Opinion
No. CV 07-5013984
July 2, 2009
MEMORANDUM OF DECISION
The plaintiff, Maria Alvarez, filed a two-count complaint against the city of New Haven and Latrice Jones on September 14, 2007. The plaintiff alleges that, on July 27, 2005, she was injured while crossing a grass strip adjacent to a sidewalk when she fell into a depression obscured by grass. In count one, she alleges that New Haven is liable pursuant to the highway defect statute, § 13a-149. In count two, she alleges that Latrice Jones is liable, as the property owner, for her negligent maintenance of the area where the fall occurred.
The defendant in this present motion, New Haven, filed a motion to dismiss count one of the plaintiff's complaint on January 14, 2009. The plaintiff filed her brief in opposition on February 9, 2009. The defendant filed its reply brief on May 1, 2009.
"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); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "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); Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The defendant argues that the plaintiff's action is time barred, as § CT Page 11223 13a-149 states, in part, "No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury." The plaintiff's fall occurred on July 27, 2005, and the defendant was not served until August 6, 2007. The defendant claims that § 52-593a(a) is inapplicable to actions brought pursuant to § 13a-149. Section 52-593a(a) states: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery." The plaintiff counters that her action is timely because the original writ, summons and complaint were delivered to the marshal on July 27, 2007, within § 13a-149's two-year statute of limitations. She refutes the defendant's contention that § 52-593a(a) is inapplicable to actions brought pursuant to § 13a-149.
Resolution of this present motion turns on whether § 52-593a(a) applies to actions brought pursuant to the highway defect statute, § 13a-149. In the absence of appellate authority on the issue, this court will look to decisions of the Superior Court. There is a split of authority in regard to the applicability of § 52-593a(a) to actions brought pursuant to the highway defect statute.
In Collins v. Meriden, 41 Conn.Sup. 425, 429, 580 A.2d 549 (1990) [ 2 Conn. L. Rptr. 401], the plaintiff was one day late in serving process upon the defendant but had delivered her complaint to the sheriff prior to the running of the statute in compliance with § 52-593a(a). Noting its obligation to strictly construe statutes in derogation of the common law so as not to undermine sovereign immunity, the court granted the Commissioner's motion to dismiss for the plaintiff's failure to meet the statutory requirements for commencing suit pursuant to § 13a-144. Id., 428. In Pierce v. North Canaan, Superior Court, judicial district of Litchfield, Docket No. CV 95 0067137 (September 21, 1995, Pickett, J.) ( 15 Conn. L. Rptr. 126, 127), the court applied this same rationale in a suit brought pursuant to General Statutes § 13a-149, holding that "because the plaintiff's cause of action is brought pursuant to § 13a-149, a statute which abrogates the immunity of a town in the context of injuries occurring as a result of allegedly defective roads or bridges, the provisions of § 52-593a do not apply." The court in Fabiano v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 97 0140495 (September 8, 1997, Pellegrino, J.) ( 20 Conn. L. Rptr. 564, 565-66), found those decisions persuasive and granted the defendant's motion for summary judgment on this issue.
In Wylie v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 318804 (October 15, 1997, Blue, J.) ( 20 Conn. L. Rptr. 439, 440), Judge Blue stated: "In my view, Collins and Pierce give inadequate weight to the controlling statutory text and to Supreme Court precedent bearing directly on the issues presented. The extension statute [§ 52-593a(a)] is a statute of general application. It facially applies to any `cause or right of action.' A defective road statute action is plainly a `cause or right of action.' Significantly, the extension statute contains one (and only one) specific exception. The statute is generally applicable, `[e]xcept in the case of an appeal from an administrative agency governed by section 4-183.' This exception . . . indicates that the legislature knows how to exempt specific statutory causes of action from the general ambit of the extension statute when it intends to do so. The fact that it has not exempted actions brought under the defective road statute is convincing evidence that it has not intended to do so."
Judge Blue continued: "To this textual consideration must be added the fact that our Supreme Court has explicitly stated that there is no jurisdictional bar to the use of the extension statute to save service of process in a statutory action brought against a governmental entity. In Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, [5], 363 A.2d 1386 (1975), decided before the administrative appeal exception to the extension statute had been enacted, the Court noted that the plaintiff in an administrative appeal has the option of delivering the process within the time limited to an officer authorized to serve it, as provided in § 52-593a of the General Statutes . . . The same arguments made in this case with respect to the defective road statute — that it creates an action unauthorized by common law and that it contains its own substantive statute of limitation — could plainly be made with respect to the administrative appeal statute. The Supreme Court nevertheless indicated that the extension statute is available in such cases. Lacasse v. Burns, 214 Conn. 464, [470-71], 572 A.2d 357 (1990), also bears on the problem at hand. Lacasse holds that the accidental failure of suit statute, Conn.Gen.Stat. § 52-592, can be appropriately employed by a plaintiff in a defective highway action. The court acknowledged that the defective highway statute implicates questions of sovereign immunity. It held, however, that that principle was inapplicable to the issue before it, since the question in these cases is not whether the state's monetary liability can be expanded beyond that provided by a statute permitting the state to be sued, but rather is subject to procedural statutes applicable to all other litigants . . . The court answered the latter question in the affirmative . . . That answer is of obvious importance in this case. I understand that the defendant in Lacasse had been timely served in the original action and could thus be said to be properly involved in the action in the first place and thus subject to the general rules of litigation. Norwich Land Co. v. Public Utilities Commission, however, indicates that this difference is not dispositive. The extension statute can be appropriately used by a litigant bringing a statutory action against a governmental entity in the first place." (Citations omitted; internal quotation marks omitted.) Id.
Therefore, in denying the defendant's motion to dismiss, Judge Blue concluded: "These authorities indicate that the defective road statute, like all statutes (other than the administrative appeal statute) creating causes of action, must be construed with the extension statute in mind . . . The defective road statute provides that, `No action . . . shall be brought except within two years from the date of such injury.' The word `brought' is not a term of special significance. There is no distinction between `commencing' and `bringing' an action. Lacasse v. Burns, supra, 214 Conn. 476. The extension statute is part of the generally applicable law of our state that determines when a cause of action has been appropriately commenced. That statute can be appropriately employed in determining when defective road actions have been timely `brought.'" (Citation omitted.) Id. The court in Serrano v. Lafayette Square, LLC, Superior Court, judicial district of New Britain, Docket No. CV 05 5000188 (June 10, 2005, Berger, J.), adopted Judge Blue's opinion and, as a result, denied the defendant's, the city of New Britain's, motion to dismiss.
This court is persuaded by the reasoning of Judge Blue in the latter line of cases. The plaintiff delivered the original writ, summons and complaint to the marshal within the two-year statute of limitations provided under § 13a-149. Because this court agrees that § 52-593a(a) is applicable to actions brought under that statute, the plaintiff's action is timely.
The motion to dismiss is hereby denied.