Opinion
No. CV 08 5016364 S
October 20, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105)
The plaintiff, BCJ Management Limited Partnership, filed a complaint against the defendant, the city of New Haven, on December 19, 2007. On July 2, 2008, the plaintiff filed a revised complaint. The plaintiff alleges a negligence claim against the defendant pursuant to General Statutes §§ 13a-149 and 52-557n. The plaintiff alleges the following. On or about November 24, 2005, Kevin Schupp, an employee of the plaintiff, was injured while plowing snow off the sidewalk in front of 114 Bristol Street, New Haven, "a property owned" by the defendant. The injury occurred when the tractor being driven by Schupp "struck a poorly patched area of asphalt that lifted upward upon impact." Such asphalt had been repaired by the defendant prior to that incident. The defendant had a duty to maintain the sidewalk in a reasonably safe condition and failed to properly repair the sidewalk, inspect and discover the condition of the sidewalk, warn "business invitees" of the hazardous condition and exercise due care to keep the sidewalk "reasonably safe." At the time of the injury, the plaintiff was insured by Liberty Mutual Insurance Company (Liberty Mutual) for workers' compensation liability insurance. The plaintiff has paid Schupp $14,670.32 for medical treatment and $10,842.12 in "indemnification payments." On December 27, 2005, Liberty Mutual sent a letter regarding the incident to John DeStefano, Jr., mayor of the city of New Haven. The letter states: "[o]n 11/24/2005 KEVIN SCHUPP sustained a work related injury. Liberty Mutual Insurance Company is paying [w]orkers [c]ompensation [b]enefits. Our investigation reveals this injury may have been caused by your negligence. Therefore, Liberty Mutual Insurance Company is placing you on notice of a potential claim to recover money we have paid . . . Please notify your insurance carrier of this potential claim."
On June 3, 2009, the defendant filed a motion to dismiss the plaintiff's revised complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to comply with the statutory notice requirement in § 13a-149. The defendant filed a memorandum of law in support of the motion, supported by an affidavit by Marexes Bey-Reed, an employee of the city clerk's office for the city of New Haven.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided on that alone . . . 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 . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
The defendant argues that the court lacks subject matter jurisdiction over the plaintiff's claim because the plaintiff's exclusive remedy is § 13a-149, and the plaintiff failed to comply with the notice requirements contained therein. It argues that it did not receive timely notice of the plaintiff's claim because the plaintiff gave notice of a potential claim to the mayor of New Haven rather than the city clerk. In support of this argument, the defendant submitted the affidavit of Bey-Reed that attests that the city clerks's office for the city of New Haven did not receive notice of a claim in this case and has no record of any such notice. In the alternative, the defendant argues, the letter sent to the mayor's office is "fatally defective" because it does not sufficiently describe the injuries sustained by Schupp, the cause of such injuries or the location of the injuries. It argues additionally that application of the savings clause in § 13a-149 is limited to notices that contain inaccurate information and does not apply to the plaintiff's letter, which is missing information.
"Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, [a]ny 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 . . . [The Supreme Court of Connecticut has] construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a-149] is the plaintiff's exclusive remedy . . . [Section] 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). "The word road as used in [§ 13a-149] has usually been construed to include a sidewalk . . ." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 3 n. 1, 950 A.2d 1247 (2008); see Ferreira v. Pringle, supra, 255 Conn. 351; Bellman v. West Hartford, 96 Conn.App. 387, 395, 900 A.2d 82 (2006).
Section 13a-149 provides, in relevant part, that "[a]ny person injured . . . 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 sustained . . . 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 . . . 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 clerk of such town, or to the clerk of such city or borough . . ." Section 52-557n(a)(1)(C) provides, in relevant part, that "a political subdivision of the state shall be liable for damages to person . . . caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person . . . by means of a defective road . . . except pursuant to section 13a-149."
