Opinion
No. CV-06-5002125-S
May 1, 2009
FACTS
The plaintiff, Bonnie Chuka, filed this suit against the defendant, city of Derby, on November 30, 2006, alleging a highway defect claim against the defendant under the auspices of General Statutes § 13a-149; she provided notice to the defendant of her injury due to this alleged defect on July 19, 2006. More specifically, the plaintiff alleges in her one-count complaint that on June 17, 2006, she tripped and fell over a steel bollard that had bolts protruding from it while walking along the Greenway, a public walkway within the city of Derby. That fall, she contends, caused injuries to her right shoulder, right elbow, and right knee. The plaintiff additionally avers that the exposed bollard constituted a defective and dangerous condition that the defendant had a statutory duty to keep in repair, which it failed to do. For this malefaction, the plaintiff seeks money damages in excess of $15,000.
General Statutes § 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, 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."
The court additionally notes that, while the plaintiff did not recite this statutory provision by name in her amended complaint, her cause of action is nevertheless a highway defect claim. Indeed, the plaintiff specifically alleges in her amended complaint that she fell on a public walkway that the defendant had a statutory duty to keep in repair. See Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981) ("[i]t is settled law in this state that the liability of the defendant under § 13a-149 is purely for breach of statutory duty and does not arise from negligence") (emphasis added; internal quotation marks omitted). Additionally, the plaintiff complied with the notice provision of § 13a-149, and attached a copy of that notice as an exhibit to her complaint.
Accordingly, because the parties do not dispute the location of the alleged injuries, the court concludes as a matter of law that the plaintiff pleads a claim under § 13a-149, and not a claim of general negligence. This is because, "[e]ven if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff's exclusive remedy is § 13a-149." Bellman v. West Hartford, 96 Conn.App. 387, 393-94, 900 A.2d 82 (2006) (upholding trial court's decision to treat plaintiff's action as highway defect claim even though statute not recited in complaint).
The defendant moved for summary judgment on April 17, 2008, arguing that no material facts were in dispute and that it should prevail as a matter of law because: (1) The plaintiff's allegations do not fall within the purview of the highway defect statute by reason of both the Greenway not being a "highway" for purposes of § 13a-149 and the defendant not having a duty to keep the Greenway in repair; (2) the plaintiff cannot prove that the defendant had knowledge of the alleged defect or that it failed to remedy the defect in a reasonable period of time; (3) the plaintiff is unable to prove her own lack of contributory negligence; (4) the plaintiff failed to provide sufficiently specific notice of the defect's location to satisfy the notice requirement of § 13a-149; and (5), to the extent this is not a highway defect claim, the plaintiff cannot prove facts that would bring her claim within an exception to the governmental immunity afforded by General Statutes § 52-557n. The defendant's motion for summary judgment was supported by a memorandum of law, which was supported by the following exhibits: (1) a copy of a certified affidavit from Ronald Culmo, Director of the Public Works Department for the city of Derby, stating that the Shultz Corporation, and not the city of Derby, was in control and possession of the Greenway at the time of the accident and that the Shultz Corporation installed the bollards that allegedly caused the plaintiff's injuries; and (2) an unauthenticated copy of the notice of highway defect and injury that the plaintiff served on the defendant.
General Statutes § 52-557n 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; 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. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-206. The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person."
After receiving a continuance and two extensions of time, the plaintiff objected to the defendant's motion for summary judgment on June 10, 2008, supporting her objection with the requisite memorandum of law. The court of the plaintiff's objection is that there are material facts in dispute, and that the defendant is not entitled to summary judgment as a matter of law because both proper notice of the highway defect was provided and the defendant owed a statutory duty to the plaintiff. In support of these asseverations, plaintiff has submitted as exhibits: (1) photocopied segments of uncertified deposition testimony from Ronald Culmo, Director of the Public Works Department for the city of Derby; (2) photocopied segments of uncertified deposition testimony from Bonnie Chuka; (3) photocopied segments of an unauthenticated project manual contract for the development of the Greenway between the defendant and Milone MacBroom, Inc.; and (4) an unauthenticated copy of the notice of highway defect and injury that the plaintiff served on the defendant.
The defendant filed a reply brief on June 19, 2008, and oral argument was held before the court at short calendar on August 18, 2008. Nevertheless, because the court determined that factual disputes required resolution to confirm its subject matter jurisdiction in this case; see Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998) (failure to meet statutory prerequisites in a § 13a-149 claim require dismissal for want of subject matter jurisdiction); see also Bellman v. West Hartford, 96 Conn.App. 387, 397-98, 900 A.2d 82 (2006) ("[w]hen issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses") (internal quotation marks omitted.); a brief evidentiary hearing was held on January 21, 2009. That hearing was held for the limited purpose of determining (1) whether the Greenway is a road for purposes of § 13a-149, and (2) whether Derby had a duty to keep the Greenway in repair at the time of the plaintiff's injury. See Chuka v. Derby, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 06 5002125 (November 20, 2008, Cronan, J.) (Order #120).
