Cardoza v. City of Waterbury

314 A.3d 650

224 Conn.App. 813

Paula M. CARDOZA

v.CITY OF WATERBURY

(AC 46460)

Appellate Court of Connecticut.

Argued January 30, 2024

Officially Released April 16, 2024

Prema Rao, for the appellant (plaintiff).

Daniel J. Foster, corporation counsel, for the appellee (defendant).

Alvord, Seeley and Westbrook, Js.

SEELEY, J.

₈₁₄The plaintiff, Paula M. Cardoza, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendant, the city of Waterbury, for lack of subject matter jurisdiction over the plaintiff’s complaint on the basis that she failed to comply with the requirements of the notice provision of the municipal defective highway statute, General Statutes § 13a-149.¹ ₈₁₅On appeal, the plaintiff claims that the court erred in granting the defendant’s motion to dismiss because the written notice that she submitted to the defendant contained sufficient information in compliance with the notice requirements of § 13a-149, or, in the alternative, the savings clause of § 13a-149 grants her relief under the statute. We disagree and, accordingly, affirm the judgment of the court.

The following facts, as alleged in the plaintiff’s complaint, and procedural history are relevant to our resolution of this appeal. On May 14, 2019, the plaintiff sent to the defendant via certified mail a written "Notice of Claim" (notice) pursuant to § 13a-149. The notice, which was received by the defendant on May 16, 2019, stated, the plaintiff’s name; the date and time of the incident as April 12, 2019, approximately between the hours of 4 and 10 p.m.; and the location of the incident as "Gordon Street, between Cooke Street and Oakland Avenue." The notice described the plaintiff’s injuries and losses as "pain and injury to her cervical and lumbar spine, and other injuries which are yet unknown. Property damages include loss and replacement of two tires and other damage to the vehicle." With respect to the cause of the injuries and losses, the notice stated that "[t]he above injuries and losses were caused by the defect in the roadway described above."

On April 5, 2021, the plaintiff commenced the present action by filing a one count complaint against the defendant alleging liability pursuant to § 13a-149. Specifically, the complaint alleges that, on or about April 12, 2019, the plaintiff was operating her motor vehicle in an eastward direction on Gordon Street, which is owned and maintained by the defendant, near the intersection with ₈₁₆Cooke Street, in Waterbury. When the plaintiff reached a portion of Gordon Street that "was heavily eroded and unsafe for public travel," the defective condition of the roadway "caused [her] vehicle to suddenly experience two flat tires," which, in turn, caused "the plaintiff to suffer personal injuries² and losses³ …." (Footnotes added.)

On December 14, 2022, the defendant, pursuant to Practice Book § 10-30, filed a motion to dismiss the plaintiff’s complaint, arguing that the court lacked subject matter jurisdiction due to the plaintiff’s failure to comply with the notice requirements of § 13a-149. Specifically, in its memorandum of law in support of its motion to dismiss, the defendant argued that the notice provided by the plaintiff was inadequate, as it "entirely failed to identify the alleged defect in the road that caused the plaintiff’s injuries and damages." On January 23, 2023, the plaintiff filed a memorandum in opposition to the defendant’s motion to dismiss, with an attached affidavit and exhibits. The defendant filed a reply on January 30, 2023.

On April 10, 2023, the court, Massicotte, J., held a hearing regarding the defendant’s motion to dismiss and, that same day, issued an order granting the defendant’s motion on the grounds that "the cause of the injury is completely missing [from the notice] and the savings clause does not apply." The court noted the ₈₁₇plaintiff’s argument that the language in the notice—"the defect in the roadway described above"—constituted a description of the defect but found, to the contrary, that the plaintiff had "failed to describe [the defect]" and, therefore, "completely and unmistakably omitted the cause" of her injuries. Accordingly, the court concluded that it lacked subject matter jurisdiction over the plaintiff’s action and rendered judgment dismissing the complaint. This appeal followed.

