Andrea Trout v. Town of Ledyard et al. (2015)

MEMORANDUM OF DECISION RE Motion to Dismiss # 117

ISSUE

Whether the court should grant the defendant's motion to dismiss count four of the plaintiff's complaint on the ground that the plaintiff's claims are barred by sovereign immunity.

FACTS

The plaintiff, Andrea Trout,¹ filed a four-count complaint on August 28, 2013.   In count four of the complaint, which is the only count at issue, the plaintiff alleges the following facts.   On or about May 25, 2012, the plaintiff attended “Challenge Day,” an event involving her children at the Ledyard Center School.   She parked her vehicle at the Ledyard town center due to Challenge Day parking limitations at the school.   At approximately 1:15 p.m., the plaintiff left the school to return to her vehicle and walked down to the sidewalk to use a crosswalk spanning Route 117 between the school and town center.   While walking off the sidewalk into the roadway at the crosswalk, the plaintiff tripped and fell.   Her foot rolled off of an unexpected and unseen lip or curb of asphalt and she fell into the road, sustaining serious injuries.

The plaintiff further alleges that:  the defendant, the Commissioner of the State of Connecticut Department of Transportation, had a duty to repair and maintain the area of the roadway extending onto and connecting with the sidewalk;  the defendant negligently failed to do so or to otherwise remedy the defect that caused the plaintiff to fall in spite of previous complaints that the sidewalk was unsafe;  the Department of Transportation and/or its employees and/or contractors repaved Route 117 in October 2011;  and during the repaving, the DOT poured asphalt on the area of the sidewalk connection/intersection or junction with the traveled portion of the roadway thereby creating the lip or curb that caused the plaintiff to fall.

On October 16, 2014, the defendant filed a motion to dismiss count four of the complaint on the ground that the plaintiff's claims are barred by the doctrine of sovereign immunity.   The motion was accompanied by a memorandum of law and exhibit 1, a photograph of where the sidewalk met the road at the scene of the accident.   On November 12, 2014, the plaintiff filed an objection to the motion to dismiss, along with a memorandum of law and exhibits A and B, photographs of the area of the fall taken from a different angle.   On December 2, 2014, the defendant filed a reply memorandum, and on December 10, 2014, the plaintiff filed her own reply.

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.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  MacDermind, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).  “A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide.”  (Internal quotation marks omitted.)  Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740–41, 84 A.3d 895 (2014).

“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).  “[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).  “Lack of a statutory waiver of [sovereign] immunity is a jurisdictional defect properly raised by a motion to dismiss.”  Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10–31(a)(1) may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts ․ Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.”   (Citation omitted;  footnote omitted;  internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).

“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, supra, 292 Conn. 651.

“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] ․ 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;  emphasis in original;  footnote omitted;  internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 651–52.  “[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.

The defendant argues that plaintiff's claims are barred by sovereign immunity because she has not alleged that she was injured by a defective highway that the defendant had a duty to maintain and repair, and that therefore sovereign immunity has not been waived pursuant to General Statutes § 13a–144.   Specifically, the defendant argues that the plaintiff has alleged a defect in the sidewalk maintained by the town, not the highway maintained by the state.   The defendant further argues that the plaintiff has not alleged that the defect was an obstruction or hindrance to travel, and that the transition between the sidewalk and roadway was therefore not a highway defect within § 13a–144.

The plaintiff counters that the alleged defect is part of the roadway, not the sidewalk, and that the defendant created this defect during the resurfacing of Route 117.   The plaintiff further argues that the defect impeded travel because it did not provide a proper sloping transition between the sidewalk and the roadway.

“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 Supreme 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 ․ Accordingly, in an action seeking damages against the state, 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 ․” (Emphasis in original.)  Hicks v. State, 297 Conn. 798, 801–02, 1 A.3d 39 (2010).

Section 13a–144 provides:  “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.”  “The state highway liability statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state ․ [A] plaintiff, in order to recover, must bring himself within § 13a–144.”  (Internal quotation marks omitted.)  McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005).  “[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 is a question of law ․” (Internal quotation marks omitted).  Id.

“[A] highway defect is [a]ny 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).  Id., 268–69.  “[A]lthough § 13a–144 generally covers only those defective conditions that are in or part of the roadway itself, there may be circumstances in which any object or hindrance that is not part of the roadway, but that, from its nature and position in, upon, or near the roadway, could constitute a highway defect if that object or hindrance actually obstructs travel.”  (Emphasis in original.)  Id., 274.  “[A] condition or hazard is not a highway defect for purposes of the statute unless and until the condition or hazard is in the roadway or so close to it that it actually obstructs or impedes travel upon the roadway.”  Id., 272.  “[I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.”  Id., 269.  “Whether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier ․” (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999).

