Opinion
No. X08 CV02-0190220 S
September 12, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS (143.00)
The plaintiff Michael Mazzuca commenced this action seeking money damages from the State of Connecticut, among others, as a result of injuries he sustained in a one car accident at Exit 6 on Interstate 84 in Danbury, Connecticut. William Sullivan, the Commissioner of the Connecticut Department of Transportation, is a named defendant as representative of the State.
Mazzuca's amended complaint alleges that Sullivan as Commissioner of the Department of Transportation was responsible for the inspection and maintenance of Interstate 84 in the relevant area, and that on May 19, 2000 Mazzuca was traveling west on Interstate 84 when his car went into an uncontrollable spin and crashed into a tree located between the Interstate and the Exit 6 ramp, causing him serious injuries. Mazzuca alleges that his accident and injuries were the result of the Department of Transportation's failure to perform its duties in sixteen specified ways, resulting in the highway being in a defective and dangerous condition.
In the first count Mazzuca alleges he exercised due care. In the second count he omits the allegation that he exercised due care. In the third count he alleges that the defective and dangerous road condition was caused by the Department's willful, wanton and reckless acts and omissions and seeks punitive damages.
Commissioner Sullivan has moved to dismiss the second and third counts on the grounds that the State's sovereign immunity has not been waived so as to permit the imposition of punitive damages, and that in an action under the defective highway act, General Statutes § 13a-144, the plaintiff is required to plead the absence of his own negligence.
Discussion CT Page 10878-fo I. The Motion to Dismiss
A motion to dismiss may be filed to assert that the court lacks subject matter jurisdiction. Practice Book § 10-31. Sullivan contends that the second and third counts of Mazzuca's complaint are outside the scope of the limited statutory waiver of sovereign immunity found in the General Statutes, and therefore this court has no jurisdiction to hear and decide them.Sullivan initially filed a motion to dismiss the two counts in April 2001 (107.00). That motion was denied "without prejudice" on October 3, 2001, and the court (Holden, J.) invited Sullivan and Mazzaca to submit further briefing as to why the motion should not be "viewed as a motion to strike." Memoranda were filed by the parties, but further action by the court was not forthcoming.
Subsequently, this case was transferred to the complex litigation docket. Sullivan refiled his motion to dismiss, and as an initial matter, Mazzuca contends that the motion has been decided and denied. The court notes that the decision of October 3, 2001 was explicitly "without prejudice" and further notes that Sullivan's motion directly attacks the court's power to adjudicate the two counts, and a motion to dismiss for lack of subject matter jurisdiction may be made at any time. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294 (1987); Practice Book § 10-33. The court will thus turn to a determination of the motion to dismiss.
Upon transfer to the complex litigation docket the case was given a new docket number which is reflected in the present caption. Previously, while in the Judicial District of Danbury, the case docket number was CV 00 034 1019.
II. The Standard of Review
The doctrine of sovereign immunity implicates the court's subject matter jurisdiction and therefore may be the basis for a motion to dismiss. Federal Deposit Insurance Corp v. Peabody, N.E. Inc., 239 Conn. 93, 99 (1996). It is well recognized that the State of Connecticut may not be sued without its consent. Horton v. Meskill, 172 Conn. 615, 623 (1977). Further, since the State can only act through its officers and agents, a suit against a state official or officer concerning a matter in which that person represents the State, such as Sullivan here, is effectively a claim against the State. See Antinerella v. Rioux, 229 Conn. 479, 487 (1994); Sentner v. Board of Trustees, 184 Conn. 339, 342 (1981). Therefore, this suit against Sullivan is viewed as a suit against the State of Connecticut, and to be viable it must come within the scope of a waiver of sovereign immunity or consent by the State to be sued. CT Page 10878-fp
One such consent is found in General Statutes § 13a-144 which reads in pertinent 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 . . . 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 . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court.
III. The Second Count
Sullivan concedes that Mazzuca's first count pleads a cause of action pursuant to Section 13a-144. In that first count Mazzuca alleges that at all relevant times he was exercising due care (Amended Complaint, ¶ 6). In his second count Mazzuca makes the same allegations except for omitting the allegation that he was exercising due care. Sullivan's motion to dismiss contends that the failure to allege due care is a fatal omission, because in an action under Section 13a-144 the State may only be found liable if its act or omission was the sole proximate cause of the plaintiff's injuries. Thus Sullivan argues that since Mazzuca's allegations do not state a claim under Section 13a-144, the claim is not within the statutory consent to be sued and is barred by sovereign immunity.
Sullivan points to White v. Burns, 213 Conn. 307 (1990), which considered and soundly rejected several arguments seeking to overturn prior judicial decisions imposing the sole proximate cause requirement in Section 13a-144 actions. Sullivan further relies on Mastrolillo v. Danbury, 61 Conn. App. 693 (2001), which upheld a grant of summary judgment for the defendant when the plaintiff failed to allege her exercise of due care in a complaint seeking damages under the statute allowing personal injury suite against municipalities on the basis of defective local roads and bridges, General Statutes § 13a-149. Section 13a-149 also has a requirement that the municipality's neglect be the sole proximate cause of the injuries, and therefore the count agrees with Sullivan that the issue decided in Mastrolillo is pertinent to this case. See Donnelly v. Ives, 159 Conn. 163, 167 (1970) (no material difference between obligation on the State under Section 13a-144 and obligations on municipalities under Section 13a-149).
