Alice Davis v. City of New Haven et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 115)

FACTS

The plaintiff, Alice Davis, commenced this suit by service of process on the defendants, City of New Haven and John Prokop, an employee of the City of New Haven, on February 3, 2010.   The plaintiff filed an amended complaint on June 8 2010.   The amended complaint alleges the following facts.   On August 19, 2008, at approximately 9:30 am, the plaintiff was walking on the sidewalk located on Norton Street towards Whalley Avenue near the intersection with Stanley Street in New Haven, Connecticut.   While walking, the plaintiff was caused to trip and fall on the sidewalk and received several injuries.

In count one of the amended complaint, the plaintiff alleges that New Haven negligently failed to maintain the sidewalk pursuant to General Statutes § 13a-149.   Specifically, she alleges that New Haven failed to repair the broken and raised sidewalk;  maintained the sidewalk in a dangerous condition which could cause injury to the plaintiff;  failed to give any warning to the plaintiff of the dangerous condition on the sidewalk;  failed to repair the dangerous condition on the sidewalk;  failed to exercise reasonable care in order to keep the sidewalk in a reasonably safe condition;  and failed to maintain and repair the sidewalk in violation of General Statutes § 13a-99.   The plaintiff provided New Haven with a written notice of her intention to sue as required by § 13a-149 on August 19, 2008.

In count two of the amended complaint, the plaintiff alleges that Prokop negligently failed to maintain the sidewalk and is liable pursuant to General Statutes §§ 52-557n and 7-465.   Specifically, she alleges that Prokop neglected to properly maintain the sidewalk as is required by his position with the City of New Haven;  failed to repair the broken and raised sidewalk;  maintained the sidewalk in a dangerous condition which could cause injury to the plaintiff;  failed to inspect the sidewalk to ascertain that there was a dangerous condition;  failed to give any warning to the plaintiff of the dangerous condition on the sidewalk;  failed to repair the dangerous condition on the sidewalk;  and failed to exercise reasonable care in order to keep the sidewalk in a reasonably safe condition.   The defendants filed an amended answer and special defenses on June 16, 2010.

On August 4, 2010, the defendants filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction.   The plaintiff filed an objection on December 10, 2010.¹  The matter was heard at short calendar on December 13, 2010.²

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service and process.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”   Practice Book § 10-31(a).  “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ․ Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Citation omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins. Co., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).

The defendants argue as to count one that the plaintiff has failed to sufficiently identify the location of the alleged defect in her notice of claim.   Despite the fact that the plaintiff filed two notices of claim, the public liability investigator was not able to locate the defective condition or fully investigate the claim.   Because the notice was patently defective, the court does not have jurisdiction to hear the matter.   As to count two, the defendants maintain that the exclusive remedy for a party who claims a highway defect under General Statutes § 13a-149 is against the City. The court cannot impose liability against Prokop under either General Statutes §§ 52-557n or 7-465.

The plaintiff counters that she “stated with specificity the location of the fall” and that “[j]ust because the defendant's investigator could not locate a defective condition, does not mean plaintiff has not met the requirements of the statute.”   Alternatively, the plaintiff argues that should the court find the notice insufficient, the savings clause in the statute allows the notice to be deemed proper.   The plaintiff further maintains that “[nowhere] in [§ ] 13a-149 does it state that the action permitted by the statute is the exclusive remedy by an injured party who is injured as a result of a defective warrant.”   Since there is no language in the statute excluding other remedies, the plaintiff claims, the count against Prokop should be allowed to remain.

I COUNT ONE

The defendants argue that the notice requirement has not been met because the plaintiff has “failed to sufficiently identify the location of the alleged defect in her notice of claim.”   Therefore, the court is without jurisdiction to hear the matter.  “As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident.” ³  Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001).   When a plaintiff fails “to comply with the notice requirements of § 13a-149, the trial court lack[s] subject matter jurisdiction over the action.”  Id.

“The statute requires that the notice contain the following five essential elements:  (1) written notice of the injury;  (2) a general description of that injury;  (3) the cause;  (4) the time;  and (5) the place thereof.”  Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).  “Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim.   The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate.   It provides:  ‘No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in ‘describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact thereby.’  General Statutes § 13a-149.”  (Internal quotation marks omitted.)  Salemme v. Seymour, 262 Conn. 787, 794, 817 A.2d 636 (2003).  “The savings clause, therefore, operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice of accident location.”  Id. Therefore, “the fact that the investigator for the corporation counsel's office [is] unable to locate the defect is [not] in and of itself sufficient to render the notice inadequate as a matter of law.”   McCann v. New Haven, 33 Conn.App. 56, 60, 633 A.2d 313 (1993).

This is a different result than would be found in an action brought pursuant to General Statutes § 13a-144, the analogous state highway defect statute.   Because § 13a-144 does not contain a savings clause, the “state highway notice requirement must be strictly construed ․” Salemme v. Seymour, supra, 262 Conn. 796 n.7. “[I]n actions arising under § 13a-149, [however] the savings clause ‘[a]lthough ․ limited in terms of the types of defects covered ․ demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff.’   “ (Internal quotation marks omitted.)  Id., 796.   Indeed, the court cautioned that “courts called upon to construe these statutes should be aware of this analytical dichotomy, and recognize the limited precedential value of a § 13a-144 case in the § 13a-149 context, and vice versa.”   Id., 796 n.7.

