Opinion
No. CV 10 6014570
July 27, 2011
MEMORANDUM RE MOTION TO DISMISS
Preliminary Statement
This personal injury action arises out of the plaintiff's fall allegedly as a result of a defective highway within the Town of Stratford. The defendant has filed a motion to dismiss for lack of subject matter jurisdiction on the grounds that the plaintiff failed to adequately comply with CGS § 13a-149, the statute which requires a plaintiff to provide notice to a municipality in advance of commencing his or her cause of action. The plaintiff counters that the notice provided was adequate under the statute.
Applicable Law
A Motion to Dismiss is the appropriate vehicle by which to assert that the court lacks subject matter jurisdiction. P.B. § 10-30, 31; Upson v. State, 190 Conn. 622, 624 (1983); Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13 (1995). "The plaintiff bears the burden of establishing subject matter jurisdiction whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996). "A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250 (2004). The court is to indulge in every presumption favoring jurisdiction. Connecticut Light and Power Co. v. Costelle, 179 Conn. 415, 420 (1980).
Relevant Facts
The plaintiff alleges that she was injured on May 29, 2010 when she fell near the intersection of North Trail and Oronoque Road in Stratford. By letter dated July 15, 2010, the plaintiff, through counsel, purported to send Notice of Injury and Intent to Sue to the Town of Stratford. Thereafter, the plaintiff commenced this action by service of the writ, summons and complaint on November 24, 2010.
The "Notice of Injury and Intent to Sue" reads in its entirety:
Our office represent Joan Pite. Pursuant to § 13a-149, Conn. Gen. Stats., Joan Pite, through our office, hereby serves notice on the Town of Stratford that on May 29, 2010, she was injured as a result of a fall on a defective highway. The injury was caused due to a fall near the intersection of North Trail and Oronoque Road — caused by a dangerous catch basis, right at the catch basin on North Trail near that intersection.
Ms. Pite intends to bring a timely action against the Town of Stratford for her injuries.
The defendant has moved to dismiss the complaint on the grounds that this notice is insufficient under Connecticut law and the court is therefore deprived of subject matter jurisdiction.
The content of the notice is not set forth in the complaint. A copy was attached to the defendant's motion. The plaintiff does not dispute the content of the notice, only its legal sufficiency.
Discussion
General Statutes § 13a-149 provides in pertinent part
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.
Section 13a-149 provides the exclusive remedy for a person seeking redress against a municipality for injuries sustained as a result of a defective highway. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192 (1991). "The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery." Id. at 198. Indeed, the plaintiff must comply with the notice provisions of Section 13a-149 in order for the trial court to have subject matter jurisdiction over the claim. Bellman v. Town of West Hartford, 96 Conn.App. 387, 394 (2006), citing, Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001).
The statute requires that the notice contain five essential components: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place of the injury. Martin v. Town of Plainville, 240 Conn. 105, 109 (1997). See also, Marino v. East Haven, 120 Conn. 577, 579 (1935).
This case is controlled by Martin v. Town of Plainville, supra. There, the Supreme Court affirmed the Appellate Court's determination that the plaintiff's notice was inadequate under Section 13a-149, thus barring any recovery. In Martin, the plaintiff's notice stated only that the plaintiff was injured. There was no description whatsoever as to the nature or extent of those injuries. Of note, the circumstances presented were virtually identical to those presented in the matter of Marino v. Town of East Haven, supra. The plaintiff in Martin sought to have the holding in Marino overruled. The Supreme Court declined the invitation:
In Marino v. East Haven, supra, 120 Conn. 578, the plaintiff's notice contained the statement that he "fell and was injured" on Merline Avenue in East Haven. The notice failed to provide any description of the injury. Id. This court held that a general description of the plaintiff's alleged injury was an essential element to a perfected notice under the statute. Id., 580-81. Because the notice lacked this essential element, we concluded that the notice was insufficient as a matter of law and that the plaintiff's action was thus barred. Id. Marino has been the law in this state for more than sixty years, and for the reasons set forth in this opinion, we are not persuaded that this precedent should be overruled.
The notices provided in both Marino and Martin are indistinguishable from the notice sent to the Town of Stratford in this matter. Here, the plaintiff's notice states simply that she was injured. It contains not even the briefest of descriptions as to what those injuries were.
