255 Conn. 330 | Conn. | 2001
Opinion
The dispositive issue in this appeal is whether a condition that allegedly caused injuries to the plaintiff, Geraldo Ferreira, is, as a matter of law, a “highway defect” within the meaning of General Statutes § lSa-149,
The record discloses the following facts and procedural history. On June 12, 1996, the plaintiff was a passenger on a public bus in the town of East Lyme (town). As he disembarked the bus onto a grassy embankment at the shoulder of North Bridebrook Road, he tripped on the remnant of a severed steel signpost embedded in the ground and fell backward into the road where he was run over by the bus.
On November 5, 1996, the plaintiff filed a notice of intention to sue the town and its employees, pursuant to General Statutes § 7-465
The plaintiff initially filed two separate actions in the trial court. The first action was filed on August 22,1997, against Southeast Area Transit (Southeast); Thomas C. Poirer, the operator of the bus; the state department of transportation; the town; Frederick G. Thumm, director of public works for the town; Charles Holyfield, superintendent of highways for the town; the cities of New London, Groton and Norwich; and the towns of Griswold, Waterford, Stonington, Montville, Ledyard and Groton (Southeast action). The second action, which involves the appeal currently before us, was filed on June 16, 1998, against Ronald Pringle, chief of the
As set forth in the trial court’s memorandum of decision dismissing the complaints, “[t]he plaintiff alleged [in the Southeast action] that the [t]own . . . [had] ‘creatfed] an unsafe and dangerous condition for the plaintiff and other pedestrians’ . . . [had] ‘creat[ed] a hazard to the public’ . . . ‘[had] notpaint[ed] [the] protruding sign post ... so that it would have been visible to the plaintiff and other pedestrians traversing said area’ . . . and ‘[had] [allowed buses to stop and disembark passengers, like the plaintiff, at the location where the plaintiff [had fallen].’ ” Essentially, the plaintiff contended that the town had created or had participated in the creation or maintenance of a public nuisance in violation of General Statutes § 52-557n (a) (1) (C).
In the Pringle action, the plaintiff essentially reiterated the same claims under to § 52-557n (a) (1) (A).
On June 27, 1998, in the Southeast action, the defendants filed a motion to strike, attacking the legal sufficiency of the complaint on the ground that the facts alleged in the complaint concerned a highway defect, and therefore, the plaintiffs exclusive remedy was under § 13a-149. The defendants argued that, because the plaintiff had not pleaded a cause of action under § 13a-149, the complaint was legally insufficient.
While the motion to strike was pending in the Southeast action, on August 12, 1998, the defendants in the Pringle action filed a motion to dismiss the complaint for lack of subject matter jurisdiction. They argued that because the facts alleged in the complaint and the admissions contained in the plaintiffs notice of intention to sue, together with other uncontroverted evidence, indicated that the plaintiffs injury had occurred because of a highway defect, statutory notice under § 13a-149 was required in order for the court to have subject matter jurisdiction. Thereafter, the court granted the plaintiffs motion to consolidate the Southeast and the Pringle actions.
On May 12,1999, the defendants jointly filed a supplemental memorandum and appendix in support of their motion to dismiss. Included were the plaintiffs amended complaints in the Southeast and Pringle actions; sworn affidavits of Thumm and Holyfield indicating that the location of the alleged defect was within the highway right-of-way line and that the town’s highway department maintained the highway shoulder in which the alleged defect was located; and the lease agreement between the state and the town indicating
On July 8, 1999, the trial court, Mihalakos, J., heard arguments on the motion to strike in the Southeast action, and the motion to dismiss in the Pringle action. Citing the complaints in both actions, the plaintiff contended that his cause of action was not related to a highway defect, as that term had been interpreted. In addition, he argued that, because he had not pleaded expressly a cause of action based on § 13a-149, the trial court properly could not consider the legal sufficiency of his complaint for purposes of § 13a-149.
