Opinion
No. CV03-0177746S
February 5, 2004
MEMORANDUM OF DECISION
The plaintiffs brought this action against the defendants John Pham and Abby Santa Maria for injuries sustained in a three-vehicle accident allegedly caused by the negligence of the defendants. Santa Maria brought an apportionment complaint against the Town of Waterbury alleging that the accident was the result of unclean, icy, unsanded, snowy street surfaces. Santa Maria further alleges that, as a result of the defective street surfaces, the plaintiff's vehicle drifted and slid into a snowbank. It was then hit by the Pham vehicle which also skidded and slid, and hit again when the Santa Maria vehicle slid into the Pham vehicle. Santa Maria, the apportionment plaintiff, denies that the accident was due in any manner to her fault and claims that damages should be apportioned against the apportionment defendant, Town of Waterbury, for its violation of Connecticut General Statutes § 13a-149. The plaintiffs thereafter amended their complaint to assert a claim against the apportionment defendant.
Waterbury moves to dismiss the apportionment complaint against it on the grounds that the court lacked subject matter jurisdiction because (1) the city is immune from suit under Connecticut General Statutes § 13a-149 and (2) apportionment of liability is not permitted for a statutory cause of action. Dismissal is warranted on both grounds.
IMMUNITY
Waterbury claims that it is immune from suit because the 90-day statutory notice was not met. Santa Maria brought the apportionment complaint against Waterbury pursuant to Connecticut General Statutes § 13a-149, the "defective highway statute." That statute provides, in relevant part:
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 sustained on or after October 1, 1982, 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, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.
Waterbury contends that, since the statutory notice provision is a condition precedent to the court's subject matter jurisdiction, failure to provide timely notice bars recovery against the municipality as a matter of law. Santa Maria counters that the notice provisions of Connecticut General Statutes § 13a-149 do not apply to her as apportionment plaintiff because she is not claiming that the town is responsible to pay a portion of damages; rather, she is seeking to limit her own liability by citing the town as an apportionment defendant who is liable because the defective road surfaces were the sole proximate cause of the injuries sustained. Santa Maria cites the court's decision in Quiroz v. Bienvenida, Superior Court, Judicial District of Waterbury, Docket No. 126133, 17 Conn. L. Rptr. 110 (May 13, 1996, Pellegrino, J.), for the proposition that she is not required to satisfy the notice provision of the statute. In Quiroz, the court held that a defendant in attempting to limit its own liability by seeking to apportion it with the city is not bound by the notice provisions of § 13a-149 because it is not seeking a proportionate payment of damages from the city. Similarly, in Theriault v. The Star of the Sea Church, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 477915 (September 15, 1997, Stengel, J.) ( 20 Conn. L. Rptr. 535), the court ruled that the defendant "need not comply with § 13a-149 in order to assert only an apportionment claim against the city."
Most courts have held that a defendant may not apportion liability against a municipality under § 13a-149. See Lapinski v. Tagliarini, No. CV 00 0159623 (July 10, 2001), CT Page 1860 2001 Ct. Sup. 9232, 30 Conn. L. Rptr. 119; Ladson v. Kennedy, Superior Court, judicial district of New London at New London, Docket No. 554697 (November 28, 2000, Burley, J.T.R.); Leahy v. Fine, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 160419, 22 Conn. L. Rptr. 260 (May 28, 1998, D'Andrea, J.); Adams v. Champagne, Superior Court, Judicial District of Ansonia-Milford, Docket No. CV98-061154 (May 20, 1998) (Corradino, J.); Frye v. Toyota Motor Credit Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 345615 (April 6, 1998, Melville, J.) ( 21 Conn. L. Rptr. 650); Ortiz v. Clemmons, Superior Court, judicial district of Danbury, Docket No. 325799 (November 4, 1997, Stodolink, J.) ( 20 Conn. L. Rptr. 690); Greco v. Brennan, Superior Court, judicial district of New Haven at New Haven, Docket No. 0390429, 20 Conn. L. Rptr. 369 (September 16, 1997, Zoarski, J.T.R.); Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. 052173 (April 8, 1996, Sferrazza, J.) ( 18 Conn. L. Rptr. 636), aff'd, 45 Conn. App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997). This court finds the majority view more persuasive. As the court stated in Greco v. Brennan, supra: "A town is immune from liability if the notice requirements of § 13a-149 have not been met . . . The statute does not discriminate by status of the party, i.e., whether it is a plaintiff or a defendant bringing the action against the municipality. Section 13a-149 is clear on its face: `No action for any such injury shall be maintained against any town . . . without proper notice.'" (Emphasis supplied.)
