Opinion
No. CV08-5003959S
June 7, 2010
MEMORANDUM OF DECISION
The issue before the court is as to whether or not the motion for summary judgment (#147) as to count two of the plaintiff's fourth amended revised complaint should be granted. The basis for the motion is that the plaintiff failed to give adequate notice as required by the state highway defect statute, General Statute § 13a-144 to the defendant, State of Connecticut.
These actions arise out of an automobile accident in which the plaintiffs, Pearl Dexter and Paul L. N. Rossini, allege that they suffered injuries as the result of the negligence of multiple defendants, including an employee of the state of Connecticut (the defendant). In the operative pleading, the fourth amended revised complaint dated June 19, 2009, the plaintiffs allege the following facts. On December 5, 2006, Michael Miranda, a snow plow driver for the department of transportation, was removing snow along Route 14 in Windham in the course of his employment with the defendant. At approximately 10:30 a.m., a hydraulic line failed on the truck operated by Miranda, which caused "an oily, slick, rainbow colored substance" to spill onto Route 14 and continue into the town of Scotland near the intersection with Route 97. After recognizing the failure of the hydraulic line, Miranda pulled his truck to the side of Route 97 and brought the vehicle to a stop. Approximately twenty minutes later, an automobile operated by Kara L. Cicchiello, in which the plaintiffs were passengers, approached the scene of the oil spill traveling in an easterly direction. At this same time, another automobile driven by Devin D. Reschny, who was traveling west on Route 14, approached the area of the oil spill. Reschny proceeded to lose control of his automobile while negotiating a curve, and he crossed over the center line into the east bound travel lane and collided with the vehicle operated by Cicchiello. As a result of this traffic accident, the plaintiffs allege that they suffered numerous physical injuries.
The plaintiffs have brought separate actions that are docked as CV 08 5003959 and CV 08 5003960 respectively. As the factual allegations of both cases are the same and the defendant state of Connecticut is moving for summary judgment against both plaintiffs on the same ground, the two actions will be discussed simultaneously and Dexter and Rossini will hereinafter be referred to as "the plaintiffs."
As the state of Connecticut is the only defendant that is a party to the motion for summary judgment that is presently before the court, it alone will be referred to as "the defendant" throughout this memorandum.
The plaintiffs' respective seven-count complaints allege the following claims: (1) negligence against the defendant pursuant to General Statutes § 52-556; (2) a claim against the defendant pursuant to the state highway defect statute, General Statutes § 13a-144; (3) negligence against Reschny; (4) respondeat superior against Mayo Fleet Lease; (5) negligence against Cicchiello; (6) respondeat superior against Camrac, Inc. and (7) respondeat superior against Enterprise Rent A Car.
On May 26, 2009, the defendant filed a motion to dismiss count one in both actions on the ground of sovereign immunity. This motion was granted by the court, Riley, J, on September 23, 2009. Accordingly, count two is the only remaining count against the defendant.
The claims against Mayo Fleet Lease, Camrac, Inc. and Enterprise Rent A Car are all based on the allegation that Reschny and Cicchiello were operating automobiles owned by these defendants and acting within the scope of their employment with these defendants at the time of the subject automobile accident.
On February 26, 2010, the defendant filed a motion for summary judgment in both actions, as well as a memorandum of law in support of its motion. The defendant contends that it is entitled to judgment as a matter of law because there is no genuine issue of material fact that the plaintiffs failed to give adequate notice as required by the state highway defect statue, § 13a-144. Attached to the defendant's motion are: (1) the sworn affidavit of Miranda; (2) a copy of the plaintiffs' notice to the commissioner of the department of transportation dated February 26, 2007; (3) a copy of the police report for the subject automobile accident dated December 19, 2006 and (4) a copy of a corrected police report dated February 5, 2010. On March 30, 2010, the plaintiffs filed a memorandum of law in opposition to the defendant's motion, which attaches a copy of a department of transportation supervisor's incident investigation report dated December 6, 2006. The defendant filed a reply memorandum on April 22, 2010, which attaches a copy of Cicchiello's responses to the defendant's requests for admissions dated January 14, 2010. The court heard argument at short calendar in both cases on May 3, 2010.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In its memorandum of law, the defendant argues that there is no genuine issue of material fact that the plaintiffs' statutory notice is legally inadequate. Specifically, the defendant points to the fact that the plaintiffs' notice to the commissioner of transportation stated that the accident occurred "on Route 14 approximately 500 feet east of its intersection with Oakwood Drive," when the correct location of the accident was two tenths of a mile west of Oakwood Drive. As the plaintiffs' notice gave an incorrect location for the accident, the defendant contends that the plaintiffs' notice did not meet the statutory requirements of § 13a-144. Therefore, the defendant argues that it is entitled to judgment as a matter of law.
