Bartlett v. Metro. Dist. Com'n, 31231.

• Decision Date: 23 November 2010
• Docket Number: No. 31231.,31231.
• Citation: 125 Conn.App. 149,7 A.3d 414
• Court: Connecticut Court of Appeals
• Parties: William BARTLETT v. METROPOLITAN DISTRICT COMMISSION.

7 A.3d 414

125 Conn.App. 149

William BARTLETT

v.METROPOLITAN DISTRICT COMMISSION.

No. 31231.

Appellate Court of Connecticut.

Argued Sept. 7, 2010.

Decided Nov. 23, 2010.

Gerald S. Sack, with whom, on the brief, was Eamonn S. Wisneski, West Hartford, for the appellant (plaintiff).

Jack G. Steigelfest, with whom, on the brief, was Thomas P. Cella, Hartford, for the appellee (defendant).

BISHOP, GRUENDEL and WEST, Js.

WEST, J.

The plaintiff, William Bartlett, appeals from the judgment of the trial court granting the motion filed by the defendant, the Metropolitan District Commission (commission), to dismiss his negligence action. On appeal, the plaintiff claims that the court improperly (1) concluded that it lacked subject matter jurisdiction because the claim was governed by General Statutes § 13a-149, which requires him to provide notice to the commission, ¹ (2) failed to hold an evidentiary hearing prior to granting the commission's motion to dismiss and (3) considered the commission's assertion of governmental immunity. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. At approximately 11 a.m. on February 15, 2007, the plaintiff was walking on the sidewalk in the vicinity of 616 Maple Avenue in Hartford when he allegedly stepped into an improperly positioned storm drain, causing him to injure his lower back, legs and left knee. On May 14, 2008, the plaintiff commenced the present actionagainst the commission. In his second amended complaint dated December 4, 2008, the plaintiff claimed that "[a]t all times relevant to this action, the [commission] ... owned, controlled, maintained, and/or possessed the storm drain on which [he] stepped." He further alleged that the commission was negligent because it failed to inspect and to maintain the storm drain in a reasonably safe condition and that it failed to warn him and other pedestrians that the storm drain was improperly positioned, creating an unsafe condition that the commission failed to remedy or to correct. On January 13, 2009, the commission filed its answer and "admit[ted] that the storm drain identified by the plaintiff is maintained by the [commission],although the adjoining street is maintained by the City of Hartford...." In its answer, the commission also raised four special defenses in response to the operative complaint, asserting as the fourth special defense that (1) the plaintiff's alleged injuries were sustained as a result of an allegedly defective road and, therefore, his claim fell under the purview of § 13a-149 and (2) the plaintiff's claim was barred due to noncompliance with the ninety day notice requirement of § 13a-149.² In response, the plaintiff filed a reply to the commission's answer and special defenses denying all the allegations contained therein.

On January 30, 2009, the commission filed a motion to dismiss the action for lack of subject matter jurisdiction. See Practice Book § 10-31. The commission argued that § 13a-149, often referred to as the highway defect statute,³ was the exclusive remedy for personal injuries resulting from a defective road and that the plaintiff'sfailure to comply with the prerequisite ninety day notice provision contained in the statute deprived the court of subject matter jurisdiction. The commission submitted no affidavits in support of its motion to dismiss. Instead, it relied on the plaintiff's pleading that the storm drain that he stepped into was "owned, controlled, maintained and/or possessed" by the commission. In response, the plaintiff argued that § 13a-149 was inapplicable because the commission was not the party bound to keep the "Maple Avenue roadway in repair." ⁴ Relying on the commission's charter and interrogatory responses, the plaintiff argued that the city of Hartford (city) was the party responsible for maintaining and repairing Maple Avenue and that the commission was the party bound to maintain and to repair the storm drains on Maple Avenue only if given notice from the city or other sources. As a result, the plaintiff contended that there was a factual question regarding which party was bound to keep the storm drain in repair and that an evidentiary hearing was required to resolve this issue.

On April 30, 2009, the court, by way of a memorandum of decision, granted the commission's motion to dismiss, concluding that as a matter of law the plaintiff's claim invoked the highway defect statute, and, as a result, the statute was the exclusive remedy for his injuries. The court concluded that because the plaintiff had failed to comply with the notice provision mandated by § 13a-149, it lacked subject matter jurisdiction to review the claim. Accordingly, the court granted the commission's motion to dismiss.⁵

On May 14, 2009, pursuant to Practice Book § 11-11, the plaintiff filed a motion to vacate and reargue, asserting that (1) his claim did not fall within the purviewof § 13a-149, (2) the court failed to address other issues that he had raised and (3) recent case law demonstrated that dismissal was improper. See footnote 2 of this opinion. The court denied the motion on June 10, 2009. On June 23, 2009, the plaintiff once again filed motions to vacate and reargue. That motion also was denied on August 12, 2009. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly granted the commission's motion to dismiss when it concluded that it lacked subject matter jurisdiction over his claim. We disagree.

We begin by setting forth the well settled legal principles and standard of review that guide our resolution of the plaintiff's claims. "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.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). "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.... The motion to dismiss... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Bagg v. Thompson, 114 Conn.App. 30, 37-38, 968 A.2d 468 (2009). We are also mindful of the well settled principle that, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).

"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, '[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.' Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Emphasis added.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).

"In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a defendant's motion to

[7 A.3d 420, 125 Conn.App. 156]

dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings.... If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Emphasis in original; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347-48, 977 A.2d 636 (2009).

In the present case, the plaintiff contends that he was not required to fulfill the necessary notice requirement under the highway defect statute because his claim does not come within the purview of § 13a-149. The following additional facts and procedural history are helpful in our resolution of this issue. In his memorandum of law in opposition to the commission's motion to dismiss, the plaintiff argued that, according to the Compiled Charter...