Opinion
FBTCV156053497S
09-01-2016
Richard Sheppard v. City of Bridgeport et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, Judge.
The defendant, James Redeker, Commissioner of the Department of Transportation for the State of Connecticut, has filed a motion to dismiss the second count of the plaintiff's complaint dated October 27, 2015 on the grounds that the court lacks subject matter jurisdiction because the state has sovereign immunity, and the plaintiff's claims do not fall within the waiver of sovereign immunity contained in General Statutes § 13a-144. The defendant has filed a memorandum of law in support of his claims. The plaintiff has filed an objection and memorandum of law opposing the motion to dismiss. The defendant has also filed a reply memorandum in support of his motion to dismiss. The court heard oral argument on June 20, 2016.
This matter arises from an alleged fall claimed to have occurred on April 5, 2014, on a sidewalk adjacent to 458 Connecticut Avenue, a/k/a Route 130 in Bridgeport, Connecticut. The plaintiff alleges as he exited his vehicle and stepped onto the sidewalk, he tripped and fell on loose bricks surrounding a tree bed which had become detached from the sidewalk. The plaintiff filed a two-count complaint alleging a claim against the City of Bridgeport pursuant to General Statutes § 13a-149 and a claim against the State of Connecticut pursuant to General Statutes § 13a-144, respectively. Paragraph 2 of the Second Count against the State of Connecticut alleges the state is responsible for maintaining all highways, bridges and sidewalks included in the state highway system in a reasonably safe condition. Paragraph three alleges Connecticut Ave., also known as Route 130, is a public highway within the state highway system. Paragraphs 4, 5 and six of the Second Count allege the plaintiff tripped and fell as a result of the dangerous and unsafe condition of the sidewalk located at 458 Connecticut Avenue in Bridgeport. The defendant State of Connecticut claims that based on the plaintiff's allegations, the plaintiff cannot invoke the statutory waiver of sovereign immunity contained in General Statutes § 13a-144 because the state had no duty to maintain the sidewalk in question. Therefore, the Second Count against the State of Connecticut must be dismissed.
The plaintiff, on opposition to the motion to dismiss, claims the State of Connecticut Department of Transportation was responsible for the maintenance and upkeep of Connecticut Avenue (Route 130) in Bridgeport pursuant to § 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 a defective highway, bridge or sidewalk which 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 plaintiff acknowledges that the state has submitted a sworn affidavit from Ralph DeSanti, Transportation Maintenance Planner for the Department of Transportation, who, while admitting that Connecticut Avenue, on April 5, 2014, was part of the state highway system, also states that the limits of the state's responsibility were confined to the travel portion for motor vehicles, meaning curb to curb. DeSanti states that the state's responsibilities did not include the sidewalk area where the plaintiff fell. The plaintiff argues that neither the state nor the co-defendant City of Bridgeport have filed an answer and that the matter of who is responsible for the maintenance of the area where the plaintiff fell is still unclear and is factually disputed. The plaintiff concedes that DeSanti's affidavit is permitted to assert grounds for a motion to dismiss, but if there are disputed issues of fact, the motion cannot be decided solely on affidavits. Gordon v. H.N.S. Management Co., Inc., 272 Conn. 81, 861 A.2d 1160 (2004). Therefore, as neither defendant has filed an answer or complied with responses to standard discovery requests, the court cannot make factual findings without an evidentiary hearing to determine which defendant was responsible for the maintenance and control of the subject sidewalk area. It is noted that the plaintiff in his opposition has not produced any documentary evidence or counter-affidavits.
The sworn affidavit from DeSanti is dated February 3, 2016.
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, and (3) improper venue. " 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." Richardello v. Butka, 45 Conn.Supp. 336, 717 A.2d 298 (1997) ; Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). " A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). " In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990). " 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 counter-affidavits . . . 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 counter affidavits 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, 292 Conn. 642, 651-52, 974 A.2d 669 (2009). State immunity implicates the subject matter jurisdiction of the superior court. Frandy v. Commissioner of Transportation, 132 Conn.App. 750, 752, 34 A.3d 418 (2011). The doctrine of sovereign immunity implicates subject matter jurisdiction. Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).
General Statutes § 13a-144 creates a cause of action against the state for a defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair. The defendant State of Connecticut argues that it is not required to file an answer prior to filing its motion to dismiss for lack of subject matter jurisdiction; nor is it required to complete discovery responses before filing its motion to dismiss. The state argues it is not necessary to determine whether the City of Bridgeport has responsibility for the sidewalk in question. It is the state's position that the affidavit of DeSanti affirmatively establishes that the state had no duty to keep the subject sidewalk in repair, and whether the City of Bridgeport had such a duty is immaterial to an inquiry as to whether the plaintiff may utilize the waiver of sovereign immunity contained in section 13a-144. The state argues that once the court has been presented with the issue of a lack of subject matter jurisdiction, the court must decide it before moving on with further proceedings, regardless of whether either defendant has filed an answer or complied with discovery. See Ruisi v. O'Sullivan, 132 Conn.App. 1, 30 A.3d 14 (2011).
In the present matter, the plaintiff has not produced any documentary materials or counter affidavits to dispute the information contained in the DeSanti affidavit. The court finds that an evidentiary hearing to resolve factual issues is not necessary to determine subject matter jurisdiction or a lack thereof. The court is able to determine by use of the Desanti affidavit submitted by the defendant State of Connecticut that it had no duty to maintain the subject sidewalk where the plaintiff fell. DeSanti's affidavit is sufficient to defeat any presumption of truth in the plaintiff's assertion of a legal obligation on the part of the commissioner to maintain the area where the plaintiff was allegedly injured. Amore v. Frankel, supra, 228 Conn. 358, 368 (1994). It is the plaintiff's responsibility to dispute the facts contained in DeSanti's affidavit and the plaintiff has failed to do so. Id. The motion to dismiss the Second Count as to the defendant James Redeker, the Commissioner of Transportation, for a lack of subject matter jurisdiction is hereby granted.