Opinion
No. CV 99-0589488
January 21, 2004
MEMORANDUM OF DECISION
FACTS
On May 7, 1999, the plaintiff, Lawrence Kozlowski served the defendant, James Sullivan, Commissioner of the State of Connecticut Department of Transportation, with a two-count complaint. The cause of action arises from events that occurred on May 15, 1997. On that day, the plaintiff, an employee of R.H. White Construction Company, was replacing gas utilities along Mile Hill Road in Newtown, Connecticut. In the course of his duties, the plaintiff fell through a faulty catch basin cover and suffered serious physical injuries. On July 8, 1997, the plaintiff notified the Commissioner of the State of Connecticut Department of Transportation of the plaintiff's injury and the pertinent details concerning the incident that took place on May 7, 1997.
The state of Connecticut entered into a contract with Yankee Gas Services Company to perform utility work that included reconstruction of Mile Hill Road on April 26, 1996. Yankee Gas then contracted with plaintiff's employer, R.H. White Construction, to replace the gas mains on Mile Hill Road pursuant to its contract with the state.
The acting commissioner was J. William Burns when the plaintiff filed his notice.
Count One of the complaint is directed to the Commissioner of Transportation and is based on § 13a-144, the Defective Highway Statute. The plaintiff alleges that Mile Hill Road, including the catch basin, was owned by the state and included within the state highway system. The plaintiff claims that the commissioner has a duty to maintain all highways and adjacent catch basins in the state highway system. He further claims that the commissioner breached this duty by failing to eliminate the dangerous condition created by the defective catch basin that directly and proximately caused the plaintiff's injuries. Count Two of the plaintiff's complaint is directed against Fairfield Hills Hospital.
On November 27, 2000, the court, Wagner, J., granted Fairfield Hills Hospital's Motion to Dismiss.
The commissioner filed an answer to the plaintiff's complaint on December 29, 1999. In his answer, the commissioner denied the material allegations of the plaintiff's complaint. Thereafter on November 28, 2000, the commissioner filed a motion to dismiss for lack of subject matter jurisdiction accompanied by a supporting memorandum of law. In his motion, the commissioner argued that the area of Mile Hill Road where the plaintiff was injured was not part of the state highway system, and that the commissioner did not have a duty to maintain the catch basin located there on the day of the alleged incident. As a result, the commissioner argued that the plaintiff's claim did not fall within § 13a-144, and therefore, was barred by the doctrine of sovereign immunity. On March 12, 2001, the plaintiff filed a memorandum in opposition to the commissioner's motion to dismiss. The plaintiff submitted documents to prove that Mile Hill Road was within the state highway system. On January 7, 2002, the commissioner withdrew without prejudice his motion to dismiss dated November 22, 2000.
On May 15, 2003, the commissioner filed this motion to dismiss for lack of subject matter jurisdiction based on grounds different from those asserted in his previous motion. The commissioner filed a memorandum of law in support of the motion. The plaintiff then filed a memorandum in opposition on August 12, 2003. On September 29, 2003, the commissioner presented the court with a reply to the plaintiff's memorandum in opposition to the motion to dismiss.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 548, 825 A.2d 90 (2003). "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 822 A.2d 1172 (2003).
"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, 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.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001).
The Defective Highway Statute
The plaintiff brings this action against the commissioner pursuant to General Statutes § 13a-144, the defective highway statute. This section states in pertinent part that: "[a]ny 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, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel . . . may bring a civil action to recover damages sustained thereby against the Commissioner in the Superior Court." General Statutes § 13a-144. "[B]ecause there [is] no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within [section] 13a-144." White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). "It is well established that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 329, 828 A.2d 549 (2003). "Section 13a-144 creates a legislative exception to [the] common law rule and therefore must be strictly construed." Bresnan v. Frankel, 224 Conn. 23, 26, 615 A.2d 1040 (1992).
The commissioner moves to dismiss the plaintiff's claim on the ground that the plaintiff was not a "traveler on the road" at the time of the incident within the meaning of the defective highway statute. The commissioner maintains that "[section] 13a-144 only permits waiver of the state's sovereign immunity with respect to a direct claim by a traveler who has been injured because of a highway defect." (Emphasis added.) Kaniza v. Salvati, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 02 0080357 (May 6, 2003, Lager, J.) ( 34 Conn. L. Rptr. 557). The commissioner argues that the plaintiff was a construction worker who was on Mile Hill Road solely for his employment, and not as a member of the general traveling public. The commissioner argues that the plaintiff's status as a worker on the roadway prevents him from being a "traveler" within the intended meaning of the statute.
Although a literal reading of § 13a-144 does not state that a person must be a "traveler on the roadway" in order to bring suit under the statute, this requirement has been presumed in previous cases that have interpreted the statute. In Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991), the court stated that "[s]ection 13a-149 . . . permits recovery only by the injured traveler." (Internal quotation marks omitted.) This requirement was further developed in Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001), where the court found that "[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." (Citations omitted; internal quotation marks omitted.) The statute, however, does not define who qualifies as a "traveler on the road," nor is there any legislative history explaining the intended meaning. Moreover, there are only a few decisions that address the scope of § 13a-144.
The court has acknowledged that although "there are certain differences between the language of the state defective highway statute and the municipal defective highway statute that may, on occasion, necessitate separate treatment . . . [t]o the extent that their language and purpose overlap . . . §§ 13a-144 and 13a-149 have always been read in concert." Smith v. New Haven, 258 Conn. 56, 64 n. 6, 779 A.2d 104 (2001).