The plaintiffs respond that the defendant's "emphasis on the exact location of where the two vehicles collided misses the point of [ § 13a-144]." As the subject traffic accident involved multiple vehicles where at least one of the automobiles slid across the center line due to an oil spill, the plaintiffs argue that "[f]or the purposes of the State's investigation into the cause of the accident, the location of the oil spill was paramount. The plaintiff provided such notice." Furthermore, the plaintiffs cite a line of Connecticut appellate cases holding that the purpose of the § 13a-144 notice requirement is to enable the state to conduct a timely investigation. The plaintiffs contend that their notice was reasonably definite to meet this standard. Finally, the plaintiffs argue that the defendant has neither shown nor argued that the purported inadequacies in the notice prevented the defendant from making a timely and complete investigation of the accident.
In its reply memorandum, the defendant reiterates that the statutory notice was defective because it gave the wrong location of the accident. Moreover, the defendant contends that § 13a-144 provides that the plaintiffs must give the location where their injuries occurred, not the general location of the highway defect. The defendant also argues that it is not required to demonstrate that the plaintiffs' inadequate notice prevented it from conducting a timely investigation because this fact is irrelevant when determining whether the notice met the statutory requirements of § 13a-144.
Section 13a-144 provides in relevant part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. 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 . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice."
"The statute created a cause of action wholly unauthorized by the common law . . . Thus, the statutorily required notice is a condition precedent to the cause of action . . . If this requirement is not met, no cause of action exists . . . Moreover, [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . . ." (Internal quotation marks omitted.) Salgado v. Commissioner of Transportation, 106 Conn.App. 562, 567-68, 942 A.2d 546 (2008). "Sovereign immunity relates to a court's subject matter jurisdiction over a case . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 211 (2010). Accordingly, if the plaintiffs failed to provide sufficient notice to satisfy the requirements of § 13a-144, then the court is without subject matter jurisdiction to hear this case.
Ordinarily, the court's lack of subject matter jurisdiction should be raised via a motion to dismiss. Practice Book § 10-31. Nevertheless, "[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. Consequently, the court can address this subject matter jurisdiction issue on a motion for summary judgment.
"The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required . . . The [notice] requirement . . . was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit . . . [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 9, 866 A.2d 599 (2005). "[U]nder § 13a-144, the notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently." (Internal quotation marks omitted.) Id., 10.
An examination of the evidence attached to the parties' respective memoranda of law reveals the following undisputed facts. On February 26, 2007, the plaintiffs sent a notice of claim to the commissioner of the department of transportation, which indicated that: "The time and location of the collision was at 10:52 a.m. on December 5, 2006 in the Town of Windham on Route 14 approximately 500 feet east of its intersection with Oakwood Drive, on a curve." The stated location of the accident mirrored the information contained in the original police report. On February 5, 2010, however, a new police report was issued, wherein Officer Daniel W. Deptula noted: "On 02/01/10 I went back to the area where the accident occurred to get a more exact location of the accident and determine if a typographical error had occurred. Upon doing this I realized that the accident had in fact occurred west of Oakwood Dr, not east of Oakwood as typed in the original accident report. The measurement is also approximately 2/10th of a mile not 500 ft of [sic] Oakwood Dr. The accident did occur approximately 500 feet east of Follet Rd." In his affidavit, Miranda also attests that: "The accident site was west of Oakwood Drive on Route 14, not east of Oakwood Drive." The plaintiffs' memorandum of law in opposition does not dispute any of this evidence. Accordingly, there is no genuine issue of material fact that the notice that the plaintiffs sent to the commissioner of transportation reflected an incorrect location for the accident.
