Bruce Emery v. Town of Hamden (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 106)

FACTS

On February 7, 2013, the plaintiff, Bruce Emery, filed a single-count complaint which consisted of a single page statement setting forth the following allegations against the defendant, the town of Hamden.   In November 2012, the plaintiff was traveling on a sidewalk in front of the Bellevue Nail Salon located on Whitney Avenue in Hamden when the power wheelchair he was riding struck a pothole.   As a result, the plaintiff fell from his seat onto the ground and suffered bodily injury.

On March 7, 2013, the defendant filed a motion to dismiss on the grounds that the court lacks subject matter jurisdiction and for insufficiency of service of process.   The plaintiff filed an objection to the defendant's motion to dismiss, but did not provide a statement detailing the grounds for the objection nor a memorandum in support of the objection.   The matter was heard at short calendar on April 22, 2013.

DISCUSSION

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003);  Practice Book § 10–31(a).  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.”  (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

“[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.”  (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (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.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The defendant argues that the court lacks subject matter jurisdiction over the plaintiff's claim because the plaintiff's exclusive remedy is General Statutes § 13a–149, and the plaintiff neither complied with the notice requirements of the statute nor alleged in his complaint that he provided notice to the defendant.¹  More specifically, the defendant argues that notice of the plaintiff's claim was never provided to the defendant as required under § 13a–149.   The plaintiff countered during oral argument that notice was given to the defendant within the period required by § 13a–149, but that he had lost the papers and had no other proof that he actually gave notice.   The defendant also argues that the complaint should be dismissed because the plaintiff failed to provide a return date on the summons and failed to timely serve process on the defendant.²

“[I]n a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred.   The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances.”  Novicki v. New Haven, 47 Conn.App. 734, 738–39, 709 A.2d 2 (1998).  General Statutes § 52–557n, the political subdivision liability statute, 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 ․ 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.”  “We have construed § 52–557n ․ to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a–149] is the plaintiff's exclusive remedy.”  (Emphasis added.)  Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).   Even where a plaintiff has not pleaded a violation of § 13a–149, the statute will be applied where the allegations “necessarily invoke the defective highway statute [§ 13a–149].”  Id., 340;  Sumrow–Kovalsky v. New Haven, judicial district of New Haven, Docket No. CV 02 0467797 (June 23, 2003, Skolnick, J.) (“Even though the plaintiff has not specifically pleaded that the defendant violated § 13a–149, the complaint may, nevertheless, contain allegations sufficient to invoke the statute”);  Wenc v. New London, 44 Conn.Sup. 45, 50, 667 A.2d 87 (1994), aff'd, 235 Conn. 408, 667 A.2d 61 (1995) (“The plaintiff does not allege that the defendant's actions were in violation of § 13a–149.   Nevertheless, even if a complaint does not contain allegations concerning the violation of a statute, that complaint may still contain allegations sufficient to invoke such statute.”).

Section 13a–149, the defective highway statute, 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 ․ shall, within ninety days thereafter be given to a selectman or the clerk of such town ․” “If § 13a–149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction.”  Bellman v. West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 (2006).  “[U]nder § 13a–149 ․ the plaintiff bears the burden of proving delivery and actual receipt of notice.”  Rivera v. Meriden, 72 Conn.App. 766, 769, 806 A.2d 585 (2002).

“[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 [§ 13a–149] is a question of law.”  Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).  “[A] highway defect is any 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.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, supra, 255 Conn. 342;  see also Read v. Plymouth, 110 Conn.App. 657, 664, 955 A.2d 1255 (2008), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008) (“[A] highway is defective within the meaning of § 13a–149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel”).  “The duty of the municipality to use reasonable care for the reasonably prudent traveler ․ extends to pedestrian travel as well as to vehicular traffic.”   (Internal quotation marks omitted.)  Ferreira v. Pringle, supra, 255 Conn. 342.  “Municipalities ordinarily have a duty of care with respect to the maintenance of public sidewalks, and, under General Statutes § 13a–149, they are liable for damages caused by a breach of that duty.”  Rivers v. New Britain, 288 Conn. 1, 2–3, 950 A.2d 1247 (2008);  see also Rodriguez v. New Haven, 183 Conn. 473, 475 n.1, 439 A.2d 421 (1981) (“The statute [§ 13a–149] includes injuries caused by defective public sidewalks over which a municipality has assumed control”);  Novicki v. New Haven, supra, 47 Conn.App. 740 (“The word road or highway as used in the highway defect statute has usually been construed to include sidewalks”).

