Giannoni v. Commissioner of Transportation ( 2016 )

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DAVID GIANNONI ET AL. v. COMMISSIONER
OF TRANSPORTATION
(SC 19522)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Argued December 11, 2015—officially released August 9, 2016
Ronald D. Williams, Jr., for the appellant
(defendant).
Joseph P. Sargent, for the appellees (plaintiffs).
Opinion
ROBINSON, J. The plaintiffs, David Giannoni and
Michelle Giannoni, brought this highway defect action
pursuant to General Statutes § 13a-1441 on behalf of
their child, Nicholas Giannoni (Nicholas), who was
injured when he fell into a stream culvert while riding
his bicycle on the sidewalk along a state highway, which
ended at a private driveway and lawn shortly before
the culvert. The defendant, the Commissioner of Trans-
portation (commissioner), appeals from the trial court’s
denial of his motion to dismiss the plaintiffs’ complaint
for lack of subject matter jurisdiction on the ground of
sovereign immunity.2 The commissioner argues that the
trial court improperly concluded that the plaintiffs’
complaint and the evidence in this case support a cause
of action, and associated waiver of the state’s sovereign
immunity, under § 13a-144 because: (1) Nicholas was
not a ‘‘traveler’’ on the state highway when he fell into
the culvert; and (2) the culvert does not constitute a
‘‘highway defect’’ under § 13a-144. We disagree and,
accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history.3 On October 22, 2011, at approx-
imately 7 p.m., Nicholas was riding his bicycle along
Route 113 in Stratford (town), a highway maintained
by the Department of Transportation (department),
toward a friend’s house.4 After stopping at a conve-
nience store on Route 113 to purchase food, he pro-
ceeded northeast on Route 113. Because the
convenience store was located on the southbound side
of the road, and Nicholas intended to turn left onto
Cutspring Road in a few hundred feet, he rode northeast
against traffic on the southbound side of the road.
After several minutes, Nicholas moved to the side-
walk adjacent to Route 113 on the left side because
‘‘[t]he headlights were hitting [his] eyes’’ and ‘‘the cars
were going pretty fast . . . .’’ This particular sidewalk
ended after forty yards at a private driveway and lawn,
and led directly to a stream culvert that collects and
removes water from under Route 113. When the side-
walk ended, Nicholas inadvertently rode his bicycle
across the private driveway, over the small patch of
grass, and into the culvert, injuring himself.
The culvert is located approximately nine feet from
the paved shoulder of the road, within the state right-
of-way.5 The department maintains the culvert, which
is six inches deep and constructed of cement retaining
walls.6 At the time of the accident, the culvert was
covered with overgrown weeds and brush. Three
wooden posts warned travelers approaching from the
roadway of the existence of the culvert, but no posts,
signs, or barriers warned travelers approaching from
the sidewalk of the culvert. Nicholas testified that he
did not see the posts because they were facing another
direction, the sun had set, and the headlights from
oncoming traffic continued to hit his eyes. There were
no street lights in the area that could have illuminated
the culvert, and no crosswalk in the intersection ahead.
Nicholas also testified that he had never ridden his
bicycle in the area before.
The plaintiffs brought the present highway defect
action on behalf of Nicholas. The commissioner moved
to dismiss the complaint on the ground of sovereign
immunity, arguing that the plaintiffs’ claim falls outside
the purview of § 13a-144. The trial court denied the
commissioner’s motion, stating that ‘‘the evidence indi-
cates the accident happened on the state . . . right-of-
way and not a sidewalk or a lawn’’ and that ‘‘certain
issues will have to be determined by the trier of fact.’’
This appeal followed. See footnote 2 of this opinion.