Nevertheless, in opposition to this summary judgment motion, the plaintiffs make a number of arguments. First, they contend that § 13a-144 only requires that the plaintiffs give notice of the location of the road defect, not necessarily the location of the collision. The plaintiffs argue that their notice was sufficient because it gave a general location for the oil spill. This argument is undermined by both the plain language of § 13a-144 and the text of the plaintiffs' notice. Section 13a-144 clearly provides that the notice must set forth " the injury and a general description of the same . . . and of the time and place of its occurrence . . ." (Emphasis added.) Accordingly, pursuant to § 13a-144, the plaintiffs have a statutory obligation to provide a description of the area where their injury occurred, which is not necessarily the location of the defect in the road. Furthermore, the plaintiffs' notice stated that the "location of the collision was . . . on Route 14 approximately 500 feet east of its intersection with Oakwood Drive . . ." (Emphasis added.) Consequently, even if the plaintiffs were correct that they only had to provide the location of the road defect in their notice, they failed to do so because their notice clearly states the area, albeit incorrect where the collision supposedly occurred. Next, the plaintiffs cite to a series of cases where our Supreme Court has determined that a plaintiff only needs to provide notice that is sufficiently definite to allow the commissioner of transportation the opportunity to investigate the claim. For instance, in Filippi v. Sullivan, supra, 273 Conn. 1, the plaintiff's notice stated that the accident occurred "at a point in the roadway [located immediately after a graded blind curve that was] approximately 1/4 of a mile south of [the] Exit 73 exit ramp, and approximately 1/10 of a mile north of [the] Exit 72 exit ramp" on Interstate 95. Id., 5. The Appellate Court had determined that this notice was inadequate as a matter of law because it did not provide a specific location of the accident. In reversing the Appellate Court, the Supreme Court stated that: "Although [a planner for the department of transportation] stated in his affidavit that there is more than one curve in the road between the two points identified in the notice, he did not indicate that there is more than one graded blind curve immediately prior to either of those two points. In the absence of anything in the record to establish the existence of more than one such graded blind curve, we cannot say that the notice necessarily was too vague to permit the commissioner to identify the location of the accident and injury with reasonable certainty. In other words, if there is only one graded blind curve immediately prior to one of the two points identified in the notice, the notice was sufficient to allow the commissioner to determine, with reasonable certainty, the place of injury. In such circumstances, the notice reasonably cannot be characterized as patently defective. The sufficiency of the notice with respect to the place of injury, therefore, is a matter to be determined by the jury." (Emphasis in original.) Id., 11.
Similarly, in Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), the notice stated that the plaintiff's decedent "was killed from injuries received in a one car accident that occurred on rte. 617 (Also known as the rte. 49 access rd. in the town of North Stonington, CT.)." Id., 353. Our Supreme Court determined that this notice was not patently defective because "[t]he road in question is only three-tenths of one mile long. The notice recites that the car landed in the Shunock River and that the river crosses under route 617 at only one place." Id., 357. Accordingly, the Supreme Court held that the plaintiff's notice was sufficient to allow the commissioner of transportation the opportunity to investigate the plaintiff's claim. A close examination of Filippi and Lussier, however, reveal that they discuss a different factual scenario than presented in this case. In Filippi and Lussier, the issue was whether the plaintiff's notice was so vague that the commissioner of transportation could not determine where the accident occurred. Under the circumstances of those cases, the Supreme Court held that, although the plaintiff's notice was not very specific, the commissioner of transportation could locate the accident scene. In the present case, however, the plaintiffs' notice gave an incorrect location of the incident.
