Dudley v. Commissioner of Transportation ( 2019 )

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ANGELA DUDLEY v. COMMISSIONER OF
TRANSPORTATION ET AL.
(AC 40702)
DiPentima, C. J., and Prescott and Bright, Js.
Syllabus
The plaintiff sought to recover damages from the defendant Commissioner
of Transportation for injuries she sustained as a result of an allegedly
defective manhole cover, which flipped up when she stepped onto it,
causing her to lose her balance and fall into the manhole. The defendant
filed a motion to dismiss the action, claiming, inter alia, that the written
notice of claim, which the plaintiff had filed pursuant to the state highway
defect statute (§ 13a-144), was patently defective because it failed to
provide the defendant with sufficient notice of the location of the alleg-
edly defective manhole cover, which thereby deprived the court of
subject matter jurisdiction. The trial court concluded that the notice
met the minimum requirements of § 13a-144 and rendered judgment
denying the motion to dismiss, from which the defendant appealed to
this court. Held:
1. The trial court properly denied the defendant’s motion to dismiss, as
the plaintiff’s written notice of claim provided sufficient information
regarding the location of the allegedly defective manhole cover and,
therefore, was not patently defective; contrary to the defendant’s claim
that the notice was vague and inaccurate and, thus, implicated the state’s
sovereign immunity, the plaintiff provided the defendant with notice
describing the location of the defective manhole cover as on the sidewalk
at the intersection of two state roads and stating that she had fallen
into the sewage drainage system running underneath the sidewalk, and
although the notice contained some descriptions of the location that
were technically imprecise or vague, cartographical precision was not
a legal requirement, and the notice, when viewed in light of the additional
context provided therein, reasonably could be construed as containing
sufficient information to identify the allegedly defective manhole cover
at issue, because even though there were three manholes at the intersec-
tion in question, only one could be regarded as within a sidewalk area
as described by the plaintiff.
2. The defendant’s claim that the statutory waiver of sovereign immunity
did not apply because the state did not have a duty to maintain the
sidewalk area in question and that its responsibility to maintain side-
walks extended only to the limited sidewalks on which a statute con-
ferred such duty was unavailing; even though the incident allegedly
occurred adjacent to, as opposed to directly on, a state highway, the
allegedly defective manhole cover was within the definition of a highway
defect pursuant to § 13a-144, as the record reflected that the allegedly
defective manhole cover was located near the traveled portion of the
state highway, arguably within the state’s right-of-way line, and that the
allegedly defected manhole cover served the state owned and operated
highways, and existed solely to service the state highway as a means
of access to the storm drain; moreover, a question of fact remained as
to whether the waiver of sovereign immunity applied because the man-
hole in question was located between the state owned road and a stone
wall, and there were no survey or boundary markers to delineate the
state’s right-of-way lines along the adjacent road to the allegedly defec-
tive manhole cover.
3. Contrary to the defendant’s claim, the plaintiff could be considered a
traveler on a highway for purposes of § 13a-144; although the defendant
claimed that the plaintiff was a pedestrian traveling by foot and had
not ventured incidentally onto the sidewalk and, therefore, that her
travel was not for a purpose connected with travel over a state highway
within the meaning of § 13a-144, the state may be held liable for injuries
occurring in an area adjacent to a state highway, and a finder of fact
reasonably could have concluded that her travel was incidental to and
for purposes of travel on a highway, as the plaintiff testified that it was
her intention to cross the intersection in question, and the notice alleged
that she was walking on foot toward the state owned highway on the
sidewalk.
Argued February 14—officially released August 6, 2019
Procedural History
Action to recover damages for, inter alia, personal
injuries sustained as a result of an allegedly defective
state highway, and for other relief, brought to the Supe-
rior Court in the judicial district of New London, where
the action was withdrawn as against the defendant city
of New London; thereafter, the court, Cole-Chu, J.,
denied the named defendant’s motion to dismiss, and
the named defendant appealed to this court. Affirmed.
Lorinda S. Coon, with whom, on the brief, was Jes-
sica M. Scully, for the appellant (defendant).
Thor Holth, with whom, on the brief, was Lorena P.
