Opinion
No. NNH CV 07 5013235 S
August 11, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #147
ISSUE AND SUBMISSION
At issue is whether the state of Connecticut's motion to dismiss should be granted as to counts seven through nine on the ground of sovereign immunity.
FACTS
This action arises from an alleged fall by the plaintiff, Rita Mehos, between the step or vestibule of the train car and the train platform, on July 26, 2006, while she was disembarking from a Metro-North commuter train at the Noroton Heights train station in Darien, Connecticut. She filed a revised complaint on January 2, 2008, in which counts seven, eight and nine are against the defendant, the state of Connecticut. On January 17, 2008, the state filed an answer and a special defense of sovereign immunity.
Also, named in the complaint are the following defendants: the Metro-North Commuter Railroad Company, Manafort Brothers, Incorporated, Ducci Electrical Contractors, Incorporated and the town of Darien.
On April 14, 2008, the state filed a motion to dismiss counts seven through nine on the ground of sovereign immunity. Submitted in support of the motion is the state's memorandum of law. On May 9, 2008, the plaintiff filed a memorandum in opposition. The motion was heard at the short calendar on May 19, 2008.
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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "[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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "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 . . . In this regard, 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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 263 Conn. 423, 430 n. 12, 815 A.2d 1188 (2003). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
Count Seven — Breach of Statutory Duty
In support of its motion to dismiss, the state argues that the plaintiff's fall, while disembarking the train to the train platform, did not involve falling on a highway, bridge or sidewalk, and, as a result, the state has not waived its sovereign immunity pursuant to General Statues § 13a-144, the defective highway statute. The state further argues that even if the train platform is deemed to be a "sidewalk" within the defective highway statute, the plaintiff's claims are still barred since the commissioner of transportation is not under a statutory duty to maintain the train platform. In response, the plaintiff counters that the platform of a train is similar to a sidewalk since it is adjacent to the train pathway and necessary to be traversed by a traveler. Thus, the plaintiff maintains that the train platform is within the purview of the defective highway statute and her claims are not barred by the doctrine of sovereign immunity.
The plaintiff and the state both point out to the court that the plaintiff has filed a request with the claims commissioner for permission to bring this action against the state. The request is number 20798 and a decision is currently pending.
"[S]overeign immunity is an immunity, not simply from liability, but from suit as well." Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000). Because sovereign immunity implicates the court's subject matter jurisdiction, the existence of the immunity creates a proper basis for granting a motion to dismiss; Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994); unless, through legislation, the state has consented to be sued, thereby waiving its sovereign immunity. See Martinez v. Dept. of Public Safety, 263 Conn. 74, 78-79, 818 A.2d 758 (2003).
"In enacting § 13a-144, the legislature explicitly waived the state's sovereign immunity in certain actions in which the injuries allegedly resulted from a defective highway. Oberlander v. Sullivan, 70 Conn.App. 741, 745, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002). [B]ecause there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144. White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). The statute `is to be strictly construed in favor of the state'; id.; however, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity. Amore v. Frankel, supra, 228 Conn. 365." (Internal quotation marks omitted.) Tyson v. Sullivan, 77 Conn.App. 597, 601-02, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003).
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." "The term sidewalk is meant to apply to those areas that the public uses for travel." Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d. 2 (1998). "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501-02, 876 A.2d 1148 (2005).
Our Supreme Court pointed out in Tuckel v. Argraves, 148 Conn. 355, 170 A.2d 895 (1961) that "the statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely . . . The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk `which it is the duty of the highway commissioner to keep in repair.' Ordinarily this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies with the limits of a trunk-line highway . . . [W]here the state takes over an existing street or highway as a state road, it assumes the responsibility for its use and maintenance for all purposes incident to vehicular traffic, and it leaves undisturbed the existing responsibility of the municipalities for sidewalks and the like." (Citations omitted; internal quotation marks omitted.) Id., 358-59.
