Opinion
No. CV07 5008745 S
August 3, 2009
MEMORANDUM OF DECISION
In his six-count revised complaint, the plaintiff, Robert Hyde, alleges that in December 2005, he slipped and fell while walking on a pathway at the railroad station in Bethel, Connecticut. He specifies that the place where he fell was a "walkway, sidewalk or pathway leading to the catwalk from the parking area to the railroad station . . ." (Revised Complaint paragraph 2(a).) He alleges that he fell because the pathway was covered with ice that was concealed by snow, and that, as a result, he suffered severe, painful and permanent injuries. The plaintiff pleads the same two causes of action against each of the three defendants: one count of negligence and breach of statutory duty, and one count of creating and maintaining a public nuisance. Counts one and four are against the town of Bethel, counts two and five are against the State of Connecticut Department of Transportation and counts three and six are against Metro North Commuter Railroad.
On June 30, 2008, Bethel filed a motion to strike counts one and four on the grounds of governmental immunity, failure to state a claim upon which relief can be granted and that General Statutes § 13a-149, the municipal defective highway statute, is the plaintiff's exclusive remedy. The plaintiff did not file a motion in opposition. As a result, the court, Zoarski, J., granted the motion. On January 30, 2009, Metro North Commuter Railroad filed a motion for summary judgment on counts three and six on the grounds that it did not own, possess or control the premises, it did not use the land or intentionally fail to keep it safe, and thus it owed no duty to the plaintiff The plaintiff did not file a motion in opposition. The court, Zoarski, J., granted the motion without articulating its reason for doing so. The court subsequently entered judgments in favor of Bethel and Metro North Railroad.
Count two, negligence and breach of statutory duty, and count five, creating and maintaining an absolute public nuisance, remain against the state department of transportation, hereinafter referred to as the defendant. In count two, the plaintiff alleges the following. The defendant has a statutory and common-law duty to make the pathway safe and keep it free from ice and snow and, with reasonable diligence, knew or should have known the pathway was slippery. The defendant breached its duty by failing to remove the ice and snow, warn pedestrians of the slippery conditions and otherwise make the pathway safe for pedestrian traffic. In count five, the plaintiff incorporates all of the allegations in count two and further alleges that the defendant, with reasonable diligence, knew or should have known a dangerous condition existed on the public pathway, and by failing to remedy that condition created and maintained an absolute public nuisance, which caused the plaintiff's injuries.
Specifically, the plaintiff alleges the defendant breached its duty in one or more of the following ways: (a) the pathway was constructed in a dangerous manner; (b) they allowed that dangerous, defective and unsafe condition [the icy sidewalk] . . . to come about and exist; (c) they failed to warn of that condition; (d) they failed to remedy that condition; (e) they failed to inspect for that condition and to discover it; (f) they failed to cordon off the area; (g) they failed to keep said pathway in a condition such that the public could safely use it; and (h) they failed to provide any railings or other devices for use when the pathway was slippery or dangerous.
On October 10, 2008, the defendant filed a motion to dismiss counts two and five on the ground of sovereign immunity. The defendant filed a memorandum of law in support of the motion along with several pages of the plaintiff's deposition testimony and a photograph of the sidewalk, taken by the plaintiff, showing approximately where the plaintiff fell. The plaintiff filed a motion in opposition on June 29, 2008.
The defendant's motion challenges the court's subject matter jurisdiction. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (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.) Id. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Nevertheless, "[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).
The defendant argues that it has no duty to maintain and repair the pathway in question. According to the defendant, the state has waived its sovereign immunity with respect only to sidewalks that it has a statutory duty to maintain, and no statute commands the defendant to maintain the sidewalks at the Bethel train station. Instead, General Statutes § 13b-314 places the burden of maintaining the grounds of the Bethel train station on the town. Furthermore, the defendant contends any action on a common-law theory of negligence or nuisance is barred by the doctrine of sovereign immunity. Consequently, the doctrine of sovereign immunity bars both count two and count five of the plaintiff's revised complaint. The plaintiff counters that the issue of whether the defendant has any duty to maintain the pathway in question is a matter of fact, and not a matter of law. The plaintiff relies heavily on Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999), to support his argument, specifically emphasizing the following language: " 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 . . ." (Emphasis added; internal quotation marks omitted.) He further argues that the defendant has not filed any affidavits nor made any allegations that the sidewalk the plaintiff slipped on was not state property. The plaintiff does not specifically address the defendant's argument regarding the nuisance claim.
General Statutes § 13b-314 provides: "Maintenance of station by municipality. Any town, city or borough may, by ordinance, provide for the maintenance of any railroad passenger station building and grounds within its limits, or may do so indirectly, by paying the railroad to do such maintenance work, and may make appropriations for such purposes."
The state highway defect statute, General Statutes § 13a-144, provides in relevant part: "Damages for injuries sustained on state highways or sidewalks. Any person injured in person . . . though 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 defect] statute is a legislative exception to the common law doctrine of sovereign immunity and is to be strictly construed in favor of the state . . . [T]here 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 defect] 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02, 876 A.2d 1148 (2005). Accordingly, "[a] complaint is subject to a motion to dismiss . . . if the complaint alleges that the area where the injury occurred is not an area for which the state has a statutory duty to maintain and repair." Tyson v. Sullivan, 77 Conn.App. 597, 602, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). On the other hand, "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." Amore v. Frankel, 228 Conn. 358, 365, 636 A.2d 786 (1994).
Although the plaintiff does not specifically reference § 13a-144 in his revised complaint, "[t]here being no right of action against the sovereign state at common law, the plaintiff must prevail, if at all, under 13a-144." Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972).