Mancini, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this action, brought, in part, pursu-
ant to the state defective highway statute, General Stat-
utes § 13a-144,1 the defendant, James P. Redeker, the
Commissioner of Transportation (state),2 appeals from
the judgment of the trial court denying the state’s
motion to dismiss the claims asserted against it on
sovereign immunity grounds.3 The state claims that the
court improperly denied the motion to dismiss because
(1) the notice of claim (notice) provided by the plaintiff,
Angela Dudley, pursuant to § 13a-144, was patently
defective in its description of the location of the alleged
defect, and (2) the state did not have a duty to maintain
and repair the area in question. We affirm the judgment
of the trial court.
The plaintiff alleges the following facts.4 On or about
June 5, 2012, the plaintiff was walking on the sidewalk
adjacent to Route 643, Lee Avenue, in New London,
and was heading toward Route 213, Ocean Avenue. On
or about June 1, 2012, and for several months prior,
new utilities had been placed under the paved portion
of Ocean Avenue, in an area close to Lee Avenue. During
the course of construction, a manhole or inspection
plate located at the intersection of Lee and Ocean Ave-
nues was opened so that workers could access items
underneath. Once the work was completed, one or more
employees, agents, servants, or subcontractors for the
state replaced the manhole cover in such a manner as
to leave it dislodged or otherwise unstable.
When the plaintiff arrived at the portion of the side-
walk located at the corner of Ocean and Lee Avenues,
she stepped onto the manhole cover, which was located
in the grassy embankment between the sidewalk area
and the adjacent street. When she stepped onto the
manhole cover, it flipped up and struck her. The plaintiff
lost her balance and fell through the exposed manhole
into the sewage drain system. Consequently, the plain-
tiff suffered physical injury, emotional distress, and has
a diminished capacity to earn a living.
The plaintiff provided the state with written notice
on August 8, 2012, advising the state of the injuries she
sustained from the allegedly defective manhole cover.
The notice describes the place of injury as ‘‘[s]idewalk
and/or intersection of Lee Avenue and Ocean Avenue,
New London, Connecticut.’’ It further states, in relevant
part: ‘‘Cause of Injury and Defect: At approximately
5:20 p.m., June 5, 2012, [the plaintiff] was walking
towards and/or onto Ocean Avenue, a State of Connecti-
cut owned or maintained road, with due care along and/
or upon the sidewalk located at the northeast side of
the intersection of Ocean Avenue and Lee Avenue when
she was caused to fall by her foot landing on an improp-
erly placed or replaced manhole cover which flipped/
tipped up and struck her, causing her to lose her balance
and fall partially into the manhole and thereafter fail
to regain her balance. The incident was caused by the
defective and/or dangerous condition of the sidewalk
and/or manhole cover, the State of Connecticut Depart-
ment of Transportation’s failure to remedy same, and/
or its agents’, servants’ and/or employees’ failure to
remedy same. . . .
‘‘As a result of her fall, [the plaintiff] was caused to
fall into the sewage drainage system running under the
sidewalk and/or street and was caused to land knee-
deep in the contaminated water therein.’’
The plaintiff commenced this action on May 28, 2014.
The operative complaint, filed on December 16, 2014,
alleges four counts. The first count alleges that the
plaintiff is entitled to relief against the state pursuant
to § 13a-144. The second count is a municipal highway
defect claim against the city pursuant to General Stat-
utes § 13a-149. The third and fourth counts sound in
negligence and nuisance, respectively, and are directed
against the director of the New London Public Works,
Timothy Hanser.5
On August 11, 2015, pursuant to Practice Book § 10-
30 et seq., the state filed a motion to dismiss count one
of the complaint, arguing that the plaintiff had failed
to comply with the notice requirements of § 13a-144
and, therefore, her action against the state was barred
by sovereign immunity. In its original motion to dismiss,
dated August 11, 2015, the state claimed that the notice
was patently defective for three reasons: (1) the loca-
tion of the alleged incident was different from that
which the plaintiff identified in her complaint; (2) the
notice of the claim identified multiple locations; and
(3) the area described in the notice contained multiple
manhole covers. The state filed an amended motion to
dismiss on December 15, 2015, which incorporated the
three reasons set forth in its original motion to dismiss
and additionally alleged that count one was barred by
sovereign immunity because the plaintiff did not allege
that the incident occurred on a state highway and, there-
fore, the state did not have a duty to maintain or repair
the sidewalk on which the plaintiff allegedly was
injured. The court heard oral argument on the state’s
motion to dismiss on June 30, 2016. On August 17, 2016,
the court received the last of several posthearing briefs
on the matter.
