Diane Bencivengo v. Town of Madison (2013)

RULING ON MOTION TO DISMISS

The plaintiff, Diane Bencivengo, brings this municipal highway defect action, pursuant to General Statutes § 13a–149,¹ against the defendant, the town of Madison, seeking money damages for injuries arising from an alleged trip and fall.   Presently before the court is the defendant's motion to dismiss on the ground that the notice of claim provided by the plaintiff to the defendant under § 13a–149 is legally insufficient, thereby depriving this court of subject matter jurisdiction.   For the reasons set forth below, the court finds that the plaintiff's notice is fatally defective for failing to include a general description of the cause of the plaintiff's injuries.   Accordingly, the defendant's motion to dismiss is granted.

FACTS AND PROCEDURAL HISTORY

The plaintiff's complaint contains only one count, which sets forth a claim under § 13a–149.   The plaintiff alleges that on June 7, 2010, she was walking on a public walkway in Bauer Park in Madison when she tripped and fell while attempting to step onto a bridge.   The specific defective conditions of the subject bridge are enumerated in paragraph six of the complaint, which provides, inter alia, that the step leading onto the bridge was excessive in height, that the bridge lacked a railing, that vegetation partially obstructed the plaintiff's view of the bridge and that there were no warnings or signs installed to notify the public of these dangerous conditions.   It is undisputed that Bauer Park is a public park that spans approximately sixty-four acres and contains two designated trails for recreational hiking.   Moreover, the parties agree that the supposed defective conditions are highway defects within the meaning of § 13a–149, and that the defendant is the party bound to keep the bridge in repair.

Attached to the complaint is a copy of the plaintiff's notice of claim.   The notice provides, in relevant part,² that “[the plaintiff] ․ [w]hile lawfully upon the premises of property ․ known as Bauer Park ․ [d]id encounter a defective condition upon a walkway and/or bridge, causing her to trip and fall to the ground upon said bridge ․” The notice contains no description of the “defective condition” that purportedly caused the plaintiff to trip and fall.

On October 17, 2012, the defendant filed the instant motion to dismiss and a memorandum in support.   On December 19, 2012, the defendant filed a supplemental memorandum in support of its motion to dismiss.   On April 11, 2013, the plaintiff filed an objection to the defendant's motion and a memorandum in opposition.   On April 15, 2013, the parties argued this matter before the court at short calendar.

LEGAL STANDARD OF REVIEW

“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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.”  (Internal quotation marks omitted.)  Morgan v. Bridgeport Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”  Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).  “[A] trial court does not have subject matter jurisdiction in a case controlled by § 13a–149 if the plaintiff fails to provide sufficient notice to the defendant municipality.”  Ortiz v. The Metropolitan District, 139 Conn.App. 487, 489, 56 A.3d 952 (2012).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ 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 in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).³

ANALYSIS

As stated previously, the defendant argues that the plaintiff's municipal highway defect claim should be dismissed for lack of subject matter jurisdiction because the notice of claim provided by the plaintiff to the defendant, pursuant to § 13a–149, is legally insufficient.   More particularly, the defendant argues that the letter is fatally defective because it fails to set forth a general description of both the cause and location of the plaintiff's alleged injuries, and that these deficiencies cannot be cured by the statute's so-called “savings clause.”   In response, the plaintiff argues that the notice is not deficient and, even if it were, the statute's savings clause operates to revive her claim.

“A town is not liable for highway defects unless made so by statute ․ Section 13a–149 affords a right of recovery against municipalities ․ Under § 13a–149, [a]ny 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.”  (Citations omitted;  internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).

“As a condition precedent to maintaining an action under § 13a–149, a plaintiff must provide a municipality with notice that meets the statutory requirements ․ 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 ․ A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality.”  (Citations omitted;  internal quotation marks omitted.)  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 misled thereby ․ This savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Salemme v. Seymour, 262 Conn. 787, 793–94, 817 A.2d 636 (2003).