To determine the defendant's liability in the present case, 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, [ supra, 109 Conn. 339] . . . Thus . . . [a] complaint [is] . . . fatally inadequate [if it lacks] any allegations showing that it was a sidewalk which it was the `duty of the highway commissioner to keep in repair.'" (Citations omitted.) Tuckel v. Argraves, 148 Conn. 355, 358-59, 170 A.2d 895 (1961). " 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." Gould v. Hartford, 44 Conn.Sup. 389, 395, 691 A.2d 35 (1995) [ 15 Conn. L. Rptr. 254]; see also Kelly v. Commissioner of Transportation, Superior Court, judicial district of New Haven, Docket No. CV 98 0411722 (February 22, 2000, Zoarski, J.). Statutes imposing a duty on the commissioner to maintain sidewalks include General Statutes § 13a-91, General Statutes § 13a-92 and General Statutes § 13a-258, none of which appear to apply to the area where the plaintiff allegedly fell.
General Statutes § 13a-91 provides in relevant part: "Sidewalks on bridges. The commissioner may cause to be constructed or reconstructed a sidewalk on any bridge or approaches to any bridge on any state highway when in his opinion public safety so requires . . . [A]ll sidewalks on bridges or approaches to bridges maintained by the commissioner shall be maintained by said commissioner, and such maintenance shall include responsibility for the removal of snow and ice from such sidewalks."
General Statutes § 13a-92 provides: "Sidewalks on bridges at Thompsonville and Warehouse Point. The sidewalks on the bridges across the Connecticut river at Thompsonville and Warehouse Point shall be maintained by the commissioner."
General Statutes § 13a-258 provides in relevant part: "Maintenance of sidewalks pending completion of highway project. The Commissioner of Transportation shall maintain any sidewalk, including the removal of snow and ice, abutting property acquired for highway purposes, from the date of acquisition until the section of highway for which the property was acquired is completed."
Pursuant to the distinction between the state's duty regarding highways and sidewalks, the plaintiff's reliance on the doctrine stated in Serrano is misplaced. In Serrano, the plaintiff slipped and fell in the parking lot of a rest area adjacent to a state highway. By contrast, here the plaintiff alleges his injuries occurred on a sidewalk leading from the parking area to the railroad station. As the court observed in Gould v. Hartford, supra, 44 Conn.Sup. 393: "The plaintiff relies on the doctrine that [w]hether 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 . . . In the present case, however, the plaintiff has specifically alleged that she fell on a sidewalk. Given this allegation, the defendant must prevail as a matter of law. 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." (Citations omitted; internal quotation marks omitted.); see also Reid v. Korta, Superior Court, judicial district of Hartford, Docket No. CV 06 5002709 (May 16, 2007, Elgo, J.) ( 43 Conn. L. Rptr. 415, 416).
The plaintiff's contention that the court should deny the defendant's motion to dismiss because the defendant did not attach an affidavit to its motion alleging it did not own the sidewalk in question is also misplaced. On the contrary, "[s]ince this action was brought under the provisions of a particular statute, and no right of action exists at common law, the burden [is] on the plaintiff to allege the facts necessary to bring himself within the terms of the statute . . ." (Emphasis added.) Tuckel v. Argraves, supra, 148 Conn. 357; see also Amore v. Frankel, supra, 228 Conn. 367 ("to establish liability under § 13a-144, the plaintiff first must allege sufficient facts to bring the driveway in question within § 13b-30"); Gagne v. National Railroad Passenger Corp., 26 Conn.App. 74, 78, 597 A.2d 836, cert. denied, 220 Conn. 932, 599 A.2d 382 (1991) (to prevail under § 13a-144, plaintiff must establish commissioner had statutory duty to maintain the portion of roadway where defect was located). Here the plaintiff has not alleged any facts nor cited any statutes that impose a duty on the defendant to repair or maintain the sidewalk in question. Simply alleging the defendant breached its statutory duty without referencing any facts or statutes defining that duty is insufficient to bring an action for a defective sidewalk within the ambit of § 13a-144. Consequently, the plaintiff's complaint is "fatally inadequate for lack of any allegations showing that it was a sidewalk which it was the duty of the highway commissioner to keep in repair." (Internal quotation marks omitted.) Tuckel v. Argraves, supra, 148 Conn. 359. See also Rivera v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 05 5000564 (May 22, 2006, Tanzer, J.) ( 41 Conn. L. Rptr. 407, 408) (motion to dismiss granted because plaintiff failed to allege commissioner had statutory duty to maintain sidewalk). Thus, count two of the plaintiff's revised complaint is barred by the doctrine of sovereign immunity.
Practice Book § 10-31(a) provides in relevant part: "The 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." (Emphasis added.)
Count five of the plaintiff's revised complaint alleges the defendant created and maintained an absolute public nuisance. "That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut." Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596 (1963). "[T]here [is] no liability of the sovereign at common law for a defective highway in negligence or on any other common law theory." (Emphasis added; internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501. "Since the state did not consent to the maintenance against it of a common-law action in nuisance, its sovereign immunity was not waived and the common law action alleged . . . [is] not maintainable." Murphy v. Ives, supra, 151 Conn. 264-65. "At no time has the state conferred the privilege of recovery for nuisance." Hillen v. Macdonald, 7 Conn.Sup. 95, 96, (1939). Therefore, the plaintiff cannot maintain an action for nuisance against the defendant, and count five is barred by the doctrine of sovereign immunity.
For the preceding reasons, the motion to dismiss counts two and five of the revised complaint filed by the Connecticut Department of Transportation is granted.