Dobie v. City of New Haven

204 Conn.App. 583

254 A.3d 321

William DOBIE

v.CITY OF NEW HAVEN et al.

AC 42877

Appellate Court of Connecticut.

Argued November 16, 2020

Officially released May 11, 2021

Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, Hartford, for the appellant (named defendant).

Brendan K. Nelligan, New Haven, with whom were Charles Riether and Leann Riether, for the appellee (plaintiff).

Elgo, Cradle and Alexander, Js.

ELGO, J.

The defendant city of New Haven¹ appeals from the judgment of the trial court, rendered following a jury trial, in favor of the plaintiff, William Dobie. On appeal, the defendant contends that the court improperly denied its posttrial motion to dismiss, which was predicated on the plaintiff's alleged failure to comply with the requirements of General Statutes § 13a-149, commonly known as the defective highway statute.² See Ferreira v. Pringle , 255 Conn. 330, 331, 766 A.2d 400 (2001). We agree and, accordingly, reverse the judgment of the trial court.

The facts relevant to this appeal are largely undisputed. On the morning of January 21, 2011, the plaintiff was traveling to his workplace on a route he had taken for years. Snow had fallen the night before and there were patches of snow on the roadways. As he operated his motor vehicle on Canner Street, a municipal roadway in New Haven, the plaintiff followed a snowplow operated by the defendant for approximately three blocks.³ The blade of the plow was engaged and sparks flew as it cleared the roadway.

The snowplow stopped at the intersection of Canner Street and Livingston Street, then proceeded through the intersection. The plaintiff's vehicle, which was approximately two to three car lengths behind, followed the snowplow through that intersection until the plaintiff heard a loud bang. The plaintiff continued through the intersection. Moments later, the plaintiff's vehicle struck an open manhole in the road, rendering it inoperable.⁴ When the vehicle came to rest approximately ten feet away, the plaintiff observed a manhole cover in the roadway between the manhole and his vehicle.

At trial, the plaintiff testified that he did not observe the open manhole prior to colliding with it. He further testified that he did not witness the snowplow knock the cover off the manhole. There also was undisputed evidence that an orange cone was located on the side of Canner Street in the vicinity of the manhole in question, which the plaintiff had observed in that location for weeks.

The plaintiff thereafter commenced this civil action. In his original complaint, the plaintiff alleged one count of negligence on the part of the defendant's snowplow operator. In response, the defendant moved to strike that count, arguing in relevant part that it failed to state a claim upon which relief may be granted "because it fails to invoke a statute that abrogates governmental immunity." The court granted the defendant's motion and the plaintiff then filed the operative complaint, his first amended complaint. That complaint contained one count against the defendant sounding in negligence and brought pursuant to General Statutes § 52-557n (a). The defendant subsequently filed a motion to dismiss count one of the operative complaint for lack of subject matter jurisdiction, stating: "Count one of the complaint alleges facts that state a claim of injury arising out of a highway defect, for which ... § 13a-149 provides the exclusive remedy.

The court lacks subject matter jurisdiction because the plaintiff failed to give notice of his injuries pursuant to § 13a-149." By order dated December 21, 2015, the court sustained the plaintiff's objection to the motion to dismiss, concluding that "[t]he [operative] complaint alleges that the plaintiff's injuries were caused by the negligence of the snowplow driver rather than by a defect in the road." The defendant then filed an amended answer and special defenses in which it alleged, inter alia, that the defendant was entitled to governmental immunity pursuant to § 52-557n (a) (2) (B).⁵

The matter proceeded to trial before a jury, which heard testimony from the plaintiff; Jeffrey Pescosolido, Director of Public Works for the defendant; Dale Keep, an expert in snowplow operation and safety; and Robert Sorrentino, an oral and maxillofacial surgeon who treated the plaintiff. After the plaintiff presented his case-in-chief, the defendant filed a motion for a directed verdict on the basis of governmental immunity, which the court denied. The defendant then rested without presenting any evidence and the jury subsequently returned a verdict in favor of the plaintiff.

