismiss the action on the ground that the notice's description of the place where the injury had occurred, namely, "at a point in the roadway [located immediately after a graded blind curve that was] approximately 1/4 of a mile south of [the] Exit 73 exit ramp, and approximately 1/10 of a mile north of [the] Exit 72 exit ramp," was inadequate as a matter of law. In support of his motion to dismiss, the commissioner submitted an affidavit provided by Frederick Atwell, a planner for the department of transportation, who stated therein that "[t]he location of injury described in the plaintiff's notice of claim . . . describes two different and distinct locations . . . . The two distinct locations described are . . . more than 1.6 miles apart." Atwell also stated that, "[t]hroughout the [1.6 mile] stretch of roadway between the locations identified by the plaintiff, there are various terrains including grades, curves, slopes and straight roadway." The commissioner maintained that, in light of these uncontested assertions, the plaintiff's notice was patently defective insofar as its description of the place of injury was concerned.⁴

After a hearing, the trial court issued a ruling from the bench denying the commissioner's motion to dismiss. The commissioner appealed from the denial of the motion to the Appellate Court,⁵ claiming that the plaintiff's notice was patently defective because it identified the place of injury as two different locations that are 1.6 miles apart. The commissioner also claimed that the statement in the notice indicating that the accident had occurred immediately after a "graded blind curve" was insufficient to save the notice from infirmity in light of Atwell's uncontroverted assertion that the 1.6 mile stretch of highway identified in the notice contained more than one curve.

The Appellate Court agreed with the commissioner that "the location of the place of injury as described [in the notice was] too vague because its 1.6 mile length [did] not allow the commissioner any reasonable opportunity to investigate. . . . [With respect to the place of injury, the notice] is so vague in its breadth that the commissioner could not be expected reasonably to make a timely investigation based on the information provided." Id., 802-803. With regard to that part of the notice indicating that the accident had occurred immediately after the plaintiff had negotiated a graded blind curve, the Appellate Court stated that "[t]his additional information did not clarify the geographic location of the place of injury. According to [Atwell's] affidavit, there is more than one curve in the 1.6 mile distance. [Atwell] averred in his affidavit that the area between the two points consists of `various terrains including grades, curves, slopes and straight roadway.' . . . There is no further description of which of these curves was involved." Id., 803. Thus, the Appellate Court concluded that "nothing in the statutory written notice or the attached police report would allow the commissioner to locate the accident geographically. There was no mention in the [plaintiff's] notice of the direction in which the road curved or which exit was nearer to the accident. The plaintiff's notice failed to provide the location of the injury with reasonable definiteness and lacked the specificity necessary to permit the commissioner to gather information to protect the state's interests. Therefore . . . the [plaintiff's] notice was patently defective." Id., 803-804.

On the granting of certification, the plaintiff appealed to this court, contending that the Appellate Court improperly had concluded that the plaintiff's notice was inadequate as a matter of law because it did not contain a reasonably definite and specific description of the place of injury. In particular, the plaintiff maintains, inter alia, that the facts set forth in the notice pertaining to the place of injury were sufficient to permit a determination that the notice was not patently defective. We agree with the plaintiff.

Before addressing the merits of the plaintiff's claim, we set forth the applicable standard of review. "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. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). Moreover, "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . When a . . . court decides a jurisdictional question raised by a pre-trial motion to dismiss, 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." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).

We now turn to the plaintiff's contention that, contrary to the conclusion of the Appellate Court, the notice that he provided to the commissioner pursuant to § 13a-144 was not patently defective. The principles that govern our resolution of the plaintiff's claim are well established. "[Section] 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).

"The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required." Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). "The [notice] requirement . . . 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...