Opinion
No. LLI CV 06 5000744S
November 24, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #121
ISSUE
Whether the court should grant the defendant's motion to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction?
FACTS
The plaintiff, Mary Anne Wrenn, commenced this action by service of process against the defendant, The Gunnery, Inc., on May 23, 2006. On June 9, 2006, the plaintiff filed a complaint in which the following facts are alleged. On May 27, 2004, the plaintiff was an invitee of the defendant school, and was present on school grounds. The plaintiff stepped out of the passenger side of a motor vehicle onto a road owned and/or controlled by the defendant, in which there was a "drainage basin" sunk into said road causing the plaintiff to fall. The plaintiff alleges that the defendant was negligent in that it allowed a dangerous condition to exist on a road owned by the defendant, that the defendant failed to warn of, inspect, or remedy the condition and that the plaintiff was injured as a result.
On July 16, 2009, the defendant filed a motion to dismiss the action on the grounds that the defendant was a "corporation" under General Statutes § 13a-149. The defendant argued that any action stemming from an injury suffered on the defendant's road must be brought under § 13a-149, and that the plaintiff failed to provide proper notice under the provisions of § 13a-149 and, therefore, the court lacks subject matter jurisdiction. The defendant submitted a memorandum of law in support of the motion to dismiss, while the plaintiff submitted a memorandum in opposition of the motion to dismiss.
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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
"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. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
The defendant argues that it should have been sued under General Statutes § 13a-149, and that accordingly the plaintiff was required to furnish notice of the pending action to the defendant. The defendant further argues that as such notice was not given, the provisions of § 13a-149 bar the plaintiff from being able to state a cause of action.
General Statutes § 13a-149 provides that "[a]ny 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."
"Under the common law, municipalities enjoyed immunity for injuries caused by defective highways . . . This immunity has been legislatively abrogated by § 13a-149, which allows a person to recover damages against a municipality for injuries caused by a defective highway . . . Section 13a-149 provides the exclusive remedy for a person seeking redress against a municipality for such injuries . . . As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements . . . A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality." (Citations omitted, emphasis added.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
"Historically, the state and its municipalities enjoyed immunity for injuries caused by defective highways under common law . . . The highway defect statute is one legislative exception to such immunity . . . and statutes in derogation of sovereign immunity must be strictly construed . . . Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiff's ability to recover when he or she is injured on a public highway." (Citations omitted, emphasis added, internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 646-47, 717 A.2d 1216 (1998). "[T]here is no material difference in the obligation imposed on the state by [General Statutes § ]13a-144 and that imposed on municipalities by [§ ]13a-149." Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970).
In the present case, the defendant argues that private corporations are included under the language of § 13a-149 and that as such the plaintiff should have brought an action under that statute, as opposed to the present action for negligence. In its brief the defendant relies on the history of § 13a-149. The defendant explains that the court in Fields v. Hartford Wethersfield Horse R. Co., 54 Conn. 9, 4 A. 105 (1886), in holding that a private railroad corporation could be held liable for injuries suffered on a highway noted that "[a]ny person injured . . . by means of a defective road . . . may recover damages . . . but no action may be maintained against any town, city, corporation, or borough, unless written notice of such injury [shall be provided to the opposing party]. Laws of 1883, p. 283." Fields v. Hartford Wethersfield Horse R. Co., supra, 54 Conn. 10 (1886).
The defendant also relies on the court in Lavigne v. New Haven, 75 Conn. 693, 55 A. 569 (1903). The court in that case explained in greater detail the history of the highway defect statute, noting that "[i]n 1883 the statutory liability of a person bound to repair a highway . . . was limited to cases where the party injured had given to the person . . . written notice . . . and the grounds and extent of the original statutory action authorized to enforce that liability were restated in the language now in force. General Statutes, § 2020 (Rev. 1902). The requirement of a written notice applies to private corporations operating a railroad over or across a highway, because the duty of maintaining in a safe condition for public travel that portion of the highway covered by their tracks is imposed upon them by law, and the legislature intended to, and properly may, authorize, as against them, the same statutory action, with the same limitations, as that it authorizes against municipal corporations for neglect of a similar governmental duty." Lavigne v. New Haven, supra, 75 Conn. 700.
That court also explained the history behind the law, noting that "[w]hen, in 1859, horse-railroads, now called street-railways, began to be chartered, the original principle of this legislation was applied to such corporations. Each charter authorized the construction of a railroad upon the highway . . . and directed the company to keep the highway . . . in safe condition for public travel." Lavigne v. New Haven, supra, 698. The court, by explaining the history of the law and noting that the "corporations" referred to had a unique statutory duty under their charters to not only build the roadways but to maintain them (and thus were liable for injuries suffered when that duty was neglected) established that these corporations were akin to a municipal corporation.
The defendant also relies on several more recent decisions by the Superior Court, which dealt with the issue of whether a private corporation is covered under § 13a-149, specifically Jackson v. Bridgeport Housing Authority, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5004320 (August 8, 2007, Matasavage, J.) ( 43 Conn L. Rptr. 865) and Kelly v. Commissioner of Transportation, judicial district of New Haven, Docket No. CV 98 0411722 (February 25, 1999, Moran, J.) ( 24 Conn. L. Rptr. 85). In both cases, the court spoke to the notice requirement of § 13a-149, and held that a corporation could be held liable under § 13a-149. The defendant's reliance on these cases is misplaced. First, the court in Jackson held that a housing authority as a municipal corporation should be subject to the auspices of § 13a-149, noting "because the defendant is a public corporation by definition, it may invoke the statute." (Emphasis added.) Jackson v. Bridgeport Housing Authority, supra, 43 Conn.L.Rptr. 865. The court made no mention as to whether a private corporation should be included under § 13a-149. Second, the court in Kelly held that the Metro North Railroad Company should have been given notice under the provisions of § 13a-149, but that case differs from the present case. In Kelly, the plaintiff had filed suit under § 13a-149 against both the state of Connecticut and Metro North. The court then ruled that if the plaintiff was to bring the suit against both parties under § 13a-149, they must comply with all its requirements for all parties. This differs from the case at hand where it is the defendant corporation who is now claiming protection under § 13a-149, and the plaintiff has not brought suit under said statute.
The litany of modern appellate case law in Connecticut seems to indicate that § 13a-149 was only meant to apply to corporations within the context of a municipal corporation and such cases are replete with references only to the municipality and the concept of governmental immunity. Those cases from the early-1900s wherein the court held that corporations could be covered by the definition of "corporation" under the highway defect statute indicate those corporations had a statutory duty consistent with their role in creating and maintaining Connecticut's early highways and roads, and have little to do with the concept of a corporation as currently applicable in the present case.
For the foregoing reasons, the defendant's motion to dismiss is hereby denied.