On October 30, 2018, the defendant filed two posttrial motions. In its motion to set aside the verdict, the defendant argued that the plaintiff had failed to prove that its snowplow driver was negligent or that the plaintiff was an identifiable victim subject to imminent harm. The court denied that motion in a memorandum of decision dated April 12, 2019.

In its posttrial motion to dismiss, the defendant renewed its claim that the court lacked subject matter jurisdiction due to the plaintiff's failure to provide the requisite notice pursuant to § 13a-149. By order dated January 2, 2019, the court denied that motion, stating in relevant part: "The evidence was clear and abundant at trial, that the plaintiff was asserting a negligence claim against [the defendant] and not a defective highway claim pursuant to § 13a-149. The jury interrogatories given to the jury specifically related to the negligence of the snowplow operator and whether such injury caused the plaintiff's injuries. As this court can find no legal or factual basis upon which to grant the defendant's current motion to dismiss, said motion to dismiss is denied." The court, therefore, rendered judgment in favor the plaintiff, and this appeal followed.

On appeal, the defendant contends that the uncontroverted evidence adduced by the plaintiff at trial established that the condition that caused his injuries was, as a matter of law, a "highway defect" within the meaning of § 13a-149. Because the plaintiff did not comply with the notice requirements of that statute, the defendant claims that the court improperly denied its posttrial motion to dismiss for lack of subject matter jurisdiction.⁶

Before considering the merits of the defendant's claim, some additional context is necessary. As a general matter, "[a] town is not liable for highway defects unless made so by statute." Hornyak v. Fairfield , 135 Conn. 619, 621, 67 A.2d 562 (1949). That 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." Martin v. Plainville , 240 Conn. 105, 109, 689 A.2d 1125 (1997) ; see also Cuozzo v. Orange , 315 Conn. 606, 609 n.1, 109 A.3d 903 (2015) (Supreme Court "has long recognized that § 13a-149 applies to publicly traversed roadways"); Ferreira v. Pringle , supra, 255 Conn. at 356, 766 A.2d 400 ("[t]he term ‘defect’ and the adjective ‘defective’ have been used in statutes defining the right to recover damages for injuries due to public roads or bridges in Connecticut since 1672").

Section 13a-149 provides 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. ..." Our Supreme Court has "long defined a highway defect as [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result ...." (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation , 322 Conn. 344, 379, 141 A.3d 784 (2016) (Espinosa, J. , dissenting); see also Kozlowski v. Commissioner of Transportation , 274 Conn. 497, 502–503, 876 A.2d 1148 (2005) ; Hewison v. New Haven , 34 Conn. 136, 142 (1867). "[W]hether 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"; (internal quotation marks omitted) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005) ; over which we exercise plenary review.

The precedent of our Supreme Court further instructs that, "in an action against a municipality for damages resulting from a highway defect, [ § 13a-149 ] is the plaintiff's exclusive remedy." Ferreira v. Pringle , supra, 255 Conn. at 341, 766 A.2d 400. That statute requires, "[a]s a condition precedent" to an action thereunder, the plaintiff to provide "a municipality with notice within ninety days of the accident."⁷ Id., at 354, 766 A.2d 400. The failure to comply with that requirement deprives the Superior Court of jurisdiction over a plaintiff's action. Id. ; see also Bagg v. Thompson , 114 Conn. App. 30, 41, 968 A.2d 468 (2009) ("the failure to provide the notice required by [ § 13a-149 ] deprives the court of subject matter jurisdiction over the action"); Bellman v. West Hartford , 96 Conn. App. 387, 394, 900 A.2d 82 (2006) ("[i]f § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction").

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. See Khan v. Hillyer , 306 Conn. 205, 209, 49 A.3d 996 (2012). "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.) Reinke v. Sing , 328 Conn. 376, 382, 179 A.3d 769 (2018).

Under our rules of practice, a motion to dismiss for lack of subject matter jurisdiction may be raised at...