The trial court rejected the plaintiffs contention that it could not determine the legal sufficiency of his claims on the basis of § 13a-149, concluding that “ ‘[e]ven if a complaint does not contain allegations concerning the violation of a statute, that complaint may still contain allegations sufficient to invoke such statute. Mahoney v. Lensink, 213 Conn. 548, 568, 569 A.2d 518 (1990).’ ” Thus, the trial court noted that the proper inquiry was to determine whether the plaintiffs allegations were sufficient to invoke § 13a-149. It concluded that, as a matter of law, the plaintiffs allegations in both the Southeast and Pringle actions necessarily invoked the defective highway statute, and therefore, that the plaintiffs exclusive remedy for his injuries was under § 13a-149.
Subsequently, the plaintiff filed a substitute complaint against the defendants in the Southeast action, again under § 52-557n, claiming, as set forth by the trial court, Koletsky, J., in his memorandum of decision on the defendants’ motion to dismiss, that the allegations in that complaint had “nothing to do with the road or use of the road and, [that] therefore, the highway defect statute [was] not implicated.” Ferreira v. Southeast Area Transit, Superior Court, judicial district of New London at Norwich, Docket No. X04-CV-97-0118855-S (February 24, 2000). “[I]nstead of the plaintiff disembarking onto a grassy embankment at the shoulder of the road, [the substitute complaint] . . . alleged that the plaintiff [had] disembarked onto the lawn of the Niantic fire department.” Id. On August 24, 1999, the defendants had moved to dismiss the second and third counts
Judge Koletsky determined that “[a] comparison of the second and third counts stricken by Judge Miha-
The plaintiff appealed from the judgment of dismissal in the Pringle action to the Appellate Court, and pursuant to Practice Book § 65-2
We conclude that, as a matter of law, the allegations contained in the plaintiffs complaint, the allegations in the affidavits submitted by the defendants, absent any response from the plaintiff, and the other uncontro-verted evidence, necessarily invoke the defective highway statute. Therefore, the plaintiffs exclusive remedy for his injuries is under § 13a-149. Because the plaintiff did not comply with the notice provisions set forth therein, the trial court lacked subject matter jurisdiction over the action as a whole. Finally, we conclude that
I
Before we consider the parties’ claims in this case, it first is necessary to discuss the relevant history of the defective highway statute and the legal parameters of a highway defect as that term has been interpreted by this court.
“A town is not liable for highway defects unless made so by statute.” Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949). Section 13a-149 affords a right of recovery against municipalities. Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). Under § 13a-149, “[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. . . .” We have construed § 52-557n, the statute under which the plaintiff initially brought his claim, to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiffs exclusive remedy. Wenc v. New London, 235 Conn. 408, 412-13, 667 A.2d 61 (1995); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991); see also General Statutes § 52-557n (a) (1) (C) (“no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149”). In addition, because § 7-465 (a) requires a municipality to indemnify its officers for their negligent acts, § 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect. Sanzone v. Board of Police Commissioners, supra, 192.
“Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true,
The duty of the municipality to use reasonable care for the “reasonably prudent traveler . . . extends to pedestrian travel as well as to vehicular traffic.” (Citations omitted; internal quotation marks omitted.) Baker v. Ives, 162 Conn. 295, 299, 294 A.2d 290 (1972). To fall within the statute, “ ‘a plaintiff is not obligated to remain seated in a vehicle proceeding on the highway’ ”; id.; rather, “[a] person must [simply] be on the highway for some legitimate purpose connected with travel thereon
We now turn to the plaintiffs claims in this appeal. The plaintiff contends that the trial court improperly concluded as a matter of law that the condition causing his injuries constituted a highway defect pursuant to § 13a-149. First, he maintains that the court improperly “went beyond the facts alleged in the complaint and made a factual determination that the plaintiff [had been] injured by means of a defective road or bridge when he [actually had fallen] on a lawn.” Second, he argues that “numerous facts asserted or assumed by the defendants are disputed by the plaintiff or unestablished at this point, such as whether the signpost [was] within the town’s highway right-of-way; who own[ed] the signpost stub . . . who maintained] the lawn area in question; whether this area [was] a ‘bus stop’ or otherwise part of the road; [and] whether the plaintiff was a pedestrian traveler . . . .” He maintains that “[n]one of these facts have been proven,” and, therefore, that the trial court improperly granted the defendants’ motion to dismiss. Finally, the plaintiff argues that the trial court improperly concluded that it lacked subject matter jurisdiction over the action. Specifically, the plaintiff contends that “[t]here is no jurisdictional issue of compliance with the notice provisions of § 13a-149” because he “is not suing a municipality”; he is suing the defendants in their “individual capacities.”
