Bagg v. Town of Thompson

• Decision Date: 28 April 2009
• Docket Number: No. 29152.,29152.
• Citation: 114 Conn.App. 30,968 A.2d 468
• Court: Connecticut Court of Appeals
• Parties: Lori BAGG v. TOWN OF THOMPSON et al.

968 A.2d 468

114 Conn.App. 30

Lori BAGG v. TOWN OF THOMPSON et al.

No. 29152.

Appellate Court of Connecticut.

Argued December 1, 2008.

Decided April 28, 2009.

William F. Gallagher, with whom were David McCarry, New Haven, and Leonard B. Bren, Rocky Hill, for the appellant (plaintiff).

Ralph G. Eddy, Hartford, for the appellee (named defendant).

FLYNN, C.J., and DiPENTIMA and LAVINE, Js.

FLYNN, C.J.

The common law principle of sovereign immunity, which holds that the state may not be sued without its consent, is well established in our jurisprudence. Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004). This immunity from suit implicates subject matter jurisdiction and, therefore, provides a basis for a court to grant a motion to dismiss. Id., at 736, 846 A.2d 831. The immunity enjoyed by municipalities of the state, governmental immunity, differs from sovereign immunity in historical origin, scope and application. Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007). Under the principle of governmental immunity, a municipality, in certain circumstances, possesses immunity from liability, but not from suit. Id. Accordingly, municipalities are capable of suing and being sued, similar to any natural person, corporation or other entity. Giannitti v. Stamford, 25 Conn.App. 67, 79, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991). The doctrine of governmental immunity does not implicate subject matter jurisdiction and is not a basis for granting a motion to dismiss. Vejseli v. Pasha, supra, at 572, 923 A.2d 688.

The plaintiff, Lori Bagg, appeals from the judgment of the trial court dismissing her complaint brought against the defendant town of Thompson pursuant to General Statutes § 13a-149, the municipal highway defect statute.¹ On appeal, the plaintiff claims that the court improperly concluded that it was without subject matter jurisdiction on the basis of its incorrect determination that the defendant municipality possessed sovereign, rather than governmental, immunity. We agree with the plaintiff that the defendant did not possess sovereign immunity, and therefore the court's granting of the motion to dismiss for lack of subject matter jurisdiction was improper. We reverse the judgment of the trial court.² The plaintiff's complaint alleged that on September 1, 2003, she climbed a cement stairway located on the east side of Route 12 in Thompson. The stairway provided access from the homes located on Riverside Drive, adjacent to and below the elevation of Route 12, to the sidewalk bordering the state highway. As the plaintiff reached the top of the stairs, she leaned on the stairway's handrail, only to have the handrail give way, causing her to fall to the ground below and sustain injuries.

In count one of her complaint, the plaintiff alleged that the defendant had a statutory duty to maintain the sidewalk bordering Route 12 and that the stairway was a part of the defendant's sidewalks. The plaintiff claimed that her injuries were the result of the defendant's negligent failure to install and to maintain the handrail properly, which had been anchored in an empty soda can and inadequately embedded in the cement of the stairs. Count one also indicated that the plaintiff had provided notice of her injuries to the defendant pursuant to § 13a-149.³ The complaint's two remaining counts alleged negligence against Thomas J. Revet, Jr., and Vickie K. Revet, and John Narducci and Gertrude Narducci, respectively, alternatively claiming that, at all relevant times, the stairway and the land on which it was located was owned, possessed, maintained and controlled by the Revets and by the Narduccis. The plaintiff alleged that her injuries were a result of the negligence of the Revets and the Narduccis in that they caused or permitted the handrail to be installed defectively and that they subsequently maintained the handrail but failed to remedy its defective condition.