The Supreme Court “has recognized that, when the state either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the statute.”  Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 504–05, 876 A.2d 1148 (2005).   In Kozlowski, supra, the plaintiff was an employee of a road construction contractor.  Id., 499.   In the course of his employment, he stepped on a defective catch basin cover, which broke and caused him to fall into the catch basin.  Id. The defendant Commissioner of Transportation moved to dismiss, and submitted several photographs of the catch basin and the surrounding area.   Id., 504 n.7. The “location and the nature of the condition” that caused the injury were undisputed.  Id., 503–04.   The Supreme Court concluded that the plaintiff's allegations regarding the defective catch basis could not, as a matter of law, constitute a highway defect.  Id., 507.   The Supreme Court reasoned that the defect did not impede travel, as travelers were “neither likely nor expected to traverse the catch basin area.”  Id., 506.   The Supreme Court distinguished Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), in which the plaintiff fell on a patch of ice in a parking area between the paved portion of the highway and the sidewalk.   In that case, “it was proper for the jury to conclude that the condition was a defect within the meaning of § 13a–144, thereby warranting a verdict for the plaintiff,” because “[t]he plaintiff and the public in general were encouraged to use this area for parking and it was reasonably to be expected that after parking her car the plaintiff would cross the dirt and grass area to reach the sidewalk.”  Id., 301–02.

“Sidewalks ․ serve local convenience almost wholly and have no relation to, nor do they contribute to, the facilitating of that public travel which the State aims to serve by the establishment of ․ roads between the towns and across the State.”  Griffith v. Berlin, 130 Conn. 84, 86–87, 32 A.2d 56 (1943).  “[T]he statutes dealing with state highways and the duties of the highway commissioner [are] concerned with vehicular traffic and the incidents thereof ․ sidewalks are subjects of purely local interest.”  Hornyak v. Fairfield, 135 Conn. 619, 621–22, 67 A.2d 562 (1949).

In the present case, the defendant submits a photograph of the area where the plaintiff fell with his memorandum in support of his motion to dismiss.   A lip or curb of asphalt separating the sidewalk from the road is visible in the photograph.   This evidence, however, does not establish that no genuine issue of material fact exists as to whether the asphalt lip was a highway defect within the ambit of § 13a–144.   The court cannot decide just from looking at this photograph whether the alleged defect was part the sidewalk or the road or both, or whether the asphalt lip actually obstructed travel.   Unlike the photographs of the catch basin in Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 504 n.7, from which the court could discern that the catch basin was in an area unintended for travel, the photograph in the present case does not conclusively establish that the defect is in the sidewalk rather than the roadway.   These are questions of fact for the jury.   Thus, the evidence does not conclusively establish that the court lacks subject matter jurisdiction.

The defendant has not, by way of the photograph, established any supplementary undisputed facts for the court to consider in determining subject matter jurisdiction.   Because the photograph fails to call into question the plaintiff's allegation that the roadway was in a defective and dangerous condition, the plaintiff had no burden to supply counterevidence to support her complaint.   Accordingly, the court need not consider the photographs submitted by the plaintiff, and will decide the question of subject matter jurisdiction on the basis of the complaint alone, presuming the validity of allegations and viewing them in their most favorable light.

In count four, the plaintiff alleges that the Department of Transportation “and/or its agents, servants, employees and/or contractors” poured the asphalt that created the curb or lip that caused the plaintiff to fall.   The plaintiff further alleges that the defendant had a duty to repair and maintain the roadway, including the asphalt curb or lip that connected with the sidewalk.   Most importantly, the plaintiff alleges that because the curb or lip “was neither visible nor anticipated by passerby,” the roadway was in a defective and dangerous condition.   These allegations, presumed to be true and viewed in the light most favorable to the plaintiff, are sufficient to bring her claim within the § 13a–144 exception to sovereign immunity.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss.

ZEMETIS, J.

FOOTNOTES

FN1. The court notes that the caption of the complaint also lists Tim Trout as a plaintiff, but the complaint does not otherwise identify Tim Trout nor include any claims brought on his behalf.   The remainder of this memorandum refers only to Andrea Trout as the plaintiff..  FN1. The court notes that the caption of the complaint also lists Tim Trout as a plaintiff, but the complaint does not otherwise identify Tim Trout nor include any claims brought on his behalf.   The remainder of this memorandum refers only to Andrea Trout as the plaintiff.

Zemetis, Terence A., J.