Cuozzo v. Town of Orange, 34918.

• Decision Date: 17 December 2013
• Docket Number: No. 34918.,34918.
• Citation: 147 Conn.App. 148,82 A.3d 647
• Court: Connecticut Court of Appeals
• Parties: Armand CUOZZO v. TOWN OF ORANGE.

147 Conn.App. 148

82 A.3d 647

Armand CUOZZO

v.TOWN OF ORANGE.

No. 34918.

Appellate Court of Connecticut.

Argued Sept. 20, 2013.

Decided Dec. 17, 2013.

Karen E. Souza, with whom, on the brief, was Steven L. Rubin, for the appellant (plaintiff).

Mark A. Perkins, Bridgeport, with whom was Daniel Murtha, legal intern, for the appellee (named defendant).

LAVINE, BEACH and KELLER, Js.

KELLER, J.

The main issue in this appeal is whether the trial court properly dismissed a claim for lack of subject matter jurisdiction on the ground that the plaintiff failed to provide notice to a municipality in accordance with the municipal highway defect statute, General Statutes § 13a–149. The plaintiff, Armand Cuozzo, appeals from the judgment of the trial court dismissing his complaint against the defendant, the town of Orange. ¹ The plaintiff claims that the court improperly granted the defendant's motion to dismiss. We agree with the plaintiff and reverse the judgment of the trial court.

By means of an amended revised complaint dated February 3, 2012, the plaintiff alleged that, at approximately 4:30 p.m. on July 31, 2008, he was a business invitee on certain property located at 2 Boston Post Road in Orange. The plaintiff alleged that, at all times relevant, said property was owned by and was “controlled, maintained, managed, operated and/or supervised” by the defendant, “its agents, servants and/or employees.” The property abutted Meloy Road, a public highway in Orange, and was connected to Meloy Road by “an entrance/exit driveway” that intersected Meloy Road. Said driveway “was controlled, maintained, managed, operated and/or supervised” by the defendant, “its agents, servants and/or employees.” Meloy Road intersected with Boston Post Road, another public highway.

Also, the plaintiff alleged that, at the date and time specified, he was operating a motor vehicle owned by him in a northerly direction on the driveway, at which time his motor vehicle came into contact with a dangerous and unsafe condition, namely, a pothole that was approximately two feet in diameter, which was situated approximately three feet from the driveway's intersection with Meloy Road. This defective, dangerous and unsafe condition in the driveway existed for such a period of time prior to this event that the defendant should have known of its presence and remedied it. The collision led to personal injury and damages that were “caused by the negligence and carelessness of the defendant ... its agents, servants and/or employees” in that, among other things, they allowed and permitted the condition to exist, failed to take steps to remedy it, and failed to take reasonable measures to prevent motor vehicles from coming into contact with it. The plaintiff further alleged that, pursuant to General Statutes § 52–557n, the defendant was liable for his injuries and damages.

Thereafter, the defendant filed a motion to dismiss pursuant to Practice Book § 10–33 on the ground that the court lacked subject matter jurisdiction. Specifically, the defendant argued that the plaintiff's claim fell within the purview of the municipal highway defect statute, § 13a–149, and that the plaintiff failed to comply with the notice requirement of the statute. In support of its motion, the defendant submitted a memorandum of law as well as an affidavit of Pat O'Sullivan, the town clerk for the defendant. O'Sullivan averred, in relevant part, that the defendant had not been given notice of the present action until October 21, 2011, when it was served with the plaintiff's complaint, and well after the ninety day notice requirement set forth in § 13a–149. The defendant did not submit an affidavit that contained facts indicating that the typical and expected use of the driveway at issue rendered it open to the traveling public. Additionally, the defendant asserted that the action was not brought within the applicable statute of limitations.

By way of objection, the plaintiff submitted a memorandum of law in which he argued that the defendant's claims were not a proper subject of a motion to dismiss. He asserted that the defendant failed to set forth a jurisdictional defect to justify the motion to dismiss, a claim that notice was insufficient under § 13a–149 was properly raised by means of a motion to strike, and any statute of limitations claim should be addressed in a motion for summary judgment. The plaintiff argued that, if the defendant's claims were a proper subject of a motion to dismiss, the motion should be denied on its merits because the action did not fall within the purview of the highway defect statute insofar as the accident did not occur on a public highway, but a private driveway. Also, addressing the defendant's statute of limitations claim, the plaintiff argued that the action was timely under General Statutes § 52–593 because it was brought within the one year time limit codified therein. Attached to his memorandum of law in opposition to the defendant's motion was the plaintiff's affidavit, in which he averred in relevant part that the collision involving the pothole occurred in “[a] private driveway that exclusively leads to the Wal–Mart Plaza, which includes Sam's Club.”

Following a hearing related to the motion to dismiss, during which the court heard argument concerning the motion but was not presented with evidence, the court issued a memorandum of decision. Initially, the court concluded that the defendant's claim concerning notice pursuant to § 13a–149 implicated subject matter jurisdiction and, therefore, was a proper subject of a motion to dismiss. Next, the court examined the allegations in the plaintiff's complaint as well as relevant principles of law. The court concluded: “In the present case, based on the plaintiff's own allegations, the driveway where the alleged accident occurred was on property owned by the defendant town, connecting a public road to another town owned property. Based on these claims, it is reasonable to anticipate that the public would make use of the driveway. As a matter of law, therefore, the facts alleged in the plaintiff's complaint amount to a highway defect, and necessarily invoke ... § 13a–149 as the exclusive remedy. Because the plaintiff failed to provide proper notice to the defendant within ninety days of the alleged accident, this court lacks subject matter jurisdiction over this action.” ² Accordingly, the court granted the motion to dismiss. Subsequently, the court denied the plaintiff's motion to reargue. This appeal followed.

Reiterating arguments that he raised before the trial court, the plaintiff claims that the court improperly determined that the defendant could raise its claim regarding § 13a–149 in a motion to dismiss. Also, the plaintiff claims that the court improperly determined that the claim fell within the ambit of § 13a–149 because the driveway at issue, although owned and maintained by the defendant, was not a public highway for purposes of the highway defect statute.

“The standard of review for a court's decision on a motion to dismiss [under Practice Book § 10–31(a)(1) ] is well settled. 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.... 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.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

Having set forth our standard of review, we set forth the relevant statutory authority. Section 52–557n (a)(1) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ... [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ... provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149....”

Section 13a–149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation....”

I

First, we address the plaintiff's argument, raised here and before the trial court, that the court improperly considered the defendant's claim of lack of notice under § 13a–149 in the context of a motion to dismiss.³ “[A] claim that a court lacks subject matter jurisdiction may be raised at any time during the proceedings ... including on appeal....” (...