Ferreira v. Pringle

• Decision Date: 13 February 2001
• Docket Number: (SC 16229)
• Citation: 255 Conn. 330,766 A.2d 400
• Parties: GERALDO FERREIRA v. RONALD PRINGLE ET AL.
• Court: Connecticut Supreme Court

255 Conn. 330

766 A.2d 400

GERALDO FERREIRA v. RONALD PRINGLE ET AL.

(SC 16229)

Supreme Court of Connecticut.

Argued November 3, 2000.

Officially released February 13, 2001.

Borden, Katz, Palmer, Sullivan and Foti, JS.¹ Robert I. Reardon, Jr., with whom was Scott D. Camassar, for the appellant (plaintiff).

Raymond J. Plouffe, Jr., for the appellees (defendants).

Opinion

KATZ, J.

The dispositive issue in this appeal is whether a condition that allegedly caused injuries to the plaintiff, Geraldo Ferreira, is, as a matter of law, a "highway defect" within the meaning of General Statutes § 13a-149,² the defective highway statute. The trial court concluded that the allegations of the plaintiff's complaints in two separate actions, consolidated by agreement, invoked the defective highway statute, and that, therefore, the exclusive remedy for his injuries was through § 13a-149. See Ferreira v. Pringle, Superior Court, judicial district of New London at New London, Docket No. 546848 (July 30, 1999); Ferreira v. Southeast Area Transit, Superior Court, judicial district of New London at New London, Docket No. 543390 (July 30, 1999). Because the plaintiff had not pleaded § 13a-149 as a means for recovery in either of his complaints, the trial court determined that the complaints were legally insufficient. The trial court further concluded that, because the plaintiff had not complied with the notice provisions of § 13a-149, it did not have subject matter jurisdiction over the action. Accordingly, the court rendered judgment dismissing the action. We agree with the trial court, and therefore, affirm the judgment.

The record discloses the following facts and procedural history. On June 12, 1996, the plaintiff was a passenger on a public bus in the town of East Lyme (town). As he disembarked the bus onto a grassy embankment at the shoulder of North Bridebrook Road, he tripped on the remnant of a severed steel signpost embedded in the ground and fell backward into the road where he was run over by the bus.

On November 5, 1996, the plaintiff filed a notice of intention to sue the town and its employees, pursuant to General Statutes § 7-465³ "and other relevant statutes," for injuries sustained as a result of the alleged negligent maintenance of the grassy highway shoulder. The notice stated that the plaintiff had "tripped on a portion of a steel sign post that had been cut off just above ground level" while disembarking a public transportation bus that had stopped approximately seven feet from the location of the broken post. It further stated that the "[town] and/or its employees [had] allowed buses to stop and disembark passengers at the location where [the plaintiff had fallen]" despite the fact that there was "no sidewalk or appropriate spot for a pedestrian to disembark from a bus," thus exposing the plaintiff, pedestrians, and other "bus passengers to an unreasonable risk of injury."

The plaintiff initially filed two separate actions in the trial court. The first action was filed on August 22, 1997, against Southeast Area Transit (Southeast); Thomas C. Poirer, the operator of the bus; the state department of transportation; the town; Frederick G. Thumm, director of public works for the town; Charles Holyfield, superintendent of highways for the town; the cities of New London, Groton and Norwich; and the towns of Griswold, Waterford, Stonington, Montville, Ledyard and Groton (Southeast action). The second action, which involves the appeal currently before us, was filed on June 16, 1998, against Ronald Pringle, chief of the Niantic fire department; Sam Peretz, director of parks and recreation for the town; and the Niantic Fire Department, Inc. (Pringle action).

As set forth in the trial court's memorandum of decision dismissing the complaints, "[t]he plaintiff alleged [in the Southeast action] that the [t]own ... [had] `creat[ed] an unsafe and dangerous condition for the plaintiff and other pedestrians' ... [had] `creat[ed] a hazard to the public' ... `[had] not paint[ed] [the] protruding sign post ... so that it would have been visible to the plaintiff and other pedestrians traversing said area' ... and `[had] [a]llowed buses to stop and disembark passengers, like the plaintiff, at the location where the plaintiff [had fallen].'" Essentially, the plaintiff contended that the town had created or had participated in the creation or maintenance of a public nuisance in violation of General Statutes § 52-557n (a) (1) (C).⁴

In the Pringle action, the plaintiff essentially reiterated the same claims under to § 52-557n (a) (1) (A). See footnote 3 of this opinion. Specifically, he contended that the defendants, "in the course of their contractual obligations or employment," had been negligent in maintaining the "grassy embankment at the shoulder" of the road.