“[E]ntirely absent means exactly that;  one of the five essential elements ․ must be completely, totally and unmistakably omitted from the plaintiff's notice.   In the absence of such an omission, the savings clause of § 13a–149 could apply, depending on the facts adduced at trial.   The savings clause, therefore, operates to protect plaintiffs from having their § 13a–149 claims barred by reason of a vague, indefinite or inaccurate notice ․” (Citation omitted;  internal quotation marks omitted.)  Id., 794.

The court will first examine whether the plaintiff's notice of claim sufficiently specifies the cause of the plaintiff's alleged injuries.   Our Supreme Court has long held that “[t]he cause of the injury required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury.”  (Internal quotation marks omitted.)   Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 (1937).   Accordingly, in the present case, the threshold inquiry becomes whether the plaintiff's notice of claim sets forth a general description of the defect or defective condition that brought about the plaintiff's injuries.

In this regard, Ross v. New London, 3 Conn.Cir.Ct. 644, 222 A.2d 816, cert. denied, 154 Conn. 717, 221 A.2d 272 (1966), is instructive.   In that case, the plaintiff provided the defendant municipality with written notice, which provided, in part, that “[t]he claim is that the fall was caused by the neglect of the city in the maintenance and repair of the sidewalk at said site.”   (Internal quotation marks omitted.)  Id., 645.   The court observed that it was “immediately apparent” that the notice “fails to specify the defect in the highway which resulted in injury to the plaintiff.”  Id., 646.   As a result, the court held that the notice was defective under § 13a–149, and that the savings clause contained therein did not apply.  Id.

The court in Ross discussed the plaintiff's failure to specify the defective condition at great length:  “What exactly was the neglect of the city in the maintenance and repair of the sidewalk ․ which brought about the injuries claimed by the plaintiff?   Was it a large, small or medium hole, a ditch, a gully, a rut, a depression, or the elevation of a portion of the sidewalk, or perhaps the failure of the city effectively to remove snow or ice accumulated thereon?   What was the city to look for in the protection and preservation of its interests, and to enable it properly to prepare a defense, if any, against the claim of the plaintiff?   Certainly, the use of the words ‘neglect,’ ‘maintenance’ and ‘repair’ gives no clue whatsoever as to the direct cause of the fall in question, nor do the words give any indication of that which occasioned or produced the fall ․ [O]ur Supreme Court [has] held that the words ‘by means of the highway being defective, and out of repair,’ were clearly insufficient.   In practical effect, such words amount to nothing more than the use of unnecessary embellishment in a notice of injury.   It is sufficient and customary in defective highway cases to state that the cause was a specified defective condition, without further statement that it in turn was due to negligence in failing to keep the highway in repair or otherwise.”   (Citation omitted;  internal quotation marks omitted.)  Id., 646–47.

Similarly, in Frandy v. Commissioner of Transportation, 132 Conn.App. 750, 752, 34 A.3d 418 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012), the plaintiff's notice provided the following cause of injury:  “Plaintiff's injuries were caused as a result of the defective condition of the pavement which caused her to be thrown from her bicycle.”  (Internal quotation marks omitted.)   Our Appellate Court held that “[t]he plaintiff's notice of claim fails to state a cause of the injury as required by [General Statutes] § 13a–144.⁴  The plaintiff's notice merely states that the cause of the plaintiff's bicycle accident was due to ‘the defective condition in the pavement’ but it does not specify the precise nature of the claimed defect.   This description patently fails to meet the statutory requirements.”  Id., 754.⁵

Finally, in Platt v. Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV 10 6002897 (January 17, 2012, Trombley, J.), the plaintiff alleged that she slipped and fell on an accumulation of ice and snow while walking on a sidewalk abutting a municipal fire department.   In her notice of claim, however, the plaintiff merely provided that:  “Said fall was caused by the [defendant's] negligent maintenance of pedestrian sidewalks along Maple Street.”  (Emphasis omitted;  internal quotation marks omitted.)  Id. In holding that the plaintiff's notice was legally insufficient, the court observed that “the actual cause of the plaintiff's fall, i.e., the accumulation of ice/snow on the sidewalk, per Salemme, is completely, totally and unmistakably missing.”  (Internal quotation marks omitted.)  Id. The court further observed that “[t]he notice refers to the cause of the plaintiff's injuries as ‘negligent maintenance of pedestrian sidewalks,’ which fails to specify the precise nature of the claimed defect that allegedly caused the plaintiff to slip and fall.   As in Frandy, the use of the term ‘negligent maintenance’ was an unnecessary embellishment that did not cure the failure to inform the borough of the specific defect in the sidewalk fronting the fire department that caused the plaintiff's injury.”  (Internal quotation marks omitted.)  Id.

