Cuozzo v. Town of Orange

• Decision Date: 03 March 2015
• Docket Number: No. 19274.,19274.
• Citation: 315 Conn. 606,109 A.3d 903
• Parties: Armand CUOZZO v. TOWN OF ORANGE.
• Court: Connecticut Supreme Court

315 Conn. 606

109 A.3d 903

Armand CUOZZO

v.TOWN OF ORANGE.

No. 19274.

Supreme Court of Connecticut.

Argued Dec. 9, 2014.

Decided March 3, 2015.

Mark A. Perkins, Bridgeport, for the appellant (defendant).

Karen E. Souza, for the appellee (plaintiff).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

Opinion

ROGERS, C.J.

The dispositive issue in this case is whether the trial court utilized the proper procedure for deciding a motion to dismiss for lack of subject matter jurisdiction when a jurisdictional fact is disputed by the parties. The defendant, the town of Orange, appeals from the Appellate Court's judgment reversing the trial court's dismissal of the complaint of the plaintiff, Armand Cuozzo, for lack of subject matter jurisdiction. See Cuozzo v. Orange, 147 Conn.App. 148, 150, 82 A.3d 647 (2013). The defendant claims that the Appellate Court improperly reversed the trial court's judgment because it lacked subject matter jurisdiction due to the plaintiff's failure to provide timely notice of its action under the municipal highway defect statute, General Statutes § 13a–149.¹ We conclude that a factual dispute regarding jurisdiction remains unresolved at this stage of the proceedings, which renders consideration of the defendant's argument premature. We therefore affirm the Appellate Court's judgment.

The record reveals the following facts and procedural history. The plaintiff originally commenced this action in November, 2011, and thereafter filed an amended revised complaint dated February 3, 2012. In his complaint, the plaintiff alleged that on July 31, 2008, he was a business invitee on certain property located at 2 Boston Post Road in Orange. This property, the plaintiff averred, was owned and “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 which intersected ... Meloy Road.” The plaintiff alleged that this driveway was also “controlled, maintained, managed, operated and/or supervised by the defendant ... its agents, servants and/or employees.” The plaintiff alleged further that, as he drove his car on the entrance/exit driveway, his car “suddenly and without warning came into contact” with a “pothole [that was] approximately two feet in diameter, which was situated [approximately] three feet ... from [the driveway's intersection] with Meloy Road” and that the pothole constituted a “defective, dangerous and unsafe condition,” which had existed in the driveway for a sufficient period of time prior to this event, and that the defendant should have known of its presence and fixed it. According to the plaintiff, as a result of hitting the pothole, he suffered personal injury and damages that were “caused by the negligence and carelessness of the defendant ... its agents, servants and/or employees,” who, inter alia, “allowed and permitted the ... condition to exist ... allowed and permitted individuals to operate motor vehicles upon said driveway [knowing] ... of the existence of [the pothole] ... failed to properly inspect [the] property, including the ... driveway ... failed to properly repair and/ or remedy the ... dangerous and unsafe condition ... and failed to [take] reasonable measures ... to prevent vehicles from coming into contact with [the pothole]....” The plaintiff sought recovery for his injuries and damages under General Statutes § 52–557n.²

The defendant responded by filing a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction over the plaintiff's claim pursuant to Practice Book § 10–33.³ Specifically, the defendant alleged that the plaintiff's claim involved a public road and thus fell within the purview of § 13a–149, not § 52–557n. The defendant contended that, because the plaintiff had failed to comply with the notice requirement contained in § 13a–149 ; see footnote 1 of this opinion; the action should be dismissed. In support of its motion, the defendant submitted an affidavit from Pat O'Sullivan, its town clerk. O'Sullivan attested that the defendant did not receive notice of the plaintiff's action within the ninety day period after the plaintiff's accident. The defendant also asserted alternatively that the plaintiff's action was not timely because it was not brought within the applicable statute of limitations.

