Cuozzo v. Town of Orange, 147 Conn. App. 148

Plaintiff Armand Cuozzo sued the Town of Orange after his car struck a large pothole on an entrance/exit driveway connecting Boston Post Road and Meloy Road; he alleged municipal ownership/control and negligence under § 52-557n and § 52-593 procedures.
The town moved to dismiss for lack of subject matter jurisdiction, arguing the municipal highway defect statute (§ 13a-149) applied and the plaintiff failed to give the required 90‑day written notice; the town submitted an affidavit from the town clerk that notice was not received within 90 days.
Cuozzo opposed, arguing § 13a-149 did not apply because the accident occurred on a private driveway serving a shopping plaza (Wal‑Mart/Sam’s Club) and that notice issues were not properly resolved on a motion to dismiss.
The trial court granted the town’s motion, concluding the driveway was municipal property reasonably anticipated to be used by the public and that the plaintiff failed to provide the § 13a-149 notice, depriving the court of jurisdiction.
The Appellate Court reversed: it held the record (including the plaintiff’s affidavit asserting the driveway was a private driveway exclusively leading to the plaza) did not support treating the driveway as a public highway under § 13a-149, so dismissal for lack of jurisdiction was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lack of § 13a-149 notice can be raised in a motion to dismiss	Cuozzo: notice defect is not a jurisdictional defect and should be raised via other procedural means	Town: failure to give 90‑day notice under § 13a-149 deprives court of subject matter jurisdiction	Court: § 13a-149 notice is jurisdictional and may be raised on a motion to dismiss (affirmed)
Whether the driveway where the injury occurred is a "public highway" subject to § 13a-149	Cuozzo: driveway is private, exclusively serves Wal‑Mart plaza; not open to indefinite public use	Town: driveway is municipal property connected to public roads and reasonably anticipated to be used by the public	Court: record does not support that the driveway had public character; plaintiff’s affidavit and pleadings, construed favorably, defeat application of § 13a-149 (plaintiff wins)

Dayner v. Archdiocese of Hartford, 301 Conn. 759 (2011) (standard of review for motion to dismiss and jurisdictional questions)
Ferreira v. Pringle, 255 Conn. 330 (2001) (failure to comply with § 13a-149 notice deprives court of jurisdiction)
Serrano v. Burns, 248 Conn. 419 (1999) (areas adjacent to highway may qualify as part of highway system if public is invited to use them)
Kozlowski v. Commissioner of Transportation, 274 Conn. 497 (2005) (defective conditions near roadway are highway defects when public use is reasonably anticipated)
Read v. Plymouth, 110 Conn. App. 657 (2008) (limited-access municipal facilities not open to general public fall outside § 13a-149)
Bellman v. West Hartford, 96 Conn. App. 387 (2006) (if complaint and affidavits necessarily invoke § 13a-149, plaintiff’s exclusive remedy is under that statute)
Hewison v. New Haven, 34 Conn. 136 (1867) (historical view of highway defect concept)
Klein v. Norwalk, 499 F. Supp. 2d 113 (D. Conn. 2007) (municipal parking area held open to public and subject to § 13a-149)