Opinion
No. HHB CV 07 5003838 S
December 17, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#105)
Oral argument was presented at the short calendar on October 15, 2007 concerning the defendant Ralph J. Carpenter, Commissioner of Transportation's motion to dismiss (#105) on the ground of sovereign immunity. The defendant contends that the plaintiff Avery Corprew's claims in this action are barred by General Statutes § 13a-144 because the plaintiff gave patently defective notice to the defendant of the location where his alleged fall occurred. He argues that the court lacks subject matter jurisdiction.
The other defendant in this matter is the City of New Britain. For ease of reference, the court refers to the movant as the "defendant."
During oral argument, the plaintiff requested that the court schedule an evidentiary hearing concerning the adequacy of the plaintiff's notice to the defendant. After consideration of the parties' submissions and arguments, as well as the applicable law, the court concludes that holding an evidentiary hearing would be inappropriate. Whether notice under General Statutes § 13a-144 is patently defective is a question of law. If, however, the plaintiff's notice is not patently defective, the determination of the notice's sufficiency is a question for the trier of fact at trial, not one for the court at an evidentiary hearing on a motion to dismiss. For the reasons stated below, the motion to dismiss is denied.
I Background
The plaintiff timely informed the defendant of his intention to commence suit for damages from injuries resulting "from a fall into an open manhole/storm drain opening on West Main Street, New Britain, on the evening of March 8, 2005, at approximately 8:15 pm. As Mr. Corprew was walking easterly on, and crossing, West Main Street in order to catch a bus at the corner of Main Street and Bank Street, he fell into an uncovered and open manhole/storm drain opening in the West Main Street roadway adjacent to the City of New Britain, Board of Education building at 272 Main Street. This incident occurred because the said manhole/storm drain opening was missing its cover and there were no warnings or barriers surrounding it to prevent pedestrians such as Mr. Corprew from falling into same or otherwise being injured by the unreasonably dangerous condition of the manhole/storm drain opening." See complaint, count one, ¶ 11, Exhibit A (notice), dated May 17, 2005.
The defendant filed the present motion to dismiss on May 23, 2007, within thirty days of the filing of an appearance, on April 26, 2007. With its motion, the defendant submitted the affidavit of Jack Tine, general supervisor at the Farmington garage of the Connecticut Department of Transportation, which is responsible for maintenance of state roads in New Britain. Therein, Tine alleges that "West Main Street begins at a four way intersection heading west from downtown New Britain. Main Street intersects and Bank Street heads in an easterly direction." See affidavit of Jack Tine, ¶ 9. He also states that there are approximately ten manhole or sewer covers within the intersection which Tine states is the location where the plaintiff claims he fell, and approximately another half dozen manholes and storm drains close to the intersection on Main Street and Bank Street. See affidavit of Jack Tine, ¶ 11. He also alleges that there are no manhole covers on West Main Street near its intersection with Main Street. See affidavit of Jack Tine, ¶ 12. The defendant moves to dismiss on the ground that the plaintiff's notice to the defendant fails to adequately describe the location where the plaintiff sustained his alleged injuries, and that, therefore, sovereign immunity bars the plaintiff's action.
The plaintiff filed his memorandum in opposition to the defendant's motion on October 15, 2007. With his memorandum, the plaintiff submitted an affidavit of plaintiff's counsel, John Pirina, Esq. Therein, Pirina makes allegations concerning a conversation he had with the plaintiff, as well as concerning Pirina's personal observations of the alleged location where the plaintiff claims to have fallen. At oral argument, the defendant objected to Pirina's affidavit as inadmissible hearsay. However, because the motion now before the court does not require the court to resolve any questions concerning any allegations in Pirina's affidavit, the court need not consider it, nor pass upon its admissibility.
The plaintiff opposes the motion on the ground that the notice adequately describes the location where the plaintiff allegedly was injured. The plaintiff asserts that Tine's allegations to the contrary are due to misreading the plaintiff's notice.
CT Page 22307
II Standard of Review
"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). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . 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 in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy present by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).III Discussion
General Statutes § 13a-144 provides in relevant part that "[a]ny person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner."
"[Section] 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity . . . The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required . . . The [notice] requirement . . . was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." (Citations omitted; internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8-9.
"With respect to the degree of precision required of a claimant in describing the place of injury, in many cases exactness of statement as to place cannot be expected, for the excitement and disturbance caused by the accident . . . make it impossible to observe with any carefulness the place where the accident occur[red] . . . In such cases reasonable definiteness is all that can be expected or should be required." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 9-10.