The court filed a memorandum of decision on June
9, 2017, rejecting all four of the state’s claimed grounds
for dismissal. In its analysis, the court consolidated its
discussion of the first three grounds related to whether
the plaintiff’s notice was patently defective. Recogniz-
ing that the purpose of such notice is to provide the
state with adequate information upon which it can make
a timely investigation of the alleged facts, the court
concluded that the notice provided sufficient factual
information upon which the state reasonably could
identify the location of the allegedly defective manhole
cover. In particular, the court noted that the notice
states that the plaintiff was walking on a sidewalk at
the time of the incident and, further, that only one of
the manhole covers in the area described in the notice
is located within a sidewalk. Accordingly, the court
concluded that the notice was not patently defective.
As to the fourth ground of the amended motion to
dismiss, the court determined that the plaintiff’s argu-
ment was not that the state had a duty to maintain
the sidewalk, but instead, that the state had a duty
to maintain the allegedly defective manhole cover. It
concluded that further factual development was neces-
sary to resolve this matter and, thus, rejected the state’s
argument that it is not liable as a matter of law. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
We begin by setting forth the relevant principles of
law and the applicable standard of review. ‘‘It is the
established law of our state that the state is immune
from suit unless the state, by appropriate legislation,
consents to be sued. . . . The legislature waived the
state’s sovereign immunity from suit in certain pre-
scribed instances by the enactment of § 13a-144. . . .
The statute imposes the duty to keep the state highways
in repair upon . . . the commissioner . . . and autho-
rizes civil actions against the state for injuries caused
by the neglect or default of the state . . . by means of
any defective highway . . . . There being no right of
action against the sovereign state at common law, the
[plaintiff] must first prevail, if at all, under § 13a-144.
. . .
‘‘[T]he doctrine of sovereign immunity implicates [a
court’s] subject matter jurisdiction and is therefore a
basis for granting a motion to dismiss. . . . 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. . . . In ruling on a motion
to dismiss for lack of subject matter jurisdiction, the
trial court must consider the allegations of the com-
plaint in their most favorable light . . . including those
facts necessarily implied from the allegations . . . .’’
(Citations omitted; internal quotation marks omitted.)
Giannoni v. Commissioner of Transportation, 322
Conn. 344, 348, 141 A.3d 784 (2015).
‘‘When [deciding] a jurisdictional question raised by a
pretrial motion to dismiss on the basis of the complaint
alone, [a court] 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. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by [1] affidavits submitted
in support of the motion to dismiss . . . [2] other types
of undisputed evidence . . . and/or [3] public records
of which judicial notice may be taken . . . the trial
court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts and need
not conclusively presume the validity of the allegations
of the complaint. . . . Rather, those allegations are
tempered by the light shed on them by the [supplemen-
tary undisputed facts] . . . .’’6 (Footnote added; inter-
nal quotation marks omitted.) Norris v. Trumbull, 187
Conn. App. 201, 209, 201 A.3d 1137 (2019).
‘‘Conversely, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties. . . .
The trial court may [also] in its discretion choose to
postpone resolution of the jurisdictional question until
the parties complete further discovery or, if necessary,
a full trial on the merits has occurred. . . .
‘‘We review a trial court’s denial of a motion to dis-
miss on the ground of sovereign immunity, based on an
application of § 13a-144, de novo.’’ (Citations omitted;
internal quotation marks omitted.) Giannoni v. Com-
missioner of Transportation, supra, 322 Conn. 350.
I
The state claims that the court improperly denied its
motion to dismiss because the notice provided by the
plaintiff pursuant to § 13a-144 was patently defective.
The state contends that the notice was so vague and
inaccurate with respect to the location of the alleged
defect that the plaintiff failed to provide sufficient infor-
mation upon which the state could investigate the plain-
tiff’s complaint. We disagree.
‘‘The notice requirement contained in § 13a-144 is a
condition precedent which, if not met, will prevent the
destruction of sovereign immunity.’’ Lussier v. Depart-
ment of Transportation, 228 Conn. 343, 354, 636 A.2d
808 (1994). ‘‘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 him-
self 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 protec-
tion. . . .
‘‘With respect to the degree of precision required of
a claimant in describing the place of the injury, in many
cases exactness of statement as to place cannot be
expected, for the excitement and disturbance caused
by the accident . . . make it impossible to observe
with any carefulness the place where the accident
occur[red] . . . . In such cases reasonable definite-
ness is all that can be expected or should be
required. . . .