In the present case, the plaintiff seeks to recover damages resulting from the alleged negligence on the part of the defendant in maintaining a sidewalk. It is undisputed that the sidewalk was the property of the defendant and that the defendant was bound to maintain such sidewalk. Thus, the plaintiff's claim is under the purview of § 13a-149.
"As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident." Ferreira v. Pringle, supra, 255 Conn. 354. "If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction." Bellman v. West Hartford, supra, 96 Conn.App. 394; see Ferreira v. Pringle, supra, 255 Conn. 354. "[P]roviding notice under § 13a-149 requires a plaintiff both to deliver the notice and to assure that it is received by the defendant within the notice period." (Internal quotations omitted.) Bellman v. West Hartford, supra, 96 Conn.App. 398 (holding that plaintiff did not comply with notice requirements of § 13a-149 because e-mail regarding plaintiff's injury was sent to supervisor of community center where plaintiff was injured and not sent to selectman or clerk of town, as is required by statute, and letter sent to town clerk six months after plaintiff was injured was untimely). Section 13a-149 unambiguously designates the appropriate official to receive such notice. See id. In the case of a suit against a city, notice must be received by the "clerk of such city." General Statutes § 13a-149.
In the present case, it is undisputed that the plaintiff sent written notice of a potential claim against the defendant to the mayor of New Haven. The affidavit submitted by the defendant shows that notice was not delivered to the city clerk's office for the city of New Haven, the person designated to receive such notice under the statute. The plaintiff has not submitted evidence to show that written notice of its claim was sent to the city clerk or forwarded to the city clerk's office from the mayor. As such, the plaintiff failed to meet the statutory requirements necessary to convey subject matter jurisdiction to the court.
The plaintiff's action also must be dismissed because the notice does not contain all the statutorily required elements. "[Section 13a-149] requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof . . . A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality." (Internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003). "A plaintiff's failure to comply with § 13a-149's [five essential] notice requirements results in a lack of subject matter jurisdiction." Paradis v. Colony Associates Ltd. Partnership, Superior Court, judicial district of Hartford, Docket No. CV 06 5001820 (October 10, 2006, Shapiro, J.). "Inadequate notice relative to § 13a-149 may be raised by a motion to dismiss." Cyr v. Baltazar Contractors, Inc., Superior Court, judicial district of Tolland, Docket No. CV 5003181 (November 6, 2008, Sferrazza, J.).
Where the plaintiffs have omitted completely one or more of the five notice requirements, trial courts have dismissed the actions. See id. (granting motion to dismiss because notice provided to defendant was inadequate); Scianna v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0184527 (December 28, 2001, Adams, J.) ( 31 Conn. L. Rptr. 153) (granting motion to dismiss because notice failed to mention time of injury and general description of injuries suffered by plaintiff); Torneo v. Old Colony Beach Club Assn., Superior Court, judicial district of New London, Docket No. 556367 (October 10, 2001, Corradino, J.) ( 30 Conn. L. Rptr. 481) (granting motion to dismiss for failure to provide "adequate written notice of all the statutorily referred to factors in § 13a-149").
In the present case, the letter sent by the plaintiff states "[o]n 11/24/2005 KEVIN SCHUPP sustained a work related injury." The letter does not provide a general description of the injury, the cause of the injury or the place that such injury occurred. Thus, the contents of the letter are inadequate as a matter of law. The plaintiff cannot maintain an action against the defendant based upon the letter sent to the mayor.
"[Section 13a-149] contains a savings clause that applies when the notice given by the plaintiff is inaccurate. It provides: No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby . . . This savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent . . . [E]ntirely absent means exactly that; one of the five essential elements . . . [of notice] must be completely, totally and unmistakably omitted from the plaintiff's notice." (Citations omitted; internal quotation marks omitted.). Salemme v. Seymour, supra, 262 Conn. 793-94.
In the present case, the letter does not provide any description of the injury suffered, the cause of the injury, or the location of where such injury occurred. The savings clause in § 13a-149 cannot be applied to the letter because the required elements are entirely absent rather than inaccurate.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted for lack of subject matter jurisdiction.