Opinion
FBTCV156053651S
07-31-2017
Alexander Graham, Jr. v. Luis Burgos et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO DISMISS
Richard E. Arnold, J.
The defendants have filed a motion to dismiss the plaintiff's complaint dated November 16, 2015, arguing that the court lacks subject matter jurisdiction. The defendants claim the plaintiff's injuries and damages arose from a highway defect consisting of a roadway of snow and ice upon which the defendant's vehicle was traveling and subsequently slid, thereafter, striking the plaintiff. The defendants argue that the plaintiff's exclusive remedy is an action brought under General Statutes § 13a-149, pursuant to General Statutes § 52-557n(a). As the plaintiff failed to give statutory notice required by § 13a-149, the plaintiff's action should be dismissed for lack of subject matter jurisdiction. The defendants have filed a memorandum of law in support of their position, as well as, a supplemental memorandum of law, in response to the plaintiff's objection.
Within the motion to dismiss, the defendants advance an additional alternative argument for summary judgment arguing there is no genuine issue of material fact and Burgos was not negligent. This, perhaps, improper approach to requesting summary judgment within a motion to dismiss will be discussed later, herein.
The plaintiff has objected arguing that his complaint alleges that the defendant Burgos, while operating a snow plow on behalf of the City of Bridgeport, was negligent in various ways, and that he seeks damages pursuant to General Statutes § 52-557n and indemnification from the City pursuant to General Statutes § 7-465. The plaintiff denies he has brought a claim pursuant to § 13a-149, and therefore, any required notice pursuant to § 13a-149 was not necessary. Additionally the plaintiff argues he provided timely written notice pursuant to General Statutes 7-465, and in the alternative, if the court deems § 13a-149 applicable, said notice was, in fact, timely and adequately given. The plaintiff has filed a memorandum of law and a supplemental memorandum of law. The court heard oral argument on April 3, 2017.
A review of the complaint dated November 16, 2015 reveals that the complaint contains three counts. Count One is brought against Luis Burgos and alleges negligence. It is alleged that on February 13, 2014, Burgos was operating a snow plow on behalf of his employer, near 366 Salem Street in the City of Bridgeport at about 2:02 p.m. The plaintiff was on Salem Street clearing snow from his automobile which was parked in front of 388 Salem Street, when the snow plow struck the plaintiff, as well as, the plaintiff's auto with the snow plow blade. The plaintiff was struck in the left hip and thigh area. The plaintiff alleges the defendant Burgos was negligent in that he: (1) failed to keep his vehicle under reasonable and proper control; (2) failed to keep a proper lookout for other vehicles, pedestrians and others in the street; (3) failed to operate his vehicle at a reasonable speed given the weather conditions; (4) failed to apply his brakes in time or take evasive measures so as to avoid a collision; and (5) improperly passed a parked vehicle safely in violation of General Statutes § 14-240. Count Two is brought against the City of Bridgeport and alleges the defendant Burgos was an employee of the City and was acting in performance of his duties and within the scope of his employment while operating the snow plow. It is also alleged the actions of Burgos was not the result of any willful or wanton conduct. Count claims damages pursuant to General Statutes § 52-557n. Count Three incorporates claims from Count One and further alleges that pursuant to § 7-465, the plaintiff gave notice, dated June 3, 2014, to the Bridgeport Town Clerk of his intent to claim indemnity for the negligence of the City's employee, the defendant Burgos. That notice was received by the Town Clerk on June 5, 2014.
The court has reviewed the plaintiff's notice to the City dated June 3, 2014, which notified the City of the plaintiff's intent to commence an action pursuant to General Statutes § 7-465.
I
Standard of Law: Motion to Dismiss
" 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." (Internal quotation marks omitted.) Bacon Construction Co. v. Department of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., 294 Conn. 206, 213, 982 A.2d 1053 (2009). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). The purpose of the motion is to attack the " jurisdiction of the court [by asserting] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Directory Assistants, Inc. v. Big Country Vein, L.P., 134 Conn.App. 415, 419, 39 A.3d 777 (2012). A motion to dismiss " admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
" [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). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Intentional quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). " The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any state of the proceedings, including on appeal." Peters v. Dep't of Soc. Servs., 273 Conn. 434, 441, 870 A.2d 448 (2005). " 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (1997).
Discussion: General Statutes § 13a-149
The defendants argue that Burgos, the snow plow operator was driving down Salem Street in Bridgeport, Connecticut on February 13, 2014, during a storm consisting of snow and sleet, with strong winds. The defendant lost control of his vehicle and slid on snow and ice into the vehicle the plaintiff was clearing at 366 Salem Street. The defendants argue that an action pursuant to General Statutes § 13a-149, the highway defect statute, is the plaintiff's exclusive remedy. Beeman v. Town of Stratford, 157 Conn.App. 528, 534, 116 A.3d 855 (2015). General Statutes § 52-557n(a)(1) provides:
According to affidavit testimony submitted by the defendants, the storm began at 1:20 a.m. and ended at 5:17 p.m.
(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; . . . 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"
The defendants also argue that pursuant to General Statutes § 13a-149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action for damages to be brought, if damages were caused by a defective highway that a town must maintain. Beeman v. Town of Stratford, supra, 157 Conn.App. 534. The defendants argue that the plaintiff filed a notice of claim pursuant to § 7-465, but it was beyond the ninety day period required by § 13a-149. The defendants, thus, argue that because Count One is barred by General Statutes § 52-557n(a)(1), which provides that § 13a-149 is the plaintiff's exclusive remedy for injuries resulting from a highway defect, the lack of timely notice is fatal to the court's subject matter jurisdiction. See. Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001).