‘‘Such precision is, therefore, not essential in order
to comply with § 13a-144. . . . [Rather] [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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Fili-
ppi v. Sullivan, 273 Conn. 1, 9–10, 866 A.2d 599 (2005).
Applying these principles, we conclude that the court
correctly determined that the plaintiff’s notice was not
patently defective. In the present case, the notice
described the site of the alleged incident as the ‘‘[s]ide-
walk located at the northeast side of the intersection
of Ocean Avenue and Lee Avenue . . . .’’ Both parties
agree that the area in question contains three manholes.
The state, thus, argues that the notice did not adequately
identify the allegedly defective manhole. Moreover,
according to the state, it was not until the plaintiff
was deposed on April 7, 2015, that the state received
sufficient information upon which it could identify the
specific manhole alleged to be defective.
Notice is patently defective if it (1) states a location
different from the actual place of injury, or (2) is so
vague that the commissioner could not reasonably be
expected to make a timely investigation on the basis
of the information provided. Filippi v. Sullivan, supra,
273 Conn. 10 n.6 (2005). The state contends that the
notice was patently defective on both grounds. First,
the state contends that the notice was inaccurate as to
the actual place of injury because no manhole was
located at the ‘‘northeast side’’ of the intersection, but
instead, was located at the northwest area of the inter-
section. The state additionally contends that the notice
was vague because it was worded in such a way so
as to not commit to a specific location, but instead,
described the location as the ‘‘[s]idewalk and/or inter-
section of Lee Avenue and Ocean Avenue’’ and alleged
that the plaintiff ‘‘was walking towards and/or onto
Ocean Avenue,’’ and ‘‘along and/or upon the sidewalk.’’
Mathematical precision, however, is not required to
notify adequately the commissioner of the location of
a defect. Lussier v. Department of Transportation,
supra, 228 Conn. 358 (‘‘[t]he plaintiff is not required
to be a cartographer in order to be able to describe
adequately to the commissioner the location of the
defect’’). In Filippi, our Supreme Court held that a
notice was not patently defective, even though the
notice described the place of injury as two different
locations that were 1.6 miles apart, because additional
context provided in the notice established that the
injury could have occurred only at one of those two
points. Filippi v. Sullivan, supra, 273 Conn. 10–11. By
contrast, in Schaap v. Meriden, 139 Conn. 254, 257,
93 A.2d 152 (1952), the plaintiff’s notice was patently
defective in that it described the allegedly defective
condition as ‘‘near the edge of a manhole cover,’’ with-
out any additional context.
In the present case, the notice includes additional
context from which the state could discern the specific
allegedly defective manhole cover. One manhole cover
is located on Ocean Avenue, close to the middle of the
road. Another manhole cover is located on the south-
west side of Ocean Avenue. A third manhole cover is
surrounded by pavement and slightly elevated above
the street on the northwest corner of the intersection
between Ocean and Lee Avenues.
Of the three manholes at the intersection in question,
only the third manhole cover reasonably could be
regarded as within a sidewalk area. Although the third
manhole cover is not located upon the sidewalk itself,
it is surrounded by pavement on the otherwise grassy
strip of land between the sidewalk and the highway. The
other two manhole covers are located on the highway
pavement.7 Accordingly, the plaintiff’s notice indicates
that the plaintiff was walking ‘‘along and/or upon the
sidewalk’’ at the time of the alleged incident, which
reasonably could be read to identify the sole manhole
cover located near the sidewalk. Additionally, the notice
alleges that the plaintiff was walking ‘‘towards and/
or onto Ocean Avenue,’’ which reasonably could be
understood, at a minimum, to eliminate the manhole
cover located at the middle of the area that comprises
the intersection of the two streets.
We acknowledge that the notice contained some
descriptions of the location that arguably are techni-
cally imprecise or vague. For example, the notice indi-
cates that the allegedly defective manhole was located
at the ‘‘northeast side of the intersection of Ocean Ave-
nue and Lee Avenue,’’ whereas the record reflects that
Lee Avenue terminates in a T-intersection along the
southwestern side of Ocean Avenue, and, thus, the
‘‘northeastern side’’ of the intersection would actually
be wholly located on Ocean Avenue, not at the intersec-
tion at all.8 Nevertheless, cartographical precision is
not a legal requirement; see Lussier v. Department of
Transportation, supra, 228 Conn. 358; and, if the notice
is viewed in the light of the additional context provided,
the notice reasonably can be construed as containing
sufficient information to identify the allegedly defective
manhole cover at issue, notwithstanding the reference
to the ‘‘northeast side of the intersection.’’