We conclude that the plaintiffs claims, coupled with the uncontested facts in the record, invoke § 13a-149 because they contemplate that the plaintiffs injury occurred as a result of a defective road that the town was “bound to keep ... in repair.” General Statutes § 13a-149. Furthermore, we determine that the claims asserted against the defendants in their individual capa
First, although it is true, as the plaintiff contends, that the alleged defect was not located in the paved portion of the road, we repeatedly have determined that the purview of § 13a-149 is not limited solely to defects that are located in the road. Hewison v. New Haven, supra, 34 Conn. 142. As we noted previously, a highway defect is “[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202; Hall v. Burns, 213 Conn. 446, 461-62, 569 A.2d 10 (1990); Baker v. Ives, supra, 162 Conn. 300; Rusch v. Cox, 10 Conn. Sup. 521, 526, aff'd, 130 Conn. 26, 31 A.2d 457 (1943). “To hold that a defect . . . must exist in the traveled portion of the highway would run counter to our decisions and lead to results bordering on the ridiculous. ... If in the use of the traveled portion of the highway and, as incidental thereto, the use of the shoulders for the purposes for which they are there, a condition exists which makes travel not reasonably safe for the public, the highway is defective.” Rusch v. Cox, supra, 526.
Second, the plaintiffs contention that numerous facts are still in dispute, or unestablished at this point, is without merit. Indeed, these supposedly disputed facts were either admitted in the plaintiffs complaints and notice of intention to sue, or were asserted by the defen
“Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); see State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980) (noting that “[t]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it” [internal quotation marks omitted]); Cas-sidy v. Southbury, 85 Conn. 221, 224, 82 A. 198 (1912) (“It was not necessary for the defendant to prove what the plaintiff admitted by the pleadings. ... An admission in pleading dispenses with proof, and is equivalent to proof.” [Citation omitted; internal quotation marks omitted.]); see also Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 504, 548 A.2d 728 (1988) (noting that judicial admissions may be expressed in different forms such as formal pleading or written stipulation). The plaintiff here admitted several facts in both the Southeast and Pringle complaints “and at no time during the trial of [those cases] did [he] seek to have [his] admission[s] withdrawn, explained or modified.” (Internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, supra, 312; Dreier v. Upjohn Co., 196 Conn. 242,244,248,492 A.2d 164 (1985) (“statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them” [emphasis added]).
“A motion to dismiss . . . properly attacks the jurisdiction of the court . . . .” Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991); see also Sadloski v. Manchester, 235 Conn. 637, 645-46 n.13, 668 A.2d 1314 (1995) (“ ‘[t]he motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter’ ”). “The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts,
The plaintiff alleged, in the Southeast and Pringle complaints, both of which were before the trial court in the consolidated action, that he had tripped on a portion of a steel signpost after disembarking a public transportation bus
In the complaint in the Pringle action, the plaintiff claimed that the defendants had “creat[ed] an unsafe and dangerous condition for the plaintiff and other pedestrians”; had “creatfed] a hazard to the public”; and had not “paint[ed] said protruding sign post . . .
The supporting affidavits filed by the defendants disclosed that the location of the alleged defect was within the highway right-of-way, located on the shoulder of the road, and that the town was responsible for maintaining the highway shoulder. The defendants also submitted to the trial court the lease agreement between the state and the town that established that the town had a duty to maintain the highway shoulder through its employees, officers or agents. The plaintiff did nothing to contradict these factual assertions.
