Opinion
No. HHD CV 11-6019762S
September 13, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
FACTS
On March 14, 2011, the plaintiff, Cynthia Ortiz, brought a three-count complaint against the defendants, the metropolitan district commission (the defendant), the city of Hartford and the department of transportation. Each count sounds in negligence, is directed against a different defendant and arises from the same alleged incident. The allegations are that on April 13, 2009 the plaintiff sustained an injury by stepping into a hole created by an exposed water line while walking across Main Street, near its intersection with Pratt Street, in Hartford. In count one of the complaint, the only count that relates to the defendant and the only count at issue in the defendant's motion to dismiss, the plaintiff alleges that the defendant owned and/or was in control of the exposed water line and gate box cover that the plaintiff injured herself by stepping into. The plaintiff alleges that the defendant was negligent in failing to inspect, maintain and secure the exposed water line and gate box cover, and was also negligent in failing to warn the plaintiff about the dangers associated with them.
The defendant moves to dismiss count one of the complaint.
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 . . . [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Bacon Construction Co. v. Dept. 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." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[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).
The defendant moves to dismiss the claims asserted against it — i.e. count one — in the plaintiff's complaint on the ground of a lack of subject matter jurisdiction due to the failure to comply with the notice requirements of General Statutes § 13a-149. The plaintiff claims that while there is no statutory notice provided specifically to the defendant, she has complied with § 13a-149 as she has given proper notice to another defendant, the city of Hartford. The plaintiff does not argue for the sufficiency of the notice it sent to the defendant.
General Statutes § 13a-149 provides: "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."
Our Supreme Court has held that "[a]s a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements . . . The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof . . . A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality . . .
"In determining whether the notice is sufficient, we must look to the purpose of the statute . . . The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . . [T]he statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003).
The court must first determine whether the notice provided it by the plaintiff was legally sufficient. A review of the notice sent by the plaintiff to the defendant reveals that it does not provide any description of the plaintiff's injury or the time of the incident as is required pursuant to Salemme. Accordingly, the notice sent by the plaintiff to the defendant is legally insufficient and can only be excused by application of § 13a-149's savings clause.
"Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim. The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate. It provides: `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.' General Statutes § 13a-149." Salemme v. Seymour, supra, 262 Conn. 793-94. "The savings clause, therefore, operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice of accident location." (Emphasis in the original.) Id. Thus, "[t]he savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent." Martin v. Plainville, 240 Conn. 105, 113, 689 A.2d 1125 (1997).
In the present case, the notice sent from the plaintiff to the defendant is devoid of any description of the injury suffered by the plaintiff whatsoever. Thus, as this required information is entirely absent from the notice, the savings clause of § 13a-149 is inapplicable. See Martin v. Plainville, supra, 240 Conn. 105 (holding that written notice stating that plaintiff "was injured" lacked general description of injuries, was insufficient as a matter of law and that the savings clause was inapplicable because the description of the plaintiff's injury was entirely missing rather than merely inaccurate).
Turning finally to the plaintiff's argument that it complied with § 13a-149's notice requirement as to the defendant by giving legally sufficient notice to the city of Hartford, the court must first determine § 13a-149's application to the defendant. General Statutes § 13a-149 provides in relevant part: "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." Contrary to the plaintiff's argument, the notice requirement is thus particular to the entity the action is brought against, and each such entity must therefore receive notice.
Our Supreme Court has held that the defendant is a municipal corporation. Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971). According to the statute, the notice must be given to the secretary or treasurer of the corporation. In the present case, evidence that the plaintiff understood that she was required to put the defendant on notice exists as she did send the aforementioned April 20, 2009 letter to the defendant. Fatal to the plaintiff's claim against the defendant, however, is that the letter does not constitute legally sufficient notice as required by § 13a-149 and cannot claim protection under that statute's savings clause.
Having found that the notice here does not contain the required information, it is legally insufficient. Further, because portions of required information are entirely absent from the notice, the savings clause does not apply.
Accordingly, the court grants the defendant's motion to dismiss count one.