77 Conn. App. 597 | Conn. App. Ct. | 2003
Opinion
The defendant James F. Sullivan,
The record reveals the following procedural history. On May 2, 2000, the plaintiff, Alex Tyson, sent notice of his intent to bring an action pursuant to § 13a-144 against the defendant for personal injuries arising out of an incident that had occurred on March 1, 2000. The plaintiff sent the notice via certified mail, which the defendant received on May 4, 2000.
In his complaint, the plaintiff alleged that, on the morning of March 1,2000, he was a passenger in a motor vehicle traveling east on Interstate 84 in Waterbury. He further alleged that as the vehicle exited the highway onto the Hamilton Avenue off ramp, boulders, rocks and other debris that had broken loose from an adjacent rock ledge spilled over the jersey barriers on the right side of the highway and struck the vehicle, injuring him.
The plaintiff filed an objection in which he maintained that his action fell within the scope of § 13a-144 and that the notice received by the defendant was adequate, thereby giving the court proper jurisdiction over the claim. The court agreed and, by memorandum of decision filed October 22, 2001, denied the defendant’s motion to dismiss. The defendant now appeals from that decision.
The standard of review that guides our resolution of the defendant’s claims is well settled. “In ruling upon whether a complaint survives a motion to dismiss, a corut must take the facts to be those alleged in the complaint, including those facts necessarily implied
I
The defendant first claims that the plaintiff failed to allege a highway defect sufficient, as a matter of law, to bring his claim within the scope of § 13a-144. The defendant argues that because of that failure, he retains immunity from suit under the doctrine of sovereign immunity and, thus, the court lacks subject matter jurisdiction over the claim. We disagree.
We first briefly discuss the law underlying the defendant’s claim. “[Sovereign immunity is an immunity, not simply from liability, but from suit as well.” Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000). Because sovereign immunity implicates the court’s subject matter jurisdiction, the existence of the immunity creates a proper basis for granting a motion to dismiss; Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994);
In enacting § 13a-144, the legislature explicitly waived the state’s sovereign immunity in certain actions in which the injuries allegedly resulted from a defective highway. Oberlander v. Sullivan, 70 Conn. App. 741, 745, 799 A. 2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002). “[Bjecause 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). The statute “is to be strictly construed in favor of the state”; id.; however, “when aplaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity.” Amore v. Frankel, supra, 228 Conn. 365.
A complaint is subject to a motion to dismiss if the plaintiff does not satisfy the statute’s notice requirement; see Oberlander v. Sullivan, supra, 70 Conn. App. 745; or if the complaint alleges that the area where the injury occurred is not an area for which the state has a statutory duty to maintain and repair. Amore v. Frankel, supra, 228 Conn. 365. Similarly, if, accepting the allegations in the complaint as true, the court can conclude that, as a matter of law, the condition that allegedly caused the plaintiffs injury does not constitute a highway defect within the scope of § 13a-144, the court likewise should dismiss the complaint.
Our Supreme Court has defined the type of highway defect that gives rise to liability under § 13a-144 as “[a]ny object in, upon, or near the traveled path, which
The defendant contends that our Supreme Court’s holding in Comba v. Ridgefield, supra, 177 Conn. 268, necessarily controls our determination in the present case of whether the plaintiff has alleged a defect within the scope of the statutory duty imposed on the state by § 13a-144. We disagree.
In Comba, the court held that, as a matter of law, an overhanging branch that fell from a rotted tree located near a highway onto a motor vehicle, injuring a passenger inside, did not constitute a defect as contemplated by General Statutes § 13a-149, the municipal highway defect statute. The court explained: “The condition alleged . . . did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury, but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury.” Comba v. Ridgefield, supra, 177 Conn. 271.
In his principal brief, the defendant argues that cliffs or rock ledges adjacent to the highway, like trees, “have
We first note that “ [w]hether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.” Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). We do not agree with the defendant’s arguments that the holding in Comba necessarily controls the outcome in the present action. We conclude that the present action is distinguishable both factually and as a matter of public policy.
It is of no consequence that in the present case, the rock ledge and its accumulation of debris were not on or within the highway prior to the accident. Recovery under § 13a-144 is not limited to injuries caused by defects in the “traveled portion” of the highway. See Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999). A defect within the scope of the statute includes a condition located near the traveled path that, from its nature and position, would be likely to obstruct or to hinder one’s use of the highway for traveling. Hay v. Hill, 137 Conn. 285, 288-89, 76 A.2d 924 (1950); Hewison v. New Haven, 34 Conn. 136, 142 (1867).
The rock ledge was located directly alongside the highway, thus “near the traveled path.” Loose rocks and other debris situated on a rock ledge are objects that, by their very “nature and position,” likely could dislodge and roll onto the lane of a highway thus obstructing or hindering travel. Signs along the highway warning of falling rocks and barriers erected along po'r
Further, in Comba, the court’s analysis relied on its determination that the tree limb could have harmed someone other than a traveler on the highway. In contrast, we find it highly improbable in the present action that the falling rocks and other debris could have injured anyone other than someone traveling on the highway. Additionally, while the Comba court found that the tree had no necessary connection to the roadbed or travel, we cannot make such a determination in the present case. Rock ledges along the highway often are created in the construction of the highway. Although not specifically alleged in this case, such a fact would certainly constitute a necessary connection to the roadbed.
In reaching its conclusion, the Comba court also stated that to fall within the scope of the highway defect statute, an alleged condition not in the roadway “must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. ” Comba v. Ridgefield, supra, 177 Conn. 271. A falling tree branch and a falling rock each pose a direct danger to safe travel. We find a distinction between the two conditions, however, when we consider whether reasonably applicable remedial measures exist to alleviate the danger presented and whether, as a matter of public policy, the state should have a duty to employ such measures.
Common sense suggests that there are an extraordinary number of trees located along roadways covered by the highway defect statute, many with overhanging limbs similar to the situation in Comba. The condition of a tree, a living thing, is always changing, which would
The availability and practicability of remedial measures to alleviate the dangers inherent in those rock ledges located near the highway may be viewed differently. There are certainly far fewer rock ledges or areas with the potential to cause the danger at issue in the present case, and the condition of those areas is far more immutable than the condition of living trees. It is not unreasonable to expect the state to take reasonable measures to inspect those areas or otherwise alleviate the dangers posed by rocks and other debris falling onto the highway. That is especially true in those instances in which the construction of the roadway itself created the rock ledge or the debris on the roadway.
We conclude that under the circumstances of this case, the allegations in the complaint were sufficient as a matter of law to bring the action within the scope of § 13a-144, effectively waiving the defendant’s sovereign immunity.
II
We next address the defendant’s claim that the plaintiffs notice failed to comply with statutory requirements. The defendant argues that the required notice
As previously stated, “[t]he notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.” Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). The notice requirement of § 13a-144 provides in relevant part: “No such action shall be brought . . . unless notice of such injuiy and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .” General Statutes § 13a-144.
“The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The puipose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made. . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. . . . The puipose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.” (Citations omitted; internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354.
Ordinarily, the question of the adequacy of the notice is one for the trier of fact. Id. Only if the notice is
The plaintiffs notice stated in relevant part: “As a result of said incident, [the plaintiff] was violently thrown about in his vehicle causing him to sustain injuries to his neck and back.”
Our Supreme Court has made clear that an adequate notice “need not be expressed with the fullness and exactness of a pleading.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 356. Although the plaintiffs notice did not give an exact medical description of the plaintiffs injuries, no appellate decision has held that such specificity is necessary to comply with the notice requirement of § 13a-144, and we do not feel compelled to make such
We conclude that the plaintiffs description of his injuries was sufficient to meet the reasonable definiteness test. Therefore, the court properly concluded that the notice did not patently fail to meet the statutory requirements and denied the defendant’s motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
The city of Waterbury is a defendant as to count two of the plaintiffs complaint; however, the city is not a party to this appeal, which addresses only count one. Therefore, throughout this opinion, we refer to the commissioner of transportation as the defendant.
We generally consider a denial of a motion to dismiss as interlocutory in nature and, therefore, not a final judgment for the purpose of an appeal. Nevertheless, our Supreme Court has held that when, as in the present case, the basis of the motion is a colorable claim of sovereign immunity, a denial of a motion to dismiss is a final judgment from which an appeal may lie. Shay v. Rossi, 253 Conn. 134, 164-65, 749 A.2d 1147 (2000) (en banc).
General Statutes § 13a-144 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. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner. . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general
The plaintiff sent an amended notice via certified mail on July 11, 2000, which the defendant received on July 13, 2000.
The plaintiff claims that he sustained, inter alia, ipjuries to his spine, shoulder and head, as well as emotional distress, mental anguish, pain and suffering, and general loss of earnings.
The plaintiff alleged that the defendant breached his statutory duty in one or more of the following ways: He failed (1) to inspect the rock ledge reasonably for loose rocks and other debris; (2) to remove loose rocks and other debris from the rock ledge properly; (3) to reinforce the rock ledge properly to prevent loose rocks and other debris from falling onto the main travel portion of the highway; (4) to maintain the area of the rock ledge properly to prevent loose roclos and other debris from falling onto the travel portion of the highway; (5) to place sufficient jersey barriers to prevent loose rocks and other debris that fell from the rock ledge from falling onto the travel portion of the highway; (6) to maintain the travel portion of the highway properly; (7) to remove properly rocks and other debris that previously had fallón from the rock ledge onto the travel portion of the
Count two asserts that the city of Waterbury in a similar fashion breached its statutory duty under General Statutes § 13a-149, the municipal highway defect statute. See footnote 1.
“Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases malte clear that this question must be determined on the basis of the facts of the particular case. . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Citations omitted; internal quotation marks omitted.) Ozmun v. Burns, supra, 18 Conn. App. 681.
In his amended notice, the plaintiff restated his sustained injuries as being “to his neck, back, headaches, shoulder and teeth.” Because the defendant received that amended notice outside of the statutorily prescribed sixty day period, however, we consider only the original notice. See Bresnan v. Frankel, 224 Conn. 23, 25 n.2, 615 A.2d 1040 (1992).
Although Martin involved a discussion of the notice requirement of General Statutes § 13a-149, the municipal highway defect statute, we see no reason not to treat the statutes consistently in the present context. See Smith v. New Haven, 258 Conn. 56, 64 n.6, 779 A.2d 104 (2001).
