Boykin v. State

179 Conn.App. 175

178 A.3d 1112

Eric BOYKIN

v.STATE of Connecticut, et al.

AC 39392

Appellate Court of Connecticut.

Argued October 19, 2017

Officially released January 9, 2018

Brendon P. Levesque, with whom were Scott T. Garosshen and, on the brief, Kimberly A. Knox, for the appellant (plaintiff).

Kevin S. Coyne, with whom, on the brief, was Joseph M. Walsh, for the appellees (defendants).

Lavine, Alvord and Beach, Js.

ALVORD, J.

The plaintiff, Eric Boykin, appeals from the judgment of the trial court dismissing the present action against the defendants, the state of Connecticut and James P. Redeker, Commissioner of Transportation (commissioner),¹ for lack of subject matter jurisdiction. The plaintiff claims that the court improperly concluded that sovereign immunity deprived it of subject matter jurisdiction because his written notice of claim pursuant to the state highway defect statute, General Statutes § 13a-144,² was patently defective in its description of the cause of his injury. We agree with the plaintiff, and accordingly, reverse the judgment of the trial court.

The record reveals the following procedural history. On November 16, 2015, the plaintiff filed a single count complaint, in which he alleged that on or about December 26, 2014, he was struck by a vehicle while walking north on the western side of East Main Street in the pedestrian crosswalk at the entrance of Interstate 95 south in Bridgeport. By a letter dated February 13, 2015, the plaintiff sent written notice of his intent to bring an action pursuant to § 13a-144 for personal injuries sustained as a result of the incident. The commissioner received the notice on February 17, 2015. The notice described the cause of injury as follows: "On December 26, 2014 at approximately 6:06 p.m., Eric Boykin was injured due to the negligence [of the] State of Connecticut Department of Transportation, who failed to place a pedestrian cross walk button at the intersection of East Main St., and I–95, Bridgeport, CT, failed to inspect the pedestrian crossing, failed to repair the pedestrian cross walk button and failed to provide a safe pedestrian cross walk for pedestrians such as the plaintiff."³

On February 18, 2016, the commissioner filed a motion to dismiss for lack of subject matter jurisdiction. In his memorandum of law in support of the motion to dismiss, the commissioner argued that the plaintiff's claim did not fall within § 13a-144's waiver of sovereign immunity because the written notice was patently defective. Specifically, the commissioner argued, in relevant part, that "the notice is fatally defective as to setting forth a general description of the cause of the particular injury."⁴ The commissioner contended that "[b]ased upon the notice, the commissioner has absolutely no idea how the particular injury occurred or what the cause of the injury was. The notice contains nothing more than bald allegations of responsibility ... without specifying the specific nature or cause." On April 29, 2016, the plaintiff filed an objection to the commissioner's motion to dismiss, arguing that the written notice satisfied the requirements of § 13a-144 because it provided a "general description" of the cause of injury, as required by the language of the statute.

On May 6, 2016, after a hearing, the court granted the commissioner's motion to dismiss. In its memorandum of decision, the court stated that it relied on this court's decision in Frandy v. Commissioner of Transportation , 132 Conn. App. 750, 34 A.3d 418 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012), and reasoned that "[t]he more the court reads [the] language [of the notice], the more ambiguous and open-ended it appears. Suffice it to say that how any of these claimed features caused injuries to plaintiff simply does not appear. Uncertainty begins with the inconsistent statements that the state failed to place a crosswalk button at this location and then failed to repair the crosswalk button.... The claims that the state was negligent or that the crosswalk was unsafe are simply conclusions and add nothing to the notice in terms of helping the reader understand how such caused the claimed injury." The court concluded that the notice failed to meet the minimal requirements of § 13a-144 by failing to state sufficiently the cause of the injuries alleged and, therefore, the state's sovereign immunity was not waived, depriving the court of subject matter jurisdiction. This appeal followed.

We begin by setting forth the standard of review and legal principles that guide our analysis. "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.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.... When a ... court decides a jurisdictional question raised by a pre-trial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, 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." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan , 273 Conn. 1, 8, 866 A.2d 599 (2005).

The plaintiff brought this action pursuant to § 13a-144, which provides a waiver of the state's sovereign immunity⁵ in civil actions alleging injuries caused by defective state highways or sidewalks. The statute 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...." General Statutes § 13a-144.

"[ Section] 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.... The notice [mandated under § 13a-144 ] is to be tested with reference to the purpose for which it is required.... The [notice] requirement ... was not devised as a means of placing difficulties in the path of an injured person. The purpose [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.... [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] 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.... Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.... [U]nder § 13a-144, the notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently." (Citations omitted; internal quotation marks omitted.) Filippi v. Sullivan , supra, 273 Conn. at 8–10, 866 A.2d 599.

"The cause of the injury required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury.... It is sufficient and customary in defective highway cases to state that the cause was a specified defective condition, without further statement that it in turn was due to negligence in failing to keep the highway in repair or otherwise." (Internal quotation marks omitted.) Frandy v. Commissioner of Transportation , supra, 132 Conn. App. at 754, 34 A.3d 418.

On appeal, the plaintiff argues that he "provided the defendants with more than sufficient information to investigate the pedestrian crosswalk button at the specified location." Specifically, he contends that "the notice made clear that the negligence centered around the crosswalk button, the lack of safety of the intersection included the failure to have or repair a crosswalk button, the failure to inspect the intersection or crosswalk button, leading to an unsafe pedestrian crosswalk." The commissioner responds that "[g]iven the limited amount of information provided by the plaintiff, it was impossible for the defendants to conduct a meaningful inquiry or develop a defense to the plaintiff's claim. The defendants could not know whether the specific defect was a pothole, a streetlight failure, or an automobile driving into the crosswalk. Without being provided with that knowledge, the defendants are left...