In Gould v. Hartford, 44 Conn.Sup. 389, 691 A.2d 35 (1995) [ 15 Conn. L. Rptr. 254], the court noted that "[t]he law involving the state's duty of care with respect to sidewalks associated with its highways is somewhat distinctive and is by now well-established." Id., 393. The court therein observed that other than sidewalks which the legislature has specifically designated to be maintained by the state, the maintenance of sidewalks primarily remains the responsibility of local municipalities. Id., 394-95. "[T]he legislature has . . . specifically designat[ed] a limited number of sidewalks that are to be maintained by the commissioner. These include sidewalks that the commissioner has constructed or reconstructed on bridges; General Statutes § 13a-91(a); and `[t]he sidewalks on the bridges across the Connecticut River at Thompsonville and Warehouse Point . . .' General Statutes § 13a-92. The commissioner is also statutorily required to `maintain any sidewalk, including the removal of snow and ice, abutting property acquired for highway purposes, from the date of acquisition until the section of highway for which the property was acquired is completed.' General Statutes § 13a-258." Id., 395.
"[U]nder § 13a-144, whenever it is shown that the commissioner has a legal duty to repair or maintain a particular [road or sidewalk] he [or she] is subject to liability for injuries occurring thereon which are caused by negligence in performing that duty." (Internal quotation marks omitted.) Amore v. Frankel, supra, 228 Conn. 365. "A claim brought under the defective highway statute is fatally defective if it lacks any allegations showing that [the allegedly defective sidewalk] was a sidewalk which it was the duty of the highway commissioner to keep in repair." (Internal quotation marks omitted.) Rivera v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 05 5000564 (May 22, 2006, Tanzer, J.) ( 41 Conn. L. Rptr. 407, 408), citing Tuckel v. Argraves, supra, 148 Conn. 359.
"[A] party attempting to sue under the legislative exception must come clearly within its provisions, because [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 . . . Where there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity." (Citation omitted; internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 262, 721 A.2d 511 (1998); see Adams v. Korta, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000226 (March 13, 2007, Upson, J.).
If the court is to find any waiver of sovereign immunity by the state or its agencies, it must be found in § 13a-144. To come under the statute, the plaintiff must show that the train platform is a "sidewalk" and that the commissioner of transportation has a duty to maintain and keep it in repair. In her complaint the plaintiff alleges that the state has a duty to keep and maintain the sidewalks, including the bridge plates at the railroad station in a reasonably safe condition; that the state violated § 13a-144 by failing to inspect, maintain and repair the step vestibule bridge plate to render it safe; that it failed to warn the plaintiff of defective conditions that she could not have reasonably been expected to discover as the area was insufficiently lit; and that the state knew or should have known in the exercise of reasonable care and inspection of the defective conditions causing the plaintiff's fall and should have taken measures to remedy and correct the conditions, but failed to do so. The plaintiff however has not alleged that the train platform is one of the sidewalks, enumerated by statute, which is to be maintained by the commissioner of transportation such that if a person is injured by the defect in the sidewalk that individual may appropriately sue the commissioner or state under § 13a-144. There are no statutes imposing a duty on the commissioner to maintain the train platform at the Noroton Heights train station where the plaintiff allegedly sustained her injuries. Accordingly, the state's motion to dismiss count seven on the ground of sovereign immunity is granted.
Count Eight — Negligence and Count Nine — Nuisance
The state moves to dismiss count eight in negligence and count nine in nuisance on the ground that these claims are barred by sovereign immunity because the state has not consented to be sued. The plaintiff counters that she has filed a request with the claims commissioner which decision is pending and, thus, she should be allowed to bring these claims.
The Connecticut Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004). Under the doctrine, the state is "immune from suit unless, by appropriate legislation, it authorizes or consents to suit." (Internal quotation marks omitted.) Mahoney v. Lensink, 213 Conn. 548, 555, 569 A.2d 518 (1990). Counts eight and nine are claims for damages against the state. "A plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner [to sue]." Miler v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003). The plaintiff has "not received permission from the office of the claims commissioner to bring this action for money damages against the state . . . Therefore . . . the doctrine of sovereign immunity bars [the plaintiff's] action . . ." See id., 325.
Since the state did not consent to the maintenance against it of the common-law actions in negligence and nuisance, its sovereign immunity was not waived, and the common-law actions alleged in counts eight and nine of the complaint are not maintainable.
CONCLUSION
In sum, the claims alleged by the plaintiff in counts seven through nine are barred by the doctrine of sovereign immunity. Accordingly, the state's motion to dismiss these three counts is granted.