Kozlowski v. COMMISSIONER OF TRANSP., No. 17303.

• Decision Date: 19 July 2005
• Docket Number: No. 17303.
• Citation: 274 Conn. 497,876 A.2d 1148
• Court: Connecticut Supreme Court
• Parties: Lawrence KOZLOWSKI v. COMMISSIONER OF TRANSPORTATION et al.

876 A.2d 1148

274 Conn. 497

Lawrence KOZLOWSKI v. COMMISSIONER OF TRANSPORTATION et al.

No. 17303.

Supreme Court of Connecticut.

Argued March 11, 2005.

Decided July 19, 2005.

Lorinda S. Coon, with whom, on the brief, was William J. Scully, for the appellant (named defendant).

Thomas M. Bond, pro hac vice, with whom were David Bohonnon and, on the brief, K. Wynne Bohonnon, for the appellee (plaintiff).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

Opinion

KATZ, J.

The dispositive issue in this appeal is whether allegations made by the plaintiff, Lawrence Kozlowski, fall within the scope of General Statutes § 13a-144¹ (state highway defect statute) as involving a highway defect. The named defendant,² the commissioner of transportation, appeals from the trial court's decision denying his motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction on the basis of sovereign immunity.³ Specifically, the defendant claims that the trial court improperly concluded that the plaintiff's complaint alleges a cognizable claim within the purview of the state highway defect statute. We agree, and accordingly, we reverse the trial court's decision.

The record reveals the following facts and relevant procedural history. Pursuant to § 13a-144, the plaintiff served notice of his intent to file a claim against the defendant. Thereafter, the plaintiff filed a complaint alleging that the defendant had breached his statutory duty to repair and to maintain the state's highways. Specifically, the plaintiff's complaint alleged that: (1) in May, 1997, R.H. White Construction Company, the plaintiff's employer, was performing work in Newtown, pursuant to a contract with the state, to replace the gas utilities under Mile Hill Road; (2) on May 15, 1997, while in the course of his employment, the plaintiff sustained serious personal injuries when he stepped on a defective catch basin cover along Mile Hill Road that broke and caused him to fall into the catch basin; (3) the catch basin covers along Mile Hill Road are owned by the state; (4) the defendant had a duty to maintain the roadway and the adjacent catch basin covers; (5) the defendant breached that duty; and (6) the sole proximate cause of the plaintiff's injuries was the defective and dangerous condition of the catch basin cover.

The defendant filed an answer to the plaintiff's complaint, denying any breach of duty. Thereafter, the defendant filed a motion to dismiss the complaint, asserting that the plaintiff's claim was barred by the doctrine of sovereign immunity.⁴ Specifically, the defendant contended that, at the time of the accident, the plaintiff was not a "traveler" on the roadway and, therefore, could not avail himself of the state highway defect statute.

The trial court, Booth, J., denied the defendant's motion. Specifically, the trial court concluded that the plaintiff's status as an employee injured on the roadway in the course of his employment should not preclude him from pursuing a claim as a traveler under the state highway defect statute. This appeal followed.⁵

The defendant contends that the plaintiff's claim falls outside the scope of the state highway defect statute for two reasons. First, the defendant claims that the catch basin cannot constitute a highway defect because it is in an area off the roadway that is not intended to be traversed. Second, the defendant claims that the plaintiff was not a "traveler" on the roadway at the time of his injury because he was on the roadway only for the purposes of his employment.⁶ In response, the plaintiff contends that the defendant should be barred from asserting a claim before this court regarding whether the catch basin is a highway defect because no such claim was raised in the trial court. The plaintiff further contends that, even if that claim had been raised in the trial court, it still should fail because the state highway defect statute applies to conditions that are near the roadway so long as they are likely to or actually hinder travel. Finally, the plaintiff asserts that persons injured on the roadway during the course of their employment are "travelers" on the roadway within the meaning of the statute. We agree with the defendant's first claim.

Before addressing the merits of the defendant's appeal, we set forth the applicable standard and principles guiding our 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.... 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 pretrial 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.... Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

"The [state highway defect] statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory.... The [state highway defect] statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144.... White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). Moreover, [w]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law (4)27 Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991); accord Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001)." (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 267-68, 875 A.2d 459 (2005).

With these principles in mind, we turn to the case at hand. At the outset, we address the plaintiff's contention that we should not reach the defendant's claim that the catch basin is not a highway defect because the defendant failed to raise that claim in the trial court. As we previously have noted, in order to avail himself of the state's waiver of sovereign immunity on highway defect claims, the plaintiff must bring himself within the ambit of the state highway defect statute. White v. Burns, supra, 213 Conn. at 321, 567 A.2d 1195. Questions as to whether the doctrine of sovereign immunity bars a claim necessarily implicate the court's subject matter jurisdiction. Filippi v. Sullivan, supra, 273 Conn. at 8, 866 A.2d 599. "This court has often stated that the 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.... [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.... Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). Accordingly, because the defendant's claim implicates the subject matter jurisdiction of this court, we are bound to reach its merits, irrespective of whether it was raised previously.

Turning to the question of whether the plaintiff's allegations state a claim for a highway defect, "[w]e have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.... In Hewison [v. New Haven, 34 Conn. 136, 143 (1867)], we distinguished such highway defects from those objects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway.... We explored this distinction more recently in Comba v. Ridgefield, [177 Conn. 268, 413 A.2d 859 (1979)]. In that case, [we] reject[ed] the ... assertion that an overhanging tree limb, which subsequently fell on a traveling automobile, could be a highway defect, [explaining]: [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. Id., at 271, 413 A.2d 859.... Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 202, 592 A.2d 912. We consistently have held, moreover, that [t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel.... Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.... Hall v. Burns, 213 Conn. 446, 462-63, 569 A.2d 10 (1990)." (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. at 268-69, 875...