Opinion
FBTCV156051587S
05-18-2017
Ishmail Muhammad v. James Redeker, Commissioner Department of Transportation et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
Richard E. Arnold, J.
The case arises from an alleged fall occurring on or about June 19, 2014, on a sidewalk abutting Lindley Street in Bridgeport, Connecticut. The plaintiff alleges that on June 19, 2014, he was walking on the sidewalk on Lindley Street at or near the Route 25/8 underpass pushing his great granddaughter in a stroller when he fell into a hole that was approximately one to two inches deep and measured 2 feet by two feet wide. He claims, as a result, he sustained serious and permanent injuries, including, but not limited to, a left ankle fracture.
The plaintiff's complaint consists of three counts. The First Count is brought against the defendant Redeker in his capacity as Commissioner of the Department of Transportation for the State of Connecticut (" the State") pursuant to General Statutes § 13a-144. The plaintiff claims that the occurrence was due to a breach of a statutory by the State to maintain the sidewalk in a fashion reasonably safe for public use and travel. The Second Count is brought against the City of Bridgeport, pursuant to General Statutes § 13a-149. The Third Count is also brought against the City of Bridgeport and alleges a public nuisance. Only the First Count against the State is the subject of this motion to dismiss.
The defendant, James P. Redeker, Commissioner for the Department of Transportation for the State of Connecticut has moved to dismiss the First Count of the plaintiff's complaint dated July 30, 2015, claiming the court lacks subject matter jurisdiction. The defendant claims it has sovereign immunity and the plaintiff's claims do not fall within the waiver of sovereign immunity contained in General Statutes § 13a-144. The defendant has filed his legal memorandum of law and a reply to the plaintiff's objection. The plaintiff has filed an objection and his legal memorandum of law, as well as, a subsequent reply directed to the plaintiff's reply. Oral argument was held before the court on February 14, 2017.
Standard of Law
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. " 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." Richardello v. Butka, 45 Conn.Supp. 336, 717 A.2d 298 (1997) ; Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). " A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). " In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. at 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990)." It is the law in our courts, . . . that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Pamela B. v. Ment, 244 Conn. 296, 309, 709 A.2d 1089 (1998) failed to do so. It is well established principle that " the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).
Discussion
" It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases . . . The state legislature . . . possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities . . . 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 [§ 13a-144]." (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307-08, 39 A.3d 1065 (2012). " 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. Accordingly, the only avenue through which a plaintiff, injured by means of a highway defect on a state road, may seek recovery from the state is through an action brought pursuant to § 13a-144." Id.
The defendant Redeker notes that General Statutes § 13a-144 creates a cause of action against the Commissioner of Transportation for " [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 . . ." The defendant argues that in Moleske v. MacDonald, 109 Conn. 336, 341, 146 A. 820 (1929), our Supreme Court held the Commissioner of Transportation has no duty to maintain sidewalks along state highways because " [t]hey serve local convenience almost wholly and have no relation to, nor do they contribute to, the facilitating of that public travel which the state aims to serve by the establishment of state-aid and trunk line roads between the towns and across the state." Id. Moleske v. MacDonald, supra, remains the law today.
§ 13a-144. Damages for injuries sustained on state highways or sidewalks reads as follows in relevant part:
" [T]he statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely. This is true even though, as alleged here, the sidewalk is within the limits of a trunk-line highway, the claimed defective condition existed within those limits, and the condition arose because of the neglect of the highway commissioner. The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk 'which it is the duty of the highway commissioner to keep in repair.' Ordinarily, this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies within the limits of a trunk-line highway." Tuckel v. Argraves, 148 Conn. 355, 358, 170 A.2d 895 (1961); Moleske v. MacDonald, supra, 109 Conn. 339.
The defendant argues that the plaintiff's complaint alleges that the State of Connecticut owned, possessed and/or controlled the subject sidewalk on " Lindley Street at or near the Route 8/Route 25 underpass and/or the abutting property" and that the sidewalk and its surrounding area was " part of the State highway system." However, the defendant argues that Lindley Street was not part of the state highway system. In support of this argument the defendant has submitted a sworn affidavit from Ralph DeSanti, the Transportation Maintenance Planner in the District 3 office of the State of Connecticut Department of Transportation. Bridgeport is the responsibility of the District 3 office. DeSanti states that Lindley Street on June 19, 2014, " was not part of the state highway system." Accordingly, the defendant claims that the Department of Transportation has neither the responsibility for the maintenance of Lindley Street or the sidewalks abutting it. The defendant does agree that Route 8 and Route 25, including the on-ramps and off-ramps are and were part of the state highway system, but the limits of the Department of Transportation's responsibility for the on-ramps and off-ramps were confined to the travel potions for motor vehicles, which are limited from curb to curb.
