Amore v. Frankel

• Decision Date: 25 January 1994
• Docket Number: No. 14689,14689
• Citation: 228 Conn. 358,636 A.2d 786
• Court: Connecticut Supreme Court
• Parties: Alan AMORE et al. v. Emil FRANKEL, Commissioner of Transportation.

Page 786

636 A.2d 786

228 Conn. 358

Alan AMORE et al. v. Emil FRANKEL, Commissioner of Transportation.

No. 14689.

Supreme Court of Connecticut.

Argued Nov. 4, 1993.

Decided Jan. 25, 1994.

Michael J. O'Sullivan, Hartford, for appellant (defendant).

Robert J. Enright, Vernon, for appellee (named plaintiff).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Associate Justice.

The dispositive issue before the court is whether the trial court correctly granted a motion to dismiss for lack of subject matter jurisdiction. The basis of the trial court's ruling was that the plaintiff's claim did not come within the exception to sovereign immunity provided by General Statutes §§ 13a-144 and 13b-30, ¹ because the plaintiff had failed to allege that the repair and maintenance of the driveway on which he had fallen, which was located on the campus of the University of Connecticut and was not within the "state highway system," ² were the responsibility of the commissioner of transportation by virtue of a request for repair or maintenance having been made by any official of the University of Connecticut.

The relevant facts are reported in the decision of the Appellate Court, to which the plaintiffs appealed from the judgment of dismissal. "The plaintiffs, Alan and Ellen Amore, filed a two count complaint against Emil Frankel, the state commissioner of transportation [commissioner]. In count one, they claimed that the state owed them a duty to maintain the roads and sidewalks on the Storrs campus of the University of Connecticut. The plaintiffs alleged that the state failed to reduce the hazards associated with icy and wet road conditions which ultimately caused the injuries that the named plaintiff sustained in his fall on an icy driveway. In count two, the plaintiffs claimed loss of consortium on behalf of the named plaintiff's wife.

"Pursuant to Practice Book §§ 142 and 143, ³ the [commissioner] filed a motion to dismiss, asserting that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The [commissioner] also filed two supporting affidavits as evidence that the [commissioner] was not responsible for the maintenance of the roads at issue. ⁴ In light of these affidavits, the trial court found that the road 'was outside the scope of the commissioner's duty to maintain or repair pursuant to [General Statutes] section 13b-30 or 13a-144. Hence, the [commissioner's] motion to dismiss [was] granted.' The court reasoned that without proof of the [commissioner's] duty, the doctrine of sovereign immunity applied and deprived the court of subject matter jurisdiction." Amore v. Frankel, 29 Conn.App. 565, 566-67, 616 A.2d 1152 (1992).

The Appellate Court reversed the judgment of the trial court. ⁵ The Appellate Court held that the complaint, on its face, sufficiently established subject matter jurisdiction pursuant to § 13a-144 and thereby overcame the doctrine of sovereign immunity. The Appellate Court stated that the complaint's allegation of the commissioner's duty to maintain the driveway was adequate to withstand a motion to dismiss for lack of jurisdiction, and that the trial court should not have relied on the commissioner's affidavits, submitted pursuant to Practice Book § 143, in granting his motion to dismiss. The Appellate Court reasoned that because the affidavits challenged the complaint on the issue of whether the commissioner had any duty to maintain or repair the driveway, they did not concern a jurisdictional issue but rather related to a substantive matter more properly addressed through a motion for summary judgment. Accordingly, the Appellate Court concluded that the trial court had improperly dismissed the first count of the complaint. Because the affidavits submitted in this case, in the absence of any response from the plaintiff, conclusively defeated the court's subject matter jurisdiction pursuant to §§ 13a-144 and 13b-30, we disagree with the Appellate Court. Accordingly, we answer the second certified question in the negative and reverse. ⁶

As we have stated many times before, the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Lussier v. Department of Transportation, 228 Conn. 343, 349-50, 636 A.2d 808 (1994); Tamm v. Burns, 222 Conn. 280, 289, 610 A.2d 590 (1992); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185-86, 592 A.2d 912 (1991); White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). We also have recognized that the state can consent to be sued and that "[t]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144]." White v. Burns, supra. Therefore, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity.