We conclude that the plaintiff’s notice afforded the
state sufficient information to comply with the notice
requirement contained in § 13a-144. Accordingly, the
state’s sovereign immunity was not implicated and the
court properly rejected the state’s motion to dismiss
on that basis.9
II
The state next claims that the court improperly
denied its motion to dismiss because the plaintiff was
not a traveler on a highway, bridge, or sidewalk that
the state had a duty to maintain, and, therefore, the
statutory waiver of sovereign immunity under § 13a-
144 does not apply. More specifically, the state contends
that the sidewalk upon which the incident allegedly
occurred is not within the state highway system. The
state additionally contends that the plaintiff never
attained the status of a ‘‘traveler’’ upon a state highway
system. We are not persuaded by either contention.
We begin by setting forth legal principles regarding
the scope of the state’s waiver of sovereign immunity
under § 13a-144. ‘‘[A] highway defect is [a]ny object in,
upon, or near the traveled path, which would necessar-
ily 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
. . . . [T]he defect need not be a part of the roadbed
itself, however, objects which have no necessary con-
nection with the roadbed or public travel, which expose
a person to danger, not as a traveler, but independent
of the highway, do not ordinarily render the road defec-
tive. . . .
‘‘The defective condition must also exist in an area
intended for public travel, or in an area that the public
is invited or reasonably expected to traverse. . . . [If]
the state either invites or reasonably should expect the
public to use a particular area that is not directly in the
roadway but that is a necessary incident to travel on
the roadway, a defective condition therein may give
rise to a cognizable action under the statute. . . . The
fact that the defective condition is in an area where
members of the public are likely, and in fact encour-
aged, to use is an important consideration.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Giannoni v. Commissioner of Transporta-
tion, supra, 322 Conn. 359–60. Accordingly, the state’s
liability can extend to an area upon which members of
the public likely will traverse incident to travel, even if
the alleged defect is not located upon the highway itself.
In Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400
(2001), our Supreme Court concluded that the state
could be held liable for a highway defect even though
the alleged defect was located on the grassy embank-
ment at the shoulder of the road, indicating: ‘‘To hold
that a defect . . . must exist in the traveled portion of
the highway would run counter to our decisions and
lead to results bordering on the ridiculous. . . . If in
the use of the traveled portion of the highway and,
as incidental thereto, the use of the shoulders for the
purposes for which they are there, a condition exists
which makes travel not reasonably safe for the public,
the highway is defective.’’10 (Footnote added; internal
quotation marks omitted.) Id., 344.
A
We first address whether the statutory waiver of sov-
ereign immunity may apply even though the incident
allegedly occurred adjacent to, as opposed to directly
upon, the state highway. In light of the following facts
and analysis, we conclude that the statutory waiver of
sovereign immunity applies.
‘‘To define in general terms the precise limits of the
duty of [the commissioner] in these cases is not an easy
matter . . . . Generally, the question . . . is one of
fact, depending on a great variety of circumstances,
and this court will find error [in its determination as
to whether a highway defect could exist] only when
the conclusion is one which could not be reasonably
reached by the trier.’’ (Citation omitted; internal quota-
tion marks omitted.) Giannoni v. Commissioner of
Transportation, supra, 322 Conn. 360.
In the present case, the state does not contend that
the alleged defect needed to be located upon the high-
way pavement. Instead, the state argues that the statu-
tory waiver of sovereign immunity does not apply
because the state did not have a duty to maintain the
sidewalk area in question. The state notes that its
responsibility to maintain sidewalks extends only to
the limited sidewalks upon which a statute confers such
duty. As a general rule, the state contends, sidewalk
maintenance falls within the duty of the municipality,
not the state. See Giannoni v. Commissioner of Trans-
portation, supra, 322 Conn. 357 n.16 (‘‘[m]unicipalities,
rather than the state, are generally responsible for main-
taining most sidewalks, even those adjacent to state
highways’’).