The cases cited by the commissioner, however, do not support his argument that the plaintiff does not fall within the protection of the statute. For example, the commissioner relies on Rodrigues v. Corbett, Superior Court, judicial district of Waterbury, Docket No. CV 99 0153816 (November 18, 1999, Doherty, J.), to argue that "[n]ot all persons who find themselves situated on a highway are necessarily considered `travelers' thereon." Following this principle, the court in Rodrigues held that the plaintiff "was not a `traveler' on the highway on which he was raking gravel." Id. The decision in Rodrigues should be given little weight here, however, because it was based on the court's erroneous interpretation of the facts in Quire v. Stamford, 231 Conn. 370, 650 A.2d 535 (1994). In Quire, a UPS worker sued the defendant city pursuant to § 13a-149 to recover for personal injuries he sustained in the course of his employment when he fell through a faulty catch basin cover. His employer, UPS, intervened to obtain reimbursement for the payment of workers' compensation benefits. The trial court granted the defendant city's motion for summary judgment on the intervening complaint on the ground that only a "traveler" may sue under § 13a-149. Contrary to the Rodrigues interpretation, the Quire court held only that the employer, not that the injured UPS worker, did not qualify as a traveler within the meaning of the statute. By analogy, the plaintiff in this case, a construction worker injured on the roadway in the course of his duties, is as much a traveler on the highway as the UPS worker who was injured in the process of making his deliveries.
The Supreme Court subsequently reversed the lower court's decision in holding that "[t]he employer's claim against a municipality under § 13a-149, brought solely for the purpose of obtaining reimbursement for the payment of workers' compensation benefits . . . is derived entirely from the plaintiff's right to recover damages against the municipality under § 13a-149. The injured `traveler,' therefore, retains the exclusive right to recover damages against a municipality for injuries sustained by virtue of a defective highway." Quire v. Stamford, 231 Conn. 370, 376, 650 A.2d 535 (1994).
The facts in Oberlander v. Sullivan, 70 Conn. App. 741, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002), further undermine the commissioner's argument that the plaintiff does not constitute a traveler within the scope of § 13a-144. In Oberlander, the plaintiff was a school crossing guard who was injured when she tripped on a loose pipe cap on the roadway where she was working. The plaintiff brought suit pursuant to § 13a-144 on account of the defective condition of the pavement, which was the commissioner of transportation's duty to maintain. The commissioner moved to dismiss the complaint on the ground that the court lacked subject matter jurisdiction due to the plaintiff's failure to give adequate notice as required under § 13a-144. The court denied the commissioner's motion and held that the plaintiff had sufficiently pleaded a claim under the defective highway statute. Although Oberlander did not directly address the plaintiff's status as a "traveler" within the scope of § 13a-144, this conclusion is presumed since the plaintiff was allowed to pursue her claim under the statute. If the injured crossing guard, who was on the defective road solely due to her employment, qualifies as a "traveler on the roadway" within the meaning of § 13a-144, then it follows logically that the plaintiff in this case should also be protected under the statute. Contrary to the commissioner's assertion, it is insignificant that the plaintiff and his employer, an independent contractor, were hired indirectly by the state to do work on the roadway at issue, for they were not hired to make any repairs or modifications to the defective catch basin that caused the injury. Therefore, like the crossing guard in Oberlander, the plaintiff's status as an employee injured on the roadway in the course of his employment should not preclude him from pursuing a claim as a traveler under the defective highway statute.
In addition to asserting that the plaintiff does not fall within the scope of § 13a-144, the commissioner also argues that "there exist numerous policy reasons recently articulated by the Connecticut Supreme Court that preclude the plaintiff's lawsuit." In his supporting memorandum, the commissioner relies upon Pelletier v. Sordoni/Skanska Construction Co., 262 Conn. 372, 815 A.2d 82 (2003), and Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988), to argue that several policy interests preclude an employee of an independent contractor from recovering in tort from a general contractor in the construction setting, one such reason being that "[a]n employee of the subcontractor . . . has access to workers' compensation benefits and has specifically contracted to perform such work knowing the risks involved . . ." Pelletier v. Sordoni/Skanska Construction Co., supra, 262 Conn. 382. (Internal quotation marks omitted.) Subsequent to the filing of the commissioner's brief, however, the Supreme Court reversed and overturned its decision in Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 825 A.2d 72 (2003). The court reestablished the right of "[a]n injured employee of a subcontractor [to] sue the general contractor, if he can establish a basis for the contractor's liability to him under our case law. He is not barred from doing so simply because, as Ray holds, the plaintiff is an employee of a subcontractor, rather than a member of the general public." Id., 527. Although Pelletier does not concern § 13a-144, the court's ruling effectively undercuts the policy considerations articulated by the commissioner here as a reason to dismiss the plaintiff's claim.
CONCLUSION
The commissioner has failed to convince the court that the plaintiff does not fall within the scope of § 13a-144 as a "traveler on the roadway." Furthermore, there is little, if any, support for the policy considerations he articulates in either the legislative history of the statute, or in prior Connecticut case law. Since the plaintiff falls within the protection of the defective highway statute, the doctrine of sovereign immunity does not apply. The court has subject matter jurisdiction to hear the plaintiff's claim, and the commissioner's motion to dismiss is denied.
BY THE COURT
BOOTH, JUDGE.