Barbara Gilson v. Town of Ansonia et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 110)

I. INTRODUCTION

The defendant, commissioner of transportation of the state of Connecticut, has filed the motion to dismiss that is now before the court.   For the reasons that follow, the motion to dismiss is denied at this juncture.

II. FACTS

This action arises out of an alleged fall that is claimed to have occurred while the plaintiff, Barbara Gilson, was walking on a sidewalk in Ansonia on June 23, 2010.   On July 16, 2012, the plaintiff filed a two-count complaint against the town of Ansonia and the commissioner of transportation for the state of Connecticut.   Only the second count against the commissioner of transportation (“the defendant”) alleging a violation of Connecticut's highway defect statute, General Statutes § 13a–144, is at issue in the present motion.   In that count, the plaintiff alleges that the state had a duty to maintain the sidewalk and that it either had or should have had knowledge of the sidewalk being in disrepair.   As a result of this negligence, the plaintiff suffered various injuries for which she now seeks compensation.

On December 3, 2012, the defendant moved to dismiss the claim asserted against it in the second count on the basis that the court lacks subject matter jurisdiction over this matter.   Specifically, the defendant argues that the state had no responsibility to maintain the area where the plaintiff allegedly fell.   In support of its motion, the state filed a memorandum of support and a certified affidavit.   On March 22, 2013, the plaintiff filed an objection thereto, along with supporting documentation including a certified affidavit.   The court heard oral argument regarding this matter on March 25, 2013.

III. 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 ․ [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)   Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “Our Supreme Court has ․ recognized that the state can consent to be sued and that [t]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a–144] ․ Therefore, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a–144, the complaint will withstand a challenge by the state on the basis of sovereign immunity ․ Section 13a–144 [however] constitutes only a limited waiver of the state's sovereign immunity in cases involving alleged highway defects ․ Furthermore, because the statute constitutes a break with common law, it must be strictly construed.”  (Citations omitted;  internal quotation marks omitted.)  Frandy v. Commissioner of Transportation, 132 Conn.App. 750, 752–53, 34 A.3d 418 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012).

Section 13a–144 provides in relevant part:  “Any person injured ․ 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 [c]ommissioner of [t]ransportation to keep in repair ․ may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.”  (Emphasis added.)

The defendant argues that the affidavit it submits by Ralph DeSanti,¹ a manager for the state of Connecticut department of transportation, clearly demonstrates that the state had no duty to keep the subject sidewalk in repair.   The affidavit states, “the limits of responsibility of maintenance of the above described highway are ․ confined to the travel portion for motor vehicles ․ and do not include the sidewalk area where the plaintiff Barbara Gilson claims to have fallen in this matter.”  (Def.'s Aff.) As a result, the defendant argues that liability cannot be imposed upon the state pursuant to § 13a–144.

In response, the plaintiff contends that the state's motion should be denied and discovery should be allowed to proceed because it is unclear who had the duty to maintain the sidewalk.   Specifically, the plaintiff argues that the town of Ansonia indicated, through Ansonia's insurance investigator Mark Howard, that the sidewalk where the fall occurred was owned and maintained by the state and not the town.   In support, the plaintiff attaches a copy of that letter wherein Mark Howard states that “the [town] of Ansonia is not responsible for maintaining the sidewalk in question.   Main Street and the abutting sidewalk is owned and maintained by the [s]tate ․” (Pl.'s Ex. B.) An affidavit by the plaintiff's attorney, Rosemarie Paine, is also attached attesting to the authenticity of this letter.

“If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  (Citations omitted.)  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).  “[A]ffidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists.”  (Internal quotation marks omitted.)   Id., 651 n.14.

In the present case, the defendant submits an affidavit stating that it did not have a duty to maintain the sidewalk at issue on the date in question.   The plaintiff responds with documentation that directly contradicts the defendant's affidavit.   Specifically, the defendant's affidavit states that it did not have a duty to maintain the sidewalk, while the letter by the town's insurance investigator says the exact opposite.

“[W]here 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.”   Conboy v. State, supra, 292 Conn. 652.   In the present case, there is obviously a factual dispute regarding who had a duty to maintain the sidewalk in question.   Thus, this critical dispute cannot be decided on a motion to dismiss.   Additionally, no evidentiary hearing is necessary at this point because the court is allowing the parties to complete further discovery.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss count two is denied.

Mullins, J.

FOOTNOTES

FN1. In the defendant's memorandum it states that “[t]he affidavit of Ralph DeSanti” is attached in support.   However, the affidavit is by Aron Steeves..  FN1. In the defendant's memorandum it states that “[t]he affidavit of Ralph DeSanti” is attached in support.   However, the affidavit is by Aron Steeves.

Mullins, Raheem, J.