Opinion
UWYCV156028120S
07-29-2016
Cassandra Day v. Borough of Naugatuck et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Andrew W. Roraback, J.
FACTS
On August 18, 2015, the plaintiff, Cassandra Day, filed a two-count complaint. Count one asserts a cause of action sounding in negligence against the defendants the borough of Naugatuck, James Stewart, and Robert Roland. Count two asserts a cause of action sounding in negligence against the Connecticut Department of Transportation (the DOT).
The defendant, the DOT, filed the present motion to dismiss count two of the complaint and therefore, count two will be the only count discussed in this memorandum. Additionally, the defendants, the borough of Naugatuck, James Stewart, and Robert Roland, are not parties to the present motion to dismiss, and therefore, the DOT will be referred to as the defendant herein.
Unique and unusual facts give rise to these claims. For the purposes of deciding this motion, the plaintiff and the moving defendant agree that the plaintiff fell because of what she alleges was the negligent maintenance of the cover of a small metal box owned by the defendant, which contained equipment used to control traffic signals on a state highway in Naugatuck. This metal box was buried entirely within a sidewalk and its cover constituted a constituent component of that sidewalk. This sidewalk is owned by the borough of Naugatuck, and is located in the state highway right of way outside of a Dunkin Donuts store. The plaintiff alleges that the defective box cover was loose and that it moved as she stepped on it. That movement caused her to fall, resulting in injury to her left foot and leg.
The plaintiff further alleges that because the unsecured metal box cover was under the ownership and control of the defendant, the defendant had a statutory duty pursuant to General Statutes § 13a-144 to keep and maintain the box cover insofar as it was an integral part of the sidewalk. The plaintiff alleges the unsecured metal box cover was used as a part of the sidewalk, and it was in this dangerous and unsafe condition on account of the defendant's failure to properly maintain it.
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, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice."
On January 21, 2016, the defendant filed the present motion to dismiss count two of the complaint, together with a supporting memorandum of law. The defendant moves to dismiss this count on the ground of sovereign immunity. The defendant claims that the court lacks subject matter jurisdiction because the allegedly defective metal box cover is not a sidewalk which the defendant had a statutory duty to maintain. The plaintiffs filed an objection to this motion on February 24, 2016, together with a supporting memorandum of law. The matter was heard at the short calendar on April 4, 2016.
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). " 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 . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " [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).
The defendant argues that the state is immune from suit in the present action because a fall caused by a metal box does not come within the express exceptions to sovereign immunity set forth in § 13a-144. The defendant maintains that the state ought only be subject to suit under § 13a-144 if the plaintiff's fall was caused by a sidewalk which the defendant was obligated to maintain. In support of this argument, the defendant has offered the affidavit of Aron Steeves, the Transportation Maintenance Planning Manager for the Bureau of Highway Operations of the State of Connecticut. The defendant relies on this affidavit to support its contention that the defendant was under no duty to maintain this sidewalk and therefore, the statutory waiver of § 13a-144 should not apply. The defendant also argues that the legislature has identified in statutes specific sidewalks which the defendant is explicitly obligated to maintain. Because this fall did not occur on one of these expressly named sidewalks, the defendant maintains this suit is barred. Lastly, the defendant asserts that even though it owned and controlled the metal box cover located " within the sidewalk, " the entity charged with maintaining the sidewalk remains responsible to maintain the metal cover as well.
The legislature has codified the DOT's responsibility to maintain certain particular sidewalks and classes of sidewalks. General Statutes § 13a-91(a) refers to sidewalks on bridges, General Statutes § 13a-258 refers to sidewalks abutting highway construction and General Statutes § 13a-92 refers to sidewalks on two bridges over the Connecticut River. However, § 13a-144 makes no reference to any of the statutes referenced in this footnote. Whether it is the duty of the Commissioner of Transportation to keep a particular sidewalk in repair for purposes of liability under § 13a-144 therefore requires a case specific factual inquiry.
In her objection, the plaintiff argues that sovereign immunity does not protect the defendant from suit because in this case, the metal box cover was used as and located entirely within a sidewalk and thus falls within the ambit of the sidewalk exemption found in § 13a-144. As a result, because the metal box cover is admitted in the Steeves' affidavit to be owned and controlled by the defendant, and because it is " within the sidewalk, " the plaintiff argues that the maintenance and repair of the metal box cover was the responsibility of the defendant to a degree sufficient to bring the facts of this case within the scope of § 13a-144. Therefore, the plaintiff maintains that count two should not be dismissed.
