Dudley v. Comm'r of Transp.

• Decision Date: 06 August 2019
• Docket Number: AC 40702
• Citation: 216 A.3d 753,191 Conn.App. 628
• Court: Connecticut Court of Appeals
• Parties: Angela DUDLEY v. COMMISSIONER OF TRANSPORTATION et al.

191 Conn.App. 628

216 A.3d 753

Angela DUDLEY

v.COMMISSIONER OF TRANSPORTATION et al.

AC 40702

Appellate Court of Connecticut.

Argued February 14, 2019

Officially released August 6, 2019

Lorinda S. Coon, Hartford, with whom, on the brief, was Jessica M. Scully, for the appellant (defendant).

Thor Holth, with whom, on the brief, was Lorena P. Mancini, New London, for the appellee (plaintiff).

DiPentima, C.J., and Prescott and Bright, Js.

PRESCOTT, J.

In this action, brought, in part, pursuant to the state defective highway statute, General Statutes § 13a-144,¹ the defendant, James P. Redeker, the Commissioner of Transportation (state),² appeals from the judgment of the trial court denying the state's motion to dismiss the claims asserted against it on sovereign immunity grounds.³ The state claims that the court improperly denied the motion to dismiss because (1) the notice of claim (notice) provided by the plaintiff, Angela Dudley, pursuant to § 13a-144, was patently defective in its description of the location of the alleged defect, and (2) the state did not have a duty to maintain and repair the area in question. We affirm the judgment of the trial court.

The plaintiff alleges the following facts.⁴ On or about June 5, 2012, the plaintiff was walking on the sidewalk adjacent to Route 643, Lee Avenue, in New London, and was heading toward Route 213, Ocean Avenue. On or about June 1, 2012, and for several months prior, new utilities had been placed under the paved portion of Ocean Avenue, in an area close to Lee Avenue. During the course of construction, a manhole or inspection plate located at the intersection of Lee and Ocean Avenues was opened so that workers could access items underneath. Once the work was completed, one or more employees, agents, servants, or subcontractors for the state replaced the manhole cover in such a manner as to leave it dislodged or otherwise unstable.

When the plaintiff arrived at the portion of the sidewalk located at the corner of Ocean and Lee Avenues, she stepped onto the manhole cover, which was located in the grassy embankment between the sidewalk area and the adjacent street. When she stepped onto the manhole cover, it flipped up and struck her. The plaintiff lost her balance and fell through the exposed manhole into the sewage drain system. Consequently, the plaintiff suffered physical injury, emotional distress, and has a diminished capacity to earn a living.

The plaintiff provided the state with written notice on August 8, 2012, advising the state of the injuries she sustained from the allegedly defective manhole cover. The notice describes the place of injury as "[s]idewalk and/or intersection of Lee Avenue and Ocean Avenue, New London, Connecticut." It further states, in relevant part: "Cause of Injury and Defect: At approximately 5:20 p.m., June 5, 2012, [the plaintiff] was walking towards and/or onto Ocean Avenue, a State of Connecticut owned or maintained road, with due care along and/or upon the sidewalk located at the northeast side of the intersection of Ocean Avenue and Lee Avenue when she was caused to fall by her foot landing on an improperly placed or replaced manhole cover which flipped/tipped up and struck her, causing her to lose her balance and fall partially into the manhole and thereafter fail to regain her balance. The incident was caused by the defective and/or dangerous condition of the sidewalk and/or manhole cover, the State of Connecticut Department of Transportation's failure to remedy same, and/or its agents', servants' and/or employees' failure to remedy same....

"As a result of her fall, [the plaintiff] was caused to fall into the sewage drainage system running under the sidewalk and/or street and was caused to land knee-deep in the contaminated water therein."

The plaintiff commenced this action on May 28, 2014. The operative complaint, filed on December 16, 2014, alleges four counts. The first count alleges that the plaintiff is entitled to relief against the state pursuant to § 13a-144. The second count is a municipal highway defect claim against the city pursuant to General Statutes § 13a-149. The third and fourth counts sound in negligence and nuisance, respectively, and are directed against the director of the New London Public Works, Timothy Hanser.⁵

On August 11, 2015, pursuant to Practice Book § 10-30 et seq., the state filed a motion to dismiss count one of the complaint, arguing that the plaintiff had failed to comply with the notice requirements of § 13a-144 and, therefore, her action against the state was barred by sovereign immunity. In its original motion to dismiss, dated August 11, 2015, the state claimed that the notice was patently defective for three reasons: (1) the location of the alleged incident was different from that which the plaintiff identified in her complaint; (2) the notice of the claim identified multiple locations; and (3) the area described in the notice contained multiple manhole covers. The state filed an amended motion to dismiss on December 15, 2015, which incorporated the three reasons set forth in its original motion to dismiss and additionally alleged that count one was barred by sovereign immunity because the plaintiff did not allege that the incident occurred on a state highway and, therefore, the state did not have a duty to maintain or repair the sidewalk on which the plaintiff allegedly was injured. The court heard oral argument on the state's motion to dismiss on June 30, 2016. On August 17, 2016, the court received the last of several posthearing briefs on the matter.

The court filed a memorandum of decision on June 9, 2017, rejecting all four of the state's claimed grounds for dismissal. In its analysis, the court consolidated its discussion of the first three grounds related to whether the plaintiff's notice was patently defective. Recognizing that the purpose of such notice is to provide the state with adequate information upon which it can make a timely investigation of the alleged facts, the court concluded that the notice provided sufficient factual information upon which the state reasonably could identify the location of the allegedly defective manhole cover. In particular, the court noted that the notice states that the plaintiff was walking on a sidewalk at the time of the incident and, further, that only one of the manhole covers in the area described in the notice is located within a sidewalk. Accordingly, the court concluded that the notice was not patently defective.

As to the fourth ground of the amended motion to dismiss, the court determined that the plaintiff's argument was not that the state had a duty to maintain the sidewalk, but instead, that the state had a duty to maintain the allegedly defective manhole cover. It concluded that further factual development was necessary to resolve this matter and, thus, rejected the state's argument that it is not liable as a matter of law. This appeal followed. Additional facts and procedural history will be set forth as necessary.

We begin by setting forth the relevant principles of law and the applicable standard of review. "It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued.... The legislature waived the state's sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144.... The statute imposes the duty to keep the state highways in repair upon ... the commissioner ... and authorizes civil actions against the state for injuries caused by the neglect or default of the state ... by means of any defective highway .... There being no right of action against the sovereign state at common law, the [plaintiff] must first prevail, if at all, under § 13a-144....

"[T]he doctrine of sovereign immunity implicates [a court's] subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.... 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.... In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court must consider the allegations of the complaint in their most favorable light ... including those facts necessarily implied from the allegations ...." (Citations omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation , 322 Conn. 344, 348, 141 A.3d 784 (2015).

"When [deciding] a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, [a court] 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....

"In contrast, if the complaint is supplemented by undisputed facts established by [1] affidavits submitted in support of the motion to dismiss ... [2] other types of undisputed evidence ... and/or [3] public records of which judicial notice may be taken ... 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] ...."⁶ (Footnote added; internal quotation marks omitted.) Norris v. Trumbull , 187 Conn. App. 201, 209, 201 A.3d 1137 (2019).

"Conversely, 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.... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional...