Nina Wexler v. James Redeker (2014)

RULING ON MOTION TO DISMISS (# 104)

The defendant, James Redeker, Commissioner of the Department of Transportation, moves to dismiss the plaintiff's complaint.   The defendant argues that the complaint seeks relief pursuant to General Statutes § 13a–144 (“highway defect statute”), but the plaintiff, Nina Wexler, failed to provide adequate notice of the defect.   The plaintiff objects to the motion.   This matter came before the court and was heard on January 27, 2014.   The motion is granted.

I

FACTUAL AND PROCEDURAL HISTORY

This action began with the plaintiff's complaint, filed on August 26, 2013.   The return of service, filed on that same date, shows that the plaintiff effected service on the defendant on August 19, 2013.   The complaint alleges that on August 9, 2012, the defendant “was walking southbound on Main Street in Torrington, Connecticut, between its intersection with Maiden Lane and its intersection with Water Street when she stepped into a pothole and fell.”   Compl. ¶ 2.   The complaint further alleges that the “pothole was located in the southbound lane of the roadway approximately five feet from the sidewalk and was approximately eight inches in circumference and two inches in depth.”   Compl. ¶ 3.   The complaint asserts that on August 28, 2012, the plaintiff “gave statutory notice to the defendant, a copy of which is attached to this complaint.”   Compl. ¶ 15.   The notice attached to the complaint identifies the “place” where the plaintiff was injured as “Main Street by Maiden Lane.” It further describes the “occurrence and cause giving rise to said occurrence” as follows:  “[The plaintiff] was walking southbound on Main Street while attending the Torrington Downtown Main Street Market Place event.  [The plaintiff] then stepped into a pothole and fell ․ An uncovered manhole/pothole located in the roadway in the area of Maiden Lane and Main Street in Torrington was defective and exposed in that the manhole/pothole was uncovered and no warning signs posted to warn pedestrians about this dangerous and defective condition.”

By motion filed on December 6, 2013, the defendant moved to dismiss the complaint, arguing that the notice is defective as a matter of law in that it failed to provide an adequate description of the location of the alleged defect.   The plaintiff filed an objection to the motion on January 7, 2014, and a supplemental objection on January 10, 2014.   This matter came before the court at short calendar and was heard on January 27, 2014.   The plaintiff did not appear at the hearing.   The motion is granted.

II

STANDARD OF REVIEW

In deciding this motion to dismiss, the court is obligated to “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 ․ [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.”  (Citation omitted;  internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09, 967 A.2d 495 (2009).   In the present case, the court must focus on the notice attached to the complaint, rather than the complaint itself.   The complaint was filed more than ninety days after the date of the injury.  “Therefore, the complaint cannot be considered for the purposes of meeting the notice requirement.”   Bresnan v. Frankel, 224 Conn. 23, 25 n.2, 615 A.2d 1040 (1992).

The defendant supported his motion with the affidavit of Jason Maggi, a supervisor with the Department of Transportation, who personally investigated the plaintiff's claim of highway defect.   The plaintiff's statutory notice and a copy of Maggi's investigative report are attached to Maggi's affidavit.   In opposition to the motion to dismiss, the plaintiff filed an affidavit by Martha S. Gavenas, who signed the notice, and attached to the affidavit are photographs, purporting to show the alleged defect, as identified to Gavenas by the plaintiff.¹

The defendant's motion to dismiss alleges that the State possesses sovereign immunity and, therefore, can only be sued pursuant to the “highway defect statute,” General Statutes § 13a–144.  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss ․ A determination regarding a trial court's subject matter jurisdiction is a question of law.”  (Internal quotation marks omitted.)   Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 387, 978 A.2d 49 (2009).

“[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.)  May v. Coffey, supra, 291 Conn. 113.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).

III

THE POSITIONS OF THE PARTIES

The defendant argues that the plaintiff's notice is defective in that it failed to identify the “place” of the occurrence that resulted in the plaintiff's injury, and is ambiguous in that it described the defect as a “manhole/pothole.”

In contrast, the plaintiff argues that the notice provided sufficient information to the defendant to permit him to conduct inquiries regarding her fall and its cause, and that her description provided “reasonable definiteness.”   The plaintiff also claims that the defendant's investigation was defective, and refers to photographs attached to the Gavenas affidavit, allegedly taken during the week of September 11, 2012.   Those photographs, the plaintiff claims, show the pothole and its proximity to parked vehicles.   The plaintiff's supplemental memorandum, filed on January 10, 2014, cited to a Superior Court decision published on January 6, 2014, which, she claims, supports her position.

IV

DISCUSSION

“The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state's immunity from liability or suit ․ The principle that the state cannot be sued without its consent ․ is well established under our case law ․ It has deep roots in this state and our legal system in general, finding its origin in ancient common law ․ [T]his court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ․ [When] there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity ․ In an action against the state in which damages are sought, a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that ․ the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387–88.

With regard to claims of highway defects, the State has waived its sovereign immunity under certain circumstances.  General Statutes § 13a–144 provides in relevant part that “[a]ny 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.”   Prior to bringing a suit, a plaintiff must give “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 ․ in writing within ninety days ․” General Statutes § 13a–144.

“Ordinarily, the question of the adequacy of the notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case ․ Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet ․ the statutory requirements.”  (Internal quotation marks omitted.)  Frandy v. Commissioner of Transportation, 132 Conn.App. 750, 753, 34 A.3d 418 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012).

“The notice [mandated under § 13a–144] is to be tested with reference to the purpose for which it is required ․ The [notice] requirement ․ was not devised as a means of placing difficulties in the path of an injured person.   The purpose [of notice is] ․ to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made ․ The notice requirement ․ [permits] the commissioner to gather information to protect himself in the event of a lawsuit ․ [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection ․ Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and ․ this question must be determined on the basis of the facts of the particular case.”   (Citation omitted;  internal quotation marks omitted.)  Filippi v. Sullivan, 273 Conn. 1, 9, 866 A.2d 599 (2005).

The defendant relies, in particular, on Collins v. Meriden, 41 Conn.Sup. 425, 427, 580 A.2d 549 (1990), in which notice was held to be patently insufficient when the location of the defect was described in the notice as “adjacent to the front of the premises known as 243 West Main Street, Meriden, Connecticut.”  (Internal quotation marks omitted.)

In Tedesco v. Dept. of Transportation, 36 Conn.App. 211, 650 A.2d 579 (1994), the Appellate Court identified the factors that render a notice wholly deficient.  “In Schaap v. Meriden, [139 Conn. 254, 93 A.2d 152 (1952) ], our Supreme Court found that the notice was defective because it specified only that the injury took place near the edge of a manhole cover, without identifying a particular manhole.   In Ozmun v. Burns, [18 Conn.App. 677, 559 A.2d 1143 (1989) ], this court held that the notice was defective because the detailed description in the notice was incorrect, stating south instead of north.   Thus, while the notice was specific, it directed the commissioner to an erroneous location.   In Collins v. Meriden, supra, 41 Conn.Sup. 425, the Superior Court found that the descriptions of the cause and place of the injury were vague in that the notice provided merely that the injury occurred due to a ‘defective and improper condition of the sidewalk ․ adjacent to the front of the premises known as 243 West Main Street, Meriden, Connecticut’ ․

“It is quite clear why the notices in Schaap, Ozmun and Collins were defective.   Lack of specificity, misdirection, and vagueness as to the location and cause of the injury undermine the purpose of the statute.   In each case, insufficient notice denied the defendant the opportunity to gather information to protect itself in the event of a lawsuit.”  (Citation omitted;  internal quotation marks omitted.)  Tedesco v. Dept. of Transportation, supra, 36 Conn.App. 215.

In the present case, the plaintiff relies heavily on Tedesco in support of her argument that her notice was not patently insufficient.   In Tedesco, the Appellate Court not only identified the shortcomings that render a notice patently insufficient but also identified the factors that lead to the opposite conclusion.  “In Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), our Supreme Court reiterated the legal standard against which notice of a claim pursuant to § 13a–144 is to be measured.   The notice need not be expressed with the fullness and exactness of a pleading ․ [T]he notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently ․ [R]easonable definiteness is all that can be expected or should be required ․ The plaintiff is not required to be a cartographer in order to be able to describe adequately to the commissioner the location of the defect ․ As long as notice provides ‘reasonable definiteness,’ it is not patently insufficient and the adequacy of the notice becomes an issue for the jury.”  (Citations omitted;  internal quotation marks omitted.)  Tedesco v. Dept. of Transportation, supra, 36 Conn.App. 213–14.

Applying the foregoing principles to the present case, this court notes, first, that the description in the notice was erroneous as it claimed that the defect was a “manhole/pothole”;  a description that refers to two completely different potential defects.   A “manhole” is widely understood to mean a man-made structure, often located in city streets and usually covered with a metal disk, large enough for a human being to pass through in order to work beneath the streets.   See Corprew v. Carpenter, Superior Court, judicial district of New Britain, Docket No. CV–07–5003838–S (December 17, 2007, Shapiro, J.).   A pothole, on the other hand, is widely understood to be a depression in the street, varied in diameter and depth, and caused by forces rather than design.  “[A] deep hole or pit;  especially, a deep, round basin worn in the rocks or rock bed of a stream by the grinding action of stones and gravel whirled around by the water.”   Webster's New Twentieth Century Dictionary (2d Ed.1980).

In the complaint, the plaintiff clearly calls the defect a pothole, alleging that it was two inches in depth.   Inexplicably, in her memorandum and in the Gavenas affidavit, the plaintiff continues to suggest that the two types of potential defects are interchangeable.   Pl.'s Mem. 4, 5;  Gavenas Aff. ¶ 5 (“a pothole or old manhole”), ¶¶ 6, 7 (“this pothole”;  “the pothole”).   This court must conclude that the description of the defect was, necessarily, partially incorrect, as the defect cannot have been both a manhole and pothole, and the two structures are not interchangeable.   See Wasilewski v. Redeker, Superior Court, judicial district of Middlesex, Docket No. CV–12–6006754–S (July 26, 2012, Aurigemma, J.).