" The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). " We have long recognized the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant . . . The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Citation omitted; internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
" We have also recognized that . . . the 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." (Citation omitted; internal quotation marks omitted.) Amore v. Frankel, 228 Conn. 358, 364-65, 636 A.2d 786 (1994). " 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. While negligence was a common law tort, there was no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory . . . The state highway liability statute imposes the duty to keep the state highways in repair upon the highway commissioner; that is the statutory command. Therefore, because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." (Citations omitted.) White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). " [Section] 13a-144 provides that the state may be liable for injuries that result from a defective . . . sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . ." (Emphasis in original; internal quotation marks omitted.) Grudzinski v. Branford, Superior Court, judicial district of New Haven, Docket No. CV-08-6001881-S (March 31, 2010, Lager, J.) (49 Conn.L.Rptr. 590, 591, ).
In Lefler v. State, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022711-S (January 30, 2015, Heller, J.) (59 Conn.L.Rptr. 698, ), the plaintiff filed a complaint against the defendant, the state of Connecticut, to recover for injuries that she allegedly suffered when she fell on a stairway at a train station in Old Greenwich. The plaintiff claimed that the defendant was liable to her under the highway defect statute, § 13a-144. Id. The defendant moved to dismiss the complaint on the ground that the court lacked subject matter jurisdiction because the claim was barred by the doctrine of sovereign immunity. Id. Specifically, the defendant argued that the stairway did not constitute a " sidewalk" within the meaning of § 13a-144, and the plaintiff countered that the stairway is in fact a " sidewalk" for the purposes of § 13a-144. Id., 699, . Moreover, in support of its motion to dismiss, the defendant submitted the affidavit of the Transportation Supervising Rail Officer of the Connecticut Department of Transportation, in which he stated that the defendant did not maintain the stairway upon which the plaintiff allegedly fell, nor did it own or control the stairway. Id.
The court, in considering whether the stairway constituted a " sidewalk" within the meaning of § 13a-144, stated: " Black's Law Dictionary defines a sidewalk as a walk for foot passengers at the side of a street or road. For purposes of . . . § 13a-144, the term sidewalk is narrowly construed, because sidewalks serve local convenience almost wholly . . . In Hu v. Metro-North Commuter Railroad . . . the court held that the waiting platform at the Stamford train station was not a sidewalk . . . within the meaning of General Statutes § 13a-149 . . . because the general public does not have a right to use it equal to that of a commuter." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 700-01, . Applying the definition of " sidewalk" and the Hu analysis, the court granted the defendant's motion to dismiss and concluded, " the stairway is not a sidewalk within the scope of . . . § 13a-144." Id., 701, ; see also White v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV-15-6055608-S (February 17, 2016, Blue, J.) (61 Conn.L.Rptr. 785, 786, ) (" A sidewalk is that part of the street set aside for use by pedestrians . . . A railroad platform is not along a public street, it is not used in connection with the rest of the street, and it is not a part of the street . . . The [railroad] platform was built not for pedestrians but for the convenience of users of the railroad").
Section 13a-149 provides: " 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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written 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, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable there for. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
In contrast, in Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 151, 7 A.3d 414 (2010), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011), the plaintiff filed a negligence action against the defendant to recover from injuries from allegedly stepping into an improperly positioned storm drain located on a sidewalk. The defendant filed a motion to dismiss on the basis that the plaintiff's claims fell under the purview of § 13a-149, and his claim was barred due to noncompliance with the notice requirement. Id., 152. The Appellate Court stated, " [s]ince the cover of the storm drain was located on a sidewalk, it was reasonable to anticipate that the public would encounter it in the ordinary course of travel . . . Thus . . . the facts . . . in the pleadings constituted a highway defect for the purposes of § 13a-149." (Citation omitted; emphasis added.) Id., 161; see also Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998) (" The term sidewalk is meant to apply to those areas that the public uses for travel"); Harding v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-13-6043154-S, (July 17, 2014, Nazzaro, J.) (" The cause of slipping on a metal grate, located within the sidewalk, is within the parameters of a slippery sidewalk since the metal grate, within the sidewalk, could have been slippery").
Unlike the stairway in Lefler and the railroad platform in White, which the court concluded were not walkways for foot passengers located adjacent to highways, the unsecured metal box cover in this case is more akin to the metal grate in Bartlett, which was located within and used as a " sidewalk." As such, the metal box cover in this case falls within the scope of § 13a-144. The metal box cover is within, annexed to, and is a " part of' the sidewalk, since it is unavoidable to the general pedestrian in the ordinary course of travel on the sidewalk. Thus, the unsecured metal box cover, being a part of the walkway itself, can be interpreted to be a " sidewalk" within the scope of § 13a-144, since it is used for travel by the public and is " along a public street, is used in connection with the rest of the street, and is part of the street." White v. National Railroad Passenger Corp., supra, 61 Conn.L.Rptr. 786, . Therefore, the doctrine of sovereign immunity does not operate to deprive the court of subject matter jurisdiction over count two of the complaint.
CONCLUSION
For the reasons stated above, the defendant's motion to dismiss count two of the complaint is denied.