There are two categories of cases where written notice under General Statutes § 13a-144 is patently defective. The first is where the court finds the location of the accident to be different from the place described in the notice. See Ozmun v. Burns, 18 Conn.App. 677, 680-81, 559 A.2d 1143 (1989) (plaintiff's notice erroneously stated that the alleged defect was located 206 inches south of a particular telephone pole, when it actually was 206 inches north thereof). The second category of patently defective notice involves language that is so broad or vague that the commissioner cannot be reasonably expected to perform a meaningful investigation based upon the information provided. See Bresnan v. Frankel, 224 Conn. 23, 27-28, 615 A.2d 1040 (1992) (identification of site of accident as a six mile roadway was "wholly inadequate"); Schaap v. Meriden, 139 Conn. 254, 256-57, 93 A.2d 152 (1952); Murray v. Commissioner of Transportation, 31 Conn.App. 752, 753, 755-56, 626 A.2d 1328 (1993) (location of storm gate, described as "the northern curbline of Route 22," was inadequate); Collins v. Meriden, 41 Conn.Sup. 425, 427-28, 580 A.2d 549 (1990) [ 2 Conn. L. Rptr. 401].
Schaap v. Meriden, supra, and Collins v. Meriden, supra, are discussed below.
Here, the defendant is advancing the second kind of defect, arguing that the plaintiff's notice is so vague that, based upon the information provided, the defendant could not be reasonably expected to make a timely investigation in order to protect himself in the event of suit. The defendant contends that the notice does not provide sufficient information to meet the requisite reasonable definiteness standard. The defendant attempts to substantiate this position with Tine's affidavit, which alleges, in relevant part, that:
(1) "West Main Street begins at a four way intersection heading west from downtown New Britain. Main Street intersects and Bank Street heads in an easterly direction."
(2) "Within the intersection where the plaintiff claims he fell, there are approximately ten manhole or sewer covers and approximately another half dozen manholes and storm drains close to the intersection on Main Street and Bank Street."
(3) "There are no manhole covers on West Main Street near its intersection with Main Street." See affidavit of Jack Tine, ¶ 9, 11, and 12.
The defendant therefore asks the court to conclude that the plaintiff's notice was patently insufficient as a matter of law.
However, Tine's affidavit plainly misreads the plaintiff's notice. The plaintiff does not allege that he fell at the intersection of Main Street and West Main Street, nor does he allege that he fell at the intersection of Main Street and Bank Street. The plaintiff notified the defendant that "[a]s Mr. Corprew was walking easterly on, and crossing, West Main Street in order to catch a bus at the corner of Main Street and Bank Street, he fell into an uncovered and open manhole/storm drain opening in the West Main Street roadway adjacent to the City of New Britain, Board of Education building at 272 Main Street." See notice. According to the notice, the bus that the plaintiff was trying to catch stops at the corner of Main Street and Bank Street, but the plaintiff alleges that he fell in the West Main Sweet roadway adjacent to the New Britain Board of Education building at 272 Main Street. While a location on West Main Street adjacent to a building with a Main Street address would imply that the location of the accident is near the intersection of Main Street and West Main Street, no intersection is referenced in the plaintiff's description of the location of the hazard. Tine's allegation that there are many other manholes at nearby intersections does not speak to the accuracy of the plaintiff's notice to the defendant.
The closest Tine comes to addressing the plaintiff's notice is his allegation that there are no "manhole covers" on West Main Street near the intersection of West Main Street and Main Street. Tine certainly does not make reference to the absence of a manhole or storm drain opening adjacent to the Board of Education building in the West Main Street roadway.
The defendant cites to cases which he argues to be analogous to the present case, where courts have found a plaintiff's notice to be patently defective as a matter of law, including Schaap v. Meriden, supra, 139 Conn. 254, and Collins v. Meriden, supra, 41 Conn.Sup. 425. In Schaap, the Supreme Court held that the plaintiff's notice was insufficient as a matter of law where the plaintiff notified the commissioner that the plaintiff "while walking in an easterly direction on the southerly side of the street and highway known as West Main Street, Meriden, near the intersection of Runge Avenue . . . did step into a hole existing in said street and highway near the edge of a manhole cover and was . . . injured." Schaap v. Meriden, supra, 139 Conn. 255-56. The court stated that there was nothing in the notice to direct "attention to any particular one of the numerous holes found to have existed in the neighborhood." Id., 257.
Other cited cases are discussed above, at pages 5-6.
In Collins, the Superior Court held a plaintiff's notice to be patently insufficient where the plaintiff stated that she was injured by "a defective and improper condition of the sidewalk, located `adjacent to the front of the premises known as 243 West Main Street, Meriden, Connecticut.'" Collins v. Meriden, supra, 41 Conn.Sup. 427. The defendant argues that the facts in Collins are very similar to those presented here.
