McIntosh v. Sullivan

• Decision Date: 05 July 2005
• Docket Number: (SC 17094).
• Citation: 875 A.2d 459,274 Conn. 262
• Court: Connecticut Supreme Court
• Parties: ADALBERT H. MCINTOSH, SR. v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION.

274 Conn. 262

875 A.2d 459

ADALBERT H. MCINTOSH, SR. v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION.

(SC 17094).

Supreme Court of Connecticut.

Argued October 21, 2004.

Officially released July 5, 2005.

Norcott, Katz, Palmer, Zarella and Gilardi, Js.

Lorinda S. Coon, for the appellant (defendant).

Bruce W. Diamond, for the appellee (plaintiff).

Opinion

PALMER, J.

The plaintiff, Adalbert H. McIntosh, Sr., brought this highway defect action under General Statutes § 13a-144¹ against the defendant, James F. Sullivan, the commissioner of transportation (commissioner), seeking damages for injuries that the plaintiff had sustained when the automobile that he was operating on a state highway in Waterbury was struck by falling rocks and debris. The commissioner filed a motion to dismiss the action on the ground that the complaint failed to state a claim under § 13a-144. The trial court denied the motion to dismiss, and the commissioner appealed to the Appellate Court, which affirmed the trial court's denial of the commissioner's motion to dismiss.² See McIntosh v. Sullivan, 77 Conn. App. 641, 645, 825 A.2d 207 (2003). We granted the commissioner's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the plaintiff's allegations did not fall outside the scope of. . . § 13a-144 as not involving a highway defect?" McIntosh v. Sullivan, 266 Conn. 926, 835 A.2d 475 (2003). We answer that question in the negative and, accordingly, reverse the judgment of the Appellate Court.

The following facts and procedural history are relevant to our analysis of the commissioner's claim. The plaintiff commenced this highway defect action against the commissioner alleging that, on March 1, 2000, the plaintiff was operating his automobile in the eastbound lane of a connector between exit 23 of Interstate 84 and Route 69 in Waterbury when his automobile "was struck by a large quantity of rocks, boulders, ice and dirt [that] had dislodged from an area adjacent to and above [the] highway," causing the plaintiff serious injuries. The plaintiff further alleged that his injuries were the result of the commissioner's failure to discharge his duties under the highway defect statute in one or more of the following ways: "(a) in that the highway was located dangerously close to raised rocky cliffs; (b) in that no attempt was made or inadequate attempts were made to stabilize the loose rocks; (c) in that the [commissioner] failed to erect barriers along the side of such roadway of sufficient height and strength to prevent falling rocks and debris from entering the highway and falling into the path of or onto vehicles making use of the highway; (d) in that there were no warning signs in the area to warn approaching motorists of the hazardous and dangerous conditions then and there existing; (e) in that the highway was not reasonably safe for purposes and uses intended; (f) in that the [commissioner] knew or in the exercise of reasonable care and inspection should have known of the conditions and remedied and corrected them; [and] (g) in that the conditions had existed for a sufficient period of time so that the [commissioner] knew or should have known of them and should have taken measures to remedy and correct them . . . ."

The commissioner filed a motion to dismiss the action on the ground that the allegations of the complaint were insufficient, as a matter of law, to state a claim under § 13a-144. The trial court denied the motion without comment, and the commissioner filed a motion to reargue, which the court also denied, noting only that "the commissioner's claim challenges liability, not the jurisdiction of the court."³

The commissioner appealed to the Appellate Court, claiming that the plaintiff's allegations fell outside the scope of § 13a-144. McIntosh v. Sullivan, supra, 77 Conn. App. 642. In rejecting the commissioner's claim, the Appellate Court relied on its analysis and conclusion in Tyson v. Sullivan, 77 Conn. App. 597, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003), a case brought by a passenger in the automobile that the plaintiff in the present case was driving when that vehicle was struck by the falling rocks and debris. See McIntosh v. Sullivan, supra, 644. In Tyson, the Appellate Court affirmed the trial court's denial of the commissioner's motion to dismiss; see Tyson v. Sullivan, supra, 609; reasoning that "[i]t [was] of no consequence that . . . the rock ledge and its accumulation of debris were not on or within the highway prior to the accident.. . . A defect within the scope of the statute includes a condition located near the traveled path that, from its nature and position, would be likely to obstruct or to hinder one's use of the highway for traveling." (Citation omitted.) Id., 604. The court in Tyson also concluded, contrary to the contention of the commissioner, that that case was not controlled by Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979); see Tyson v. Sullivan, supra, 603; a case in which this court held that a branch that fell from a tree and struck a motor vehicle as that vehicle was traveling on the highway was not a highway defect for purposes of General Statutes § 13a-149, the municipal highway defect statute.⁴ Comba v. Ridgefield, supra, 270-71. In light of its conclusion in the present case that the trial court "properly [had] determined that sovereign immunity did not deprive the court of subject matter jurisdiction"; McIntosh v. Sullivan, supra, 644; the Appellate Court found it unnecessary to address the commissioner's claim that "§ 13a-144 does not apply to the plaintiff's allegations that suggest defects in the highway's design." Id. Rather, the Appellate Court stated that, "[t]o the extent that [that] issue [was] not subsumed by [its] previous discussion in Tyson, the [commissioner could] raise the issue by way of an appropriate motion to the trial court." Id., 644-45.

On appeal to this court, the commissioner renews his contention that, regardless of how the plaintiff's claim is characterized, the allegations of the complaint fail as a matter of law because the falling rocks and debris did not constitute a highway defect for purposes of § 13a-144. We agree with the commissioner.

We begin our review of the commissioner's claim by setting forth the governing legal principles. "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. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it 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." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

"The state highway liability statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory. . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." (Citations omitted.) White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). Moreover, "[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 . . . ." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991); accord Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001). "To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 675-76, 768 A.2d 441 (2001).

"We have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . . In Hewison [v. New Haven, 34 Conn. 136, 143 (1867)], we distinguished such highway defects from those objects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of...