On appeal, the commissioner renews his contention
that the plaintiffs have failed to allege a cognizable
highway defect claim under § 13a-144. Specifically, the
commissioner claims that: (1) Nicholas was not a trav-
eler on Route 113 when he fell into the culvert, but
rather, a traveler on the sidewalk; and (2) the culvert
does not constitute a highway defect under § 13a-144
because it is not located in an area intended for pub-
lic travel.7
Before turning to the commissioner’s specific claims
on appeal, we set forth certain background principles
and the 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.’’ Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290
(1972). ‘‘The legislature waived the state’s sovereign
immunity from suit in certain prescribed instances by
the enactment of § 13a-144.’’ Id. The statute ‘‘imposes
the duty to keep the state highways in repair upon the
. . . commissioner’’; (internal quotation marks omit-
ted) Kozlowski v. Commissioner of Transportation,
274 Conn. 497, 501, 876 A.2d 1148 (2005); and authorizes
civil actions against the state for injuries caused by ‘‘the
neglect or default of the state . . . by means of any
defective highway . . . .’’ General Statutes § 13a-144;
see footnote 1 of this opinion. ‘‘There being no right of
action against the sovereign state at common law, the
plaintiff[s] must prevail, if at all, under § 13a-144.’’ Baker
v. Ives, supra, 298.
‘‘[T]he doctrine of sovereign immunity implicates [a
court’s] subject matter jurisdiction and is therefore a
basis for granting a motion to dismiss.’’ Amore v. Fran-
kel, 228 Conn. 358, 364, 636 A.2d 786 (1994). ‘‘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.’’ (Internal quotation
marks omitted.) Kozlowski v. Commissioner of Trans-
portation, supra, 274 Conn. 501. 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 . . . .’’
(Internal quotation marks omitted.) Id. A trial court
considering a motion to dismiss may, however,
‘‘encounter different situations, depending on the status
of the record in the case.’’ Conboy v. State, 292 Conn.
642, 650, 974 A.2d 669 (2009). ‘‘[I]f the complaint is
supplemented by undisputed facts . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts].’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.) Id., 651–52. Con-
versely, ‘‘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.’’ (Cita-
tions omitted; footnotes omitted; internal quotation
marks omitted.) Id., 652–54. 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.’’ Id., 653 n.16.
We review a trial court’s denial of a motion to dismiss
on the ground of sovereign immunity, based on an appli-
cation of § 13a-144, de novo. See, e.g., Serrano v. Burns,
248 Conn. 419, 425, 727 A.2d 1276 (1999). ‘‘[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’’ over which we exercise plenary review. (Internal
quotation marks omitted.) McIntosh v. Sullivan, 274
Conn. 262, 268, 875 A.2d 459 (2005); see Serrano v.
Burns, supra, 425. ‘‘In undertaking this review, we are
mindful of the well established notion that, in determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged.’’ (Internal quotation marks omitted.) Conboy
v. State, supra, 292 Conn. 650.
I
We first consider whether the complaint and the evi-
dence in the record support a conclusion that Nicholas
remained a traveler over the state highway when he
moved to the sidewalk along Route 113. The commis-
sioner claims that, as a matter of law, Nicholas was not
a traveler on Route 113 because he was, instead, a
traveler on the sidewalk. In response, the plaintiffs
argue that a jury could find that Nicholas retained his
status as a traveler over Route 113 when he moved to
the sidewalk, because his travel over the sidewalk was
incidental to and for a purpose connected with his travel
over Route 113. We agree with the plaintiffs, and con-
clude that the trial court properly denied the motion
to dismiss on this ground because the record in this
case would support a finding that Nicholas retained his
status as a traveler on Route 113.
‘‘It is settled law that the statutory right of action is
given only to a traveler on the road or sidewalk alleged
to be defective.’’ Tuckel v. Argraves, 148 Conn. 355,
358, 170 A.2d 895 (1961). ‘‘A person must be on the
highway for some legitimate purpose connected with
travel thereon in order to obtain the protection of the
statute.’’ Hay v. Hill, 137 Conn. 285, 289–90, 76 A.2d
924 (1950); see also Anderson v. Argraves, 20 Conn.