Mazzuca presents several well crafted arguments in his opposition to the motion to dismiss. Among them are the contentions there is no logical basis for the sole proximate cause criterion and no statutory basis for the requirement that a plaintiff must plead lack of contributory CT Page 10878-fq negligence in a § 13a-144 claim. Indeed, there may well be some merit in the argument that the precedent cited by Mastrolillo does not necessarily support its conclusion that an allegation of the plaintiff's exercise of due care is a pleading requirement for a § 13a-149 action. See Upton v. Windham, 75 Conn. 288 (1902) (burden on defendant to prove contributory negligence).
Regardless of arguments as to the soundness of Mastrolillo, this court, having found that its holding should apply to § 13a-144 cases, is bound by it. Nevertheless, the court is not persuaded that a failure to abide by a pleading requirement invokes the court's subject matter jurisdiction, and Mastrolillo makes no reference to subject matter jurisdiction. This conclusion may be similar to that reached at the earlier stage of this case by Judge Holden. The court determines that the lack of a pleading alleging exercise of due care is not a jurisdictional defect, but more properly, the subject of a motion to strike. Therefore, the motion to dismiss the second count is denied.
IV. The Third Count
In his third count Mazzuca alleges that the defective highway conditions were the result of the Commissioner's wanton, wilful and reckless behavior, and punitive damages are sought. Sullivan contends that the language of Section 13a-144 does not provide for such damages and therefore the State has not consented to be sued in such a manner. Somewhat surprisingly, the parties and this court have found very little case law on point.
Mazzuca relies primarily on the case of Beecher v. Derby Bridge and Ferry Company, 24 Conn. 491 (1856). In Beecher the Connecticut Supreme Court of Errors approved a trial court jury instruction allowing "vindictive damages" to a plaintiff who had sued pursuant to a statute (apparently the predecessor to § 13a-149) permitting claims against a "town, person, persons or corporation which "ought to keep such road or bridge in repair" for "just damages." Id., 496 The court limited the occasion for such damages to neglect which was wanton or wilful. Id., 497 From this court's research Beecher has never been overruled or questioned. On the other hand, it also has never, or certainly not recently, been cited to support the proposition that punitive damages are available in actions under Sections 13a-144 or 13a-149.
More recently, The Connecticut Supreme Court has stated that when a state has passed legislation permitting suits against it, in derogation of sovereign immunity, such statutes should be strictly construed, and when there is any doubt about a statute's meaning, it should be construed CT Page 10878-fr to effect the least change in sovereign immunity. White v. Burns, supra, 213 Conn. 312; see also Kuchinski v. Burns, 23 Conn. App. 198, cert denied, 216 Conn. 826 (1990) (no monetary award against the state absent legislative authority).
In Amore v. Frankel 29 Conn. App. 565 (1992), rev'd on other grounds, 228 Conn. 358 (1994), the Appellate Court held that a loss of consortium claim was not recognizable under Section 13a-144. The Amore decision relied on Sanzone v. Board of Police Commissioner, 219 Conn. 179 (1991), which held that the municipal liability statute, § 13a-149, barred loss of consortium claims.
In Sackman v. Sullivan, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 97 0159227 (December 21, 2000, Karazin, J.) (28 Conn.L.Rptr. 5001), the court, construing Section 13a-149, held that there was no express authorization in the statute allowing for imposition of punitive damages and granted a motion to strike a count alleging recklessness and the prayer for relief seeking punitive damages.
To this court's mind, there is no persuasive way to distinguish Beecher. Nevertheless, time and subsequent legislative and judicial developments, especially those cases limiting rights under Section 13a-144 to those explicitly set forth in the statutory language have sapped Beecher's vitality, perhaps even its validity and certainly its precedential and authoritative weight.
The fact that Beecher dealt with a predecessor statute to Section 13a-149, not 144, and a statute calling for "just damages" whereas the statute at issue employs simply the word "damages," are marginal distinctions at best. The distinction that the defendant appears to have been a private company rather than a governmental entity, thus making the sovereign immunity argument less obvious, has more substance, but involves considerable speculation as to what kind, if any, governmental charter or authority was involved.
As noted above, far more recent decisions of the Connecticut Supreme Court have made clear that any doubts harbored about a statute's meaning should be resolved in favor of less diminishment of the protections of sovereign immunity:
The states's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed by express terms . . .
Murphy v. Ives, 151 Conn. 259, 262-63 (1963) [quoting State v. Kilburn, 81 Conn. 9, 11, (1908)]. Section 13a-144 contains not a hint of legislative intent to allow law suits to claim punitive damages against the State. An expansion of the State's potential liability must be premised on some evidence that the legislature intended that result. There is no such evidence. The court concludes that the third count must be dismissed as the State has not consented to be sued for punitive damages. CT Page 10878-fs
TAGGART D. ADAMS SUPERIOR COURT JUDGE