Opinion
No. CV 03-0829428
October 14, 2004
MEMORANDUM OF DECISION
This case arises out of injuries allegedly sustained by the plaintiff, Nancy Bellman, on January 7, 2002, at approximately 6:45 a.m. as a result of a fall on a driveway in front of the premises at 1106 New Britain Avenue (Elmwood Community Center) in West Hartford.
On October 28, 2003, the plaintiff filed a one-count complaint against the defendant, town of West Hartford. The plaintiff alleges the following facts. The plaintiff was caused to slip and fall on the "driveway" at the Elmwood Community Center, which "driveway" was owned by the defendant; and was "dangerous and defective." As a result she suffered injuries and damages. The plaintiff alleges that her injuries resulted because of the defendant's negligence and carelessness in that it: (1) allowed snow and ice to remain in the driveway and walkways of the premises for a period of time; (2) failed to plow and salt or sand the driveway within a reasonable time following a winter storm; (3) failed to make proper and reasonable inspection of the premises; (4) failed to warn the plaintiff of the dangerous and defective condition of the premises; (5) failed to reasonably maintain and supervise the premises under its control; (6) failed to provide warnings or to properly illuminate; and (7) failed to remove ice from prior storms, which ice was concealed by recent snowstorms.
On February 20, 2004, the defendant filed a motion for summary judgment on the ground that the court lacks subject matter jurisdiction. The motion is accompanied by a memorandum of law and supporting affidavit. The plaintiff filed an objection to the motion for summary judgment with supporting memorandum of law on March 13, 2004.
The court should treat a motion for summary judgment as a motion to dismiss when lack of subject matter jurisdiction is "called to its attention." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003).
DISCUSSION
"Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003). "[P]arties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). "Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003). "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).
The defendant claims that the plaintiff's notice to the defendant pursuant to the municipal highway defect statute, General Statutes § 13a-149, was untimely and that therefore the court lacks subject matter jurisdiction. In response, the plaintiff asserts that her claim is not governed by § 13a-149 because it is not a highway defect claim and alternatively that the defendant has failed to prove as a matter of law that the notice requirement of § 13a-149 was not satisfied. The plaintiff has filed a motion for leave to amend her complaint to change the location of the fall from the "driveway" to the "parking lot" which has not yet been ruled on by the court. "In a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances . . . The highway defect statute, § 13a-149 . . . is one of those exceptions." (Citations omitted; internal quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 738-39, 709 A.2d 2 (1998). "Where a court's jurisdiction arises solely from a statutory waiver of sovereign immunity, the statutory provisions must be strictly construed . . . Accordingly, where a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case . . . the question of whether the plaintiff has complied with the provisions of § 13a-149 goes to the court's jurisdiction over the subject matter of the action." (Citations omitted, internal quotation marks omitted.) Id., 739; see also Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001) (where party "failed to comply with the notice requirements of § 13a-149, the trial court lacked subject matter jurisdiction over the action"); Pratt v. Old Saybrook, 225 Conn. 177, 180, 621 A.2d 1322 (1993); Hillier v. East Hartford, 167 Conn. 100, 106, 355 A.2d 1 (1974).
Because the court is going to dismiss the case for lack of subject matter jurisdiction it is without authority to act on this motion.
"A town is not liable for highway defects unless made so by statute . . . 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 court has] construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998). Moreover, "the purview of § 13a-149 is not limited solely to defects that are located in the road . . . [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . To hold that a defect . . . must exist in the traveled portion of the highway would run counter to [court] decisions and lead to results bordering on the ridiculous . . . If in the use of the traveled portion of the highway and, as incidental thereto, the use of the shoulders for the purposes for which they are there, a condition exists which makes travel not reasonably safe for the public, the highway is defective." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 344.
Connecticut's courts have interpreted the definition in § 13a-149 of "road or bridge" to include sidewalks and public walkways. "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Citations omitted; internal quotation marks omitted.) Novicki v. New Haven, supra, 47 Conn.App. 740 (public walkway leading from city street to public school "is a road or bridge for purposes of the highway defect statute"). Snow and ice can create a defective condition within the purview of § 13a-149. Serrano v. Burns, 248 Conn. 419, 426-27, 727 A.2d 1276 (1999) ("for purposes of recovery under § 13a-149 . . . a highway can be considered defective . . . by reason of ice or snow, depending, of course, on the circumstances and conditions"); see also Monteiro v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV 94 0534950 (January 12, 1995, Corradino, J.) ( 13 Conn. L. Rptr. 285) ("it is difficult to understand how an accumulation of ice and snow on a sidewalk would not be a highway defect").