Supp. 138, 143, 127 A.2d 620 (1956) (statute ‘‘provides no
right of recovery to an abutting landowner for damages
from a defective highway . . . [it] is designed to pro-
tect travelers only’’ [internal quotation marks omitted]),
aff’d, 146 Conn. 316, 150 A.2d 295 (1959).
A person may, under some circumstances, traverse
areas adjacent to the conventionally traveled highway
while maintaining his status as a traveler entitled to
bring an action under § 13a-144. For example, this court
has held that a traveler on the highway may include a
person traveling on the shoulder of the road; Griffith
v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943); grassy
areas abutting the road; Ferreira v. Pringle, 255 Conn.
330, 343–44, 766 A.2d 400 (2001); Baker v. Ives, supra,
162 Conn. 299–302; Hay v. Hill, supra, 137 Conn. 289–90;
and even the parking lot of a rest area along the highway.
Serrano v. Burns, supra, 248 Conn. 429. Travel over
such areas may fall within the purview of § 13a-144
when it is ‘‘incidental’’ to travel over the highway; (inter-
nal quotation marks omitted) Ferreira v. Pringle, supra,
344; and for a ‘‘purpose connected with travel thereon
. . . .’’ (Internal quotation marks omitted.) Id., 342; see
also O’Neil v. New Haven, 80 Conn. 154, 156–57, 67
A. 487 (1907). Indeed, travel over such areas may be
necessary to meet certain ‘‘exigencies of travel’’ over
the highway. Hay v. Hill, supra, 290. ‘‘[A] plaintiff is
not obliged to remain seated in a vehicle proceeding
on the highway. Reasonable latitude is allowed to meet
the exigencies of travel.’’ Id. ‘‘[T]he question is one of
degree and fact. Within reasonable limits it is for the
jury.’’ Id.; see also Bellman v. West Hartford, 96 Conn.
App. 387, 394, 900 A.2d 82 (2006).
For example, in Ferreira v. Pringle, supra, 255 Conn.
352, we concluded that a bus passenger disembarking
from a bus onto a grassy area adjacent to the highway
retained his status as a traveler over the highway
because ‘‘bus travel necessarily dictates that passengers
disembark on the side of the road in connection with
the use of the bus and for purposes of public travel.’’
Because the bus passenger did not leave the highway
‘‘for a purpose other than traveling over the highway,’’
his claim fell within the ambit of General Statutes § 13a-
149, the municipal highway defect statute.8 Id., 351; see
also id., 351–55 (affirming dismissal of claim because
plaintiff did not invoke statute). Similarly, in Serrano
v. Burns, supra, 248 Conn. 429, this court, in reversing
dismissal of an action, held that a jury reasonably could
find that a pedestrian who had slipped on ice in the
parking lot of a rest area along the highway was still a
traveler on the highway when she fell, because her use
of the rest area was ‘‘so closely related to [her] travel
upon the highway . . . .’’ Id. In Hay v. Hill, supra,
137 Conn. 286–90, this court held that a motor vehicle
passenger remained a traveler over the highway when
she exited a vehicle, which had pulled over on the
highway, walked across some shrubs and weeds next
to the highway, and then fell into an unguarded culvert
eight to twelve feet from the road.
By contrast, when a person ‘‘voluntarily depart[s]
from the traveled way, and turn[s] aside from [their]
journey for a purpose in no way connected with [their]
passage over the highway,’’ that person loses their sta-
tus as a traveler over the highway. O’Neil v. New Haven,
supra, 80 Conn. 156. For example, in O’Neil, this court
held that a cart driver was not a traveler over the high-
way when he left the traveled portion of the highway
to use platform scales owned and operated by a private
party. Id., 155–57. With respect to the driver’s apparent
intention to return to the highway, this court stated:
‘‘The fact that he had but shortly before been using
the street for travel, and intended to soon resume his
passage over it, made him no more a traveler thereon
than he would have been had his digression for an
independent purpose been of longer duration . . . .’’