On June 27, 1998, in the Southeast action, the defendants filed a motion to strike, attacking the legal sufficiency of the complaint on the ground that the facts alleged in the complaint concerned a highway defect, and therefore, the plaintiffs exclusive remedy was under § 13a-149. The defendants argued that, because the plaintiff had not pleaded a cause of action under § 13a-149, the complaint was legally insufficient.

While the motion to strike was pending in the Southeast action, on August 12, 1998, the defendants in the Pringle action filed a motion to dismiss the complaint for lack of subject matter jurisdiction. They argued that because the facts alleged in the complaint and the admissions contained in the plaintiffs notice of intention to sue, together with other uncontroverted evidence, indicated that the plaintiffs injury had occurred because of a highway defect, statutory notice under § 13a-149 was required in order for the court to have subject matter jurisdiction. Thereafter, the court granted the plaintiffs motion to consolidate the Southeast and the Pringle actions.

On May 12, 1999, the defendants jointly filed a supplemental memorandum and appendix in support of their motion to dismiss. Included were the plaintiffs amended complaints in the Southeast and Pringle actions; sworn affidavits of Thumm and Holyfield indicating that the location of the alleged defect was within the highway right-of-way line and that the town's highway department maintained the highway shoulder in which the alleged defect was located; and the lease agreement between the state and the town indicating that the town had a duty, through its employees, officers, or agents, to maintain the area where the plaintiff had fallen.

On July 8, 1999, the trial court, Mihalakos, J., heard arguments on the motion to strike in the Southeast action, and the motion to dismiss in the Pringle action. Citing the complaints in both actions, the plaintiff contended that his cause of action was not related to a highway defect, as that term had been interpreted. In addition, he argued that, because he had not pleaded expressly a cause of action based on § 13a-149, the trial court properly could not consider the legal sufficiency of his complaint for purposes of § 13a-149.

The trial court rejected the plaintiffs contention that it could not determine the legal sufficiency of his claims on the basis of § 13a-149, concluding that "`[e]ven if a complaint does not contain allegations concerning the violation of a statute, that complaint may still contain allegations sufficient to invoke such statute. Mahoney v. Lensink, 213 Conn. 548, 568, 569 A.2d 518 (1990).'" Thus, the trial court noted that the proper inquiry was to determine whether the plaintiffs allegations were sufficient to invoke § 13a-149. It concluded that, as a matter of law, the plaintiffs allegations in both the Southeast and Pringle actions necessarily invoked the defective highway statute, and therefore, that the plaintiffs exclusive remedy for his injuries was under § 13a-149.⁵ Because neither complaint pleaded § 13a-149, the trial court determined that the complaints were legally insufficient and granted the defendants' motion to strike. In addition, the court concluded that because the plaintiff had not complied with the notice provisions of § 13a-149, it lacked subject matter jurisdiction over the action as a whole. Accordingly, the court granted the defendants' motion to dismiss in this case.⁶

Subsequently, the plaintiff filed a substitute complaint against the defendants in the Southeast action, again under § 52-557n, claiming, as set forth by the trial court, Koletsky, J., in his memorandum of decision on the defendants' motion to dismiss, that the allegations in that complaint had "nothing to do with the road or use of the road and, [that] therefore, the highway defect statute [was] not implicated." Ferreira v. Southeast Area Transit, Superior Court, judicial district of New London at Norwich, Docket No. X04-CV-97-0118855-S (February 24, 2000). "[I]nstead of the plaintiff disembarking onto a grassy embankment at the shoulder of the road, [the substitute complaint] ... alleged that the plaintiff [had] disembarked onto the lawn of the Niantic fire department." Id. On August 24, 1999, the defendants had moved to dismiss the second and third counts⁷ of the plaintiffs substitute complaint for lack of subject matter jurisdiction. Id.

Judge Koletsky determined that "[a] comparison of the second and third counts stricken by Judge Mihalakos [in the original complaint in the Southeast action] and the second and third counts of the substitute complaint reveal[ed] no material differences," and noted that the allegation regarding "[t]he location of the bus, when it stop[ped] to allow the plaintiff to disembark, [had] not changed." Id. The court concluded that the plaintiffs allegations implicated the highway defect statute and, therefore, that the plaintiffs exclusive remedy was pursuant to § 13a-149. Because the plaintiff had failed to comply with the notice requirements of § 13a-149, the trial court determined that it...