In Baker v. Ives, supra, 162 Conn. 295, this court addressed a situation similar to the facts alleged herein. The plaintiff in Baker had been injured by an alleged defect thirty-two feet from the edge of the paved highway, thus, not within the traveled path of the highway, but within the state right-of-way line. Id., 297. She brought an action under General Statutes § 13a-144
In Baker, the court determined that it was proper for the jury to conclude that the plaintiffs injuries had been caused by a highway defect within the meaning of § 13a-144. In reaching that conclusion, the court noted that, “it was reasonably to be expected that after parking her car the plaintiff would cross the dirt and grass area to reach the sidewalk. The fact that the defective
In the present case, as in Baker, the alleged defect was within the town right-of-way line. This is significant because “[w]hether the place of injury is within the . . . right-of-way line is the threshold inquiry” in determining whether the condition complained of falls under § 13a-149. Serrano v. Burns, 248 Conn. 419, 427 n.7, 727 A.2d 1276 (1999) (determining state’s liability pursuant to § 13a-144). In addition, it is clear from the plaintiffs own allegations that the defective condition was in an area where bus passengers were likely, and in fact encouraged, to disembark; accord Novicki v. New Haven, 47 Conn. App. 734, 740, 709 A.2d 2 (1998) (“ [s]ince the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it”). Indeed, the plaintiff expressly stated that the defect was embedded in the shoulder of the road, only seven feet from the paved area, and that he was required to disembark onto the grassy area because there was no sidewalk or appropriate area for him to disembark. See Hornyak v. Fair-
Despite the allegations in his complaint, the plaintiff maintains that he lacks the status of a “traveler,” and, therefore, that he does not fall within the purview of § 13a-149. His argument is based upon this court’s decision in O’Neil v. New Haven, 80 Conn. 154, 156, 67 A. 487 (1907), wherein the court concluded that the plaintiff lacked the status of a traveler because he had left the highway for a purpose other than traveling over the highway, and, consequently, that the defective highway statute was not implicated.
The plaintiffs reliance on O’Neil is misplaced. First, it is important to note that, in that case, the alleged defective condition, a weighing platform that collapsed while the plaintiffs vehicle was on it, was not on the
In the present case, the alleged defective condition was, by the plaintiffs own admissions, located in the road shoulder, which had been used knowingly and intentionally by departing bus passengers as part of the road. As we noted previously, the plaintiff himself expressly stated that the nature and location of the defect was such that it necessarily presented a public hazard to himself, pedestrians, and other disembarking bus travelers.
' Finally, we address the plaintiffs contention that his complaint does not invoke § 13a-149 because it was brought against various municipal employees, officers or agents in their individual capacities. We conclude
The plaintiffs complaint was brought under § 52-557n (a) (1) (A), which imposes liability on a town for the negligence of its employees, officers, or agents while acting within the scope of their employment or contractual duties. The plaintiff sought recovery under the same statute in the Southeast companion action. In addition, in the Southeast action, the plaintiff contended that he had complied with the notice provisions of § 7-465, a statute that requires a municipality to indemnify its officers for their negligent acts. The plaintiff admitted in his motions to consolidate that both the Pringle and Southeast actions involved the same issues of law and fact.
To bring his complaint within § 52-557n (a) (1) (A), the plaintiff alleged that the town had leased from the state the property on which the alleged defect was located and that the town had agreed to maintain it. Pringle, in his capacity as chief of the Niantic fire department, Peretz, in his capacity as director of parks and recreation, and the Niantic Fire Department, Inc., in its capacity as lessee, “as such,” were charged with the responsibility of maintaining the area of the alleged defect. (Emphasis added.) The plaintiff alleged that his injuries were “directly and proximately caused by the negligence of the defendants ... in the course of their contractual obligations or employmentwith the town. (Emphasis added.) These allegations track the language of § 52-557n (a) (1) (A), seeking to impose liability on the town for the negligent acts of its employees, officers, or agents while they were acting within the scope of their employment or contractual duties to maintain the area on which the alleged injury occurred. Therefore, it
It is clear to this court, therefore, both from the express words employed by the plaintiff and from the unchallenged affidavits of the defendants, that the dangerous condition complained of constitutes a highway defect and that the defendants were responsible for keeping the area of the alleged injury in repair. Therefore, § 13a-149 necessarily is invoked. As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident. See footnote 1 of this opinion; Martin v. Plainville, supra, 240 Conn. 109; Pratt v. Old Saybrook, 225 Conn. 177, 180, 621 A.2d 1322 (1993); Sanzone v. Board of Police Commissioners, supra, 219 Conn. 185.