Id., 156–57.
The salient question in the present case is, therefore,
whether Nicholas, as a bicyclist, retained his status as
a traveler on the highway when he moved from the
shoulder of the road to the sidewalk along Route 113.
On the facts of this case, we conclude that the record
could support a finding that Nicholas was a traveler
over the highway when he fell into the culvert, because
his travel over the sidewalk was ‘‘incidental’’ to; (inter-
nal quotation marks omitted) Ferreira v. Pringle, supra,
255 Conn 344; and for a ‘‘purpose connected with’’ his
travel over Route 113.9 (Internal quotation marks omit-
ted.) Id., 342; see also O’Neil v. New Haven, supra, 80
Conn. 156. A jury could reasonably find that Nicholas
temporarily moved to the sidewalk to meet an ‘‘exi-
genc[y] of travel’’ over Route 113. Hay v. Hill, supra,
137 Conn. 290. Nicholas testified that he moved to the
sidewalk to avoid the fast moving, oncoming cars on
the highway.10 He stated that, ‘‘[t]he headlights were
hitting my eyes . . . [a]nd . . . the cars were going
pretty fast, so I just thought it would be safer . . . to
go on the sidewalk.’’ We have previously recognized that
‘‘modern traffic’’ may constitute an exigency requiring
a traveler to depart from the traveled portion of the
highway.11 (Internal quotation marks omitted.) Ferreira
v. Pringle, supra, 347; see also Rusch v. Cox, 10 Conn.
Supp. 521, 526 (1942) (noting that highway includes
shoulder of road and concluding that ‘‘the layout [of
the highway] was such as almost to amount to a trap
for those, who in the night season, might drive upon
the shoulder for emergency use or in the exercise of
unusual caution, due to the exigency of modern traf-
fic’’), aff’d, 130 Conn. 26, 31 A.2d 457 (1943). Thus, a
finder of fact could determine that the ‘‘[r]easonable
latitude’’ afforded to travelers on the highway may
extend to a thirteen year old bicyclist moving from the
shoulder of the road to the sidewalk, at night, while
preparing to make a left turn. Hay v. Hill, supra, 290.
A jury might also reasonably find that Nicholas left the
highway altogether when he moved to the sidewalk
and, consequently, lost his status as a traveler over the
highway. This determination, however, is one for the
fact finder. We simply hold that we cannot conclude,
as a matter of law, that Nicholas ‘‘voluntarily departed
from the traveled way, and turned aside from his jour-
ney for a purpose in no way connected with his passage
over the highway’’ at this juncture.12 (Emphasis added.)
O’Neil v. New Haven, supra, 156. Rather, Nicholas’
travel over the sidewalk, driveway, and small patch of
lawn reasonably could be found to be ‘‘so closely
related’’ to his travel over the highway, that he retained
the protections of § 13a-144 while on the sidewalk.13
Serrano v. Burns, supra, 248 Conn. 429.
Relying heavily on Tuckel v. Argraves, supra, 148
Conn. 355, the commissioner and the dissent argue,
however, that, as a matter of law, Nicholas was a trav-
eler on the sidewalk, and not the highway, when he fell
into the culvert, and thus, his travel over the driveway
and small patch of grass was incidental to and for a
purpose connected with his travel over the sidewalk.
