Opinion
No. CV-09-6004614S
February 26, 2010
RULING ON TOWN OF NORTH BRANFORD'S MOTION TO DISMISS (#111)
This is a wrongful death case that arises from a motor vehicle accident which occurred on July 3, 2007 when Joseph D. Ashby, II, who was operating a motorcycle, was struck by a motor vehicle driven by David Miscio in the intersection of Village Street and Middletown Avenue in North Branford, Connecticut. The plaintiff alleges, in part, that Miscio claims he was unable to see Ashby because of "an overgrowth of trees and/or a guardrail and/or a pole and/or a street sign at the intersection where the accident occurred." (Complaint ¶ 14.) Ashby subsequently died, on July 5, 2007, of the injuries he sustained in the collision. The second count of the complaint is directed against the Town of North Branford (town) and alleges that the accident resulted from the town's failure "to reasonably maintain the intersection to prevent the overgrowth of trees and . . . to remove objects that interfered with drivers' visibility."
Although the municipal highway defect statute, General Statutes § 13a-149, is not specifically cited in the second count against the town, the allegations clearly state a claim within its purview and the parties have argued this motion with that understanding.
The town moves to dismiss the second count of the complaint against it on the ground that the plaintiff failed to provide the requisite notice to the town pursuant to General Statutes § 13a-149, the municipal highway defect statute. That statute provides, in relevant part, that no personal injury suit "shall be maintained against any town . . . 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 . . ." The town supports its motion with the affidavit of Lisa Valenti, the town clerk for North Branford, who avers that she "performed a comprehensive search of the town's records from July 2007 until the present and found that there was no notice of intention filed by the estate of Joseph D. Ashby II."
In response, the plaintiff maintains that a police report of the incident, which was attached to plaintiff's objection, was sufficient to provide the requisite notice. The plaintiff also requested that the court allow additional time for her to conduct discovery, including to depose members of the North Branford Police Department, regarding notice of the incident. The court gave plaintiff's counsel two additional weeks following oral argument so that she could search the records of the town clerk, as well as contact predecessor counsel, to ascertain whether any notice was submitted to the town. On February 24, 2010, counsel e-filed an affidavit (#117) in which she avers that, on February 22, 2010, she went to the North Branford Town Hall and "[t]he Town Clerk, Lisa Valenti, permitted me to review a box of notices of claims, summonses and complaints dating back to the year 2007. I did not find a notice of Mr. Ashby's claim in that box. I did not review any other documents at Town Hall."
The attached police report was subscribed and sworn to on October 17, 2007 which was more than ninety days after the occurrence of the collision on July 3, 2007.
A defective highway claim under General Statutes § 13a-149 is not a claim arising from negligence, but is one for breach of a statutory duty. Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981). The statute provides the only remedy for a party who claims to have been injured because of a town's defective road. Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001); General Statutes § 52-557n(a)(1)(C). "Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiff's ability to recover when he or she is injured on a public highway." Prato v. New Haven, 246 Conn. 638, 647, 717 A.2d 1216 (1998). "As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements." Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
Section 13a-149 "requires that a written description of the accident, its causes, and when and where it occurred be directed to and received by a proper official." (Emphasis supplied.) Brennan v. Fairfield, 255 Conn. 693, 707, 768 A.2d 433 (2001). The statute unambiguously designates the proper municipal official as "a selectman or the clerk of such town." The "normal course of delivering a legally required notice to a municipal official [is to deliver it] to the municipal office of that official," id., 703, here the office of the town clerk. The undisputed evidence before this court is that no notice of the collision which resulted in Ashby's death, containing the statutorily required information, was directed to and received by the town clerk for North Branford within the requisite ninety days.
The plaintiffs claim that the police report sufficed as notice of the estate's intention to bring suit pursuant to § 13a-149 is controlled by Bellman v. West Hartford, 96 Conn.App. 387, 397-98, 900 A.2d 82 (2006). In Bellman, to establish the requisite timely notice, the plaintiff relied on an e-mail message that her supervisor sent to the supervisor of the town's community center on the date of her injury advising her that the plaintiff had fallen on town property that day on her way to work. The Appellate Court concluded that the e-mail "was not given to any of the persons designated to receive notice by the clear and unambiguous language of § 13a-149. An insinuation that the proper individual most likely received notice from another town employee is not sufficient to satisfy the statutory requirement. Information provided by third party sources to the selectman or town clerk, no matter how precise, cannot cure defects in the plaintiff's notice . . . It was not the defendant's burden to demonstrate that it did not receive the e-mail relied on by the plaintiff as satisfying the statutory notice requirement." Id., 398-99. In this case, the plaintiff has failed to meet her "burden of proving delivery and actual receipt of notice." Rivera v. Meriden, 72 Conn.App. 766, 769, 806 A.2d 585 (2002). Without the requisite notice, the plaintiff cannot state a cause of action under § 13a-149. See Bagg v. Thompson, 114 Conn.App. 30, 41 (2009).
Based on the foregoing, the court concludes that it lacks subject jurisdiction over the defendant town. Accordingly, the motion to dismiss the second count of the complaint is granted.