In light of the cases cited above, the court finds that plaintiff's notice is patently defective for failing to specify the defect that caused her to trip and fall.   As stated previously, a general description of the cause of the plaintiff's injury is one of the five essential elements of perfected notice under § 13a–149.   Since the plaintiff has completely omitted such a description from her notice of claim, this court has no choice but to conclude that the notice is defective.   More particularly, the plaintiff's notice provides, in relevant part, that the plaintiff “[d]id encounter a defective condition upon a walkway and/or bridge, causing her to trip and fall to the ground upon said bridge.”   As in Ross, Frandy and Platt, the specific defective conditions that allegedly caused the plaintiff's injuries—e.g., the excessively tall step, the lack of a railing, the overgrown vegetation, the failure to install warnings or signs—are entirely absent from the plaintiff's notice.   Moreover, the savings clause contained in § 13a–149 is not applicable, as the description of the alleged defects is entirely absent from the notice, and is not merely inaccurate.   Because the plaintiff's failure to provide sufficient notice deprives this court of subject matter jurisdiction, the defendant's motion to dismiss must be granted.

As for the location element of perfected notice, the court finds that the plaintiff's notice of claim is vague and inaccurate.   The notice provides that the plaintiff was injured by a “defective condition” on a “walkway and/or bridge” while on “the premises ․ known as Bauer Park.” Bauer Park spans approximately sixty-four acres and includes two trails for recreational hiking:  the Woodland Trail, which is approximately one mile long, and the Wetlands Trail, which is approximately one quarter of a mile long.   In addition to these permanent hiking trails, Bauer Park contains several walking paths and a dirt access road.   The court acknowledges that the plaintiff's inaccurate description of the location of the alleged defects could be salvaged under the savings clause set forth in § 13a–149.   However, the complete absence in the plaintiff's notice of a description of the defects themselves combined with the vague description of the location of those defects makes it impossible for the defendant to use this notice in preparation for a lawsuit.   In this regard, the court's conclusion that the notice is plainly defective for entirely omitting a general description of the alleged defect is buttressed by the plaintiff's vague description of the location of the defects.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is granted.

Matthew E. Frechette, J.

FOOTNOTES

FN1. 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 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 ․ No notice given under the provisions of this section shall be 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 misled thereby.”.  FN1. 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 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 ․ No notice given under the provisions of this section shall be 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 misled thereby.”

FN2. The full text of the notice of claim provides as follows:Notice is hereby given to the Town of Madison, Connecticut, that:DIANE H. BENCIVEGNO [sic], of 107 Horsepond Road, in the Town of Madison, Connecticut,While lawfully upon the premises of property of the Town of Madison located upon Copse Road and known as Bauer Park, a/k/a Bauer Farm, in the Town of Madison,On June 7, 2010 at approximately 11:20 a.m.,Did encounter a defective condition upon a walkway and/or bridge, causing her to trip and fall to the ground upon said bridge, and further causing her to sustain injuries that include but are not limited to bruising, abrasions, and fractures of the bones of her left arm and shoulder, bruising, abrasions and lacerations to her left leg and hands, injury and pain, suffering, and shock to her nervous system.As a result of the above, DIANE H. BENCIVEGNO [sic], provides notice as required under sec. 13a–149 of the statutes of the State of Connecticut, and of her intent to file suit seeking compensation..  FN2. The full text of the notice of claim provides as follows:Notice is hereby given to the Town of Madison, Connecticut, that:DIANE H. BENCIVEGNO [sic], of 107 Horsepond Road, in the Town of Madison, Connecticut,While lawfully upon the premises of property of the Town of Madison located upon Copse Road and known as Bauer Park, a/k/a Bauer Farm, in the Town of Madison,On June 7, 2010 at approximately 11:20 a.m.,Did encounter a defective condition upon a walkway and/or bridge, causing her to trip and fall to the ground upon said bridge, and further causing her to sustain injuries that include but are not limited to bruising, abrasions, and fractures of the bones of her left arm and shoulder, bruising, abrasions and lacerations to her left leg and hands, injury and pain, suffering, and shock to her nervous system.As a result of the above, DIANE H. BENCIVEGNO [sic], provides notice as required under sec. 13a–149 of the statutes of the State of Connecticut, and of her intent to file suit seeking compensation.