In the present case, the plaintiff alleges that he struck a pothole and fell while traveling on the sidewalk along Whitney Avenue in Hamden.   Since the plaintiff has alleged that a defect in the sidewalk, a pothole, was the cause of his injuries, and because a sidewalk is a path used by pedestrians for public travel and is expressly considered by the courts to fall within the purview of the defective highway statute, the plaintiff's claim clearly invokes § 13a–149.   Therefore, the notice provisions of § 13a–149 apply.

Subject matter jurisdiction, therefore, turns on whether notice was actually delivered and received by the defendant.   Looking upon the record most favorably for the plaintiff, there is no evidence that timely notice was delivered and received by the defendant.   The plaintiff did file with the court certain medical records and expenses, which were captioned “intent to sue.”   A fax transmission page indicates the records were faxed to the town of Hamden attorney's office on March 6, 2013.   Even viewing these papers in the light most favorable to the plaintiff, they still fail under the requirements of § 13a–149 for two reasons.   First, even assuming that the plaintiff's injuries occurred on November 30, 2012, the plaintiff did not send the fax until March 6, 2013, and therefore, was not within ninety days of injury as required by the statute.   Second, delivery was made to the town of Hamden attorney's office and not to a selectman or clerk of the town of Hamden as required under § 13a–149.   Based on the foregoing, the plaintiff has not met his burden regarding notice under § 13a–149.   Therefore, the court lacks subject matter jurisdiction to hear the present case.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. The question here is whether the court has subject matter jurisdiction and not whether the plaintiff has sufficiently stated a claim upon which relief may be granted.   Therefore, the failure of the plaintiff to allege in his complaint that notice was delivered and received according to General Statutes § 13a–149 may be a proper basis for a motion to strike, but not for a motion to dismiss.   Lemieux v. Stafford Springs, judicial district of Tolland, Docket No. CV 08 5003392 (July 21, 2009, Sferrazza, J.);   Argiriou v. Waterbury, judicial district of Waterbury, Docket No. CV 97 140220 (December 4, 1997, Swienton, J.) (21 Conn. L. Rptr. 51, 51–52).  “[T]he primary difference between the granting of a motion to dismiss for lack of subject matter jurisdiction and the granting of a motion to strike is that only in the latter case does the plaintiff have the opportunity to amend its complaint.   See Practice Book § [10–44].”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003).   However, since the defendant also argues that notice was never delivered and received pursuant to § 13a–149, which implicates the court's subject matter jurisdiction, this memorandum will instead focus on this issue for the purpose of the motion to dismiss..  FN1. The question here is whether the court has subject matter jurisdiction and not whether the plaintiff has sufficiently stated a claim upon which relief may be granted.   Therefore, the failure of the plaintiff to allege in his complaint that notice was delivered and received according to General Statutes § 13a–149 may be a proper basis for a motion to strike, but not for a motion to dismiss.   Lemieux v. Stafford Springs, judicial district of Tolland, Docket No. CV 08 5003392 (July 21, 2009, Sferrazza, J.);   Argiriou v. Waterbury, judicial district of Waterbury, Docket No. CV 97 140220 (December 4, 1997, Swienton, J.) (21 Conn. L. Rptr. 51, 51–52).  “[T]he primary difference between the granting of a motion to dismiss for lack of subject matter jurisdiction and the granting of a motion to strike is that only in the latter case does the plaintiff have the opportunity to amend its complaint.   See Practice Book § [10–44].”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003).   However, since the defendant also argues that notice was never delivered and received pursuant to § 13a–149, which implicates the court's subject matter jurisdiction, this memorandum will instead focus on this issue for the purpose of the motion to dismiss.

FN2. Even though the summons may be amended to include a return date, see General Statutes § 52–72(a);  Coppola v. Coppola, 243 Conn. 657, 662, 707 A.2d 281 (1998), the issue of whether the plaintiff's complaint should be dismissed on the ground of insufficiency of service of process need not be reached since the court lacks subject matter jurisdiction to hear this case..  FN2. Even though the summons may be amended to include a return date, see General Statutes § 52–72(a);  Coppola v. Coppola, 243 Conn. 657, 662, 707 A.2d 281 (1998), the issue of whether the plaintiff's complaint should be dismissed on the ground of insufficiency of service of process need not be reached since the court lacks subject matter jurisdiction to hear this case.

Wilson, Robin L., J.