Opinion
CV156053419S
05-06-2016
Eric Boykin v. State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION--MOTION TO DISMISS
William J. Wenzel, J.
This action comes before the court on the Defendant's Motion to Dismiss. Plaintiff's complaint here asserts a single count for relief against the State of Connecticut (" State") which rests upon the waiver of governmental immunity under General Statutes § 13a-144. The defendant's motion claims the notice provided earlier to the Commissioner of Transportation is insufficient to qualify for the waiver afforded under this statute and, hence, the court lacks subject matter jurisdiction due to sovereign immunity.
Relevant Legal Principles
Most of the relevant legal principles have already been stated:
Our Supreme Court has stated many times that the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). It has also recognized that " the state can consent to be sued and that [t]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144] . . . Therefore, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity." (Citation omitted; internal quotation marks omitted.) Id., at 364-65, 636 A.2d 786. " Section 13a-144 [however] constitutes only a limited waiver of the state's sovereign immunity in cases involving alleged highway defects . . . Furthermore, because the statute constitutes a break with common law, it must be strictly construed." (Citation omitted.) Lussier v. Dep't of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994).
Section 13a-144 provides in relevant part: " 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 . . ." (Emphasis added.) " The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Lussier v. Dep't of Transportation, supra, 228 Conn. at 354, 636 A.2d 808. Bresnan v. Frankel, 224 Conn. 23, 27-28, 615 A.2d 1040 (1992) . . . " If this purpose is to be served the 'cause' of the injury which is required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury." Nicholaus v. Bridgeport, 117 Conn. 398, 401, 167 A. 826 (1933).Frandy v. Comm'r of Transportation, 132 Conn.App. 750, 752-54, 34 A.3d 418 (2011).
Discussion
The State claims that the notice of claim delivered to the Commissioner of Transportation is fatally defective in two regards: First, the notice is not sufficient in describing the location of the accident; second, the notice is not sufficient in describing the cause of the injuries claimed. The relevant notice of claim served in this case has been provided by each side in their motion papers. There is thus no dispute as to what is stated therein. Thus, the role of the court is simply to ascertain whether or not the legal requirements of § 13a-144 have been met.
On the first claimed deficiency, notice of the location of the incident, defendant claims that Wasilewski v. Comm'r of Transportation, 152 Conn.App. 560, 99 A.3d 1181 (2014), describes the standard required to adequately disclose location and requires dismissal. In Wasilewski, the court stated the standard required was that the location must be described with reasonable definiteness. In that case, however, the court found the multiple descriptions of the location were contradictory, mutually exclusive and identified a location which simply did not exist. In the instant case, defendant looks only to the words which follow the " Place of injury:" heading. These state: " Intersection of East Main St. and I-95 south entrance ramp, Bridgeport, CT." Defendant argues this is imprecise as the accident could have occurred anywhere on the entrance ramp under that description. The court is not persuaded on this point for two reasons.
First, the location described is not the entire entrance ramp. The location described is the intersection of a street and the ramp. No matter how long and far two roads might run, the location where they intersect is reasonably definite and limited. The second reason why the court finds this argument unpersuasive is that even if the exact words following the " place of injury" heading were less than precise, looking to the notice as a whole, the Commissioner reading the notice should understand the location as the pedestrian cross walk within the intersection.
The second challenge to the notice is that the notice fails to describe the cause of the injury. On this point, the Frandy decision provides the relevant guidelines. Here, the notice of claim presented to the State says in relevant part, " Eric Boykin was injured due to the negligence [of the] State [which] failed to place a pedestrian cross walk button at the intersection . . . failed to inspect the pedestrian crossing, failed to repair the cross walk button and failed to provide a safe pedestrian cross walk for pedestrians such as the plaintiff." The more the court reads this language, the more ambiguous and open ended it appears. Suffice it to say that how any of these claimed failures caused injuries to plaintiff simply does not appear.
Uncertainty begins with the inconsistent statements that the State failed to place a cross walk button at this location and then failed to repair the cross walk button. How do you fail to repair a button which apparently wasn't there to begin with? If the button was there, what was wrong with it? Was it too small . . . too big . . . too hard to push in . . . not wired properly?
How does failure to inspect a cross walk cause an injury? If the cross walk was perfect in every way, what difference does an inspection make? If the cross walk was defective in some way, would that be uncovered in an inspection? Would a defect be fixed because of an inspection?
The claims that the State was negligent or that the cross walk was unsafe are simply conclusions and add nothing to the notice in terms of helping the reader understand how such caused the claimed injury.
The notice does not even suggest the process by which some defect caused back and ankle injuries. Was there a car involved? Was there a bicycle involved? Did plaintiff fall in a pothole? The court is reading the exact same notice sent to the Commissioner and has to engage in pure speculation to try to determine exactly what plaintiff claims the State did or did not do which caused the injuries alleged.
It should be noted that while the complaint does provide more detailed information as to the alleged negligence of the State, such complaint was filed almost eleven months after the date of the incident, far outside the ninety-day limit allowed under § 13a-144.
In summary, the notice which was served upon the Commissioner failed to state the cause of the injuries alleged and thus failed to meet the minimal requirements of § 13a-144 by which the sovereign immunity of the State is waived. Without waiver of that immunity, this court lacks subject matter jurisdiction over the claim asserted herein. This action is dismissed.