This aspect of the state’s argument, however, as was
advanced before both the trial court and this court,
largely is premised on its assertion that the manhole
was in the sidewalk area, which the state did not have
a duty to maintain. To the contrary, the plaintiff’s notice
alleges that the injury took place while the plaintiff was
walking upon the manhole cover. It alleges that ‘‘she
was caused to fall by her foot landing on an improperly
placed or replaced manhole cover,’’ which manhole
cover the state would use to access the storm drain or
catch basin located adjacent to the manhole cover, on
Ocean Avenue. To invoke a statutory waiver of sover-
eign immunity, the plaintiff must ‘‘allege that he was a
traveler on or user of the particular area, whether the
vehicular portion of the highway or the sidewalk, which
he claims to have been defective.’’ Tuckel v. Argraves,
148 Conn. 355, 359, 170 A.2d 895 (1961). Thus, we agree
with the court’s determination that this case ‘‘is not a
sidewalk maintenance case [but, instead,] is a state
highway storm drain system maintenance case.’’
In support of her allegation that the state had a duty
to maintain the manhole cover in question, the plaintiff
counters that the manhole cover is located within the
state’s right-of-way line and, therefore, within an area
upon which the state reasonably could expect pedestri-
ans to traverse. Our courts have concluded that the
state may be held liable for a highway defect that exists
within the state’s right-of-way line. See Ferreira v. Prin-
gle, supra, 255 Conn. 349–51 (state liability applied to
defect embedded within shoulder of road seven feet
from paved area within state’s right-of-way line); Ser-
rano v. Burns, 248 Conn. 419, 427 n. 7, 727 A.2d 1276
(1999) (‘‘[w]hether the place of injury is within the state
right-of-way line is the threshold inquiry in determining
the state’s liability, if any, under § 13a-144’’); Baker v.
Ives, 162 Conn. 295, 301–302, 294 A.2d 290 (1972) (state
liability applied to grass parking strip located within
state right-of-way line between paved portion of high-
way and sidewalk, in which state invited public to
park).
James F. Wilson, the transportation maintenance
planner for the Connecticut Department of Transporta-
tion Bureau of Highway Operations, testified at his Feb-
ruary 11, 2016 deposition that Ocean and Lee Avenues
are unbounded, in that no survey or boundary markers
delineate their boundaries. Although Wilson believed
that the state was not responsible for sidewalk mainte-
nance, he acknowledged that the state’s right-of way-
line likely extends to the stone wall behind the sidewalk.
Accordingly, a question of fact remains as to the bound-
ary within which the statutory waiver of sovereign
immunity applies because the manhole cover in ques-
tion is located between Ocean Avenue and the stone
wall.
Moreover, Wilson agreed that both Ocean and Lee
Avenues are state owned and maintained roads. He
testified that the manhole cover in question ‘‘serves
the catch basin or storm drain which is located in the
roadway on . . . Ocean Avenue.’’ Wilson further testi-
fied that the manhole cover in question served as the
means of access to the storm drain or catch basin.
Additionally, Wilson agreed that ‘‘the sole purpose that
this storm drain or catch basin exists is to service this
state highway.’’
In light of the foregoing, the allegedly defective man-
hole cover is within the definition of ‘‘highway defect,’’
pursuant to § 13a-144. The record reflects that the alleg-
edly defective manhole cover is located near the trav-
eled portion of the state highway, arguably within the
state’s right-of-way line, serves state owned and oper-
ated highways, and exists solely to service the state
highway. On these facts, we reject the state’s contention
that the statutory waiver of liability does not apply as
a matter of law.
B
We next address the state’s contention that sovereign
immunity applies because the plaintiff was not a ‘‘trav-
eler’’ under § 13a-144. On this point, the state argues
that the scope of its liability turned not only on whether
an alleged highway defect is located within the state’s
right-of-way line, but also on whether the plaintiff had
obtained traveler status prior to the alleged injury. We
conclude that the plaintiff could be considered a ‘‘trav-
eler’’ on the highway.
‘‘It is settled law that the statutory right of action
[under § 13a-144] is given only to a traveler on the road
or sidewalk alleged to be defective. . . . A person must
be on the highway for some legitimate purpose con-
nected with travel thereon in order to obtain the protec-
tion of the statute. . . .
A person may, under some circumstances, traverse
areas adjacent to the conventionally traveled highway
while maintaining his status as a traveler entitled to
bring action under § 13a-144. . . . Travel over such
areas may fall within the purview of § 13a-144 when it
is incidental to travel over the highway . . . and for a
purpose connected with travel thereon . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Gian-
noni v. Commissioner of Transportation, supra, 322
Conn. 351–52.
