Opinion
No. CV 03-0080409
August 3, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#109)
In this action the Plaintiff seeks damages for injuries she received when she slipped and fell on the sidewalk adjacent to the West Stafford Elementary School. The Plaintiff alleges that the Defendant, the Town of Stafford, owned the property on which the school is located and was charged with the proper care and maintenance of the school and sidewalk. The Plaintiff also alleges that the Defendant, the Stafford Board of Education, pursuant to General Statutes § 10-220 et seq., operates and maintains the school facilities.
The Defendant, the Stafford Board of Education, has moved to dismiss the action as to it because the Plaintiff failed to give it adequate notice pursuant to the statutory requirements set forth in General Statutes § 13a-149. The Board claims that the notice was not served on the proper party and failed to identify the cause of the Plaintiff's injuries.
General Statutes § 13a-149 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 CT Page 11927-ck borough was not in fact misled thereby."
Failure to comply with the notice requirements of § 13a-149 deprives the court of subject matter jurisdiction over the action. Ferreira v. Pringle 255 Conn. 330, 354 (2001).
As to the Board's first claim, it argues that the "Stafford Board of Education is [a] legally constituted municipal corporation pursuant to Conn. Gen. St. § 10-220." (Memorandum in Support of the Defendant's Motion to Dismiss, p. 10.) The Board then argues that as such, § 13a-149 requires that the notice of injury must be given to the secretary of the corporation, that is, the secretary of the Board of Education. Here the notice was given to the Town Clerk, the Superintendent of Schools, and the Principal of the West Stafford Elementary School. The Plaintiff argues that since the Superintendent is, pursuant to General Statutes § 10-157, the chief executive officer of the Board, service upon her was sufficient.
The language of the statute relied on by the Board refers to a "corporation." The Defendant cites no authority other than General Statutes § 10-220 for its proposition that a Board of Education, standing alone, is a municipal corporation. That statute, however, does not establish a board of education as a municipal corporation but describes its duties and obligations. In fact, the Appellate Court has noted "[t]hat there is indeed a difference between a municipal corporation and an agency (be it state, federal or municipal) merits but a brief discussion. In Connecticut, towns and cities are not considered agencies of the state. Bridgeport v. Agostinelli, 163 Conn. 537, 550, 316 A.2d 371 (1972). These same towns and cities may, however, be specially chartered by the state as municipal corporations See e.g., Stamford v. Stamford, 107 Conn. 596, 598, 141 A. 891 (1928). Also, territorial subdivisions within a town or city can be made municipal corporations. Id.; Sachem's Head Property Owners Ass'n v. Guilford, 112 Conn. 515, 517-18, 152 A. 877 (1931). An agency, on the other hand, is commonly an administrative division of the governmental entity which is created to carry out a specific function, for example, on a local level, a park department or a school board; or, on a state level, the department of transportation or the department of public works." White Oak Corporation v. Department, Consumer Protection, 12 Conn.App. 251, 254-55 n. 7 (1987). Thus, although the town of Stafford is a municipal corporation, its Board of Education, standing alone, is not. In any event a municipal corporation is a corporation for some purposes but because of its exercise of distinctive governmental functions is not infused with all the rights and liabilities of a corporation. See, Shortt v. New Milford Police Department, 212 Conn. 294, 301 (1989). Therefore service upon the CT Page 11927-cl Secretary or Treasurer of the Board was not required.
Local boards of education are agents of the state when they perform their functions in carrying out the duties imposed upon them by the legislature but are also agents of the municipalities they serve when they perform those functions entrusted by the state to the municipality and subsequently delegated to the board. Board of Education v. New Haven, 237 Conn. 169, 181 (1996). Each town establishes the number of members of its Board of Education pursuant to General Statutes § 9-203. They are not a separate body corporate and politic such as a municipal housing authority established pursuant to General Statutes § 8-40 or a parking authority established pursuant to General Statutes § 7-202. A school district is a body corporate pursuant to General Statutes § 10-241 and pursuant to General Statutes § 10-240 each town is a school district. General Statutes § 52-57 provides that service of process in civil actions on a school district is accomplished by serving its clerk or one of its committees. That statute was recently amended to provide that service upon a board of a town is accomplished by serving the town clerk. P.A. 03-224, S. 8 and P.A. 03-278, S. 126. Therefore, as an agency of the Town, service upon the town clerk as provided in § 13a-149 was sufficient notice to the Board.
The Defendant Board also claims that the action against it should be dismissed because the notice does not describe the cause of the Plaintiff's injuries. The notice identifies the cause of injuries as "unsafe conditions, nuisance and/or defect on the sidewalk front entrance of West Stafford Elementary School." "`In determining whether the notice is sufficient, we must look to the purpose of the statute . . . The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . . More specifically, as we recently stated in Sanzone v. Board of Police Commissioners, [ 219 Conn. 179, 198, 592 A.2d 912 (1991)], 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.) Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993); id. (notice sufficient despite incorrect citation to statute that was basis for plaintiff's claim). Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim. The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate. It provides: `No notice CT Page 11927-cm 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.' General Statutes § 13a-149. This `savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent.' (Emphasis added.) Martin v. Plainville, supra, 240 Conn. 113 . . . The savings clause, therefore, operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice . . . Moreover, our conclusion is guided by the well established principle that in actions arising under § 13a-149, the savings clause `[a]lthough . . . limited in terms of the types of defects covered demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff.' Pratt v. Old Saybrook, supra, 225 Conn. 182-83." Salemme v. Seymour, 262 Conn. 787, 793-96 (2003) (footnotes omitted).
Applying the principles stated in Salemme, the notice is not fatally defective. In addition, the Defendant Board has not claimed that it was misled by the notice.
The motion to dismiss is denied.
Jane S. Scholl, J. CT Page 11927-cn