In this case, it is undisputed that the plaintiff did not provide any written notice to the defendants within the requisite time period. Because he failed to comply with the notice requirements of § 13a-149, the trial court lacked subject matter jurisdiction over the action. See Pratt v. Old Saybrook, supra, 225 Conn. 180-81 (“giving of notice sufficient to satisfy the requirements of the statute is a condition precedent to maintenance of an action under it”; whether notice insufficient due to ref
II
The plaintiff further contends that § 13a-149 is unconstitutionally vague as applied to the facts of this case and that it improperly deprived him of a remedy for his injuries. We conclude that § 13a-149 is not void for vagueness.
“As a threshold matter, it is necessary to discuss the applicable standard of review. ‘A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity.’ ” Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999), quoting State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 758, 529 A.2d 1276 (1987). To demonstrate that § 13a-149 is unconstitutionally vague as applied to him, the plaintiff therefore “must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement.” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, supra, 322. “[T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777, 695
With these principles in mind, we turn to the facts and circumstances of the plaintiffs void for vagueness claim. In so doing, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend” the meaning of a highway defect under § 13a-149. Id.
The plaintiff maintains that § 13a-149 is unconstitutionally vague because it is “completely devoid of any definition of a ‘road’ or when a ‘road’ is ‘defective.’ ” This contention is without merit. The highway defect statute has been interpreted consistently by this court so as to provide the plaintiff fair warning as to its meaning. It is well settled that claims involving highway defects must be brought pursuant to § 13a-149. Sanzone v. Board of Police Commissioners, supra, 219 Conn. 197-98. The term “defect” and the adjective “defective” have been used in statutes defining the right to recover damages for injuries due to public roads or bridges in Connecticut since 1672. Bacon v. Rocky Hill, 126 Conn. 402, 404, 11 A.2d 399 (1940). These words have “continued ever since as the basis in the statute upon which liability rests.” Id. Moreover, we consistently have interpreted § 13a-149 to include defects located outside the paved portion of the highway. See Baker v. Ives, supra, 162 Conn. 300 (noting that highway defect is “an object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that
As we stated previously herein, the undisputed facts in this case clearly indicate that the plaintiff allegedly was injured by means of a highway defect. The plaintiff expressly stated that he was injured while disembarking a public bus on a grassy shoulder that was being used as a bus stop. The extensive case law interpreting § 13a-149 afforded the plaintiff fair warning that his claim would fall within the parameters of the defective highway statute.
In addition, we determine that the plaintiff has not been improperly deprived of a remedy. Indeed, § 13a-149 provides redress to plaintiffs for claims arising from highway defects. See Sanzone v. Board of Police Commissioners, supra, 219 Conn. 196-97 (concluding that § 13a-149 is exclusive remedy for “injuries arising out of highway defects”). Accordingly, as the defendants correctly maintain, “the plaintiff must present his claim within the parameters and meet the requirements of that statutory cause of action.”
We conclude that the plaintiff has failed to meet his burden of proving beyond a reasonable doubt that § 13a-149 is unconstitutionally vague. Further, the plaintiff has not been improperly deprived of a remedy because § 13a-149 affords redress for injuries encompassed within its terms.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 13a-149 provides: “Damages for injuries by means of defective roads and bridges. 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 lime 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 tire secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. 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 misled thereby.”