In Giannoni, our Supreme Court concluded that the
plaintiff bicyclist retained his status as a traveler on a
highway when he moved from the shoulder of the road
to the adjacent sidewalk and was injured while travers-
ing a stream culvert located nine feet from the paved
shoulder of the road, which culvert collected and
removed water from under the highway, because his
travel thereon was ‘‘incidental’’ to and ‘‘for a purpose
connected with’’ his travel over the highway. Id., 353–54.
The court reasoned that it was ‘‘undisputed that [the
bicyclist] was traveling over the sidewalk immediately
before he fell into the culvert. This fact alone, however,
does not preclude a jury from finding that his travel
over the sidewalk, driveway, and small patch of grass,
was incidental to and for a purpose connected with
his travel over [the highway].’’ (Emphasis added.) Id.,
356; see also Ferreira v. Pringle, supra, 255 Conn. 352
(bus passenger disembarking onto grassy embankment
adjacent to highway retained traveler status because
disembarking from bus was in connection with pur-
poses of public travel); Serrano v. Burns, supra, 248
Conn. 423–26 (court improperly granted summary judg-
ment for state when jury properly could find that plain-
tiff’s use of parking lot was incidental use of highway
and for purpose connected with travel thereon).
The state attempts to distinguish the present case
from Giannoni, Ferreira, and Serrano by arguing that
the plaintiff was a pedestrian traveling locally, by foot,
and had not ventured incidentally onto the sidewalk,
as she had not first stepped foot onto the highway.
Accordingly, the state contends that the plaintiff’s travel
was not for a purpose connected with travel over a state
roadway. Although the plaintiffs in Giannoni, Ferreira,
and Serrano each were injured during a detour from
their travel upon a highway, we do not read our prece-
dent so narrowly as to preclude recovery from a traveler
who was injured on an area adjacent to a public side-
walk and state highway prior to traversing that
highway.
It is notable that the plaintiff, at her deposition, testi-
fied that it was her intention to cross the intersection
in question. Additionally, the plaintiff’s notice alleges,
in relevant part, that at the time of the alleged incident
she was walking ‘‘towards and/or onto Ocean Avenue
. . . and/or upon the sidewalk located at the northeast
side of the intersection of Ocean Avenue and Lee Ave-
nue . . . .’’ Similarly, the plaintiff’s operative com-
plaint alleges that at the time of the alleged incident she
was ‘‘proceeding on foot towards and/or upon Ocean
Avenue, or the sidewalk located at the northerly side
of the intersection of Lee Avenue and Ocean Avenue.’’
A finder of fact reasonably could conclude that her
travel was incidental to and for purposes of travel upon
the highway. See Giannoni v. Commissioner of Trans-
portation, supra, 322 Conn. 351–52 (travel upon side-
walk did not preclude finding that plaintiff was a trav-
eler for purposes of bringing suit under § 13a-144).
Because we conclude that the state may be held liable
for injuries occurring in an area adjacent to a state
highway and that a fact finder reasonably could con-
clude that the plaintiff was a traveler upon a state high-
way, the court properly denied the state’s motion to
dismiss on that basis.
The judgment is affirmed.
In this opinion, the other judges concurred.
1
General Statutes § 13a-144, which serves as a waiver of the state’s sover-
eign immunity for monetary claims seeking recovery for injuries caused by
highway defects, provides in relevant part: ‘‘Any person injured in person
or property through the neglect or default of the state . . . by means of
any defective highway, bridge or sidewalk which it is the duty of the Commis-
sioner 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 . . . .’’
2
Although the plaintiff’s operative complaint named both the state and
the city of New London (city) as defendants, the action later was withdrawn
as to the city, and, therefore, any reference to the defendant is to the
state only.
3
‘‘Although the denial of a motion to dismiss generally is an interlocutory
ruling that does not constitute an appealable final judgment, the denial of
a motion to dismiss filed on the basis of a colorable claim of sovereign
immunity is an immediately appealable final judgment.’’ Filippi v. Sullivan,
273 Conn. 1, 6 n.5, 866 A.2d 599 (2005).
4
The plaintiff’s factual allegations were set forth in her notice and opera-
tive complaint. The state did not answer these factual allegations but, instead,
as discussed later in this opinion, filed several motions in response.
5
Hanser filed a motion to strike counts three and four of the plaintiff’s
revised complaint, arguing that the common-law claims set forth therein
were not legally cognizable causes of action because § 13a-149 provides the
plaintiff’s sole basis for relief. The court agreed with Hanser and, accordingly,
granted his motion to strike on August 14, 2015.