It is undisputed that Nicholas 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 Route 113. On these
facts, the two are not mutually exclusive. Bicyclists
may utilize the shoulders of the road or the sidewalks
along a road when attempting to travel over a highway,
unless prohibited by a city or town ordinance. See Gen-
eral Statutes (Rev. to 2011) § 14-286 (a).14 The commis-
sioner points to no ordinance of the town prohibiting
bicycling on the sidewalk, and our independent
research has revealed none. See Stratford Code of Ordi-
nances, c. 186 (streets and sidewalks); Stratford Code
of Ordinances, c. 203 (vehicles and traffic). Thus, bicy-
clists in the town may be classified as travelers over
the sidewalk or highway at different points throughout
their journey, and whether they retain their status as a
traveler over the highway when they move to the side-
walk is a ‘‘question . . . of degree and fact’’ for the
jury. Hay v. Hill, supra, 137 Conn. 291. Here, because
Nicholas began his journey on the shoulders of the
highway and moved to the sidewalk out of safety con-
cerns, we cannot say, as a matter of law, that Nicholas
did not retain his status as a traveler over the highway
when he moved to the sidewalk and fell into the cul-
vert.15 Accordingly, the trial court properly denied the
commissioner’s motion to dismiss on this ground.16
II
We next consider the commissioner’s claim that the
trial court improperly denied his motion to dismiss
because the plaintiffs failed to allege sufficient facts
from which a jury could find that the culvert constitutes
a highway defect actionable under § 13a-144. The plain-
tiffs alleged in their complaint that the culvert is defec-
tive because the commissioner failed to erect a ‘‘fence,
rail, or a barrier’’ near the sidewalk to warn pedestrians
and bicyclists approaching from the sidewalk of the
existence of the culvert, to provide ‘‘reasonable light-
ing’’ near the culvert, and/or to ‘‘reasonably maintain
the area,’’ which was ‘‘overgrown with grass, foliage
and . . . brush’’ that concealed the existence of the
culvert. The commissioner claims, however, that the
culvert cannot constitute a highway defect as a matter
of law because it is in an area unintended for public
travel. In response, the plaintiffs argue that because the
sidewalk led directly to the culvert, and bicyclists were
invited and expected to utilize the sidewalk in connec-
tion with their travel over Route 113, a jury could find
that the state reasonably should have expected bicy-
clists to traverse the culvert area, albeit by accident.
Thus, the plaintiffs assert that the state should have
maintained the culvert in a manner such that bicyclists
and pedestrians approaching the culvert from the side-
walk would be alerted to its existence. We agree with
the plaintiffs, and conclude that the record in this case
could support a finding that the culvert was a highway
defect under § 13a-144, because it may be an area in
which the state reasonably should have expected bicy-
clists and pedestrians to travel.17
‘‘[A] highway defect is [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 posi-
tion, would be likely to produce that result . . . .’’
(Internal quotation marks omitted.) Kozlowski v. Com-
missioner of Transportation, supra, 274 Conn. 502–
503. ‘‘[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.’’ Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d
859 (1979).
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. See Koz-
lowski v. Commissioner of Transportation, supra, 274
Conn. 504–505; Chazen v. New Britain, 148 Conn. 349,
353, 170 A.2d 891 (1961). ‘‘[If] the state either invites
or reasonably should expect the public to use a particu-
lar 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.’’ Kozlowski v. Commissioner of
Transportation, supra, 504–505. The fact that the defec-
tive condition is in an area where members of the public
are ‘‘likely, and in fact encouraged, to use is an
important consideration.’’ Baker v. Ives, supra, 162
Conn. 301–302.
‘‘Whether a condition in a highway constitutes a
defect must be determined in each case on its own
particular circumstances.’’ Chazen v. New Britain,
supra, 148 Conn. 353. ‘‘[The state] is not bound to make
the roads absolutely safe for travel. . . . Rather, the
test is whether . . . the state has exercised reasonable
care to make and keep such roads in a reasonably safe
condition for the reasonably prudent traveler.’’ (Internal
quotation marks omitted.) Kozlowski v. Commissioner
of Transportation, supra, 274 Conn. 503. ‘‘To define in
general terms the precise limits of the duty of [the
commissioner] in these cases is not an easy matter
. . . .’’ (Internal quotation marks omitted.) McIntosh v.
