Filippi v. Sullivan

• Decision Date: 19 August 2003
• Docket Number: (AC 23136)
• Citation: 78 Conn. App. 796,829 A.2d 77
• Court: Connecticut Court of Appeals
• Parties: MARK FILIPPI v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.

78 Conn. App. 796

829 A.2d 77

MARK FILIPPI v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.

(AC 23136)

Appellate Court of Connecticut

Argued June 9, 2003.

Officially released August 19, 2003.

Dranginis, Flynn and DiPentima, Js.

Paul T. Nowosadko, with whom, on the brief, was Lorinda S. Coon, for the appellant (named defendant).

Michael J. Walsh, with whom, on the brief, was Ann Walsh Henderson, for the appellee (plaintiff).

Opinion

FLYNN, J.

The defendant¹ James F. Sullivan, commissioner of transportation (commissioner), appeals from the trial court's denial of his motion to dismiss the plaintiff's highway defect claim made pursuant to General Statutes § 13a-144.² On appeal, the commissioner claims that the written statutory notice to him was patently defective, which deprived the court of subject matter jurisdiction.³ We reverse the trial court's denial of the motion to dismiss and remand the case with direction to dismiss the action.

The following procedural history, allegations in the pleadings and uncontested factual averments in the commissioner's affidavits accompanying his motion are relevant to our review. On March 15, 2000, the plaintiff was involved in a traffic accident while driving in a northerly direction on Interstate 95 between exits seventy-two and seventy-three. Department of transportation crews were performing roadwork and had closed the right lane on the northbound side between exits seventy-three and seventy-five. Although signs indicating the lane closure had been placed between exits seventy-three and seventy-six, a resulting traffic jam extended beyond the sign pattern, and the plaintiff was injured in that unsigned area.

As the plaintiff traveled along the highway, he drove around a curve and came upon the stopped traffic. The vehicle traveling behind him was unable to stop in time and violently struck the rear end of the plaintiff's vehicle causing the plaintiff's vehicle to collide with the vehicle in front of him. As a result of that collision, the plaintiff was left comatose for several weeks and suffered several other injuries, including a ruptured aorta and multiple spinal fractures, which have left the plaintiff disabled and wheelchair bound.

On June 1, 2000, pursuant to § 13a-144, the plaintiff filed written notice with the commissioner of transportation of his intent to pursue a defective highway claim.⁴ On January 25, 2001, the plaintiff commenced an action against the commissioner. On January 29, 2002, the commissioner filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction due to the plaintiff's defective notice, arguing that the notice was patently defective in that it was not sufficiently accurate because it named two locations, 1.6 miles apart, as the place of injury. The court heard oral argument and denied the motion from the bench on May 13, 2002, holding that the statutory notice was "sufficient."

The commissioner now appeals and claims that the court improperly denied the motion to dismiss. The commissioner argues that the statutory notice given by the plaintiff was patently defective because the place of injury described was actually two locations, 1.6 miles apart. Since the issue on appeal is a question of law, our review is plenary. See Oberlander v. Sullivan, 70 Conn. App. 741, 746, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002).

"It is well established ... that the state is immune from suit unless it consents to be sued by ... waiving sovereign immunity. . . ." (Internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992). Section 13a-144 creates such a waiver and provides in relevant part: "No . . . action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.. . ." (Emphasis added.) In our opinion, the statutory phrase, "place of its occurrence," refers to the prior phrase, "such injury," and therefore, it is the place of injury that must be described in the notice required by statute.

This statute provides a limited waiver of sovereign immunity and, as a break from common law, is to be strictly construed. Lussier v. Dept. of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994). A highway defect claim varies from a common-law negligence case. The plaintiff is required by statute to give the commissioner written notice of the time, place of injury, defect and description of the injuries incurred so as to furnish the commissioner with sufficient information to permit him to make a timely investigation of the facts. Id., 357.

Our review, in this case, requires that we analyze only one element of a highway defect claim, namely, the statutory written notice provision. "The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Id., 354. The statutory written notice must be adequately specific and accurate so as to give the commissioner "sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently." Id., 357. "The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." (Internal quotation marks omitted.) Id., 354.

"Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.... Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet ... the statutory requirements." (Citations omitted; internal quotation marks omitted.) Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986).

There are two categories of cases in which the written notice is patently defective because of a problem with the description of the place of injury. The first category consists of situations where a court has found that the notice stated a location different from the place of actual injury. See Serrano v. Burns, 70 Conn. App. 21, 26-27, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d 1066 (2002); see also Ozmun v. Burns, 18 Conn. App. 677, 679 n.3, 680-81, 559 A.2d 1143 (1989) (notice describing location using "north" in place of "south" and "east" in place of "west"); Zotta v. Burns, supra, 8 Conn. App. 170 (location identified as "route 6 in Bolton" and accident occurred on "Camp Meeting Road in Bolton"). The second category consists of situations where the "description is so vague in its breadth that the defendant could not be reasonably expected to make a timely investigation based on the information provided." Serrano v. Burns, supra, 27; see also Bresnan v. Frankel, supra, 224 Conn. 25-26 (location identified as "Route 14A, Plainfield, Connecticut," without any further detail and where Route 14A was six mile stretch of road); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952) (location identified as "near the edge of a manhole cover" without identifying particular one of numerous manhole covers); Murray v. Commissioner of Transportation, 31 Conn. App. 752, 753, 626 A.2d 1328 (1993) (location identified simply as "the northern curbline of Route 22," a public highway running through North Haven).

In this case, the plaintiff's notice described the place of injury as "in the northbound lane of I-95, between Exits 72 and 73. More specifically, the injury occurred at a point in the roadway approximately 1/4 of a mile south of Exit 73 exit ramp, and approximately one tenth of a mile north of Exit 72 exit ramp." Frederick Atwell, a planner for the department of transportation, supplied an affidavit that was attached to the commissioner's motion to dismiss. This uncontradicted affidavit brought to the court's attention the fact that the place of injury described in the notice was not one place but actually two, and those locations were 1.6 miles apart.

We conclude that the description of the plaintiff's place of injury in his written statutory notice does not describe the wrong place of injury because it is undisputed that the collision that caused it did occur somewhere within the 1.6 miles of highway. However, the location of the place of injury as described is too vague because its 1.6 mile length does not allow the commissioner any reasonable opportunity to investigate. It falls into the second category of patently defective descriptions of places of injury of which we spoke in Serrano v. Burns, supra, 70 Conn. App. 21, in that it is so vague in its breadth that the commissioner could not be expected reasonably to make a timely investigation based on the information provided.

The plaintiff does not make any further statements regarding the place of injury, and there was only a slight clarification of the location when the notice mentioned that the accident occurred after a blind curve somewhere within the 1.6 miles. This additional information did not clarify the geographic location of the place of injury. According to the Atwell affidavit, there is more than one curve in the 1.6 mile distance. He averred in his affidavit that the area between the two points consists of "various terrains including grades, curves, slopes and straight roadway." (Emphasis added.) There is no further description of which of these curves was...