Opinion
CV166067492S
11-07-2016
Cathy Brooks v. Commissioner of Transportation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#120)
Jane S. Scholl, J.
In her complaint, the plaintiff, Cathy Brooks, alleges that at all times mentioned in the complaint, Blue Hills Avenue in Hartford was a state road which included adjacent sidewalks which were the duty of the Commissioner of Transportation to maintain. The plaintiff claims that she was caused to trip on a raised metal stump in the red brick portion of the sidewalk between the concrete portion of the sidewalk and the curb in front of 671 Blue Hills Avenue. She alleges that the stump was what remained after a parking sign connected to it was removed.
The plaintiff brings her claim against the Commissioner pursuant to General Statutes § 13a-144 which 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 Commissioner has moved to dismiss the action, arguing that the Commissioner did not have a duty to maintain the area where the plaintiff allegedly fell and that responsibility for the area rested with the city of Hartford pursuant to an Encroachment Agreement between the city and the state. In addition, the Commissioner claims that the sidewalk was not within the state highway system nor did the state have a duty to maintain it, thus the plaintiff's claim does not fall within the purview of General Statutes § 13a-144.
" It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued . . . The legislature waived the state's sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-44 . . . The statute imposes the duty to keep the state highways in repair upon the . . . commissioner . . . and authorizes civil actions against the state for injuries caused by the neglect or default of the state . . . by means of any defective highway . . . There being no right of action against the sovereign state at common law, the plaintiff[s] must prevail, if at all, under § 13a-144 . . . [T]he doctrine of sovereign immunity implicates [a court's] subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . 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 . . . In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court must consider the allegations of the complaint in their most favorable light . . . including those facts necessarily implied from the allegations . . . A trial court considering a motion to dismiss may, however, encounter different situations, depending on the status of the record in the case . . . [I]f 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 . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 348-50, 141 A.3d 784 (2016). " 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 allegation into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. Finally, where 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 . . ." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009).
In support of the motion to dismiss, the Commissioner submitted the affidavit of a Transportation Claims Investigator for the Department of Transportation. She states that pursuant to an Encroachment Agreement with the city of Hartford, the city " was responsible for all physical maintenance of the streetscape project which area encompasses the area where the plaintiff alleges she fell." She also states that the sidewalk where the plaintiff alleges she fell is not part of the state highway system and that the state was not the party responsible to maintain the streetscape where the plaintiff allegedly fell.
General Statutes § 13a-16 provides, in part: " The state highway system shall be that system of highways as shown on the official map marked 'State of Connecticut, State Highway System, Committee to Reclassify All Public Roads, Edwards and Kelcey--Engineers and Consultants, January 13, 1961' and on file in the office of the commissioner and the Secretary of the State, as the same may be altered from time to time in accordance with the provisions of sections 13a-42, 13a-43, 13a-44, 13a-45 and 13a-56 and any other provisions of the general statutes authorizing or empowering the commissioner to plan, construct, reconstruct, repair, improve, manage, maintain and operate any highway . . ."
The documents submitted by the Commissioner indicate that in 2007 the Department of Transportation, pursuant to an Encroachment Permit, granted permission to the city of Hartford to work within the highway right of way. The highway identified in the permit is Blue Hills Avenue. The permit allows the city to construct streetscape improvements on Route 187, which is Blue Hills Avenue. The improvements consist of a new granite curb, new sidewalks, ornamental illumination and new pavement. The agreement provides that the city " shall provide, upon the completion of the Project, all physical maintenance of all portions of the Project within the State highway limits . . ."
The plaintiff did not submit any evidence in the form of affidavits or other evidence in opposition to the motion to dismiss, but argues a different interpretation of the documents submitted by the Commissioner such that the court should find that the state was responsible for the area where the plaintiff allegedly fell. Since the facts appear to be undisputed, the court can determine the motion to dismiss without an evidentiary hearing.
The plaintiff argues that Blue Hills Avenue is part of the state highway system, however the plaintiff alleges that she was caused to fall while she was walking, not on the highway, but on the sidewalk adjacent to the highway.
" To determine the State's liability, the court must examine the law applicable to defective sidewalks. It is important to note that our Supreme Court has recognized a distinction between the state's duty as it pertains to state highways and its duty regarding sidewalks. In Moleske v. MacDonald, 109 Conn. 336, 341, 146 A. 820 (1929), the court held that the highway commissioner has no duty to maintain sidewalks lying along trunk line highways because they 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 [state highways]. Therefore, the statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely. This is true even . . . [if] the sidewalk is within the limits of a trunk-line highway, the claimed defective condition existed within those limits, and the condition arose because of the neglect of the highway commissioner. The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk which it is the duty of the highway commissioner to keep in repair. Ordinarily, this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies within the limits of a trunk-line highway . . . Moleske [ v. MacDonald ] remains the law today. Significantly, the legislature has underlined the correctness of this approach by specifically designating a limited number of sidewalks that are to be maintained by the commissioner . . . Indeed . . . the law involving the state's duty of care with respect to sidewalks associated with its highways is somewhat distinctive and is by now well established . . . [O]ther than sidewalks which the legislature has specifically designated to be maintained by the state, the maintenance of sidewalks primarily remains the responsibility of local municipalities . . . The degree of control or ownership evidenced by a right-of-way does not establish that the state had any duty to maintain that area . . . [T]he retention of the power to require encroachment permits from persons wishing to perform work within a right-of-way alongside a state highway cannot reasonably be understood as an assumption of plenary control over all sidewalks within that right-of-way. Instead, it is properly . . . understood as incidental to [the state's] fundamental responsibility to take care of the highways themselves, not as an independent assertion of control over all land adjacent thereto and all improvements, including sidewalks, thereon . . . As such, and in the absence of the state's explicit consent to be sued, as manifested by those statutes which impose upon the state an express duty to maintain specific sidewalks . . . [an] action against the state is barred by the doctrine of sovereign immunity . . ." (Citations omitted; internal quotation marks omitted.) Plaza v. JP Investments, LLC, Superior Court, Judicial District of New London, Docket No. CV095010993S (Cosgrove, J., February 7, 2011) [51 Conn.L.Rptr. 370, ].
The situation here is much like that in Plaza . Although the state may have assumed some control over the right-of-way along Blue Hills Avenue such as to require an encroachment permit before the city could perform work in the area, that does not mean that the state assumed control of the area such as to become liable for maintenance of the sidewalk. The encroachment agreement clearly provides that the city shall be responsible for the sidewalk. In addition, there is no claim made by the plaintiff that the sidewalk here has been identified through legislation as one that the state has an express duty to maintain. Thus the state had no duty to maintain the sidewalk. Consequently, the plaintiff's claim does not come within the waiver of sovereign immunity set forth in General Statutes § 13a-144 allowing a suit against the Commissioner by a person injured in person through the neglect or default of the state by means of any defective sidewalk which it was the duty of the Commissioner of Transportation to keep in repair.
The state cannot be sued without its consent and the state has not consented to be sued for injuries sustained on the sidewalk where the plaintiff allegedly fell. Therefore, the motion to dismiss is granted.