The Connecticut Superior Court has included a driveway under the definition of § 13a-149. "[A] sidewalk and adjacent driveway . . . open for the public use and . . . actually used by the public [are] clearly covered by § 13a-149 . . . The outside steps and walks of a public facility . . . are a way over which the public has a right to pass and it is reasonably anticipated that the public would make use of them to travel to the public facility." (Citations omitted; internal quotation marks omitted.) Hodge v. Old Saybrook, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0088746 (December 20, 2001, Shapiro, J.).
Conversely, Connecticut does not recognize a parking lot as coming within the definition of § 13a-149. "[T]he only time a Connecticut court has been faced with the decision whether to apply Section 13a-149 to parking lots, it has decided not to do so . . . [P]arking lots maintained by municipalities do not come within the purview of Section 13a-149. Appleton v. Kendra, Superior Court, judicial branch of New Britain at Hartford, Docket No. CV 362337 (October 22, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 158) ( 6 C.S.C.R. 1021) citing Rotella v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 83537 (May 31, 1989, Langenbach, J.) (4 C.S.C.R. 544)" (Internal quotation marks omitted.) Alfano v. Litchfield, Superior Court, judicial district of Litchfield, Docket No. CV 92 0057686, 6 Conn. L. Rptr. 303 (April 13, 1992, Pickett, J.); see also Lisinski v. New London, Superior Court, judicial district of New London, Docket No. CV 03 564377 (June 24, 2003, Hurley, J.T.R.) ( 34 Conn. L. Rptr. 749) (parking garage does not come within the definition of the highway defect statute).
Regardless of how a highway defect is pleaded in a complaint, a party's "failure to expressly plead a cause of action pursuant to § 13a-149 is not controlling. Instead, the court should consider its application to the facts of the case." Guerrieri v. Hanson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0380632 (May 10, 2002, Gallagher, J.). "A court must look to the facts alleged and determine if a highway defect is being alleged despite the labels the plaintiff has chosen to put on his or her counts." Monteiro v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV 94 0534950 (January 12, 1995, Corradino, J.) ( 13 Conn. L. Rptr. 285); see also Pajor v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 94 0366807 (June 20, 1995, Martin, J.).
In the present case, the plaintiff asserts in her complaint that the alleged injury occurred while on the "driveway" of property maintained by the defendant. A party who is injured while on a driveway negligently maintained by a municipality is afforded the right to bring a cause of action against that municipality pursuant to § 13a-149. Although the plaintiff did not refer directly to § 13a-149 in her complaint, the factual situation alleging a fall on a driveway negligently maintained by a municipality comes within the purview of a highway defect. Moreover, § 13a-149 is the exclusive remedy for an injury that occurs within an area that is defined as a "road or bridge" pursuant to § 13a-149, and the statute cannot be circumvented by claiming an alternative cause of action against the municipality. Because § 13a-149 provides the exclusive remedy, the court should next consider whether the plaintiff complied with the notice requirement set forth in the statute.
"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. "The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery . . . The statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." (Citations omitted; internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991); see also Laden v. North Haven, Superior Court, judicial district of New Haven, Docket No. CV 00 0441991 (December 18, 2001, Zoarski, J.T.R.) (notice must be given to the entity responsible for the repair of the defective condition).
In the present case, the defendant has submitted a sworn affidavit from Norma W. Cronin, town clerk for the town of West Hartford, stating that the defendant received the notice from the plaintiff regarding the alleged injury on June 7, 2002. The plaintiff alleges that her injuries were sustained on January 7, 2002. The ninety-day period in which the plaintiff had to put the defendant on notice of her claim therefore expired prior to June 7, 2002. Although the plaintiff claims that she provided notice prior to June 7, 2002, she asserts that it was in the form of an electronic message addressed to an employee of the Elmwood Community Center and not the municipality responsible for the maintenance of the driveway. Because the plaintiff did not comply with the notice provision of § 13a-149 the court lacks subject matter jurisdiction and the matter is dismissed.
Having dismissed the matter for lack of subject matter jurisdiction, the court is without jurisdiction to act on the plaintiff's request to amend to change the location of the fall from the "driveway" to the "parking lot."
BY THE COURT
Booth, J.