Therefore, this matter is similar to Ozmun v. Burns, 18 Conn.App. 677, 559 A.2d 1143 (1989). In Ozmun, the plaintiff suffered physical injuries when his bicycle struck a hole in the roadway. The plaintiff's notice stated that the accident occurred "in the vicinity of the Ensign Bickford Company between the traffic lights. The defect consisted of a hole approximately 206 inches south of a telephone pole at the Ensign Bickford visitors' parking sign and approximately ten feet west of the easterly curb and approximately 200 inches north of a manhole cover in the highway and located in the travelled portion of the northbound lane of the highway." Id., 679. The plaintiff subsequently amended his complaint to change the location of the accident as follows: "In the vicinity of the Ensign Bickford Company, between the traffic lights at a point approximately 206 inches north of a telephone pole at the Ensign Bickford visitors' parking sign, approximately ten feet east of the westerly curb and approximately 200 inches south of a manhole cover in the highway and in the travelled portion of the southbound lane . . ." (Emphasis in original.) Id., 679 n. 3. The trial court determined that this notice was insufficient as a matter of law and granted the defendant's motion to dismiss. On appeal, the Appellate Court held that "the trial court did not err in withholding the question of adequacy of the notice from the jury. The directions forwarded to the defendant were not merely inadequate but actually useless to the defendant, for they described, with specificity, a location in the highway where the accident did not occur. Under the circumstances of this case, it was not error for the trial court to decide that the statutory notice was so insufficient that the court could hold, as a matter of law, that the notice was invalid under the statute." Id., 681. Like the plaintiff in Ozmun, the plaintiffs in the present case sent a notice to the commissioner of transportation that provided a very specific, but incorrect, location for the collision. Accordingly, this court determines that the plaintiffs' notice is insufficient as a matter of law. See also Zotta v. Burns, CT Page 14643 8 Conn.App. 169, 511 A.2d 373 (1986) (holding that the plaintiff failed to meet the requirements of § 13a-144 when his notice to the commissioner of transportation stated that the accident had occurred on "route 6 in Bolton" when it had actually happened on "Camp Meeting Road in Bolton," which were two separate highways).
In an attempt to avoid this result, the plaintiffs argue that the defendant has not shown that the incorrect notice prevented the defendant from adequately investigating the accident. Indeed, the plaintiffs have provided documentation indicating that the department of transportation did examine the accident. Although the stated purpose of the notice requirement is to allow the commissioner of transportation the opportunity to investigate injury producing incidents on state highways, our Supreme Court has determined that courts "need not inquire whether the commissioner was actually misled by the failure of notice. We note that General Statutes § 13a-144 does not contain a savings clause such as that found in the municipal highway liability statute, General Statutes § 13a-149, and therefore the notice requirement must be strictly construed." (Emphasis in original.) Bresnan v. Frankel, 224 Conn. 23, 26 n. 3, 615 A.2d 1040 (1992). "The fact that someone may have actually investigated the claim is of no relevance to the sufficiency of the notice." Curry v. Burns, 33 Conn.App. 65, 71, 633 A.2d 315 (1993). Furthermore, the plaintiffs cannot claim that their notice was sufficient because they mistakenly relied on an incorrect police report. "[T]he adequacy of the notice required by § 13a-144 does not depend on the accuracy of the accident report prepared by the police. For purposes of § 13a-144, the party bringing the defective highway claim, and not the official who prepared the accident report, is responsible for undertaking whatever investigation may be necessary to ensure that the notice filed with the commissioner meets the statutory requirements." Filippi v. Sullivan, supra, 273 Conn. 11 n. 7.
Although this result may seem rather draconian, especially given the fact that the plaintiffs are effectively being punished for providing what they thought was a very specific description of the location of the accident, Ozmun v. Burns, supra, 18 Conn.App. 677, is clear that a notice that provides an incorrect location is insufficient to meet the requirements of § 13a-144. The plaintiffs do not dispute that the notice that they sent to the commissioner of transportation stated geographical coordinates where the automobile collision did not occur. Accordingly, there is no genuine issue of material fact that the plaintiffs' notice does not satisfy the requirements of § 13a-144. For this reason, the defendant is entitled to judgment as a matter of law, and the court hereby grants the defendant's motion for summary judgment.
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