During that hearing, the court heard testimony from Michael Joyce, the project manager at Milone McBroom, who was responsible for overseeing the construction of the Greenway, from Ronald Culmo, the director of public works for Derby, and from the plaintiff, Bonnie Chuka. The court found all witnesses to be credible. Joyce testified that he is a licensed civil engineer and the project manager that supervised the construction of the Greenway. He stated that the Greenway is designed to be a "recreational trail," and that it does not meet the engineering specifications for a Connecticut street or highway. Indeed, motor vehicles are not permitted on the Greenway, and the bollard that the plaintiff tripped over was designed to keep vehicles off the Greenway. Moreover, Joyce testified that, he was aware that the Greenway was open to the public during its construction and that Derby's public works department was the agency that initially responded to block off the defective bollard that caused the plaintiff's injuries. Nevertheless, he also maintained that he was personally familiar with the contract between his employer, the Schultz Corporation, and Derby, and that it was the Schultz Corporation that controlled which areas of the Greenway were open to the public during its construction and that the Greenway was controlled by Schultz at the time of the plaintiff's injury.
Culmo testified that, as the director of the public works department, he is responsible for maintaining the streets and recreation areas within the town. He further provided a list of the roads in Derby that the city keeps updated and submits to the state each year, and further explained that the Greenway is not a road used for public transportation that the city maintains for the state. Although he allowed that the Greenway was conceived in part as a means to revitalize the downtown area, he also stated that it was a recreational area for people to hike and that it was not intended to facilitate public travel.
In this respect, the court takes judicial notice of the fact that the Greenway is only open to the public during daylight hours. See Greenway Etiquette, available on the internet at http://electronicvalley.org/DERBY/Greenway/etiquette.htm; see also Plaintiff's Brief at Exhibit A.
The plaintiff testified that she contacted Culmo after her accident to report the damaged bollard, and that it was Derby that had control over the Greenway at the time of her accident. To support her contention in this respect, she explained that Derby sets the policies that govern the use of the Greenway, and that she had to meet with an Alderman to try to have the city's initial prohibition of dogs on the Greenway removed. She additionally stated that she was using the Greenway for recreational purposes at the time of her fall, and that she had to park in a lot adjacent to the Greenway before entering the Greenway trail system.
DISCUSSION
Before turning to the merits, it is first necessary to consider the relevant standard of review. Although the instant motion is for summary judgment, it is nevertheless treated as a motion to dismiss because it implicates the court's subject matter jurisdiction. See Bellman v. West Hartford, 96 Conn.App. 387, 392-93, 900 A.2d 82 (2006) (motion for summary judgment challenging statutory preconditions and notice requirement necessary to bring cause of action under § 13a-149 properly treated by trail court as motion to dismiss). Indeed, "[w]here 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." Novicki v. New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998) (dismissing for want of jurisdiction a § 13a-149 claim for failure to meet statutory prerequisites). Consequently, because "the question of whether the plaintiff has complied with the provisions of § 13a-149 goes to the court's jurisdiction over the subject matter of the action"; id., 739; the court considers the jurisdictional issues presented by the defendant's motion for summary judgment under the standard of review governing a motion to dismiss.
"Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control . . . The highway defect statute, § 13a-149 is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed." Read v. Plymouth, 110 Conn.App. 657, 663-64, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). Ergo, because § 13a-149 specifies 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 . . . [our appellate courts] have construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Internal citation citations omitted; internal quotation marks omitted) Id.; accord Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
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 . . . [It] tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Bellman v. West Hartford, supra, 96 Conn.App. 393. "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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). Moreover, while a "motion to dismiss admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone; Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001) (internal quotation marks omitted); if "the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." Id. Finally, it is observed that "the 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).
Mindful of these principles, the court now considers whether it has subject matter jurisdiction to hear this case. "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.'" Novicki v. New Haven, 47 Conn.App. 734, 739, 709 A.2d 2 (1998). In addition to these two jurisdictional requirements, a third condition precedent to maintaining an action under § 13a-l49 further requires that "a plaintiff must provide a municipality with notice within ninety days of the accident." Ferreira v. Pringle, supra, 255 Conn. 354. Consequently, for the court to have jurisdiction over this case, the following three statutory conditions must be met: (1) the Greenway must by a road for purposes of § 13a-149; (2) the defendant must have had a duty to repair the exposed bollard bolts that allegedly caused the plaintiff's injuries; and (3) the plaintiff must have provided sufficient notice of this highway defect to the defendant.