Sullivan, supra, 274 Conn. 273. ‘‘Generally, the question
. . . is one of fact, depending on a great variety of
circumstances, and this court will find error only when
the conclusion is one which could not be reasonably
reached by the trier.’’ Chazen v. New Britain, supra,
353.
As noted previously, this court has recognized that
defective conditions in areas unintended for public
travel, in the strict sense, may nonetheless qualify as
highway defects if the state reasonably should have
expected the public to traverse the area in connection
with their travel over the highway.18 See Kozlowski v.
Commissioner of Transportation, supra, 274 Conn.
504–505. For example, in Hay v. Hill, supra, 137 Conn.
286–91, this court held that an unguarded culvert eight
to twelve feet from the road could constitute a highway
defect, when the passenger of a motor vehicle exited
the vehicle, walked across some shrubs and weeds adja-
cent to the highway, and fell into the culvert. Likewise,
in Baker v. Ives, supra, 162 Conn. 300–301, this court
concluded that a grassy area between a parking space
and sidewalk along a highway that had accumulated
snow and ice could constitute a highway defect, when
a motorist that had parked her car slipped and fell in
the area, thirty-two feet from the road, while attempting
to reach the sidewalk. The court stated in Baker that,
‘‘[t]his is not a situation where the [motorist] crossed
an area not intended for pedestrian travel . . . the pub-
lic in general were encouraged to use this area for
parking and it was reasonably to be expected that after
parking her car the [motorist] would cross the . . .
area to reach the sidewalk.’’ (Citation omitted.) Id., 301.
We similarly concluded in Ferreira v. Pringle, supra,
255 Conn. 334, 352, that the stub of a signpost embedded
in the grass along a highway seven feet from the road
could constitute a highway defect, when a passenger
disembarking from a bus stepped on the signpost and
injured himself. We reasoned that ‘‘it is clear . . . that
the defective condition was in an area where bus pas-
sengers were likely, and in fact encouraged, to disem-
bark . . . .’’ (Citation omitted.) Id., 350; see also
Serrano v. Burns, supra, 248 Conn. 429 (icy parking lot
of rest area along highway could constitute highway
defect because state invited motorists to use rest area,
and there was ‘‘no significant difference’’ between area
‘‘adjacent to the traveled portion of a highway’’ and
area ‘‘away from the traveled portion of the highway’’
that state invited public to use).
Conversely, defective conditions in areas where the
public was neither invited nor reasonably expected to
traverse cannot, as a matter of law, constitute a highway
defect. For instance, we held in Kozlowski v. Commis-
sioner of Transportation, supra, 274 Conn. 502–504,
that a catch basin with a faulty cover, located in a grass
area adjacent to the highway, could not, as a matter
of law, constitute a highway defect. We reasoned that
‘‘while the catch basin is near the roadway . . . it is
in an area unintended for automobile or pedestrian
travel.’’ Id., 504. We further reasoned that ‘‘it is clear that
the public is neither invited nor expected to traverse the
catch basin area.’’ Id., 505. Similarly, in Chazen v. New
Britain, supra, 148 Conn. 353, this court held that an
unguarded ditch five feet from the roadway could not
constitute a highway defect, when a motorist fell into
the ditch after parking his vehicle and crossing a patch
of unmowed grass to reach a public park, rather than
utilize the ‘‘traveled way’’ to the park. The court noted
that ‘‘[i]n taking the route he did, [the motorist] chose
to cross an area which was not intended for pedestrian
travel.’’ Id., 352. The court further explained that: ‘‘When
our residential streets are laid out, it is common practice
to provide space for purposes other than those of ordi-
nary travel. . . . The general proposition that the pub-
lic is entitled to the free use of any part of a public street
must be accepted with the qualification that certain
portions of the street may, for the benefit and conve-
nience of the public, be devoted to purposes other than
travel. . . . Since it is not intended that there shall
be travel on such areas, travelers who leave the way
provided for them and attempt to cross such areas
may not assume that the areas are free from danger or
unusual conditions . . . .’’19 Id., 353–54.
