Opinion
No. X07 CV 04 4025117S
August 14, 2007
MEMORANDUM OF DECISION
I
On September 1, 2003, the plaintiff, Lori Bagg (Bagg), alleges that she was climbing a cement stairway leading to a sidewalk on the east side of Riverside Drive (state route 12) when a metal handrail at the top of the stairway broke free from its base causing her to fall to the ground below. Several years earlier, the defendant, the town of Thompson (Thompson), allegedly sought and received state approval to make improvements on the sidewalk within the state right-of-way. In improving the sidewalk, in August through October of 1997, the plaintiff alleges that the elevation of the sidewalk was raised so that the rise of the steps needed to be elevated to meet the sidewalk. Thompson's contractor, M M Construction, Inc. (M M), through an outside project engineer, Madan Gupta doing business as GM2 Associates or GM2 Associates, Inc. (GM2), allegedly fixed the steps by pouring concrete over the existing steps and installed handrails.
Specifically, Bagg alleges that the base of the handrail's upper support post was anchored in a soda can and not adequately imbedded in the concrete stairs.
On March 8, 2004, Bagg filed suit claiming personal injuries resulting from the defective handrail against the town, pursuant to General Statutes § 13a-149, and against others. Section 13a-149, in relevant part, provides that "[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." Thompson filed a motion to dismiss claiming that this court lacks subject matter jurisdiction because Bagg cannot prove that she sustained an injury on a defective road or bridge or that Thompson was the party bound to keep it in repair. In response, the plaintiff argues that Thompson built the stairs for public use and that no other person or entity was bound to keep it in repair. This court heard oral argument on the motion on July 6, 2007.
Unsure as to who owned the land upon which the steps were located, Bagg sued the defendants Thomas J. Revet, Jr. and Vicki Revet (Revets) as well as John Narducci and Gertrude Narducci. Subsequently, the Revets discovered that they own the land. According to the Revets' affidavits, they had not known that the steps were on their property nor had they requested that the steps be repaired in any fashion. The complaint was withdrawn against John Narducci and Gertrude Narducci on January 19, 2007. Additionally, on February 2, 2006, Thompson moved to implead GM2 and M M. The motion was granted and Thompson filed third-party complaints against them. The plaintiff has also filed separate complaints against M M and GM2 in this action.
Section 13a-149 fully provides: "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. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. 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."
The required notice, described above, was served on the town clerk on or about November 5, 2003 and is not at issue in this case.
The plaintiff has sought to amend her complaint, but the court must rule on the motion to dismiss before it can consider the amendment. See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) ("as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made").
II
"In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action. Practice Book § 10-31(a) provides in relevant part: `The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.' " Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "[T] he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
"Although subject matter jurisdiction may be challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss. 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 . . . 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 them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn.App. 393.
A.
"It is well established that the state or city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases . . . Thus, 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, on which the plaintiff depends for her cause of action, is one of those exceptions.
"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 doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . ." (Citations omitted; internal quotation marks omitted.) Novicki v. New Haven, 47 Conn.App. 734, 738-39, 709 A.2d 2 (1998).
As in Novicki, the question in the present case as to whether Bagg has complied with the provisions of § 13a-149 goes to the court's jurisdiction over the subject matter of the action. See id., 739. "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." (Internal quotation marks omitted.) Id., 739-40. Thompson's motion to dismiss for lack of subject matter jurisdiction argues that neither of the two requirements of § 13a-149 has been met.
"The duty of the municipality to use reasonable care for the reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic . . . To fall within the statute, a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway . . . rather, a person must [simply] be on the highway for some legitimate purpose connected with travel thereon . . . Nor does the defect have to be on the actual traveled portion of the highway . . . Reasonable latitude is allowed to meet the exigencies of travel." (Citations omitted; internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn.App. 394. "Whether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the [finder of fact] . . ." (Internal quotation marks omitted.) Id., 396, quoting Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972).
In Serrano v. Burns, 248 Conn. 419, 427, 727 A.2d 1276 (1999), the court stated that "[i] n Baker, although we did not specifically conclude that parking lots were covered by § 13a-144, neither did we conclude that, as a matter of law, parking lots were excluded from coverage under § 13a-144. Rather, we set out a fact based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway as provided by § 13a-144 . . . Our decision in Baker was, therefore, based on our conclusion that the jury reasonably could have found that the plaintiff's injury had occurred in an area within the state right-of-way line, and that the jury also could have found that the defect was in, upon, or near the traveled path so as to obstruct or hinder one in the use of the road for the purpose of traveling thereon . . ." (Citation omitted; internal quotation marks omitted).
The Novicki court addressed a similar motion to dismiss concerning an alleged defect at the top of a street ramp adjacent to the stairway of a walkway leading to a school. Novicki v. New Haven, supra, 47 Conn.App. 735. In discussing the first prong of the test, the court stated, "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. Since the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it. Accordingly, we conclude that the walkway is a road or bridge for purposes of the highway defect statute, and, in that respect, the plaintiff's allegations are sufficient to state a cause of action against the governmental entity bound to keep the walkway in repair." (Citations omitted; emphasis added.) Id., 740.