In response to the defendant's motion to dismiss, the plaintiff submitted a memorandum of law in which he contended that the court did have subject matter jurisdiction. The plaintiff claimed that the driveway itself was not a public road but rather, a private driveway; and because § 13a–149 applies only to public thoroughfares, the statute was inapplicable to his claim. In support of this memorandum, the plaintiff submitted an affidavit in which he declared, inter alia, that his accident involving the pothole occurred on “[a] private driveway that exclusively leads to the Wal–Mart Plaza, which includes Sam's Club.” The plaintiff thus urged the court to deny the defendant's motion to dismiss on its merits, claiming that the action could properly proceed under § 52–557n.

Thereafter, the defendant filed a reply to the plain-tiff's objection to the motion to dismiss. The defendant alleged that the plaintiff's claim was subject to § 13a–149 because the pothole was “close enough to the travel portion of the roadway to constitute a highway defect,” and that “[i]f ... the [defendant] owned the driveway that intersected with Meloy Road, it is foreseeable that individuals will use the driveway to access the road.” In the alternative, the defendant alleged that the plaintiff's claim was barred under § 52–557n because the defendant's alleged negligence comprised a discretionary act to which statutory immunity attached. The defendant submitted no affidavits or evidence regarding whether the driveway was one on which the public was invited or expected to traverse or how close the pothole actually was to the public road.

The trial court conducted a hearing on the motion to dismiss at which it heard argument concerning the motion but was not presented with evidence other than from the affidavits that had been submitted. The court first found that its subject matter jurisdiction was implicated by the plaintiff's failure to notify the defendant of his action under § 13a–149 and, therefore, was a proper subject of a motion to dismiss. The court granted the defendant's motion to dismiss, concluding that, “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.”⁴

The plaintiff appealed to the Appellate Court claiming that because he did not assert his claim under § 13a–149, the trial court should not have found that the defendant could raise its jurisdictional argument regarding § 13a–149 in a motion to dismiss. Cuozzo v. Orange, supra, 147 Conn.App. at 153, 82 A.3d 647. The plaintiff further contested the trial court's determination that his claim was subject to § 13a–149 and not § 52–557n because, as he asserted in his affidavit, his injury occurred on a private driveway that, although owned and maintained by the defendant, was not a public road for purposes of the highway defect statute. Id., at 157, 82 A.3d 647. The Appellate Court noted that, while the plaintiff “[c]ertainly ... is bound by the facts alleged in his pleadings concerning the nature of the area in question ... [w]here ... the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Footnote omitted; internal quotation marks omitted.) Id., at 162–63, 82 A.3d 647. The Appellate Court further clarified that “[a]lthough common sense assumptions regarding certain retail outlets might appear to dictate that the driveway at issue, connecting a municipal highway to a shopping center on municipally owned property, typically is open for public travel generally,” the court would “not presume that an area is a public highway absent a sufficient showing.” Id., at 163–64, 82 A.3d 647. Thus, it concluded, “the facts, as alleged in the complaint and found in the affidavits submitted by the parties, [were] insufficient to support the necessary determination that the public would normally or reasonably be expected to make use of the entrance/exit driveway in the ordinary course of travel.” (Internal quotation marks omitted.) Id., at 162, 82 A.3d 647. The Appellate Court reversed the judgment of the trial court on the ground that “[t]he facts in the record, viewed in the light most favorable to the plaintiff, do not support a determination that the driveway at issue has a public character such that it falls within the ambit of § 13a–149.” Id., at 164, 82 A.3d 647. We thereafter granted the defendant's petition for certification to appeal limited to the following issue: “Did the Appellate Court properly determine that the trial court should not have dismissed the plaintiff's complaint for lack of subject matter jurisdiction on the ground that the plaintiff failed to provide timely notice under ... § 13a–149 ?” Cuozzo v. Orange, 311 Conn. 914, 84 A.3d 881 (2014).

We first set forth the applicable standard of review and general...