Giannoni v. Comm'r of Transp.

• Decision Date: 09 August 2016
• Docket Number: No. 19522.,19522.
• Citation: 141 A.3d 784,322 Conn. 344
• Court: Connecticut Supreme Court
• Parties: David GIANNONI et al. v. COMMISSIONER OF TRANSPORTATION.

322 Conn. 344

141 A.3d 784

David GIANNONI et al.

v.COMMISSIONER OF TRANSPORTATION.

No. 19522.

Supreme Court of Connecticut.

Argued Dec. 11, 2015.

Decided Aug. 9, 2016.

Ronald D. Williams, Jr., Trumbull, for the appellant (defendant).

Joseph P. Sargent, Fairfield, for the appellees (plaintiffs).

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

ROBINSON

, J.

The plaintiffs, David Giannoni and Michelle Giannoni, brought this highway defect action pursuant to General Statutes § 13a–144¹

on behalf of their child, Nicholas Giannoni (Nicholas), who was injured when he fell into a stream culvert while riding his bicycle on the sidewalk along a state highway, which ended at a private driveway and lawn shortly before the culvert. The defendant, the Commissioner of Transportation (commissioner), appeals from the trial court's denial of his motion to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction on the ground of sovereign immunity.² The commissioner argues that the trial court improperly concluded that the plaintiffs' complaint and the evidence in this case support a cause of action, and associated waiver of the state's sovereign immunity, under § 13a–144

because: (1) Nicholas was not a “traveler” on the state highway when he fell into the culvert; and (2) the culvert does not constitute a “highway defect” under § 13a–144. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history.³ On October 22, 2011, at approximately 7 p.m., Nicholas was riding his bicycle along Route 113 in Stratford (town), a highway maintained by the Department of Transportation (department), toward a friend's house.⁴ After stopping at a convenience store on Route 113 to purchase food, he proceeded northeast on Route 113. Because the convenience store was located on the southbound side of the road, and Nicholas intended to turn left onto Cutspring Road in a few hundred feet, he rode northeast against traffic on the southbound side of the road.

After several minutes, Nicholas moved to the sidewalk adjacent to Route 113 on the left side because “[t]he headlights were hitting [his] eyes” and “the cars were going pretty fast....” This particular sidewalk ended after forty yards at a private driveway and lawn, and led directly to a stream culvert that collects and removes water from under Route 113. When the sidewalk ended, Nicholas inadvertently rode his bicycle across the private driveway, over the small patch of grass, and into the culvert, injuring himself.

The culvert is located approximately nine feet from the paved shoulder of the road, within the state right-of-way.⁵ The department maintains the culvert, which is six inches deep and constructed of cement retaining walls.⁶ At the time of the accident, the culvert was covered with overgrown weeds and brush. Three wooden posts warned travelers approaching from the roadway of the existence of the culvert, but no posts, signs, or barriers warned travelers approaching from the sidewalk of the culvert. Nicholas testified that he did not see the posts because they were facing another direction, the sun had set, and the headlights from oncoming traffic continued to hit his eyes. There were no street lights in the area that could have illuminated the culvert, and no crosswalk in the intersection ahead. Nicholas also testified that he had never ridden his bicycle in the area before.

The plaintiffs brought the present highway defect action on behalf of Nicholas. The commissioner moved to dismiss the complaint on the ground of sovereign immunity, arguing that the plaintiffs' claim falls outside the purview of § 13a–144

.

The trial court denied the commissioner's motion, stating that “the evidence indicates the accident happened on the state ... right-of-way and not a sidewalk or a lawn” and that “certain issues will have to be determined by the trier of fact.” This appeal followed. See footnote 2 of this opinion.

On appeal, the commissioner renews his contention that the plaintiffs have failed to allege a cognizable highway defect claim under § 13a–144

. Specifically, the commissioner claims that: (1) Nicholas was not a traveler on Route 113 when he fell into the culvert, but rather, a traveler on the sidewalk; and (2) the culvert does not constitute a highway defect under § 13a–144 because it is not located in an area intended for public travel.⁷

Before turning to the commissioner's specific claims on appeal, we set forth certain background principles and the 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.” Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972)

. “The legislature waived the state's sovereign immunity from suit in certain prescribed instances by the enactment of § 13a–144.” Id. The statute “imposes the duty to keep the state highways in repair upon the ... commissioner”; (internal quotation marks omitted) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005)

; and authorizes civil actions against the state for injuries caused by “the neglect or default of the state ... by means of any defective highway....” General Statutes § 13a–144 ; see footnote 1 of this opinion. “There being no right of action against the sovereign state at common law, the plaintiff[s] must prevail, if at all, under § 13a–144.” Baker v. Ives, supra, at 298, 294 A.2d 290.

“[T]he doctrine of sovereign immunity implicates [a court's] subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994)

. “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.” (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. at 501, 876 A.2d 1148. 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....” (Internal quotation marks omitted.) Id. A trial court considering a motion to dismiss may, however, “encounter different situations, depending on the status of the record in the case.” Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). “[I]f the complaint is supplemented by undisputed facts ... 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].” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 651–52, 974 A.2d 669

. 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 question without a hearing to evaluate those merits.... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., at 652–54, 974 A.2d 669. The trial court “may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.” Id., at 653 n. 16, 974 A.2d 669.

We review a trial court's denial of a motion to dismiss on the ground of sovereign immunity, based on an application of § 13a–144

, de novo. See, e.g., Serrano v. Burns, 248 Conn. 419, 425, 727 A.2d 1276 (1999). “[W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law” over which we exercise plenary review. (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005) ; see Serrano v. Burns, supra, at 425, 727 A.2d 1276. “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.” (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. at 650, 974 A.2d 669.

I

We first consider whether the complaint and the evidence in the record support a conclusion that Nicholas remained a traveler over the state highway when he moved to the sidewalk along Route 113. The commissioner claims that, as a matter of law, Nicholas was not a traveler on Route 113 because he was, instead, a traveler on the sidewalk. In response, the plaintiffs argue that a jury could find that Nicholas retained his status as a traveler over Route 113 when he moved to the sidewalk, because his travel over the sidewalk was incidental to and for a purpose connected with his travel over Route 113. We agree with the plaintiffs, and conclude that the trial court properly denied the motion to dismiss on this ground because the record in this case would support a finding that Nicholas retained his status as a traveler on Route 113.

“It is settled law that the statutory right of action is given only to a traveler on the road or sidewalk alleged to be defective.” Tuckel v. Argraves, 148 Conn. 355, 358, 170 A.2d 895 (1961)

. “A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the...