The plaintiff argues however that the court should look to the statutes intended purpose and determine whether those purposes are met under the circumstances of a particular case. See, Sizer v. Waterbury, 113 Conn. 145, 158 (1931) ("If, under the circumstances of a given case, the notice is sufficient for its intended purpose, it will be regarded as good notice.") He further relies upon Pratt v. Old Saybrook, 225 Conn. 177 (1993), which held that the statute should be liberally construed in favor of the plaintiff. He also relies upon a series of superior court decisions which have, under varying circumstances, determined that the notice in question was not inadequate. None of the cases cited involve a notice that utterly failed to describe the injuries. Furthermore, arguments similar to these were advanced by the plaintiff in Martin and rejected by the Supreme Court. In addressing these issues, the Court held:
For example, Dawson v. New Haven, Dkt. No. CV 08 5016831, judicial district of New Haven, (Silbert, J., February 17, 2010) [ 49 Conn. L. Rptr. 311], did not involve a notice in which a description of the injury was lacking, but rather, a notice where the description of the cause of the injury was vague. The notice at issue clearly stated that the plaintiff was "paralyzed" as a result of the fall. Thus, the court's decision would not have run afoul of Martin in assessing the adequacy of the notice and indeed was not controlled by Martin. In CT Page 17099 Montalto v. Sullivan, Dkt. No. 97 059337, judicial district of Ansonia-Milford, (Flynn, J. July 8, 1999), the trial court answered the question of whether a police report, attached to a plaintiff's notice and submitted by the plaintiff, can supplement the information provided in the notice regarding the nature of the injuries. The court held that the plaintiff could attach documents to the notice and rely on the information contained therein. Of note, the court in Montalto acknowledged the holding in Martin, that notice which simply states that a plaintiff was injured is inadequate as a matter of law.
This legislative history manifests an intent to require more rather than less notice to the town. The legislative history of the statute does not support the plaintiff's argument that a mere statement of injury, without any description of such injury, should suffice under § 13a-149. Further, there are sound reasons of public policy that support the continuance of our interpretation of § 13a-149 as expressed in Marino. As a matter of fundamental fairness, a municipality should be sufficiently apprised of a general description of a plaintiff's alleged injuries so that it can assess its exposure and allocate resources, which may be scarce in smaller towns, to facilitate an appropriate investigation and the hastening of a possible settlement. See, e.g., Lussier v. Dept. of Transportation. Indeed, the entire strategy of a town's legal defense might well be predicated on the nature of the injuries alleged. For example, a town might handle a claim alleging a hairline fracture of the small toe quite differently than one alleging a serious injury to the brain. The requirement that the plaintiff give a general description of the injury is a reasonable compromise between the giving of no description and the giving of a very specific one. See Sanzone v. Board of Police Commissioners, supra, 198 ("notice requirement strikes a balance between the public benefit and the private right to seek a remedy").
The Court further rejected the argument that Marino had been implicitly overruled by the Court in Lussier v. Dept. of Transportation, 228 Conn. 356 (1994), which held that the notice describing the location of defect was sufficient in that it contained "reasonable definiteness" so as to allow the town to investigate the plaintiff's complaint, and Tedesco v. Dept. of Transportation, 36 Conn.App. 211, 214, 650 A.2d 579 (1994), wherein the Appellate Court held that the notice of the location of defect was adequate because it provided the defendant with "a guide as to how to conduct further inquiries to protect its interests." Martin, supra., 240 Conn. at 112. The Court held that these cases were inapposite "because neither dealt with the effect of the total absence" of a general description of the injury. The Court continued: "[m]oreover, nothing in the court's reasoning in these cases suggests that we should depart from the rule established in Marino and implicitly reaffirmed by the legislature during its latest efforts regarding tort reform.
Under the express holding of Martin, and principles set forth therein, there can be no question that the notice provided to the Town of Stratford was inadequate. As such, this court is without subject matter jurisdiction unless the so-called "savings clause" contained within Section 13a-149 can be invoked. The savings clause provides:
The plaintiff submitted an affidavit in which she describes circumstances from which the court can infer that Oronoque Village notified the town of both the fall and the nature of the injuries. The affidavit, though admissible circumstantial evidence that Oronoque Village notified the town of the incident, is not competent evidence on the issue of whether Oronoque Village notified the town of the nature of her injuries. Further, her opinion on that issue is inadmissible. See, Jacobs v. General Electric Co., 275 Conn. 395, 406-08 (2005) (A lay witness is not permitted to speculate as to a matter of fact as to which he has no personal knowledge.). In any event, information provided by third parties cannot cure defects in the plaintiff's notice. Bresnan v. Frankel, 224 Conn. 23, 27 (1992).
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 mislead thereby.
Conn. Gen. Stat. § 13a-149. The plaintiff's final argument is that the savings clause can and should be applied to this situation. However, again, this argument was advanced and rejected by the Supreme Court in Martin. Martin v. Town of Plainville, supra., 240 Conn. 105, 113.
The savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent. Mascagna v. Derby, 123 Conn. 684, 685, 194 A. 728 (1937) (savings clause inapplicable where notice contains total absence of description of injury); Marino v. East Haven, supra, 120 Conn. 580 (same); see also Nicholaus v. Bridgeport, supra, 117 Conn. 401 (savings clause inapplicable where notice contains total absence of cause of injury). In the present case, the plaintiff cannot be afforded the relief of the savings clause because the notice she provided failed to give any description of the injury whatsoever and, thus, did not comport with one of the five fundamental requirements for perfected notice.
Id. The defendant cites the dissent by Justice Borden penned in the Martin case. It goes without saying that this court is bound by the majority opinion.
For all of the foregoing reasons, the motion to dismiss is granted.