Opinion
No. CV03 0284922-S
December 8, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
I. INTRODUCTION
The plaintiff, Lori Welch-Rubin, initiated this action by a single-count complaint, filed June 15, 2003, wherein she alleges that she sustained personal injuries from a fall caused by a defective sidewalk in the city of New Haven, Connecticut. The defendant, the city of New Haven, filed a motion to dismiss on October 19, 2005, which was heard by the court on October 19, 2005. The defendant argues that the court lacks subject matter jurisdiction over this action due to the plaintiff's failure to comply with the municipal notice provision contained in General Statutes § 13a-149.
The defendant originally filed a motion to strike the complaint on November 10, 2003, for the same reason set forth in this motion to dismiss. The plaintiff objected and the parties fully briefed this legal issue at that time. No decision was rendered on the motion to strike. The court notes that the motion to dismiss is the proper motion to challenge the subject matter jurisdiction of the court and that a court may review the issue of subject matter jurisdiction at any time. See Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
General Statutes § 13a-149 provides: "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 he 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 time 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 the 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."
II. FACTS
The following facts are relevant to the court's decision on the motion to dismiss. The plaintiff alleges that she tripped and fell on a sidewalk in front of the Superior Court building on Church Street in New Haven on June 18, 2001, due to the dangerous and defective condition of this sidewalk. In paragraph thirteen of the complaint, the plaintiff alleges that on September 18, 2001, she gave written notice of her claim to the defendant. The court finds that September 18, 2001, was a Tuesday, and that it was ninety-two calendar days following June 18, 2001, the date of the alleged incident. The court also finds that no state or national holiday occurred on Monday, September 17, 2001.
III. DISCUSSION
In its motion to dismiss, the defendant argues that the court lacks subject matter jurisdiction. "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "A motion to dismiss . . . properly attacks the jurisdiction of the court, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003).
The underlying claim in this case is for an injury caused by a defective sidewalk. "A town is not liable for highway defects unless made so by statute . . . Section 13a-149 affords a right of recovery against municipalities . . . Under § 13a-149, `[a]ny person injured in person or property by means of a defective road . . . may recover damages from the party bound to keep it in repair . . .' [I]n an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). Although the language of the statute does not specifically include sidewalks, "[t]he word road or highway as used in the highway defect statute has usually been construed to include sidewalks." Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998).
"The roots of § 13a-149 extend as far back as 1672, when our legislature originally abrogated municipal common-law immunity for actions arising from defective highway conditions . . . The 1672 act was similar in both language and import to its progeny, § 13a-149. That act was codified at § 2673 of the 1887 revision of the General Statutes, and provided in relevant part that `[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; but no action for any injury shall be maintained against any town, city, corporation, or borough, unless written notice of such injury, and the nature and cause thereof . . . be given to a selectman of such town or to the clerk of such city, corporation, or borough'" (Citation omitted.) Smith v. New Haven, 258 Conn. 56, 61, 779 A.2d 104 (2001).
The municipal notice provision of § 13a-149 requires the plaintiff to give notice to the clerk of the city " within ninety days thereafter" of the date that the plaintiff was injured. (Emphasis added.) "[P]roviding notice under § 13a-149 requires a plaintiff both to deliver the notice and to assure that it is received by the defendant within the notice period." Rivera v. Meriden, 72 Conn.App. 766, 772, 806 A.2d 585 (2002). The plaintiff argues that this notice provision should be liberally construed. Although there is case law supporting this view, it is unavailing under the facts of this case. In Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001), the Supreme Court held that the ninety-day notice provision of § 13a-149 could be extended to ninety-two days, when the ninetieth and ninety-first days fell on Saturday and Sunday, respectively. The court reasoned that "[a]t common law, when the terminal day for filing legal papers fell on a holiday or Sunday, the plaintiff was able to make performance on the following day . . ."
"In Lamberti v. Stamford, 131 Conn. 396, 40 A.2d 190 (1944), [the Supreme Court] addressed the issue of filing notice under the precursor to § 13a-149, namely, General Statutes (1930 Rev.) § 1420. The plaintiff in Lamberti was injured on December 15, and under the statute he had until December 25, to give notice of his injuries The plaintiff filed notice on December 26, and the defendant filed a demurrer claiming that the plaintiff's notice was not timely . . . The trial court sustained the defendant's demurrer . . . On appeal, [the Supreme Court] held that the fact that December 25, was a legal holiday, served to extend until the succeeding day the time within which the plaintiff had to file." (Citations omitted; internal quotation marks omitted.) Brennan v. Fairfield, supra, 255 Conn. 698-99.
The plaintiff in this case did not file notice until the ninety-second calendar day after the date she was injured. Brennan, therefore, is distinguishable from this case because the ninety-first and ninety-second days were a Monday and Tuesday, respectively, and neither fell on a weekend day nor a holiday.
The defendant argues that the plaintiff's failure to comply with the notification requirements of § 13a-149 is a jurisdictional defect precluding the court from considering the subject matter in this case. "A conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances . . . a subject matter jurisdictional defect may not be waived . . . may be raised at any time, even on appeal . . . and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly. Therefore, [the Supreme Court has] stated many times that there is a presumption in favor of subject matter jurisdiction, and . . . require[s] a strong showing of legislative intent that such a time limit is jurisdictional." (Citations omitted; internal quotation marks omitted.) Williams v. Commission on Human Rights and Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001).
In determining legislative intent, the court must interpret § 13a-149 in light of the adoption of the so-called "plain meaning rule," codified at General Statutes § 1-2z, which was enacted subsequent to the court's analysis in Williams. See Cummings v. Dept. of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV 03 0522666 (June 9, 2005, Taylor, J.) ( 39 Conn. L. Rptr. 529, 531). The plain meaning rule was enacted in response to State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), and provides that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z.
"In State v. Courchesne, [ 262 Conn. 537, 567-78, 816 A.2d 562 (2003)], [the Supreme Court] explained that, as part of the judicial task of statutory interpretation, [it] would not follow the so-called plain meaning rule, which operates to preclude the court, in certain cases, from considering sources in addition to the statutory text in order to determine its meaning. [The court is] cognizant that, subsequent to [its] decision in Courchesne, No. 03-154, § 1, of the 2003 Public Acts ( P.A. 03-154) [now codified at General Statutes § 1-2z], has legislatively overruled that part of Courchesne in which [the court] stated that [it] would not require a threshold showing of linguistic ambiguity as a precondition to consideration of sources of the meaning of legislative language in addition to its text." (Internal quotation marks omitted) New Haven v. Bonner, 272 Conn. 489, 493-94 n. 5, 863 A.2d 680 (2005).
The language in § 13a-149 is clear and unambiguous and requires no further inquiry into extratextual evidence to determine the meaning of the statute. Section 13a-149 clearly requires that notice be given within ninety days of the date that the plaintiff was injured. Since the plaintiff failed to comply with the notification provisions of § 13a-149, the court lacks subject matter jurisdiction. See Ferreira v. Pringle, supra, 255 Conn. 354.
IV. CONCLUSION
General Statutes § 13a-149 requires that a plaintiff provide notice to a proper municipal official within ninety days after the date the plaintiff was injured. Under the court's analysis in Brennan, the last day the plaintiff could provide notice in this case would have been Monday, September 17, 2001. The plaintiff failed to meet the notification requirements of the statute because she did not provide the defendant with notice of her claim until September 18, 2001.
The plaintiff's failure to comply with the notification provisions of § 13a-149 precludes the court from exercising subject matter jurisdiction over this action.
Pursuant to Practice Book §§ 10-31(a)(1) and 10-33, the defendant's motion to dismiss is granted.