Moreover, the notice was vague regarding the location of the defect.   It states that the plaintiff was injured at the following location:  “Main Street by Maiden Lane.” A further description in the notice indicates that the plaintiff was walking southbound on Main Street when she was injured, and that the “manhole/pothole” was “located in the roadway in the area of Maiden Lane and Main Street ․”

Thus, the plaintiff advised the defendant that she was injured on Main Street, and that she was walking southbound on Main Street when she was injured, but the notice does not indicate whether she was walking on the east or west side of Main Street.   Furthermore, the notice does not indicate whether the defect was north or south of the intersection of Main Street and Maiden Lane, nor does it indicate how far from the intersection the defect was to be found.

In his affidavit Maggi attests that he personally investigated the alleged defective condition.   He drove to the intersection of Main Street and Maiden Lane, and walked the entirety of the intersection of Main Street and Maiden Lane. He could not locate any uncovered manhole, any pothole, or any other potentially dangerous condition.   He then drove northbound and southbound on Main Street but was still unable to locate any uncovered manhole, any pothole, or any other potentially dangerous condition.   Maggi noted, in particular, that he could not inspect the entirety of the roadway because vehicles were parked on both sides of the road.   One of the photographs attached to Gavenas' affidavit seems to show a pothole in a location approximately five feet from the side of the road, which comports with the allegation in the plaintiff's complaint.   Compl. ¶ 3.   As the defendant points out, such a location creates the distinct possibility that a parked car might cover the defect, preventing an inspector from seeing it.²

It is true, and our Supreme Court has recognized, that “in many cases exactness of statement as to place cannot be expected, for the excitement and disturbance caused by the accident ․ make it impossible to observe with any carefulness the place where the accident [occurred] ․ In such cases reasonable definiteness is all that can be expected or should be required.”   (Internal quotation marks omitted.)  Filippi v. Sullivan, supra, 273 Conn. 9–10.   This is not such a case.   Gavenas' affidavit and its attached photos reveal that the plaintiff knew that the alleged defect was a pothole and she knew its precise location.   However, in her notice, she described the defect as a “manhole/pothole,” she did not reveal its precise location, and she failed to attach to her notice the photographs of the defect.   In fact, she did not even alert the defendant to the fact that she possessed such photographs.

In view of the foregoing circumstance and the fact that the plaintiff possessed photographs of the alleged defect on the same day that she prepared the notice;  compare Gavenas Aff. ¶ 4 with the notice;  the plaintiff should have provided a notice that was significantly more accurate and precise.   There was no basis for the plaintiff's suggestion that the defect was, in any way, a manhole, particularly since Gavenas, who prepared the notice, personally observed the defect on the day she signed the notice.   At a minimum, the plaintiff should have indicated whether the defect was north or south of Maiden Lane;  she should have provided the approximate dimensions of the defect;  and she should have alerted the defendant to the fact that she possessed photographs of the defect.

This court concludes that the plaintiff's notice provided insufficient information about the place where the injury occurred, depriving the defendant of the ability to gather information that it needed to protect its interests.   The court finds, as a matter of law, that the notice given by the plaintiff was patently insufficient.

V

CONCLUSION

For the foregoing reasons, the motion to dismiss the complaint is granted.

BY THE COURT,

John A. Danaher III, J.

FOOTNOTES

FN1. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  (Internal quotation marks omitted.)   Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).   “Where ․ the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).  “[A]ffidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists.”  (Emphasis omitted;  internal quotation marks omitted.)   Weihing v. Dodsworth, 100 Conn.App. 29, 39, 917 A.2d 53 (2007);  see generally Practice Book § 10–30(c) (motion to dismiss “shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record”)..  FN1. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  (Internal quotation marks omitted.)   Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).   “Where ․ the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).  “[A]ffidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists.”  (Emphasis omitted;  internal quotation marks omitted.)   Weihing v. Dodsworth, 100 Conn.App. 29, 39, 917 A.2d 53 (2007);  see generally Practice Book § 10–30(c) (motion to dismiss “shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record”).

FN2. The court notes that the complaint describes the pothole as only “eight inches in circumference and two inches in depth.”   Compl. ¶ 3.   A pothole that is eight inches in circumference would be approximately 2.5 inches in diameter.   Diameter = circumference x .3183 See North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5004758–S (October 13, 2009, Tierney, J.T.R.) (trial court has inherent power to make mathematical calculations).   It is particularly important to be specific about the location of an alleged defect that is so small..  FN2. The court notes that the complaint describes the pothole as only “eight inches in circumference and two inches in depth.”   Compl. ¶ 3.   A pothole that is eight inches in circumference would be approximately 2.5 inches in diameter.   Diameter = circumference x .3183 See North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5004758–S (October 13, 2009, Tierney, J.T.R.) (trial court has inherent power to make mathematical calculations).   It is particularly important to be specific about the location of an alleged defect that is so small.

Danaher, John A., J.