General Statutes § 13a-149 reads as follows:
The plaintiff, in his objection to the motion to dismiss argues that this matter is not governed by the highway defect statute, § 13a-149. He notes that the defendants have cited no case law that states that a driver of a municipal or state vehicle who allegedly is negligent in the operation of such vehicle implicates § 13a-149. He argues that the defendants claim that anytime a driver drives too fast for the conditions then and there prevailing, a highway defect claim would control. The plaintiff is not claiming in the present matter that he was injured as a result of a defect on the highway. Rather, he is simply alleging that the defendant City employee, Burgos, was driving the City snow plow to fast for the prevailing conditions, as well as, other common law claims of negligence and a statutory claim of negligence per se pursuant to General Statutes § 14-230. The plaintiff also notes there is no allegation in his complaint regarding any icy condition of the roadway.
Lastly, the plaintiff argues that even if the court construes the plaintiff's complaint as a highway defect claim, pursuant to § 13a-149, the plaintiff has complied with the required notice provision contained in § 13a-149. The plaintiff sent a letter to the City of Bridgeport on February 28, 2014, twenty-five (25) days following the subject incident. The letter describes the incident and set forth that the plaintiff was claiming the snow plow struck his thigh. The plaintiff attached a copy of the police report to the letter that set forth the exact location and what occurred. The City Attorney's Office, by letter dated March 20, 2014, acknowledged receipt of the plaintiff's notice letter. This was all within the ninety day time period required by statute. The plaintiff argues his letter of February 28, 2014, with the police report attached satisfies notice. See. Montalto v. Sullivan, Superior Court, judicial district of Ansonia-Milford, CV97 059337 (July 8, 1999, Flynn, J.) [25 Conn.L.Rptr. 71, ] (Holding that a police report accompanying a letter of notice adequately described the plaintiff's claimed injuries by stating the injuries were " major" injuries to the chest and shoulder.) The Montalto court stated that the description of injuries set forth in the police report, " while not very specific, " the description of injuries were " definitive enough to apprise the defendant of the seriousness of the accident and the parts of the body injured." Id. The court in Montalto denied the motion to dismiss. Id. While Montalto, supra, involved a state highway claim pursuant to § 13a-144 it is noted that while General Statutes§ 13a-144 is to be construed strictly, § 13a-149 has a savings clause and § 13a-149 and the required notice provision is to be construed liberally and in favor of the plaintiff. Salemme v. Town of Seymour, 262 Conn. 787, 796, 817 A.2d 636 (2003); Pratt v. Old Saybrook, 225 Conn. 177, 180, 621 A.2d 1322 (1993).
The court has reviewed the complaint dated November 16, 2015 and the documents submitted by the parties and finds that the plaintiff has properly pleaded a cause of action sounding in negligence. The plaintiff has not alleged that a highway defect caused his injuries. He has pleaded that the defendant snow plow driver was negligent in the operation of the snow plow in various ways in accordance with common law and statutory law. The fact that there was snow and/or ice on Salem Street at the time of the incident, is just one of the factors to take into consideration when considering any negligence in this matter. The motion to dismiss the three counts alleging negligence, General Statutes § 52-557 and indemnification pursuant to § § 7-465.
As the court has denied the motion to dismiss on the grounds stated above, it is not necessary to further determine whether the notice sent to the City of Bridgeport was sufficient for the purposes of an action pursuant to § 13a-149.
III
Discussion: Summary Judgment
As noted earlier herein, the defendants, within their motion to dismiss, have, in the alternative, requested that the court grant summary judgment. The defendants argue that Burgos, the snow plow operator was not negligent as a matter of law since it is " undisputed" that his vehicle slid on snow and ice. See. Amato v. Sawicki, 159 Conn. 490, 493, 271 A.2d 80 (1970) (" [E]vidence of skidding is not, in and of itself, evidence of negligence.") The defendants also argue that " [f]ailure to keep to the right, when through no fault of the driver, an automobile skids on slippery pavement and is thrown across the road, has been held to excuse failure to comply with the statute prohibiting driving on the left-hand side of the road." DeAntonio v. New Haven Dairy Co., 105 Conn. 663, 668-69, 136 A. 567 (1927). " [A] driver is not guilty of negligence where a violation occurs by reason of circumstances beyond his control and to which no voluntary wrongful act on his part contributes." Martin v. Holway, 126 Conn. 700, 702-03, 14 A.2d 38 (1940. The defendants, thus conclude, that as the defendant Burgos was not negligent, the City of Bridgeport cannot be liable pursuant to General Statutes § 52-557n; not does it have any duty to indemnify pursuant to General Statutes § 7-465.
The plaintiff has objected to summary judgment, but has not raised a procedural violation that the defendants have improperly requested summary judgment within the body of their motion to dismiss. As the plaintiff has addressed the claim for summary judgment, the court proceeds to adjudicate it for the sake of judicial economy, anticipating that a subsequent motion for summary judgment might be filed at a later date regarding identical issues.
The plaintiff, in objecting to summary judgment reminds the court that our Supreme Court has urged the courts to exercise caution in addressing negligence claims through summary judgment because issues of negligence are ordinarily not susceptible of summary adjudication and should be resolved by the trier of fact in the ordinary manner. Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment is ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact." Id., quoting, Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Issues of fact should be decided by the jury. Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 196, 319 A.2d 403 (1972).
A review of the affidavits and documents submitted reveals that there is no dispute that Burgos lost control of the snow plow and slid across the street, striking the plaintiff. The court agrees with the plaintiff, that these events alone give rise to issue s of material fact as to whether the defendant Burgos was driving to fast for the prevailing conditions or perhaps, was not fully attentive. The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law " when the mind of a fair and reasonable person could reach only one conclusion. " Id. " Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). The request for summary judgment raised by the defendants within their motion to dismiss, is denied.
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 borough was not in fact misled thereby. (Emphasis added.)