6
Other types of undisputed evidence that a trial court may consider in
deciding a motion to dismiss includes deposition testimony submitted in
support or opposition thereto. Dorry v. Garden, 313 Conn. 516, 522-23, 98
A.3d 55 (2014).
7
The location of the manhole cover is most clearly depicted in the plain-
tiff’s exhibits 1 and 2, which may be found at pages A-50 and A-51 of the
appendix to the plaintiff’s brief on appeal.
8
James F. Wilson, a transportation maintenance planner for the Connecti-
cut Department of Transportation Bureau of Highway Operations, testified
in his deposition on February 11, 2016, that Lee Avenue ends at the ‘‘south-
west side’’ of the intersection, in other words, where it meets Ocean Avenue.
He explained: ‘‘Lee Avenue isn’t a four way intersection, so it’s only a three
way. It’s a three way intersection. . . .
‘‘[F]or all intents and purposes, if you took a string from the corner of
this intersection on the northeast side and you went over here to the south-
west side and you pulled the string across taut, that’s . . . where the road
ends and where it starts.’’
9
In its memorandum of decision, the trial court stated that because the
notice is not defective as a matter of law, the adequacy of the notice is a
question to be determined by the trier of fact in this case. In reaching that
conclusion, the trial court understandably relied on the following language
contained in at least two decisions of our Supreme Court: ‘‘Unless a notice,
in describing the place or cause of the 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 particular case.’’ Filippi v. Sullivan, supra, 273 Conn.
9; Lussier v. Department of Transportation, supra, 228 Conn. 354. Both
Filippi and Lussier rely on identical language contained in a 1947 decision
by the Supreme Court in Morico v. Cox, 134 Conn. 218, 56 A.2d 522 (1947),
for this principle.
We take this opportunity to express our concern that Morico is unclear
on whether the adequacy of the plaintiff’s notice is a question for the jury
in every case. Morico involved an action brought by a plaintiff who was
injured on a state highway. Id., 219. The plaintiff in Morico asserted claims
against the state pursuant to two different statutes, both of which contained
a similar notice requirement to the one contained in § 13a-144. Id., 220.
First, the plaintiff in Morico, like the plaintiff here, asserted a defective
state highway claim pursuant to General Statutes § 1481, the predecessor
statute to § 13a-144. Id. Second, the plaintiff asserted a claim pursuant to
General Statutes § 1419, as amended by § 301g of the 1943 Supplement. Id.
This provision mandates that state highways and bridges have sufficient
railings, and authorizes an injured party to bring an action against the state
for harm caused by a defective or missing railing. Unlike § 1481, however,
§ 1419 as amended, contains a savings clause that provides: ‘‘No notice given
under the provisions of this section shall be invalid or insufficient by reason
of any 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 [the state] was not misled thereby.’’ See also General Statutes § 13a-149.
Although Morico is less than clear, the decision may be read as holding
that the legal sufficiency of the notice required by these statutes is a question
of law for the court and the jury’s role in assessing the notice is implicated
only in cases brought pursuant to statutes that contain a savings clause. As
noted previously in this opinion, § 13a-144 does not contain a savings clause.
See also General Statutes § 13a-149 (defective municipal roads and bridges).
Because the adequacy of the notice in an action brought pursuant to § 13a-
144 implicates the doctrine of sovereign immunity, it seems somewhat anom-
alous to ask the jury to adjudicate an issue that, as a matter of logic, should
be decided definitively long before a trial commences. See, e.g., Rodriguez
v. State, 155 Conn. App. 462, 469 n.7, 110 A.3d 467 (‘‘[O]ur Supreme Court
has recently recognized that, unlike unresolved factual issues concerning
a governmental immunity claim, which can be decided by a jury, immunity
from suit on the basis of sovereign immunity implicates subject matter
jurisdiction and should be resolved prior to trial. Edgerton v. Clinton, 311
Conn. 217, 227 n.9, 86 A.3d 437 (2014).’’), cert. granted, 316 Conn. 916 (2015)
(appeal withdrawn December 15, 2015). Although we need not wander into
this thicket at this stage in the proceeding, we suggest that this issue warrants
further examination in the future.
10
Ferreira addressed the state’s liability under General Statutes § 13a-
149, which affords a right of recovery similar to that under § 13a-144 and
is subject to the same limitations. Id., 348 n.13.