In the present case, the defendants received written notice of the accident on August 25, 2008, and September 12, 2008.   Both notices described the place of injury as “Corner of Stanley St. and Norton St., New Haven, CT.” In an affidavit provided by Thomas McInerney, the public liability investigator for the office of the corporation counsel who investigated the plaintiff's claim, McInerney states that he was unable to locate the defect that allegedly caused the plaintiff to fall and that he took eight photographs of the sidewalk and street corners in the general area.   He further states that he was unable to complete his investigation because the notice of claim lacked specific information about the location of the defect.   The defendants also provided copies of the photographs that were taken when McInerney investigated the claim.

The court recognizes that the description of the location is not as specific as it could be.   The description identifies cross streets which can be used to identify the general area, but fails to indicate on which side of the street or corner that the defect could be found.   While the defendant provides case law to support their position that the vague notice is so deficient as to require dismissal of count one, the court notes that the cases cited, with the exception of one, were brought pursuant to § 13a-144, a statute, as noted above, that does not contain a savings clause.   Moreover, cases with less detail than was provided by the plaintiff have been deemed sufficient.   See, e.g., Salemme v. Seymour, supra, 262 Conn. 795 (location of accident described as “Silvermine Road, Seymour, Connecticut”);  Greenberg v. Waterbury, 117 Conn. 67, 69, 167 A.83 (1933) (location of accident described as “a sidewalk of a highway known as North Elm Street”).   Since the description of the location is not entirely absent, even though McInerney could not locate the defect, the savings clause applies, thereby rendering the notice sufficient.  Martin v. Plainville, supra, 240 Conn. 113 (“The savings clause applies only when the information provided in the notice is inaccurate, not where information is entirely absent”).   Thus, the defendant's challenge to the adequacy of the notice is a question of fact to be resolved by the trier of fact.  “[W]hether the defendant was misled by [an] inaccurate notice is a question of fact for the trier.”  Salemme v. Seymour, supra, 262 Conn. 797.   Therefore, the defendants' motion as to count one is denied.

II COUNT TWO

The defendants assert that the plaintiff “impermissibly seeks to impose liability on Prokop for his failure to maintain and repair public sidewalks pursuant to [General Statutes] § 52-557n and/or [General Statutes] § 7-465” because the plaintiff's “exclusive remedy for a highway defect claim is against the City pursuant to [General Statutes] § 13a-149.” ⁴  The Connecticut Supreme Court in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 180, 219 Conn. 179, 592 A.2d 912 (1991), squarely addressed the issue of whether a plaintiff can bring suit against municipal employees when they file a cause of action against the municipality under § 13a-149.   In that case, the court construed “ § 52-557n to provide that an action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision ‘for damages resulting from injury to any person or property by means of a defective road or bridge.’   It also, therefore, precludes a joint action seeking such damages against a municipality and its officers pursuant to § 7-465(a);  otherwise, the proviso in § 52-557n would be stripped of all meaning, for § 7-465(a) would permit a plaintiff to reach the result forbidden by § 52-557n:  the imposition of tort liability on a municipality for a highway defect claim.”   (Emphasis added;  internal quotation marks omitted.)  Id., 192.

In count one, the plaintiff alleges the negligence of the City of New Haven pursuant to § 13a-149.   As previously discussed, the notice provided is sufficient to withstand a motion to dismiss.   Since the suit is being brought pursuant to § 13a-149, the plaintiff's exclusive remedy is against the City of New Haven.  Id. The plaintiff cannot impose liability on Prokop, a municipal employee, under either § 52-557n or § 7-465.   Therefore, the defendants' motion to dismiss count two is granted.

CONCLUSION

Accordingly, for the foregoing reasons, the defendants' motion to dismiss count one is denied and granted as to count two.

Wilson, J.

FOOTNOTES

FN1. The court did not receive a copy of the plaintiff's memorandum of law due to an apparent clerical error at the clerk's office.   The court received a copy of the memorandum of law from opposing counsel at short calendar..  FN1. The court did not receive a copy of the plaintiff's memorandum of law due to an apparent clerical error at the clerk's office.   The court received a copy of the memorandum of law from opposing counsel at short calendar.

FN2. The plaintiff was not present for argument at short calendar..  FN2. The plaintiff was not present for argument at short calendar.

FN3. General Statutes § 13a-149 provides in relevant part:  “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   No action for any injury shall be maintained against any town, city, corporation or borough, unless written 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, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.”.  FN3. General Statutes § 13a-149 provides in relevant part:  “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   No action for any injury shall be maintained against any town, city, corporation or borough, unless written 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, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.”

FN4. Section 52-557n(a)(1) provides in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance;  provided no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to Section 13a-149.”Section 7-464(a) provides in relevant part:  “Any town, city or borough, notwithstanding an inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of Section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to Section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”.  FN4. Section 52-557n(a)(1) provides in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance;  provided no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to Section 13a-149.”Section 7-464(a) provides in relevant part:  “Any town, city or borough, notwithstanding an inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of Section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to Section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”

Wilson, Robin L., J.