FN3. At the outset of her memorandum, the plaintiff argues that this court's review of the instant jurisdictional issue must be decided on the basis of the complaint alone.   Plaintiff's Memorandum of Law in Support of Plaintiff's Objection to Defendant's Motion to Dismiss, dated April 10, 2013, at 3. Since the complaint includes an allegation that the notice of claim sets forth “a general description of [the plaintiff's] injuries and the cause thereof,” the plaintiff argues that the defendant's motion to dismiss must be denied.  Id. The plaintiff has misinterpreted the court's standard of review on a motion to dismiss.   As stated above, “if 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.”  (Citations omitted;  emphasis in original, internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 651–52.   In the present case, neither party disputes the contents of the notice of claim.   Accordingly, the court may examine the text of that document in determining whether the notice is legally sufficient under § 13a–149, and is not limited to reviewing the allegations of the complaint, as the plaintiff suggests..  FN3. At the outset of her memorandum, the plaintiff argues that this court's review of the instant jurisdictional issue must be decided on the basis of the complaint alone.   Plaintiff's Memorandum of Law in Support of Plaintiff's Objection to Defendant's Motion to Dismiss, dated April 10, 2013, at 3. Since the complaint includes an allegation that the notice of claim sets forth “a general description of [the plaintiff's] injuries and the cause thereof,” the plaintiff argues that the defendant's motion to dismiss must be denied.  Id. The plaintiff has misinterpreted the court's standard of review on a motion to dismiss.   As stated above, “if 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.”  (Citations omitted;  emphasis in original, internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 651–52.   In the present case, neither party disputes the contents of the notice of claim.   Accordingly, the court may examine the text of that document in determining whether the notice is legally sufficient under § 13a–149, and is not limited to reviewing the allegations of the complaint, as the plaintiff suggests.

FN4. General Statutes § 13a–144 provides, in relevant part:  “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair ․ may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.   No such action shall be brought ․ 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 ․ The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”.  FN4. General Statutes § 13a–144 provides, in relevant part:  “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair ․ may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.   No such action shall be brought ․ 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 ․ The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

FN5. The court acknowledges “the limited precedential value of a § 13a–144 case in the § 13a–149 context” with respect to cases involving the sufficiency of notice.  Salemme v. Seymour, supra, 262 Conn. 787 n.7. Although Frandy v. Commissioner of Transportation, supra, 132 Conn.App. 750, involved a claim under § 13a–144, that case cites extensively to Ross v. New London, supra, 3 Conn.Cir.Ct. 644, which involved a claim under § 13a–149.   Accordingly, the court finds the reasoning of Frandy to be persuasive..  FN5. The court acknowledges “the limited precedential value of a § 13a–144 case in the § 13a–149 context” with respect to cases involving the sufficiency of notice.  Salemme v. Seymour, supra, 262 Conn. 787 n.7. Although Frandy v. Commissioner of Transportation, supra, 132 Conn.App. 750, involved a claim under § 13a–144, that case cites extensively to Ross v. New London, supra, 3 Conn.Cir.Ct. 644, which involved a claim under § 13a–149.   Accordingly, the court finds the reasoning of Frandy to be persuasive.

Frechette, Matthew E., J.