[1–5] We begin by setting forth the relevant legal principles concerning actions pursuant to § 13a-149. "Under the common law, municipalities enjoyed immunity for injuries caused by defective highways. … This immunity has been legislatively abrogated by § 13a-149, which allows a person to recover damages against a municipality for injuries caused by a defective highway. … Section 13a-149 provides the exclusive remedy for a person seeking redress against a municipality for such injuries. … Under § 13a-149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action to lie for damages caused by a defective highway that the town must maintain. [T]he notice which the statute prescribes comprehends five essential elements: (a) written notice of the injury; (b) a general description of that injury; (c) the cause; (d) the time [and date], and (e) the place thereof. … The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests. … More specifically … the statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town ₈₁₈an early start in assembling evidence for its defense against meritless claims. … A notice that patently fails to meet this test in describing the place or cause of the injury is defective as a matter of law." (Citation omitted; emphasis in original; internal quotation marks omitted.) Murphy v. Clinton, 217 Conn. App. 182, 186-87, 287 A.3d 1150 (2023).

[6–10] "The failure to comply with [the requirements of § 13a-149] deprives the Superior Court of jurisdiction over a plaintiff’s action. … It is well established that a determination regarding a trial court’s subject matter jurisdiction is a question of law over which our review is plenary. … 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 …. Under our rules of practice, a motion to dismiss for lack of subject matter jurisdiction may be raised at any time." (Internal quotation marks omitted.) Id., at 187-88, 287 A.3d 1150. In the present case, the defendant’s pretrial motion to dismiss was premised on the plaintiff’s failure to comply with the notice requirements of § 13a-149. Therefore, the question before us is whether the trial court properly determined, as a matter of law, that the description in the notice of the defect in the roadway that caused the plaintiff’s injuries was insufficient to satisfy § 13a-149. See Dobie v. New Haven, 204 Conn. App. 583, 595, 254 A.3d 321 (2021), aff’d, 346 Conn. 487, 291 A.3d 1014 (2023).

On appeal, the plaintiff claims that (1) the notice given to the defendant is sufficient to meet the requirements of § 13a-149, and (2) even if it is not sufficient, the savings clause in the statute cures any deficiencies in the notice.⁴ We conclude, as a matter of law, that ₈₁₉the language of the notice is insufficient under the requirements of § 13a-149, and, furthermore, because it fails to describe the cause of the plaintiff’s injuries in any way, the savings clause is inapplicable.

[11] The notice provided by the plaintiff listed the cause of the plaintiff’s injuries as "the defect in the roadway described above," which refers to the description of the location of the incident, namely, "Gordon Street, between Cooke Street and Oakland Avenue." In context, therefore, the description of the cause is limited to "the defect in" the area of Gordon Street that is located between Cooke Street and Oakland Avenue. The entirety of the description of the cause of her injuries is that there is a "defect in" some portion of the roadway. Notably, the notice in the present case does not contain the more detailed description of the cause of the injury that appears in the plaintiff’s complaint, which alleges that the road was "heavily eroded and unsafe for public travel … caus[ing] the plaintiff’s vehicle to suddenly experience two flat tires and causing the plaintiff to suffer personal injuries and losses …

Our appellate courts previously have addressed the level of specificity required to meet the five statutory elements under § 13a-149. In Marino v. East Haven, 120 Conn. 577, 182 A. 225 (1935), for example, our Supreme Court addressed the sufficiency of the description of the injury in the plaintiff’s notice and held that the notice stating that the plaintiff " ‘fell and was injured’ " was insufficient as a matter of law, as it failed to provide a description of the injury itself. Id., at 578, ₈₂₀580, 182 A. 225. Similarly, in Martin v. Plainville, 240 Conn. 105, 689 A.2d 1125 (1997), our Supreme Court held that the notice given to the town under § 13a-149, which merely stated that the plaintiff " ‘was injured after she tripped,’ " was insufficient as a description of the injuries suffered. Id., at 107, 109, 689 A.2d 1125. In Martin, the plaintiff challenged the validity of Marino, arguing that it was "an outdated precedent that produces harsh results." Id., at 110, 689 A.2d 1125. Our Supreme Court upheld Marino, noting that the "legislative history manifests an intent to require more rather than less...