In the present case, a fact finder might be able to find that the stairway and its handrail constituted a defect very near the traveled path because the plaintiff apparently fell inches from the right-of-way. Nevertheless, the stairs were not on public property; they were on private property owned by the Revets. Indeed, the right-of-way ended at the sidewalk and did not include the stairway. As our Supreme Court stated in Ferreira v. Pringle, 255 Conn. 330, 350, 766 A.2d 400 (2001), "[i] n the present case, as in Baker, the alleged defect was within the town right-of-way line. This is significant because [w] hether the place of injury is within the . . . right-of-way line is the threshold inquiry in determining whether the condition complained of falls under § 13a-149." (Internal quotation marks omitted.)
Moreover, as stated earlier, "[t] he 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." (Citation omitted; emphasis added.) Novicki v. New Haven, supra, 47 Conn.App. 740. Other than the single use by the plaintiff, there is no evidence, allegation or affidavit suggesting that any member of the public ever used the stairway that connects the sidewalk to the Revets' property or that Thompson anticipated or encouraged public use of the stairs.
Even the Revets, in their affidavits, stated that although they had owned their property since 1984 they had not used the stairway for over ten years before September of 2003.
The plaintiff argues that it may be inferred from the exhibits that she submitted that Thompson intended that residents of the multi-family dwellings on the east side of Riverside Drive would use the stairs. Some of the exhibits, a letter from First Selectman Norman B. Seney, Jr. to Bruce Sheridan of the department of economic and community development, the plans for sidewalk reconstruction and the partial deposition of Sara Laughlin, a town employee, generally pertain to the sidewalk and do not address the stairs.
A partial deposition of Mark Manuel, who apparently is and/or was an employee of M M, is mostly speculative, i.e., he testifies to what he would have done in the ordinary course of his employment in regards to the stairs. In the deposition, the plaintiff's counsel asks Manuel about a "memo sent to [Manuel] at M M that said the concrete stairs at that location had not been reformed `as agreed to previously.' " Nevertheless, the plaintiff did not submit this memorandum as an exhibit. Even if she had submitted it and the memorandum was admissible, an agreement to reform the steps is not proof that the stairs were in the right-of-way or that Thompson anticipated or encouraged public use of them.
"Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true amount to a highway defect according to the statute is a question of law . . ." (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn.App. 394. Based upon the facts presented in support and opposition to the motion and the statements and stipulations of counsel at the hearing on this matter, the court finds that the plaintiff has failed to satisfy the first prong of the Novicki test and prove that the stairway is a defective road pursuant to § 13a-149.
B.
As to the second prong, Thompson did not have a duty to maintain or keep the stairway in repair simply because of Thompson's alleged actions, through M M and/or GM2, in altering the stairway. Thompson stated in its memorandum in support of its motion that "[s] ometime during the period August 6, 1997 — October 17, 1997, the Town of Thompson's contractor may have poured concrete onto the Revet's concrete stairway and/or moved the metal handrail on that stairway, even though the sidewalk improvement project did not call for any work on that stairway." Yet, the plaintiff alleged in her complaint, Count Two, paragraph two, that "[a] t all relevant times, the stairway and the land on which it was located was owned, possessed, maintained and controlled by the defendants THOMAS J. REVET, JR. and VICKI K. REVET." (Emphasis added.)
"[T] he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it . . . It is axiomatic that the parties are bound by their pleadings." (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn.App. 759, 769, 890 A.2d 645 (2006). "It is well settled that, [f] actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case . . . An admission in pleading dispenses with proof, and is equivalent to proof." (Internal quotation marks omitted.) Edwards v. CUNO, Inc., 277 Conn. 425, 454-55, 892 A.2d 938 (2006), citing Ferreira v. Pringle, supra, 255 Conn. 345. Therefore, because the plaintiff admits that the Revets maintained the stairs, this fact is conclusively established.
Moreover, even though the plaintiff claims that the town's agents created the defective condition, she has presented no affidavit or other factual evidence to indicate that the town itself directly planned or ordered repairs or even knew of any repairs to the stairway. The deposition testimony of Mark Manuel, an employee of M M, only indicates a need to "reform" the stairs because of the elevation difference of "eight inches, a foot higher" between the new sidewalk and the stairs. Even if M M performed the work on the private stairway outside the state right-of-way at the direction of Madan Gupta for GM2 with Thompson's approval, but without the Revets' permission, this would not make Thompson the "party bound to keep it in repair." Consequently, this court finds that the plaintiff has not sustained her burden to prove subject matter jurisdiction.
Short of exercising extraordinary powers, there is a question of whether Thompson had the authority to go upon the Revets' land. See Udkin v. New Haven, 80 Conn. 291, 295, 68 A. 253 (1907) (city had no duty to clear ice from private property); Beardsley v. Hartford, CT Page 14227 50 Conn. 529, 539 (1883) (city had no power to go upon private property to erect railing to protect public); but see General Statutes § 7-148(c)(6)(C)(ii) (allowing municipality to "[k] eep open and safe for public use and travel . . . the sidewalks . . . in the municipality" though not specifically allowing entry onto "any land" as in other parts of § 7-148).
In light of the allegations of her complaint, § 13a-149 is the plaintiff's exclusive remedy. See Bellman v. West Hartford, supra, 96 Conn.App. 394. Accordingly, the plaintiff cannot bring her cause of action under General Statutes § 52-557n that, in relevant part, provides: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . and (C) 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 or property by means of a defective road or bridge except pursuant to section 13a-149 . . ."
For the above reasons, the motion to dismiss is granted.