In Schaap, the plaintiff alleged the defect causing her injury to be on West Main Street near its intersection with Runge Avenue. Any hole in the street near a manhole cover anywhere near that intersection would have been within the plaintiff's description, and therefore the notice was found to be unacceptably vague. In Collins, the plaintiff identified the location of her injury to be a defective condition of the sidewalk adjacent to the front of 243 West Main Street. This necessarily implicated a stretch of sidewalk where the commissioner was given no further information to discern where in that stretch the accident occurred. This notice was therefore likewise found to be "patently vague." Id., 41 Conn.Sup. 427. The defendant cites Tine's affidavit to support the position that the plaintiff's notice here was equally ambiguous, given the layout of the roads, manhole covers and storm drains in the area the plaintiff described in his notice to the defendant.
The present case is distinguishable from Schaap and Collins, notwithstanding the coincidence that all three involve a "West Main Street." Here, the plaintiff alleges that he fell in a manhole/storm drain in the West Main Street roadway adjacent to 272 Main Street. While the defendant, relying on Collins, argues that this term is unacceptably vague in the context of the rest of the plaintiff's description of the location of the accident, the term "adjacent" provides sufficient notice to the commissioner as to the location of the accident.
Courts will look to the dictionary definition of a term to find its commonly approved usage. See Southern New England Telephone v. Cashman, 283 Conn. 644, 656, 931 A.2d 142 (2007); Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 678, 911 A.2d 300 (2006). The Supreme Court has utilized Webster's Third New International Dictionary as a source for dictionary definitions. See id.
"Adjacent" is defined as "not distant or far off the city square and the [adjacent] streets: nearby but not touching the islands and the [adjacent] mainland coast . . . relatively near and having nothing of the same kind intervening . . ." Webster's Third New International Dictionary, p. 26. The last part of the definition is especially illustrative: according to the notice, the manhole/storm drain in which the plaintiff allegedly fell was in the roadway relatively near 272 Main Street on West Main Street, with no other manhole/storm drain between the building and the opening in which the defendant fell. Thus, the plaintiff's use of the term "adjacent" in his notice to the defendant does not render that notice patently defective; it provides the necessary reasonable definiteness.
The defendant also argues that the plaintiff's notice is patently defective because it describes the opening in which the plaintiff fell as a "manhole/storm drain," when in fact, a manhole and storm drain are different things. Therefore, the defendant argues, the defendant did not have notice of the location of the accident, not knowing whether the plaintiff fell in a manhole or a storm drain. Indeed, a manhole and storm drain are quite different things. Manhole is defined as "a hole through which a man may go; esp[ecially] . . . one to gain access (as for cleaning or repair) to an underground or enclosed structure (as a sewer, electric conduit, steam boiler)," whereas a storm drain is "a drain carrying waste water other than sewage from a building to a storm sewer." Webster's Third New International Dictionary, pp. 1375, 2252.
The plaintiff's description of the alleged hazard as "missing its cover," see notice, is not helpful in drawing a distinction, as both manholes and storm drains can have covers, whether a round disk for a manhole, or a grate for a storm drain. However, this does not render the plaintiff's notice to the defendant patently defective, for there is nothing in Tine's affidavit or elsewhere to suggest that there is not only one manhole or storm drain adjacent to the New Britain Board of Education Building at 272 Main Street, located in the roadway on West Main Street in New Britain, Connecticut. This description therefore provides the reasonable definiteness required to avoid a finding that the notice is patently defective. See Filippi v. Sullivan, supra, 273 Conn. 11.
In Filippi, the plaintiff informed the defendant that an accident occurred "at a point in the roadway [located immediately after a graded blind curve that was] approximately 1/4 of a mile south of [the] Exit 73 exit ramp, and approximately 1/10 of a mile north of [the] Exit 72 exit ramp . . ." Id., 5, 11. The defendant submitted an uncontradicted affidavit which stated that the place of injury described in the plaintiff's notice was not one place but actually two, and that those two places were 1.6 miles apart although the accident could have occurred at only one such point. See id., 6. The notice provided that the accident occurred immediately after a graded blind curve. See id., 4-5 n. 3. In the absence of anything in the record to establish the existence of more than one graded blind curve, the Supreme Court concluded that "we cannot say that the notice necessarily was too vague to permit the commissioner to identify the location of the accident and injury with reasonable certainty. In other words, if there is only one graded blind curve immediately prior to one of the two points identified in the notice, the notice was sufficient to allow the commissioner to determine, with reasonable certainty, the place of injury. In such circumstances, the notice reasonably cannot be characterized as patently defective. The sufficiency of the notice with respect to the place of injury, therefore, is a matter to be determined by the jury." (Footnote omitted.) Id., 11.
Likewise, nothing in Tine's affidavit suggests that there is more than one manhole or storm drain located adjacent to the Board of Education building located at 272 Main Street on the West Main Street roadway in New Britain, Connecticut. The plaintiff's notice to the defendant is not patently defective. The sufficiency of the notice must be determined at trial by the trier of fact.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied. It is so ordered.