Opinion
No. TTD CV 08 5003392
July 21, 2009
MEMORANDUM OF DECISION
This decision addresses the issue of whether the failure to plead statutory notice compliance and sole proximate causation deprives the court of subject matter jurisdiction to adjudicate a putative highway defect case against a municipality. The court holds that, while such pleading deficiencies may make such a pleading vulnerable to a motion to strike, the court retains subject matter jurisdiction over the matter.
On August 26, 2008, the plaintiff, Debra Lemieux commenced this litigation against the town of Stafford. The complaint contains a single count alleging that the town owned and/or controlled the sidewalk in front of 9 Furnace Avenue in Stafford and had a duty to maintain it; that the sidewalk had cracks which created a dangerous condition for users; that the town knew or should have known of this particular condition; that the town negligently failed to warn about or remedy the condition in a timely fashion; and that the dangerous condition caused the plaintiff's fall and injuries. The complaint, however, omits reference to General Statutes § 13a-149, the municipal highway defect liability statute, and also lacks any allegations regarding compliance with the notice requirement of § 13a-149 and that the town's purported negligence was the sole proximate cause of the plaintiff's injuries.
The town moves to dismiss the complaint based on the lack of subject matter jurisdiction resulting from these pleading delinquencies. It is significant to observe that the town, at this juncture, makes no claim that the plaintiff failed to notify it pursuant to § 13a-149. Rather, it is the failure to plead compliance and due care by the plaintiff which form the foundation of the town's claims without regard to whether the plaintiff can prove compliance with § 13a-149 and sole proximation causation factually.
A plaintiff's exclusive remedy for damages caused by a defective highway, which phrase may include a municipal sidewalk, is provided by § CT Page 12204 13a-149. Steele v. Stonington, 225 Conn. 217, 219 (1993). Although Practice Book § 10-3(a) directs that when a cause of action is premised on statutory liability "the statute shall be specifically identified by its number," this provision is not mandatory. Spears v. Garcia, 66 Conn.App. 669, 676 (2001), affirmed 263 Conn. 22 (2003). Indeed, the failure to cite § 13a-149 was ruled inconsequential in Steele v. Stonington, supra, 221-22. In Steele, our Supreme Court also determined that the failure to plead sole proximate causation was insufficient to bar liability. Steele v. Stonington, supra.
It is well established that the essential elements of a cause of action under § 13a-149 are 1) that the highway was defective in the manner alleged; 2) that the municipality knew or should have known of the particular defect; 3) that the municipality failed to cure the defect within a reasonable time; and 4) that the defect was the sole proximate cause of the injuries claimed. Machado v. Hartford, 292 Conn. 364, 376 (2009). Consequently, the burden is on the plaintiff to plead and prove, inter alia, "freedom from contributory negligence." Lukas v. New Haven, 184 Conn. 205, 212 (1981).
It has also been held that the plaintiff in a highway defect case must allege compliance with the statutory notice requirements of § 13a-149 in the complaint. LoRusso v. Hill, 139 Conn. 554, 556 (1953). However, the question posed by the motion to dismiss in the present case is whether the absence of allegations of notice compliance and the presence of due care by the plaintiff is of jurisdictional dimension or merely an insufficiency of pleading. The court holds that these omissions are of the latter ilk, which defects are properly raised by a motion to strike rather than a motion to dismiss.
In Steele v. Stonington, supra, our Supreme Court reversed the granting of a summary judgment based, in part, on a lack of allegation as to the due care. Id., 222. Surely, if the failure to plead due care implicated subject matter jurisdiction, the Supreme Court would have noted that implication. Furthermore, the outcome would have been different because a want of subject matter jurisdiction cannot be waived by the parties. In that case, the holding was that even though the plaintiff improperly failed to allege due care, the defendant eliminated the problem by raising a lack of due care as a special defense. Id., 222. The special defense would have been immaterial if the plaintiff's failure to plead due care deprived the trial court of subject matter jurisdiction to proceed in the first place.
More directly, the Supreme Court has held that a failure to plead notice compliance under § 13a-149 is properly addressed by way of sustaining a demurrer. LoRusso v. Hill, supra. 556. The demurrer was the procedural ancestor of the present matter to strike. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). These procedural vehicles are functionally equivalent. Id.
It must be noted that after a motion to strike is granted, the plaintiff may plead over to correct the pleading error if possible, Practice Book § 10-44. No such corrective pleading is available when the court dismisses a case for lack of subject matter jurisdiction.
The distinction between the proper use of a motion to strike and of a motion to dismiss for lack of subject matter jurisdiction was succinctly captured in LoRusso v. Hill, supra. "The demurrer to the complaint . . . was properly sustained, not because a cause of action did not exist, but because none was alleged." Id., 556. In the present case, the defendant makes no claim that proper notice was lacking. Instead, the defendant only claims that proper notice was not pleaded, whether notice was given or not. Similarly the defendant asserts that the absence of a due care allegation is jurisdictionally fatal, whether or not the evidence after trial would prove otherwise. These deficiencies simply attack the sufficiency of the pleadings rather than the nonexistence of notice or due care.
The defendant attempts to imbue the inadequacy of pleadings with jurisdictional importance by linking the deficient pleadings with the statute of limitations under § 13a-149. Municipal highway defect liability cases must be brought "within two years from the date of . . . injury." Failure to initiate suit within this period deprives the court of authority to hear the case. Beebe v. East Haddam, 48 Conn.App. 60, 65 (1998). The alleged fall occurred on November 22, 2006, and this action was brought on August 26, 2008, within the two-year period.
To establish statutory tardiness, the defendant argues as follows: The plaintiff's pleadings are deficient. Therefore, any repleading at this time to supply the missing allegations violates the two-year statute of limitations because they would "create" a "new" cause of action. This argument is specious.
The subsequent pleading would merely correct or expand on the same cause of action under § 13a-149 rather than assert a different cause of action. If the defendant's argument were accepted, nearly every pleading over in response to the granting of a motion to strike would risk running afoul of the pertinent statute of limitations. Amendments which amplify or clarify an existing claim rather than construct a different cause of action relate back to date of the pleading so clarified or amplified. CT Page 12206 Bosco v. Regan, 102 Conn.App. 686, 693-94 (2007).
While inadequate statutory notice may deprive the court of subject matter jurisdiction to hear a highway defect case, and while sole proximate cause must be pleaded and proved at trial by the plaintiff, the failure to allege the existence of these events in the complaint poses no jurisdictional bar but merely a procedural one subjecting the complaint to attack by a motion to strike or summary judgment. Consequently, the motion to dismiss is denied.