The Connecticut Supreme Court has strictly construed the notice requirement of Connecticut General Statutes § 13a-149. See Ferreira v. Pringle, 255 Conn. 330, 340 (2001). In White v. Burns, 213 Conn. 307, 312, 313 (1990), the court reasoned:
The state and its municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts . . . The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. Id. Indeed, this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute. Therefore, because the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . Further, this court has stated that "the state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms . . ."
(Internal Citations omitted.)
Section 13a-149 is a statute in derogation of sovereign immunity. Since the 90-day notice requirement was not met, Waterbury is immune from liability.
Apportionment of Liability Against a Municipality
Santa Maria claims that apportionment liability is appropriate pursuant to Connecticut General Statutes § 52-102b because she is a defendant in a civil action to which § 52-572h applies. Relying on these statutory provisions, she argues that she is entitled to bring the apportionment action against Waterbury in order to limit her own liability. Her reliance is misplaced for the following reasons.
First, § 52-102b provides, in relevant part: "(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . . (c) No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h." As noted above, Waterbury is immune from liability because the notice requirement was not satisfied.
Second, Santa Maria contends that she is seeking to shift all liability to Waterbury.
Connecticut General Statutes § 52-572h provides that if the damages in a negligence action are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable non economic damages. (Emphasis added.) "If" is the operative word.
The phrase "proximately caused by the negligence of more than one party" clearly shows that the legislature contemplated situations in which liability is shared. Indeed, the word "apportion" is defined as "to divide and share out according to a plan." Merriam Webster's Dictionary, Tenth Ed. Apportionment applies only to those who are "or may be liable . . . for a proportionate share of the . . . damages . . . [and] the demand of relief shall seek an apportionment of liability." Connecticut General Statutes § 52-102b supra. Accordingly, apportionment applies to Santa Maria only if she is or may be liable for a proportionate share of the damages. If she is deemed not to be liable, apportionment does not apply. She is simply not liable. If she is deemed to be liable, she cannot avail herself of apportionment against Waterbury. Section 13a-149 does not permit recovery unless the defect was the sole proximate cause of the injury:
"[General Statutes] § 52-572h does not apply to actions for personal injuries based on . . . § 13a-149." "Section 52-572h governs, in part, liability for multiple tortfeasors in negligence actions. It expressly provides for an apportionment of liability among those individuals whose negligence is found to be the proximate cause of a plaintiff's injury and a right of contribution for parties who pay more than their proportionate share of the judgment . . . [T]his right of contribution is not applicable in the context of § 13a-149 . . . Irrespective of the substantive differences between the common-law doctrines of contribution and indemnification, . . . both are premised on the same fundamental principle that the party seeking redress from a codefendant must have been negligent. As previously stated, a finding of sole proximate cause under § 13a-149 places liability solely on the shoulders of the municipality that had the burden of maintaining and repairing defects in its roads or sidewalks. Such a finding thus precludes the legal possibility that another party also may be responsible for a plaintiff's injuries. Moreover, if the negligence of either the plaintiff or a third party was a contributing factor, the municipality necessarily will be relieved of any liability under the statute. In that instance, the municipality cannot be deemed to have been negligent . . ." Smith v. New Haven, 258 Conn. 56, 67 (2001).
CONCLUSION
For the foregoing reasons, the motion to dismiss the apportionment complaint is granted.
GALLAGHER, J.