The court addresses first whether the Greenway is a road or sidewalk for purposes of § 13a-149. This question has not yet been addressed by our appellate courts, and thus presents the court with a question of first impression. According to General Statutes § 14-1(37), a "highway" includes "any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use . . ." In explicating the meaning of this definition, our Supreme Court has further provided: "The plain meaning of the word highway is [a] main road or thoroughfare; hence, a road or way open to the use of the public." New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975); accord Webster's New International Dictionary (2d Ed.) 1179. It is in this fashion that our appellate courts have customarily understood the word.
By way of illustration, our Appellate court has explained that "the essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . [T]he term highway is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass . . . Public highway is not a term of art . . . The plain meaning of the word highway is a main road or thoroughfare; hence, a road or way open to the use of the public. [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler . . . Thus, it is a way over which the public at large has a right to pass." (Citations omitted; internal quotation marks omitted.) Read v. Plymouth, 110 Conn.App. 657, 665, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008); see also State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988) ("[t]he essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character").
Moreover, Connecticut courts have interpreted the words "road or bridge" within § 13a-149 to include sidewalks and public walkways. "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 . . . 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." (Citations omitted.) Novicki v. New Haven, supra, 47 Conn.App. 740. Indeed, "[t]he 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." Bellman v. West Hartford, supra, 96 Conn.App. 394-95. What is critical is "(w)hether 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.) Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972).
Accordingly, to determine whether the Greenway is a road for purposes of § 13a-149, the court is informed by whether (1) whether the Greenway is open to the public at all times, (2) whether the Greenway, like a sidewalk, is used in the ordinary course of travel, and (3) whether the alleged defective bollard is proximate enough to a road or highway so as to bring it within the ambit of the defective highway statute.
After reviewing both the evidence presented during the hearing held on January 21, 2009, as well as the undisputed facts set forth in the affidavits submitted by the parties, the court concludes that the Greenway in Derby is not a road or highway for purposes of § 13a-149. Although the Greenway is open to the public at large, it is closed to the public between sunset and sunrise. In this respect, the Greenway is analogous to the town dump at issue in Read v. Plymouth, supra, 110 Conn.App. 657. In that case, the court noted that the "transfer station was open during limited hours"; Read v. Plymouth, supra, 110 Conn.App. 666; which stands in contradistinction to a public road or highway that is open to the public at all hours. Thus, the Greenway is not open to the public in the traditional sense of allowing the public to come and go as they please.
With respect to the second guidepost, whether the Greenway, like a sidewalk, is used in the ordinary course of travel, the court concludes that it is not. The word travel is commonly defined as "mov[ing] from one place to another." Webster's New College Dictionary (3d Ed.) 1201. Thus, unlike recreation, which is often defined as "refreshment of one's mind or body after work through an amusing or stimulating activity"; id., 949; travel involves the object of getting from one place to another. In this case, the court is persuaded that the Greenway is a recreation area, and is not a road designed to move the public from one location to another. In the first instance, Michael Joyce, the project manager at Milone McBroom, who was responsible for overseeing the construction of the Greenway, testified that the Greenway does not meet the engineering specifications for a Connecticut street or highway. Instead, Joyce explained that the Greenway was designed as a recreation area. Similarly, Culmo testified that the Greenway is not open to vehicular traffic, nor is it listed as a road for state purposes. Finally, the plaintiff herself testified that she used the Greenway as an area for recreation. Specifically, she used the Greenway to exercise and to walk her dogs. Indeed, it was the plaintiff's habit to park her car in a lot near the entrance to the Greenway, and to later return to her car when she was finished recreating. Consequently, the court concludes that the Greenway is a recreation area that is not open to the public at all times and is not designed nor used for travel.
Indeed, it is worth noting that "greenway" is commonly defined as "[a] corridor of undeveloped land, as along a river or between urban centers, that is reserved for recreational use or environmental preservation." The American Heritage Dictionary of the English Language (4th Ed.), available at http://dictionary.reference.com/browse/Greenway. Thus, the very definition of its name lends additional support to the intended recreational purpose of Derby's Greenway.
