Opinion
CV166057356
04-24-2017
Fernando Sifuentes v. Parking Authority of the City of Norwalk et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACT
The Plaintiff, Fernando Sifuentes, brings this action against five named Defendants, the Parking Authority of the City of Norwalk, the City of Norwalk, Contrarian DRE Management, LLC, Contrarian Capital Management, LLC, and CREFII-SCC, LLC.
On February 9, 2015, Fernando Sifuentes, while in the scope of his employment for Affineco, LLC, as a maintenance supervisor, was preparing to use a trash compactor, located in a fenced in area of the Webster Lot, a public parking facility in the city of Norwalk. Webster Lot is under the jurisdiction of the Norwalk Parking Authority, an entity established by the City of Norwalk pursuant to S. 7-202 of the General Statutes.
Section 7-202, C.G.S.--" . . .'parking authority' means a body corporate and politic created by the legislative body of any municipality as hereinafter provided . . ."
The Plaintiff was pushing a cart in the parking lot, when he left the cart, and walked into the fenced in area where the trash compactor was situated. After unlocking the trash compactor's ignition mechanism, Fernando Sifuentes began the return trip to the cart, when he fell, allegedly due to the presence of ice and snow in the vicinity of one of the fence posts.
As a consequence of the fall, the Plaintiff sustained injuries and damages.
He brings this action in five (5) counts, one addressed to each of the named defendants. Count One (1) is addressed to the Parking Authority of the City of Norwalk, while Count Two (2) alleges claims against the City of Norwalk.
Both defendants have filed a motion to dismiss, dated November 16, 2016. The Norwalk Parking Authority maintains that, as a matter of law, it is not an entity which can be sued, while the City of Norwalk claims, in the alternative, that S. 13a-149 of the General Statutes is inapplicable to this case, or, if the statute does apply, the required notice was not given to the City of Norwalk.
Section 13a-149, C.G.S.--" 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 . . . 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 . . ."
The Plaintiff insists that the Parking Authority is a body corporate, which may sue and be sued, and that the place where the Plaintiff fell, is not governed by S. 13a-149, the defective highway statute.
STANDARD OF REVIEW--MOTION TO DISMISS
A motion to dismiss is the proper vehicle for challenging the jurisdiction of the court to hear and decide a matter. Baskin's Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984). The motion to dismiss tests whether, on the face of the record, the court is without jurisdiction. Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007).
The grounds for the granting of a motion to dismiss, are set forth in S. 10-30 of the Connecticut Practice Book: 1) lack of jurisdiction over the subject matter of an action, 2) lack of jurisdiction over the person, 3) improper venue, 4) insufficiency of process, and 5) insufficiency of service of process. While lack of personal jurisdiction, improper venue, insufficiency of process, or defective service of process may be waived if not timely raised, subject matter jurisdiction, because it addresses the competency of the court to hear and decide a claim, may be raised at any time. Oliphant v. Commissioner, 274 Conn. 563, 568-69, 877 A.2d 761 (2005).
Because the Norwalk Parking Authority contests the right of the Plaintiff to maintain this action, its claim implicates subject matter jurisdiction. Therefore, its motion to dismiss is the proper vehicle through which to address the issue.
The City of Norwalk's claim that S. 13a-149 is applicable to Fernando Sifuentes' cause of action, and the alternative claim that the notice requirements of the statute were not followed, are claims challenging the court's subject matter jurisdiction. Ferreira v. Pringle, 255 Conn. 330, 344, 766 A.2d 400 (2001). A municipality is not liable for highway defects, unless made so by statute. Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949).
All allegations contained in a complaint must be considered in the manner most favorable to the pleader. Ganim v. Smith & Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001).
SUIT MAY BE MAINTAINED AGAINST NORWALK PARKING AUTHORITY
The Norwalk Parking Authority maintains that, absent an express statutory power to sue and be sued, it cannot be named as a party to a legal action. This claim is not well taken.
The enabling statute, S. 7-204 of the General Statutes, provides broad and specifically identified authority to a municipal parking authority. Those powers include the right to construct facilities, enter into leases, acquire real property, and dedicate any property owned by the parking authority to the public purpose for a street or a highway. The statute permits a parking authority to operate as a quasi-municipal agency, which is designated as a body corporate and politic.
Although a federal court has held that the failure of the General Assembly to expressly provide for the right to " sue and be sued" bars any suit against a municipal parking authority (See Peruta v. Hartford Parking Authority, 2010 WL 3169369 (D.Conn.)), state courts which have considered the issue have permitted an action against a parking authority to proceed. (See Parking Authority of Fairfield v. Town of Fairfield, 2001 WL 527635 (May 2001) (Brennan, J.), 29 Conn.L.Rptr. 325, .) The absence of express authority to " sue and be sued" is not fatal to an action brought by or against a municipal water pollution control authority, which, like a parking authority, has no express statutory power to " sue and be sued." Zahrijczuk v. Water Pollution Control Authority, 52 Conn.Supp. 422, 50 A.3d 421 (2012) (Blue, J.) .
SUIT NOT BARRED BY OPERATION OF HIGHWAY DEFECT STATUTE
It is, of course, well settled, that any action against a municipality for damages resulting from a defective highway, must be brought pursuant to S. 13a-149 of the General Statutes Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). If a plaintiff is injured, due to a defective road, S. 13a-149 provides the exclusive remedy, and no action may be commenced pursuant to S. 52-557n(a)(1), alleging negligence on the part of a municipal official or employee. Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 805, 816, 92 A.3d 1016 (2014).
Section 52-557n(a)(1), C.G.S.--" . . . a political subdivision of the state shall be liable for damages to person or property caused by; (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by; . . . (B) negligent acts or omissions which require the exercise of judgment or discretion . . ."
Section 13a-149 encompasses areas which are on or near the highway, which are open to public use. The essential feature of an area open to public use is that the area is available to the general public, and access is not restricted to or limited to particular individuals or groups. State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988). Sidewalks, and areas of public access used in the ordinary course of travel, are considered part of the highway. Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Bellman v. West Hartford, 96 Conn.App. 387, 394-95, 900 A.2d 82 (2006).
On the facts presented, there is a question of fact, concerning whether the area in question is part of the highway, thus invoking the provisions of S. 13a-149. Because no notice was given pursuant to S. 13a-149, any claim under the highway defect statute would fail.
Where there is a question concerning whether an area is public, or is an area where the public is not encouraged or permitted to travel, an issue of fact remains, and summary judgment cannot enter in favor of the City of Norwalk. Cuozzo v. Orange, 315 Conn. 606, 616-17, 109 A.3d 903 (2015).
Here, the presence of a fenced in area containing a dumpster to be used in the disposal of trash, and the conspicuous signage, preclude any finding that the area is part of the highway as a matter of law.
Therefore, summary judgment will not enter in favor of the City of Norwalk.
CONCLUSION
The motions to dismiss, filed against the Norwalk Parking Authority and the City of Norwalk, are DENIED.