Opinion
No. CV 05 5000068 S
May 15, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#111)
On November 7, 2005, the plaintiff, Paul Zopfi, as the executor of the estate of Violet Zopfi, filed a complaint against the defendant, the state of Connecticut, alleging negligence on the part of a Department of Transportation employee, Norman Marrotte. The plaintiff alleged that his decedent, Violet Zopfi, was killed on January 20, 2004, after the vehicle in which she was traveling struck a department of transportation nine-ton dump truck that was partially obstructing the southbound lane of Route 198 in Chaplin, Connecticut.
On July 19, 2006, the defendant filed a motion to dismiss the complaint on the ground that "the court lacks subject matter jurisdiction in that the state vehicle was not being operated at the time of the collision within the meaning of [General Statutes] § 52-556, because it was parked, unoccupied, and being used not as a means of transportation but as a warning and protective device at the time." In support of its motion, the defendant has submitted a memorandum of law accompanied by the affidavit of Marrotte. On December 14, 2006, the plaintiff filed a memorandum in opposition and excerpts of Marrotte's deposition. On January 10, 2007, the defendant filed a reply memorandum that was also accompanied by excerpts from Marrotte's deposition.
General Statutes § 52-556 provides: "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury."
In accordance with Practice Book § 10-31(b), in addition to the allegations contained in the complaint, in ruling upon the defendant's motion to dismiss, the court will consider the undisputed facts contained in Marrotte's affidavit. See Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001) ("Where . . . the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ."). The parties disagree about the legal conclusions to be drawn from these facts; however, as evidenced by the parties' joint citation to Marotte's deposition testimony, neither party disputes the underlying jurisdictional facts. See Weihing v. Dodsworth, 100 Conn.App. 29, 37-38, 917 A.2d 53 (2007).
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a [trial] 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002). "Where . . . the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "[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).
In deciding a motion to dismiss, the court must read the allegations of facts in the pleadings broadly in favor of the plaintiff, however, "allegations that state conclusions of law are not given such presumptive validity." Shay v. Rossi, 253 Conn. 134, 141, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).
In support of its motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction, the defendant argues that because Marrotte was not "operating" the dump truck within the meaning of § 52-556 at the time of the motor vehicle accident, the plaintiff cannot utilize this statutory provision to bring a negligence action against the state. Thus, the defendant maintains that it is immune from suit under the doctrine of sovereign immunity. The defendant cites an Appellate Court case, Rivera v. Fox, 20 Conn.App. 619, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990), in support of its contention that, as a matter of law, when a state department of transportation truck is struck by a motorist while it is being utilized as a "warning and protective device," the truck is not "parked incident to travel," and therefore cannot be considered to have been in operation within the meaning of § 52-556. In response, the plaintiff contends that the "parking and temporary exiting from the truck was an activity incident to the movement of the truck . . . [that enabled Marrotte] to perform his assigned duties which consisted of inspecting for and maintaining icy conditions." In support of this argument, the plaintiff also relies on an Appellate Court case, Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 831 (2004).
"Sovereign immunity may be waived only through a statute . . . Any statutory waiver of immunity must be narrowly construed . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Citations omitted; internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). "The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation . . . Statutory interpretation presents a question of law for the court." (Internal quotation marks omitted.) Biller Associates v. Rte. 156 Realty Co., 52 Conn.App. 18, 26, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000). Accordingly, the determination of whether the present case involves the operation of a motor vehicle by a state employee under § 52-556, on the basis of undisputed facts, is one for the court. "This determination [is] an exercise of pure statutory construction by the court and [does] not involve the resolution of factual issues." Rivera v. Fox, supra, 20 Conn.App. 621.
"The statute requires, before there can be a right of action against the state for the recovery of damages for injury to person or property, that there be `negligence of any state official or employee when operating a motor vehicle' owned by the state." (Internal quotation marks omitted.) Allison v. Manetta, supra, 84 Conn.App. 539-40, quoting § 52-556. "The general rule . . . is that operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another." (Emphasis in original; internal quotation marks omitted.) Id., 540-41. "The use of the phrase `when operating a motor vehicle' implies a simultaneousness of negligent operation and injury, because `when' denotes the time or exact moment at which something is done . . . Without [such] temporal congruence, the state cannot be held liable even if the negligent operation of a state owned motor vehicle by a state employee proximately caused the injury." Rivera v. Fox, supra, 20 Conn.App. 622-23, quoting § 52-556.
In Rivera v. Fox, supra, 20 Conn.App. 620, a state employee parked a department of transportation truck in the westbound lane of an interstate highway to help cleanup an accident site. Id., 620. The employee positioned the truck in such a manner as to obstruct both part of the left travel lane and part of the left shoulder. Id. The truck was parked with its engine running, its strobe lights activated and its four-way flashers on. Id. Flares were also set up on the road behind the vehicle. Id. At the site, the employee positioned the truck "to alert oncoming drivers to debris from the accident that was obstructing the highway." Id. After exiting the truck, the employee walked 500 feet to the site of the accident. Nearly two hours later, a motorist was killed after his vehicle collided with the truck. Id. Under these facts, the trial court determined that, at the time of the motor vehicle accident, the truck was not in "operation" within the meaning of § 52-556. In affirming the trial court's grant of summary judgment in favor of the state, the Appellate Court concluded that the state may not be held liable under § 52-556 "unless the negligent operation of the state's motor vehicle is contemporaneous with the injury sustained." (Emphasis added.) Id., 622. The court determined that because the motor vehicle accident occurred when the truck was positioned on the highway as a "warning signal" that was designed to "alert drivers to the danger ahead," the plaintiff could not establish "operation" within the meaning of § 52-556. The court reasoned that any possible negligence did not result from a "circumstance resulting from . . . [the] movement [of the vehicle] or an activity incident to the movement of the vehicle from one place to another." Id., 624.
Similarly, in Allison v. Manetta, supra, 84 Conn.App. 536-37, the Appellate Court considered another case involving a collision between a motorist and a department of transportation truck. In that case, the accident occurred after a state employee had partially obstructed the westbound lane of Route 44 after stopping his truck. Id., 537. The employee had stopped his truck after noticing an area of the roadway that was in need of maintenance. Id., 541. Prior to the accident, the employee had exited his vehicle, which had its strobe lights on, for four minutes to perform the necessary routine road maintenance. Id. Pursuant to the state's motion to dismiss for lack of subject matter jurisdiction, the trial court, relying on Rivera v. Fox, supra, 20 Conn.App. 620, entered a judgment of dismissal. The Appellate Court, however, reversed the judgment of the trial court. The Appellate Court distinguished Rivera, concluding that because the truck involved in Allison was not "positioned . . . in a manner to protect . . . [the employee] while he dug a ditch on the shoulder of the road," temporal congruence was established as the truck was being utilized as the employee's "means of locomotion . . . [that he] used to follow a designated route of state highway to correct maintenance problems . . ." Allison v. Manetta, supra, 541-42. Therefore, the court concluded that, as a matter of law, the employee was operating the truck within the meaning of § 52-556. Id.
In the present case, unlike the driver of the department of transportation truck involved in Allison, who had exited his truck for four minutes to perform routine maintenance activities, and who had not positioned the truck "in a manner to protect himself," it is undisputed that Marrotte positioned his truck in the southbound lane to the north of the ice condition and was actively directing traffic around this obstruction at the time of the accident. Therefore, unlike the employee involved in Allison, Marrotte cannot be said to have "parked the truck as an activity incident to moving it from one place to another," as he arrived at Route 198 "to provide warning to the motoring public and protection for the payload operator who was working in the southbound lane." See id. Therefore, on the basis of the undisputed facts, the court finds that, like the department of transportation truck involved in Rivera, Marrotte's truck, which had its headlights on, its strobe lights flashing and its parking lights activated, was being utilized as a warning signal and protective device at the time of the accident. Accordingly, as a matter of law, the plaintiff cannot demonstrate the "simultaneousness of negligent operation and injury" that is necessary to invoke the statutory waiver of sovereign immunity pursuant to § 52-556.
Based on the foregoing, the defendant's motion to dismiss for lack of subject matter jurisdiction is granted.