Opinion
HHDCV196110067S
11-05-2019
Bethany Castillo-Blain et al. v. Town of Wethersfield
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS, NO. 101
CESAR A. NOBLE, J.
The issue before the court is whether to grant the defendant’s motion to dismiss on the ground that the court lacks subject matter jurisdiction as the plaintiffs have failed to file sufficient notice pursuant to General Statutes § 13a-149. The notice provided to the defendant advises that the impending action would be "relating to a defective sidewalk" and the plaintiffs’ injuries were "[d]ue to a defect in the roadway in the crosswalk" and "[a]s a result of the defect." Because the court finds the notice insufficient, it grants the motion.
The present action arises out of a dispute between the plaintiffs, Bethany Castillo-Blain and her minor daughter Sophia Castillo-Blain, and the defendant, the Town of Wethersfield, involving injuries suffered by the plaintiffs allegedly caused by defects in a crosswalk owned and maintained by the defendant.
In a two-count complaint, filed on April 12, 2019, the plaintiffs allege the following facts: on March 27, 2017 at approximately 11:45 a.m., Bethany was walking and pushing a baby stroller containing her then-eleven-month-old daughter Sophia in the crosswalk located at the intersection of Main Street and Marsh Street in Wethersfield, Connecticut where, on the east side of intersection, approximately halfway across Marsh Street, Bethany was caused to fall due to the allegedly dangerous condition of the crosswalk and in so doing was also caused to lose her grip on the stroller, which overturned. Both mother and daughter claim to have suffered injuries as a result of the fall, including Bethany’s broken ankle and other traumas. The plaintiffs’ complaint alleges two counts of statutory negligence against the defendant for failing to exercise reasonable care in the proper inspection and maintenance of the crosswalk.
The defendant filed a motion to dismiss (#101) for lack of subject matter jurisdiction. Specifically, the defendant argues that the plaintiffs failed to satisfy the condition precedent to maintaining a cause of action under General Statutes § 13a-149, namely the notice given by the plaintiffs to the defendant is deficient and fails to meet the mandatory statutory requirements for describing the cause of the injury.
Section 13a-149 provides in relevant part: "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 shall be maintained against any town ... unless written notice of such injury and a general description of the same, and 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 ..."
The plaintiffs filed a memorandum of law in opposition to the motion to dismiss (#102), arguing that although the notice contains a "rather spartan description" as to causation, it should be sufficient to satisfy the requirements of § 13a-149 or at least trigger the statute’s "savings clause."
"[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 ... Accordingly, [i]n determining whether [to grant a motion to dismiss], the inquiry does not extend to the merits of the case." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[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). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015).
"[T]he highway defect statute, § 13a-149, is a plaintiff’s exclusive remedy against a municipality ... for damages resulting from injury ... by means of a defective road or bridge." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). "The word ‘road’ as used in [§ 13a-149] has usually been construed to include a sidewalk." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 3 n.1, 950 A.2d 1247 (2008).
"As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements ... The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof." (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). "[W]hen the allegations of a complaint and other properly considered evidence bring a plaintiff’s cause of action within the purview of § 13a-149, the failure to provide the notice required by the statute deprives the court of subject matter jurisdiction over the action." Bagg v. Thompson, 114 Conn.App. 30, 41, 968 A.2d 468 (2009).
"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 ... [T]he statutory notice assists a town in settling claims promptly ... 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).
Section 13a-149 contains a "savings clause," which provides in relevant part: "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 ... was not in fact misled thereby." While this clause "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. 183; nevertheless, the savings clause saves only a specific type of error, namely, an inaccuracy. "The savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent." (Emphasis original.) Martin v. Plainville, supra, 240 Conn. 113. "[E]ntirely absent means exactly that; one of the five essential elements ... must be completely, totally and unmistakably omitted from the plaintiff’s notice." (Citation omitted; internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 794, 817 A.2d 636 (2003).
In the present case, on June 23, 2017, less than ninety days after the alleged incident, the plaintiffs sent the clerk of the Town of Wethersfield a signed Notice of Intent to Bring Suit. On its face, the notice satisfies four of the five essential elements of § 13a-149. As for the fifth element, the notice states the impending action would be "relating to a defective sidewalk" and the plaintiffs’ injuries were "[d]ue to a defect in the roadway in the crosswalk" and "[a]s a result of the defect." The parties offer differing interpretations of these phrases and whether or not they satisfy the conditions precedent to maintain an action under § 13a-149. The defendant argues the notice is insufficient as to causation, while the plaintiffs argue that the description provided in their notice should be upheld by virtue of the savings clause. The court agrees with the defendant.
In order to maintain an action under § 13a-149 the cause of injury must be a defect or defective condition in a road. See Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 (1937) ("[t]he cause ... must be interpreted to mean the defect or defective condition of the highway which brought about the injury" [internal quotation marks omitted] ); General Statutes § 13a-149 ("Any person injured ... by means of a defective road ..."). Accordingly, courts have interpreted the notice requirement and, more importantly, its purpose as requiring more information than merely stating a road is defective.
In Ross v. New London, 3 Conn.Cir.Ct. 644, 645, 222 A.2d 816, cert. denied, 154 Conn. 717, 221 A.2d 272 (1966), the court held that the plaintiff’s notice, which stated that "the fall was caused by the neglect of the city in the maintenance and repair of the sidewalk" was insufficient and concluded by asking: "What exactly was the neglect of the city ... which brought about the injuries claimed by the plaintiff? Was it a large, small or medium hole, a ditch, a gully, a rut, a depression, or the elevation of a portion of the sidewalk, or perhaps the failure of the city effectively to remove snow or ice accumulated thereon? What was the city to look for in the protection and preservation of its interests, and to enable it properly to prepare a defense, if any, against the claim of the plaintiff?"
More recently, in Sherard v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-16-6060857-S (January 7, 2019, Wilson, J.) , the court held that the plaintiff’s notice, which stated that "[t]he cause of her fall was a defect in the sidewalk due its state of disrepair," was insufficient because "the plaintiff failed to provide the defendant with the relevant information to adequately investigate the place where the injury occurred and protect its interests ... Moreover, the savings clause is inapplicable, as the description of the alleged defect is entirely absent from the notice, and is not merely inaccurate." (Citation omitted.)
In the present case, the plaintiffs’ notice to the defendant contains three references to a "defect" in the crosswalk. The notice provides the defendant with nothing more from which to identify the exact nature of the defect, to remedy it so as to protect public welfare, and to prepare an adequate defense. The deficiency present in the notice is not that it is inaccurate, it is that it provides no description whatever of what the "defect" is. As in Sherard, the description fails to provide information sufficient to identify the defect. The savings clause cannot apply when a description is entirely absent. On this ground, the court finds the notice is insufficient to satisfy the statutory requirements of § 13a-149, holds that it lacks subject matter jurisdiction to hear the case and grants the defendant’s motion to dismiss.
So ordered.