DeSanti sworn affidavit is dated August 27, 2015.
The plaintiff's objection to the motion to dismiss is grounded on the legal principle that when a court decides a jurisdictional question raised by a motion to dismiss, the court must consider the allegations of the complaint in their most favorable light and must take the facts to be those alleged or implied in the complaint, and construe them in a manner most favorable to the pleader. Lawrence v. Weiner, 154 Conn.App. 592, 597, 106 A.3d 963 (2015). This would allow the plaintiff to survive a motion to dismiss based on the grounds of statutory immunity. Id., 597-98. The plaintiff argues that his complaint alleges that the sidewalk on Lindley Street at or near the Route 25/8 underpass and/or the abutting property " was in the possession and control" of the defendant and was part of the state highway system. Further, it is alleged the Department of Transportation for Connecticut was responsible for the design, maintenance and upkeep of the subject sidewalk. The plaintiff claims the factual dispute of whether the defendant or the co-defendant City of Bridgeport was responsible for the subject is the subject of a factual dispute, as the City has denied responsibility. See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 342-48, 977 A.2d 636 (2009). The plaintiff argues that discovery in this matter is still incomplete and the court is required to hold an evidentiary hearing to resolve the factual dispute. Id.; see also, Lampasona v. Jacobs, 7 Conn.App. 639, 642-43, 509 A.2d 1089 (1986). The plaintiff argues that discovery in this matter is still incomplete.
In its written response to the Requests for Admission dated October 30, 2015, the City of Bridgeport denies it controls the subject sidewalk and claims the property was owned by the State of Connecticut.
In its reply to the plaintiff's objection to the motion to dismiss, the defendant Redeker argues that Joseph Sanzo, a representative of the City of Bridgeport was deposed subsequent to the filing of the plaintiff's objection. Sanzo, in his deposition testimony admitted that Lindley Street, which abuts the subject sidewalk was, in fact, a City of Bridgeport roadway and the City was responsible for maintenance of the sidewalk where the plaintiff allegedly fell and sustained injuries. The plaintiff responds that the testimony of Sanzo, while shining a significant light on which defendant had responsibility for maintaining the sidewalk, this testimony cannot be considered as definitive of the question. The plaintiff continues to claim that more discovery is needed and an evidentiary hearing is required.
The court must examine the allegations of the First Count of the complaint to determine, as a matter of law, whether the plaintiff has brought a claim that falls within the statutory duties imposed on the commissioner. McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005). In so doing, the court " must consider the allegations of the complaint in their most favorable light . . . including those facts necessarily implied from the allegations." (Citation omitted; quotation marks omitted.) Id., at 267 . However, the plaintiff's assertion that the sidewalk in question is part of the state highway system is refuted on the record before the court. The defendant, Commissioner Redeker, has filed an affidavit from Ralph DeSanti, Transportation Maintenance Planner, averring that the sidewalk at issue is not part of the state transportation system. No counter affidavits disputing this assertion have been submitted. Consequently, the record consists of a barren complaint challenged by an uncontradicted affidavit. " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence; . . . and/or public records of which judicial notice may be taken; . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter-affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . ." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
If the court was only to consider DeSanti's affidavit there might be a question as to whether or not to consider it conclusive of the issue given the possibility of potential bias and interest that can be inherent in such an affidavit from an employee of the defendant. This is despite the fact that the plaintiff has not filed counter-affidavits to rebut DeSanti's affidavit. See. Kollock v. Redeker, Superior Court, judicial district of Fairfield at Bridgeport, No. FBTCV156048827S. (Jan. 15, 2016, Arnold, J.).
However, in addition to DeSanti's sworn affidavit, the court has considered the deposition testimony of Sanzo, a representative of the co-defendant City of Bridgeport, who testified that Lindley Street, which abuts the subject sidewalk was, in fact, a City of Bridgeport roadway and the City was responsible for maintenance of the sidewalk where the plaintiff allegedly fell and sustained injuries. While the plaintiff argues that this is not definitive, the plaintiff has offered no evidence to dispute Sanzo's sworn testimony.
Based on the record before it, the court finds that the defendant Redeker and the State Department of Transportation had no statutory duty to maintain and repair the sidewalk at issue. Therefore, the motion to dismiss the First Count is barred by the doctrine of sovereign immunity.
Any 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, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, 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. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant . . . The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.