Murphy v. Town of Clinton

217 Conn.App. 182

287 A.3d 1150

Catherine MURPHY

v.TOWN OF CLINTON

AC 45238

Appellate Court of Connecticut.

Argued November 9, 2022

Officially Released January 3, 2023

Evan K. Buchberger, for the appellant (plaintiff).

Richard C. Buturla, Milford, for the appellee (defendant).

Prescott, Moll and Seeley, Js.

PER CURIAM.

The plaintiff, Catherine Murphy, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendant, the town of Clinton, 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 On appeal, the plaintiff claims that the court improperly granted the defendant's motion to dismiss for lack of subject matter jurisdiction because the written notice and the accompanying photographs that she sent to the defendant sufficiently described the cause of her injury in compliance with the requirements of § 13a-149.² We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as alleged in the plaintiff's complaint, and procedural history are relevant to our resolution of this appeal. On September 27, 2019, at approximately 6:20 p.m., the plaintiff tripped and fell while crossing the intersection of Grove Street and West Grove Street in Clinton. As a result of the fall, the plaintiff sustained various injuries to her right leg and right foot. On October 28, 2019, the plaintiff, via certified mail, sent to the defendant a written notice of her injuries and of her intent to commence a civil action pursuant to § 13a-149. In the notice, the plaintiff stated that while "walking across the intersection of Grove Street and West Grove Street ... she stepped into a defective water main hole cover causing serious personal injuries to her right leg." The plaintiff included three color photographs with the notice, in which the water main hole cover is visible from three different distances within the intersection. Additionally, in the notice, the plaintiff referenced the three photographs; the notice indicates that the water main hole cover "is more fully shown [i]n the photos attached hereto" and directs the defendant to "[s]ee [the] attached [p]hotos." On May 25, 2021, the plaintiff commenced the present action by way of a one count complaint, alleging liability on the part of the defendant pursuant to § 13a-149.

On September 30, 2021, pursuant to Practice Book § 10-30 et seq., the defendant filed a motion to dismiss the plaintiff's complaint, arguing that the trial court lacked subject matter jurisdiction on the basis of the plaintiff's failure to describe sufficiently the cause of her injury in the notice, as required under § 13a-149. On November 15, 2021, the plaintiff filed an objection to the defendant's motion to dismiss. On November 29, 2021, the court, Shah, J., held a hearing regarding the defendant's motion to dismiss.

On January 12, 2022, the court issued an order granting the defendant's motion to dismiss the plaintiff's complaint on the basis that "the plaintiff's notice is not sufficient under [ § 13a-149 ] and the savings clause [of § 13a-149 ] is not applicable." The court explained that, "[i]n order to maintain an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements .... The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof." (Internal quotation marks omitted.) The court further determined that "[t]he notice provided by the plaintiff is similar to a line of cases where the courts have found the notice is deficient because of the absence of what the alleged defect is and mere conclusory statements of a defect. Attaching photographs does not remedy the absence of descriptive language of the alleged defect." This appeal followed.

We begin by setting forth the relevant legal standard. "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 an early start in assembling evidence for its defense against meritless claims." (Citations omitted; internal quotation marks omitted.) Beeman v. Stratford , 157 Conn. App. 528, 534–35, 116 A.3d 855 (2015). 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. See Morico v. Cox , 134 Conn. 218, 223, 56 A.2d 522 (1947) ; Pajor v. Wallingford , 47 Conn. App. 365, 379, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998).³

"[ Section] 13a-149 is liberally construed, particularly when compared to General Statutes § 13a-144, the companion statute providing for liability as a result of defects on state highways. The state highway notice requirement must be strictly construed since § 13a-144, unlike § 13a-149, does not contain a saving clause. A necessary corollary to this is that the municipal highway notice requirement should be liberally construed since it, unlike § 13a-144, does contain a saving clause." (Internal quotation marks omitted.) Salemme v. Seymour , 262 Conn. 787, 796 n.7, 817 A.2d 636 (2003). Furthermore, a notice sent pursuant to § 13a-149 should be interpreted as a whole. See Schmidt v. Manchester , 92 Conn. 551, 554, 103 A. 654 (1918).

"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." (Citations omitted; internal quotation marks omitted.) Dobie v. New Haven , 204 Conn. App. 583, 589–90, 254 A.3d 321, cert. granted, 338 Conn. 901, 258 A.3d 90 (2021) ; see Practice Book § 10-30.

The plaintiff claims that the language in the notice, aided by the inclusion of the photographs, sufficiently describes the cause of her injury, such that her notice satisfies that prong of § 13a-149. The defendant argues that the language that the plaintiff used in the notice was conclusory because she failed to indicate the manner in which the water main hole cover was defective and that the three photographs included in the plaintiff's notice could not operate to cure the lack of express language describing the defect.⁴

For the reasons that follow, we conclude that the language of the notice, in conjunction with the appended photographs, sufficiently describes the cause of the plaintiff's injury in accordance with § 13a-149.⁵

The notice states that the plaintiff "stepped into a defective water main hole cover causing serious personal injuries to her right leg." (Emphasis added.) The plaintiff also included three color photographs with the notice, in support of the assertion that the water main hole cover located at the intersection of Grove Street and West Grove Street was the cause of her injury. Each photograph makes unmistakable that the cover is depressed, that is, markedly lower than the grade of the surrounding pavement. The language of the notice and the appended photographs go well beyond merely asserting a "defect"; rather, they paint a picture that gave notice to the defendant that the plaintiff's injury was caused by a water main hole cover, in a particular location, that was not sufficiently flush with the surrounding pavement. Accordingly, we conclude that the notice patently meets the requirements of § 13a-149 and is sufficient to notify the defendant of the cause of the plaintiff's injury.⁶

Indeed, as previously stated, one purpose of a notice under § 13a-149 is to aid a defendant in "prompt investigation of conditions that may endanger public safety ...." (Internal quotation marks omitted.) Beeman v. Stratford , supra, 157 Conn. App. at 535, 116 A.3d 855. Construing the notice requirements of § 13a-149 liberally, a reasonable inference can be drawn from the language of the notice and the appended photographs that not only did a water main hole cover cause this plaintiff's injuries but that the specific defect of the cover was that it was depressed, i.e., sunken into the ground. Here, the defendant was...