Opinion
No. CV 02-0089112S
September 16, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The third and fourth counts of this personal injury action allege that the defendant, State of Connecticut, through its employee, the defendant James Zucco, negligently caused injury to the plaintiff when Zucco parked a state Department of Transportation truck partially in the westbound lane of Route 44 in the Town of Salisbury. The complaint alleges that co-defendant Michael Manetta, while passing the parked state vehicle, drove into the eastbound lane of traffic and collided with a vehicle driven by the plaintiff. The State of Connecticut moved to dismiss the claim against it for lack of jurisdiction based on sovereign immunity. The defendant Zucco moved to dismiss the complaint on the grounds that he is immune from personal liability under General Statutes § 4-165 because he was acting in the course of employment with the State. The court earlier granted those motions without objection. By agreement of the parties, the court later vacated that ruling. The parties then appeared for argument on the motion and submitted briefs and supplemental briefs on the issues presented. For the following reasons, the motion is granted.
See Practice Book § 10-31(b): "[a]ny adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record."
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci. v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "[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.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Novicki v. New Haven, 47 Conn. App. 734, 739, 709 A.2d 2 (1998).
"[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including CT Page 10878-jx those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000).
"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Unisys Corp. v. Dept of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991). "A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists." (Citations omitted; internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn. App. 310, 315-16, 763 A.2d 1058 (2001).
The undisputed facts presented by the complaint and various affidavits filed by the parties on the motion to dismiss establish that Zucco was, at the time of the accident here, an employee of the State of Connecticut Department of Transportation. It is also undisputed that the plaintiffs alleged injuries occurred after Zucco had parked a state truck along the westbound side of Route 44 while Zucco worked off the side of the road taking care of a water run-off problem.
As defendants correctly claim in their memorandum of law, a state employee is personally immune from liability for injuries arising out the employee's negligence in carrying out duties within the scope of his employment. General Statutes § 4-165. Our Supreme Court has noted that the purpose of the statute is "to grant state employees immunity where and because the state may be sued . . ." (Internal quotation marks omitted.) McKinley v. Musshorn, 185. Conn 616, 621, 441 A.2d 600 (1981). A person seeking to recover for injuries caused by the negligence of a state employee in carrying out the duties of employment must, under the statute, present a claim against the State to the Claims Commission. As the plaintiff's complaint only alleges CT Page 10878-jy negligence on Zucco's part, the suit is barred by § 4-165; and the motion to dismiss the third count as to James Zucco must be granted on the basis of statutory immunity.
Section 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damages or injury, not wanton, reckless, or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damages or injury shall present it as a claim against the state under the provisions of this chapter."
The State's motion to dismiss is based on its claim sovereign immunity. Under General Statutes § 52-556, the State waives its sovereign immunity for injuries caused in motor vehicle accidents only when a state employee was negligent "when operating a motor vehicle." The leading case on this issue is Rivera v. Fox, 20 Conn. App. 619, 569 A.2d 1137 (1990), where the court held that the issue of operation was a question of law to be determined by the court. Furthermore, the court there stated the relevant test for construing § 52-556 to decide whether a DOT truck is being operated as follows.
Section 52-556 provides as follows: "Any person injured in person or property trough the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury."
The use of the phrase "when operating a motor vehicle" implies a simultaneousness of negligent operation and injury, because "when" denotes the time or exact moment at which something is done.
Without temporal congruence, the state cannot be liable even if the negligent operation of a state owned motor vehicle by a state employee proximately caused the injury . . . [O]peration of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle; or there is movement of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another.
Id., 622-24.
This court has joined other trial courts in following the directive from the Appellate Court that the state is immune from liability where that was no temporal congruence between the allegedly negligent operation of a motor vehicle and the injury claimed by a plaintiff. See, e.g, Garofalo v. State, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 02-0812970S (December 9, 2002, Peck, J.) ( 33 Conn.L.Rptr. 508); Michaud v. Connecticut Department of Transportation, Superior Court, judicial district of Litchfield, Docket No. CV 98-0075711S (February 3, 2000) ( 26 Conn.L.Rptr. 441); Pasqua v. Purvis, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV89-0097954 (March 21, 1995, Dean, J.) ( 14 Conn.L.Rptr. 5).
The undisputed facts here are that the State DOT truck was parked and not in operation when struck by plaintiff's vehicle. Whether Zucco had previously been negligent in selecting the location where he had parked vehicle does not alter the fact that there is here no "temporal congruence" between any such negligence on his part and the injuries CT Page 10878-kz received by plaintiff. Though there may also be a genuine factual dispute about whether or not the vehicle was parked for the purposes of protecting Zucco, his purpose for parking the vehicle in a particular location is not legally significant. The critical factor, temporal congruence, is lacking here. Thus, the motion to dismiss the fourth count against the State of Connecticut must be dismissed on grounds of sovereign immunity.
For the foregoing reasons, the motion to dismiss the third and fourth counts is granted.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT