Opinion
No. CV 02-0467797 S
June 23, 2003
MEMORANDUM OF DECISION
Before the court is the defendant's motion to dismiss count one of the complaint, in which the plaintiff asserts a cause of action for nuisance.
On August 13, 2002, the plaintiff, Kathy Sumrow-Kovalsky, filed a two-count complaint against the defendants, the city of New Haven (defendant) and Fusco Management Company, LLC (Fusco). According to the complaint, this action arose on August 6, 1999, when the plaintiff while traversing a public walkway located between a post office and the Giamo Federal Building in New Haven slipped and, in falling, sustained various injuries.
This motion to dismiss was brought only by the city of New Haven, which entity is hereinafter referred to as defendant. Fusco has not filed an appearance in this matter.
Count one of the complaint asserts a nuisance action against the defendant, alleging that defendant constructed and maintained the defective public walkway that caused the plaintiff's injuries. Similarly, count two asserts a nuisance action against Fusco, as an authorized agent-employee of the defendant, alleging that Fusco constructed and maintained the defective public walkway.
On October 15, 2002, pursuant to Practice Book § 10-31(a) (1), the defendant City of New Haven filed a motion to dismiss count one of the complaint, accompanied by a memorandum of law in support. Said defendant argues that the court does not have subject matter jurisdiction over this matter because the allegations in the complaint involve highway defects, which are governed exclusively by General Statutes § 13a-149. Said defendant further contends that the plaintiff failed to comply with the notice requirements of the statute and therefore, the allegations against the defendant are not properly before the court.
On February 14, 2003, the plaintiff filed a memorandum in opposition to the motion to dismiss arguing that the facts support a nuisance claim based on the defendant's creation and/or maintenance of a dangerous condition even in the absence of an affirmative act. In short, the CT Page 7389-da plaintiff contends that a positive nuisance action is proper irrespective of § 13a-149, thus eliminating her need to comply with the ninety-day notice requirement contained within that statute.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). In ruling on a motion to dismiss, "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." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
"As we have stated many times before, the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). "[I]n a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain circumstances . . . The highway defect statute, § 13a-149 . . . is one of those exceptions . . . Where a court's jurisdiction arises solely from a statutory waiver of sovereign immunity, the statutory provisions must be strictly construed." (Citations omitted; internal quotation marks omitted.) Brennan v. Fairfield, 58 Conn. App. 191, 195, 753 A.2d 396 (2000), aff'd. on other grounds, 255 Conn. 693, 702, 768 A.2d 433 (2001).
First, it is necessary to determine whether § 13a-149 provides the plaintiff's exclusive remedy. Section 13a-149 (commonly known as the highway defect statute) states in relevant part: "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 shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description CT Page 7389-db of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days . . . be given to [the municipality]."
In addition, General Statutes § 52-557n, which governs the liability of political subdivisions, states in relevant part: "(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 . . . (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." (Emphasis added.)
The Supreme Court has consistently interpreted these statutes to mean that "an action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991); Wenc v. New London, 235 Conn. 408, 412-13, 667 A.2d 61 (1995); Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001).
The trial court must determine, as a threshold matter, whether as a matter of law the alleged defect which caused the plaintiff's injuries is a highway defect under § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 350. "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . ." Sanzone v. Board of Police Commissioners, supra, 219 Conn. 201. Alleged defects that are "in, upon, or near [a] traveled path so as to obstruct or hinder one in the use of road for the purpose of traveling thereon . . . bring it within the defective highway statute." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 351. The term "road" has been construed to include defective public sidewalks. Rodriguez v. New Haven, 183 Conn. 473, 475 n. 1, 439 A.2d 421 (1981). Indeed, Connecticut courts have consistently stated that § 13a-149 is a plaintiff's exclusive remedy in cases where the injury was caused by a defective sidewalk or walkway and where the defendant is a municipality. See, e.g. Brennan v. Fairfield, 255 Conn. 693, 702, 768 A.2d 433 (2001); Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
Here, the complaint alleges that the plaintiff, while walking along a "public walkway" containing "uneven, abutting sections of concrete tile," tripped and while falling sustained physical injuries. The plaintiff also CT Page 7389-dc alleges that the walkway was "owned, possessed, managed, controlled and/or maintained" by a municipality. Thus, it is clear that the plaintiff's claim must be governed by the defective highway statute. Further, it is apparent from the plaintiff's memorandum of law that she did not comply with the mandatory notice requirements of § 13a-149. Any "plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery." Sanzone v. Board of Police Commissioners, supra, 219 Conn. 198.
Even though the plaintiff has not specifically pleaded that the defendant violated § 13a-149, the complaint may, nevertheless, contain allegations sufficient to invoke the statute. See Ferreira v. Pringle, supra, 255 Conn. at 340 (action based on nuisance "necessarily invoke[s] the defective highway statute"); Wenc v. New London, 44 Conn. Sup. 45, 50, 667 A.2d 87 (1994), aff'd. on other grounds, 234 Conn. 408, 667 A.2d 61 (1995) ("even if a complaint does not contain allegations concerning the violation of a statute, that complaint may still contain allegations sufficient to invoke such statute").
Second, since the plaintiff brought this nuisance action in lieu of a claim based on the highway defect statute, this court must determine whether the plaintiff can maintain an alternative cause of action grounded in nuisance. This is not a novel issue. The Supreme Court explicitly concluded that "common law action[s] for nuisance [are] barred by § 52-557n . . ." Cook v. Turner, 219 Conn. 641, 643, 593 A.2d 504 (1991). "If the proviso restricting highway defect claimants . . . is to have any application whatsoever, it must be deemed to apply to the nuisance action . . ." Id. 644. Many courts have reached similar conclusions. See e.g. Wenc v. New London, 235 Conn. 408, 412, 667 A.2d 61 (1995) ("the plaintiff's failure to allege a cause of action under [§ 13a-149] is dispostive of the plaintiff's other allegations . . .") In Mode v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 99 493091 (April 19, 2000, Kocay, J.), a case with near identical facts, the plaintiff alleged nuisance based on an injury sustained in a fall caused by a "raised and uneven slab of concrete in the sidewalk." The court held that § 52-557n bars causes of action grounded in nuisance because the highway defect statute is the plaintiff's exclusive remedy. Id.
Finally, the plaintiff contends that subject matter jurisdiction exists here because a "claim of nuisance is not statutorily barred." To the contrary, § 52-557n (a) (1) (C) specifically bars nuisance actions against municipalities where the allegations are sufficient to invoke § 13a-149. In addition, the plaintiff cites no recent authority to support her contention that this nuisance action, positive or otherwise, is viable. Nor has the plaintiff attempted to distinguish this action from those repeatedly barred by the Supreme Court. See Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179 (nuisance and negligence action barred); Cook v. Turner, supra, 219 Conn. 641 (nuisance action barred); Wenc v. New London, supra, 235 Conn. 408 (nuisance action barred); Ferreira v. Pringle, 255 Conn. 330 (nuisance action barred). Indeed, the Supreme Court has expressly stated: "[i]n Sanzone, we also considered the effect of the savings clause, `except as otherwise provided by law' with which 52-557n (a) (1) begins . . . We concluded in Sanzone that this provision was not intended `to preserve without CT Page 7389-dd modification all existing law, common and statutory, including such actions for positive nuisance . . .'" (Emphasis added) Cook v. Turner, supra, 219 Conn. 644.
Accordingly, the defendant City of New Haven's motion to dismiss count one of the complaint is granted because the plaintiff failed to utilize the exclusive remedy provided to her under § 13a-149 and has not met her burden of proof in establishing this court's jurisdiction.
Skolnick, J.