General Statutes § 7-465 provides: “Assumption of liability for damage caused by employees or members of local emergency planning districts. Joint liability of municipalities in district department of health or regional planning agency, (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person
“(b) Each town, city or borough which has joined with other towns, cities or boroughs to form a district department of health, pursuant to chapter 368f, or a regional planning agency, pursuant to chapter 127, shall jointly assume the liability imposed upon any officer, agent or employee of such district department of health or such regional planning agency, acting in the performance of his duties and in the scope of his employment, under, and in the manner and in accordance with the procedures set forth in, subsection (a) of this section. Such joint assumption of liability shall be proportionately shared by the towns, cities and boroughs in such district or regional planning agency, on the same basis that the expenses of such district are shared as determined under section 19a-243, or such regional planning agency as determined under section 8-34a.”
The plaintiff made similar claims, pursuant to § 52-557n (a) (1) (A), with respect to the defendants Thumm and Holyfield, contending that they negligently had maintained the grassy area and broken signpost where the plaintiff had disembarked the bus, and that they had “ ‘[f]ailed to erect a four foot high nine gauge chain link fence along the perimeter of [the] property in order to prevent members of the public from traversing [the] lawn where the plaintiff [had] tripped.’ ”
General Statutes § 52-557n provides in relevant part: “Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions, (a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. . . .”
The court cited § 52-557n (a) (1) (C), the statute upon which some of the plaintiffs claims had been brought, which provides in part that “no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.” Thus, because the plaintiffs injuries resulted from a defective road, the court concluded that his exclusive remedy was pursuant to § 13a-149.
The plaintiff moved for reargument regarding the defendants’ motion to dismiss. The trial court denied the plaintiffs motion.
The second count of the substitute complaint was directed against the town pursuant to § 52-557n (a) (1) (C), alleging that the town had created or participated in the creation or maintenance of a public nuisance. Ferreira v. Southeast Area Transit, supra, Superior Court, Docket No. X04-CV-970118855-S. The third count of the plaintiffs substitute complaint was directed against Thumm and Holyfield pursuant to § 52-557n (a) (1) (A), alleging liability of political subdivisions of the state for the negligent acts of its employees, officers or agents. It also alleged that notice of the plaintiffs claim had been provided to the town and its employees pursuant to General Statutes §§ 7-465 (indemnification statute for municipal employees) and 7-273h (indemnification statute for transit district employees). Id.
Practice Book § 65-2 provides: “Motion for Transfer from Appellate Court to Supreme Court
“After the filing of an appeal in the appellate court, but in no event after the case has been assigned for hearing, any party may move for transfer to the supreme court. The motion, addressed to the supreme court, shall specify, in accordance with provisions of Section 66-2, the reasons why the party believes that the supreme court should hear the appeal directly. A copy of the memorandum of decision of the trial court, if any, shall be attached to the motion. The filing of a motion for transfer shall not stay proceedings in the appellate court.
“If, at any time before the final determination of an appeal, the appellate court is of the opinion that the appeal is appropriate for supreme court review, the appellate court may file a brief statement of the reasons why transfer is appropriate. The supreme court shall treat the statement as a motion to transfer and shall promptly decide whether to transfer the case to itself.”
General Statutes § 51-199 (c) provides: “The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the Appellate Court. The court, to which a cause is transferred has jurisdiction.”
It is not disputed that § 13a-149 is the exclusive remedy for a claim based upon a highway defect. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). Therefore, the plaintiff acknowledges that if his claim is based upon a highway defect, his failure to comply with the notice requirements of § 13a-149 deprived the trial court of subject matter jurisdiction, and it properly granted the defendants’ motion to dismiss.
Practice Book § 10-31 (a) provides in relevant part: “This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”
In the plaintiffs notice of intention to sue, he contended that he had tripped as he disembarked the bus.
General Statutes § 13a-144, which affords a right of recovery similar to that under § 13a-149 and is subject to the same limitations; Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999); provides: “Damages for injuries sustained on state highways or sidewalks. 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, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner
The plaintiffs reliance on Chazen v. New Britain, supra, 148 Conn. 349, is also misplaced. That case involved a plaintiffs unreasonable decision to cross an area of “[u]nmowed grass and weeds”; id., 351; that was not intended for pedestrian travel, rather than using a provided travel path. Id., 354. The plaintiff in the present case, however, was injured as a result of an alleged defect in the road shoulder, the only means provided to him for disembarking the public bus.