In Cairns v. Shugrue, 186 Conn. 300, 308, 441 A.2d 185 (1982), we held that § 13a-144 does not only apply to injuries occurring upon roads within the "state highway system." ⁷ Rather, under § 13a-144, whenever it is shown that the commissioner "has a legal duty to repair or maintain a particular [road], he [or she] is subject to liability for injuries occurring thereon which are caused by negligence in performing that duty." Id., at 310, 441 A.2d 185. Section § 13b-30 imposes on the commissioner such a legal duty to repair or maintain roads and drives on state grounds "on request of the state agency having jurisdiction over the property involved." Thus, when it is shown that the commissioner has a legal duty to repair or maintain such roads and drives pursuant to § 13b-30, § 13a-144 imposes liability on the commissioner for injuries sustained on those roads and drives as a result of the commissioner's negligence in performing his or her duty.

In this case, the plaintiff alleged that the commissioner was "responsible for the maintenance of highways, sidewalks, roads and drives on the grounds of state institutions, including, but not limited to the Storrs campus of the University of Connecticut. At all pertinent times, said highways, sidewalks, roads and drives included a driveway that ran from the vicinity of the Wilbur Cross Library on the Storrs campus, forming a 'T' intersection with Glenbrook Road." The plaintiff further alleged that as he proceeded to walk across the surface of that driveway, walking essentially parallel to Glenbrook Road, he fell and sustained injuries. The plaintiff asserts that his injuries were caused by the commissioner's breach of duty in that the commission had failed to: (1) maintain the driveway, (2) warn the plaintiff of the dangerous condition of the driveway's surface, and (3) take appropriate remedies to correct that condition.

The commissioner argues that the plaintiff alleged neither that the University of Connecticut, through the appropriate party, had requested the commissioner to maintain and improve the roads on the Storrs campus, nor that the driveway on the campus is included in the "state highway system." Instead, the commissioner maintains, the plaintiff's allegations of responsibility by the commissioner for the "drives" on the Storrs campus is a statement of a legal conclusion that he disputes.

Following this court's pronouncement in Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988), that, where affidavits contesting facts in the complaint are provided, the trial court need not conclusively presume the validity of the allegations of the complaint, the commissioner filed, along with his motion to dismiss, affidavits disclosing that employees of the University of Connecticut maintain or repair the driveway where the fall occurred and that the commissioner did not share that responsibility. The plaintiff did nothing to contradict these allegations. The plaintiff argues instead that the affidavits are irrelevant to the critical issue of the existence of a duty to maintain the area in question. The affidavits do no more, according to the plaintiff, than assert a conclusory denial of the existence of any legal duty without any supporting facts. He claims, therefore, that there was no need to respond and that his complaint was sufficient to survive a jurisdictional challenge. We disagree.

Section 13a-144 imposes liability on the commissioner for injuries occurring on "any defective highway, bridge or sidewalk which it is the duty of the commissioner ... to keep in repair." As discussed above, however, because the driveway in question is not part of the "state highway system," whether it falls within the commissioner's duty to repair or maintain turns on § 13b-30. Cairns v. Shugrue, supra, 310. Section 13b-30 expressly provides that the commissioner has the duty to improve and maintain roads and drives on the grounds of state institutions only when the state agency having jurisdiction over the property has first made a request to the commissioner to improve and maintain the property. It is only by virtue of § 13b-30 that the driveway on the University of Connecticut campus falls within the commissioner's duty to maintain or repair. Id. Therefore, to establish liability under § 13a-144, the plaintiff first must allege sufficient facts to bring the driveway in question within § 13b-30.

In this case, the commissioner's motion to dismiss and supporting affidavits challenged the plaintiff's legal assertion that the duty to maintain and repair the driveway rested with the commissioner of transportation. ⁸ The affidavits stated that the driveway in question is the responsibility of the physical plant department of the University of Connecticut; that the university's landscaping crew, in particular, maintained the driveway; that the driveway is outside the responsibilities of the department of...