Subsequent discovery revealed the following additional factual background. The defendant previously had sought and received state approval to make improvements to the sidewalk bordering Route 12 within the state's right-of-way. The defendant received funding for the project through the state's community development block grant fund, after the defendant learned that the state department of transportation did not intend to make any such improvements itself. The defendant hired an engineering firm, GM2 Associates, Inc. (GM2), as well as a contractor, M & M Construction, Inc. (M & M), to carry out the work, which was done between August and October, 1997. Madan Gupta, president of GM2, stated in an affidavit that the firm provided design, construction plans, specifications and full-time inspection services for the defendant's reconstruction of the sidewalk. He further stated that the defendant did not own the land covered by the project and that the sidewalk was fully within the state's right-of-way. Gupta also indicated that the stairs involved in the plaintiff's fall were not within the original scope of the project.

As a result of the defendant's improvements to the sidewalk, the elevation of the sidewalk created a gap of approximately eight to twelve inches between the stairway's top stair and the sidewalk. Mark Manuel, a representative of M & M, testified in a deposition that because of this gap, the contractor reformed the stairs by pouring concrete over the existing stairs and installed the handrails. Manuel did not recall who specifically ordered M & M to complete the reformation but testified that it could not have been anyone other than GM2 or a representative of the defendant. The Revets acknowledged via affidavit, and Vickie Revet testified in a deposition that, although they had not been aware of the fact prior to May, 2004, the stairway was located within the bounds of their property. Prior to May, 2004, they believed that the stairway was part of the defendant's property. Thus, they stated that they neither requested nor consented to the reformation of the stairs.

On March 29, 2006, the defendant filed the motion to dismiss at issue in the present appeal, arguing that the court lacked subject matter jurisdiction because the plaintiff could not demonstrate the two elements of a cause of action under § 13a-149: (1) that she sustained her injuries on a defective road or bridge; and (2) that the defendant was the party bound to keep the road or bridge in repair. Citing Novicki v. New Haven, 47 Conn.App. 734, 738, 709 A.2d 2 (1998), the defendant further contended that, as a municipality, it possessed sovereign immunity and thus was immune from suit absent legislation waiving such immunity. In opposition, the plaintiff conceded that the stairway was on private property but argued that the defendant reformed the stairs for public use. The plaintiff further argued that the defendant's assertions that it was not the party bound to maintain the stairs were an insufficient basis for the court to find that it lacked jurisdiction. In a supplemental brief in opposition to the defendant's motion to dismiss, the plaintiff contended that the defendant's motion was properly a motion to strike, as the substance of its claim was that the plaintiff had not stated a sufficient claim of liability under § 13a-149, not that the plaintiff could not state such a claim.

On February 13, 2007, while the defendant's motion to dismiss was still pending, the plaintiff filed a request for leave to file an amended complaint. The plaintiff sought to amend her complaint by, inter alia, adding an allegation that the defendant, through the acts and omissions of its employees, was negligent pursuant to General Statutes § 52-557n.⁴ The plaintiff also sought to add an allegation that, by the acts alleged in the original complaint, the defendant had created and maintained a nuisance.⁵

By memorandum of decision filed August 14, 2007, the court granted the defendant's motion to dismiss. The court stated that the defendant, as a municipality, was immune from suit under the doctrine of sovereign immunity. The court further stated that § 13a-149 was an exception to such immunity and that its provisions were to be strictly construed. The court concluded that the plaintiff's failure to demonstrate that the stairway was a defective road or bridge for the purposes of the statute, coupled with her failure to show that the defendant was responsible for maintaining the stairs, deprived the court of subject matter jurisdiction. In a footnote at the end of its decision, the court stated that, given the allegations of the complaint, § 13a-149 provided the plaintiff's exclusive remedy and that she could not, therefore, maintain an action under § 52-557n.

I

In her principal argument on appeal, the plaintiff claims that the court improperly determined that the defendant possessed sovereign immunity rather than governmental immunity. Because governmental immunity does not implicate subject matter jurisdiction, as does sovereign immunity, the plaintiff argues that it was not a proper basis for granting the defendant's motion to dismiss. We agree with the plaintiff.

Our consideration of this case is guided by the following standard of review and principles of law. "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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "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...