The court notes the inherent ambiguity in attempting to distinguish between a road used for "travel" versus one used for "recreation," and it questions the usefulness of this inquiry in ascertaining whether a road falls within the reach of § 13a-149. Obviously, in its broadest meaning, the word "travel" could be used to describe any movement between any two locations, including movement between two points in a public park or on an athletic field. Similarly, the fact that Main Street is used by a jogger for "recreation" does not necessarily detract from its common use for travel purposes. Nevertheless, the distinction between recreation and travel is important. By way of example, § 52-557n specifically distinguishes municipal liability for injuries sustained on a highway, which must be brought pursuant to § 13a-149, from injuries sustained in recreational areas and the roads and paths leading to recreational areas, which are brought under § 52-557n(a)(1) or § 52-557n(b)(4), respectively. See, e.g., Ferreira v. Pringle, supra, 255 Conn. 341 ("[w]e have construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy") (internal quotations omitted); see also Considine v. Waterbury, 279 Conn. 830, 846, 905 A.2d 70 (2006) (analyzing municipal liability under § 52-557n(a)(1)(B) and noting that municipal governance of public parks and swimming pools is traditionally accorded immunity, which is not true of municipal governance of roads and highways).
Although the court is aware of the decision in Page v. New Hartford, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003186 (December 4, 2008, Ginocchio, J.), which denied summary judgment to the defendant municipality because the parties disputed whether an access road to a park came within the reach of § 13a-149, the court does not find that decision persuasive. In the first instance, a factual dispute as to whether a road comes with the ambit of § 13a-149 implicates the court's subject matter jurisdiction, and, therefore, requires an evidentiary hearing, which was not held in that case. See Bellman v. West Hartford, supra, 96 Conn.App. 397-98. Moreover, the decision in Page v. New Hartford, supra, did not offer any insight as to why the legislature would explicitly provide immunity for municipal maintenance of access roads to recreational areas; see § 52-557n(b)(4); if liability for such roads nevertheless attached under § 13a-149. See Field Point Park Ass'n., Inc. v. Planning Zoning Commission, 103 Conn.App. 437, 440-41, 930 A.2d 45 (2007) ("Regulations must be viewed to form a cohesive body of law, and they must be construed as a whole and in such a way as to reconcile all their provisions as far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results . . . [W]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation.") (citations omitted; internal quotation marks omitted). Accordingly, while the distinction between a road for travel and one for recreation may be elusive, the court nevertheless holds that it is a distinction with a difference and that the Greenway is a road for recreation.
With respect to the third criterion, whether the alleged defective bollard is proximate enough to a road or highway so as to bring it within the ambit of the defective highway statute, the court concludes that it is not. It is undisputed that the plaintiff fell over the bollards erected near the entrance to the Greenway that is located at the corner of Division Street and North Division Street, in Derby. Although the Greenway is situated near two roads, it is separated from those roads by a parking lot, in which Greenway users leave their vehicles while recreating. Moreover, the Greenway has a limited number of entrances, which are the sole means of egress into and out of the Greenway. Thus, unlike a sidewalk, the Greenway does not permit users access to public roads, except at designated locations. In this respect, the Greenway is more akin to a public park or a public transfer station than a town sidewalk or highway shoulder. Indeed, the public transfer station that was at issue in Read v. Plymouth, supra, 110 Conn.App. 657, was also located just off a public road, though had specific entrances the public had to use to access it during the hours it was open. See Read v. Plymouth, supra, 110 Conn.App. 666 (noting that access was "restricted by means of a locked gate"). In view of the fact that travelers on either Division Street or North Division Street would not use the Greenway to supplement their ordinary usage of those streets because access to the Greenway is limited to designated areas, the court concludes that the Greenway is not proximate enough so "as to be considered in, upon, or near the traveled path of the highway . . ." Baker v. Ives, supra, 162 Conn. 300.
The court is aware of the ruling in Glass v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0829725 (March 28, 2006, Freed, J.T.R.). In that case, the plaintiff brought a successful suit against the city of Hartford under § 13a-149 for a slip and fall that occurred in Bushnell Park after the park had closed. That decision, however, provides little illumination into the murky areas of law discussed here. In the first place, that decision did not specifically analyze whether a park path in Bushnell Park was a road for purposes of the highway defect statute. Moreover, that case did not address the "travel" versus "recreation" distinction that appears to lie at the heart of § 52-557n. In any event, Bushnell Park is also clearly distinguishable from the Greenway in that it serves as a common path for pedestrian traffic traveling from the capitol area to the business district surrounding Trumbull Street, whereas the plaintiff has not adduced any evidence that the Greenway is used in a similar fashion. See Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n. 12 ("the plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised") (internal quotation marks omitted).
In light of the foregoing, the court concludes that the Greenway is not a road for purposes of § 13a-149 because: (1) it is not open to the general public at all times; (2) it is a recreational area that is not commonly used for travel; and (3) it is not proximate enough to a road or highway to be considered a part of the traveled part of the highway. Accordingly, the court need not reach the question as to whether Derby had a duty to keep the Greenway in repair or to assess the adequacy of the notice given to Derby by the plaintiff.
CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is granted because the court is without subject matter jurisdiction to hear this case.