Opinion
No. CV-06-5002709
May 16, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Before this court are a motion to dismiss and memorandum of law filed by the defendant, Stephen Korta, commissioner of transportation, dated April 25, 2006, and the objection and memorandum of law in opposition filed by the plaintiff, Sharon Reid, dated February 15, 2007. The defendant's motion to dismiss challenges this court's subject matter jurisdiction based on sovereign immunity. This matter was argued before the court on March 26, 2007. For the reasons outlined below, this court grants the motion to dismiss.
The City of Hartford has also been sued and is a co-defendant in this case.
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlawski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "Claims involving the doctrines of common-law sovereign immunity and statutory immunity . . . implicate the court's subject matter jurisdiction." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501.
In her complaint, the plaintiff alleges that she tripped and fell on a sidewalk located on the west side of Blue Hills Avenue, also known as Route 187, near its intersection with Burnham Street in Hartford, Connecticut. The defective condition alleged was a broken sign post which protruded above the surface of the sidewalk. She asserts that she sustained personal injuries and losses as a result of the negligence and carelessness of the defendant, asserting that the commissioner, by his agents, had actual or constructive notice of the defect and failed to maintain the sidewalk in a reasonable safe condition.
The defendant, however, asserts that the state's department of transportation has no duty to maintain the sidewalk in question. As such, he challenges this court's subject matter jurisdiction, arguing that sovereign immunity bars the action. This court agrees.
It is well settled Connecticut law that a sovereign state is immune from suit, unless it consents to be sued. Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596 (1963). Where the state has waived its immunity by legislation, such statutes must be strictly construed in favor of the state. Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501. Here the legislation at issue is General Statutes § 13a-144 which 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." There is no dispute that since "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). "Moreover, [w]hether 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, supra, 274 Conn. 501-02.
In support of their respective motion to dismiss and objection to said motion, both the defendant and plaintiff rely on the affidavit of Amy Mettica, who is a transportation claims investigator for the department of transportation. Ms. Mettica's affidavit asserts that the sidewalks in question are not part of the state highway system and as such, the state has no duty to maintain them. While she does not contradict the defendant's assertion that the sidewalks are not part of the state highway system, the plaintiff nevertheless relies on Ms. Mettica's deposition testimony which asserts that a portion of the sidewalk is "within the state's right of way" wherein the state's approval would be required before signs could be erected. According to the plaintiff, this right of way therefore triggers the state's duty to maintain.
This court, however, is not persuaded that the state's "right of way" on a sidewalk, even if it is adjacent to the state highway system, is encompassed by General Statutes § 13a-144. In support of her claims, the plaintiff relies on Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999) and Baker v. Ives, 162 Conn. 295, 299-301, 294 A.2d 290 (1972). Neither case, however, addresses the liability of the state with respect to sidewalks. Baker relates to a strip separating the highway from the sidewalk, where the state "invited" the public to park on its way to shop at the storefronts. Baker v. Ives, supra, 162 Conn. 299-301. While it is true that in Serrano v. Burns, supra, 248 Conn. 427 n. 7, the court states in a footnote that "[w]hether the place of injury is within the state right-of-way is a threshold inquiry in determining the state's liability, if any, under § 13a-144," that case involved a slip and fall on a public parking lot located between two exits on Interstate 91 in the city of Middletown.
In contrast, there is longstanding and binding precedent which specifically addresses the duty of the state relevant to sidewalks adjacent to state highways. Moleske v. MacDonald, 109 Conn. 336, 340-41 (1929); Tuckel v. Argraves, 148 Conn. 355, 358-60 (1961); Amore v. Frankel, 228 Conn. 358 (1994). As observed by the court in Tuckel v. Argraves, "[T]he statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely. This is true even though, as alleged here, the sidewalk is within the limits of a trunk-line highway, the claimed defective condition existed within those limits, and the condition arose because of the neglect of the highway commissioner. 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.'" Tuckel v. Argraves, supra, 148 Conn. 358. "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.
Indeed, as noted by the court (Blue, J.) in Gould v. Hartford, 44 Conn.Sup. 389, 393, 691 A.2d 35 (1995) [ 15 Conn. L. Rptr. 254], "the 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." Outlining the historical evolution of this area of law, culminating in Moleske v. MacDonald, the court in Gould, 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.
See General Statutes §§ 13a-91(a); 13a-92; and 13a-258 (conferring duty to maintain sidewalks on reconstructed bridges, certain other bridges, and those abutting property acquired for highway purposes during construction, respectively).
As such, the fact that the state requires municipalities to receive permission from the state before placing any signs within the right-of-way area on the sidewalk is unavailing. The degree of control or ownership evidenced by a right-of-way does not establish that the state had any duty to maintain that area. As the court noted in MacArthur v. Suffield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 522353 (July 29, 1994, Sheldon, J.) ( 12 Conn. L. Rptr. 280), "[t]he retention of the power to require encroachment permits from persons wishing to perform work within a right-of-way alongside a state highway cannot reasonably be understood as an assumption of plenary control over all sidewalks within that right-of-way." Instead, it is "properly . . . understood as incidental to [the state's] fundamental responsibility to take care of the highways themselves, not as an independent assertion of control over all land adjacent thereto and all improvements, including sidewalks, thereon." Id.
As such, and in the absence of the state's explicit consent to be sued, as manifested by those statutes which impose upon the state an express duty to maintain specific sidewalks, this court finds that this action against the state is barred by the doctrine of sovereign immunity.
The motion to dismiss is hereby GRANTED.