We conclude that the trial court properly denied the
commissioner’s motion to dismiss because a jury rea-
sonably could find that the state reasonably should have
expected the public to traverse the culvert area, which
would render the culvert a highway defect actionable
under § 13a-144.20 A jury could reach this conclusion
because: (1) the sidewalk led directly to the culvert;
(2) the sidewalk is an area intended for public travel;
and (3) bicyclists were invited and reasonably expected
to utilize the sidewalk, when necessary, in connection
with their travel over Route 113. See Kozlowski v. Com-
missioner of Transportation, supra, 274 Conn. 504–
505. The culvert, at nine feet from the road, is nearly
identical to that considered in Hay, which was eight
to twelve feet from the road. See Hay v. Hill, supra,
137 Conn. 281–88. Additionally, members of the public
were ‘‘likely, and in fact encouraged’’ to use the side-
walk when traveling on Route 113—albeit by the town,
rather than the state—as in Baker and Ferreira. See
Ferreira v. Pringle, supra, 255 Conn. 350; Baker v. Ives,
supra, 162 Conn. 299; see also Rivers v. New Britain,
288 Conn. 1, 22 n.18, 950 A.2d 1247 (2008) (‘‘[w]hen a
municipality places a sidewalk next to a road, it invites
pedestrians to use the sidewalk’’). Pedestrians were
actually required to use the sidewalk; see General Stat-
utes § 14-300c (a); Bellman v. West Hartford, supra,
96 Conn. App. 394 (duty under highway defect statute
‘‘extends to pedestrian travel as well as to vehicular
traffic’’ [internal quotation marks omitted]); and bicy-
clists could utilize the sidewalk as a ‘‘necessary inci-
dent’’ to their travel over Route 113. Kozlowski v.
Commissioner of Transportation, supra, 504.
More importantly, because the sidewalk led directly
to the culvert, a jury reasonably could find that this
unique fact brings the plaintiffs’ claim within the pur-
view of § 13a-144. See, e.g., Bartlett v. Metropolitan
District Commission, 125 Conn. App. 149, 161, 7 A.3d
414 (2010) (storm drain maintained by municipal
authority, located on sidewalk maintained by city, could
constitute highway defect under § 13a-149; ‘‘[s]ince the
cover of the storm drain was located on a sidewalk,
it was reasonable to anticipate that the public would
encounter it in the ordinary course of travel’’), cert.
denied, 300 Conn. 913, 13 A.3d 1101 (2011). Thus, a jury
reasonably could conclude that without posts facing the
sidewalk, adequate lighting in the area, and sufficient
maintenance of the brush that concealed the culvert,
those using the sidewalk—bicyclists in particular—
might attempt to continue their journey by crossing
the driveway and grass, and inadvertently fall into the
culvert without realizing that the sidewalk had ended,
especially at night.21 See Hay v. Hill, supra, 137 Conn.
289 (The jury could have reasonably concluded that the
state ‘‘should have corrected the defect or protected
[the culvert] by a railing or both. . . . It was a question
of fact.’’). This element is missing from Kozlowski and
Chazen, and we find those cases distinguishable on that
basis. Unlike in Kozlowski, a jury might reasonably find
that bicyclists could have been expected to accidentally
traverse the culvert area due to the positioning of the
sidewalk and culvert. See Kozlowski v. Commissioner
of Transportation, supra, 274 Conn. 504. Additionally,
unlike the motorist in Chazen, a jury reasonably might
find that Nicholas did not purposely ‘‘leave the way
provided for [him],’’ and instead, fell into the culvert
while attempting to recommence his travel over the
state highway.22 Chazen v. New Britain, supra, 148
Conn. 353.
The commissioner argues that, as a matter of law, a
jury cannot find that the state reasonably should have
expected the public to traverse the culvert area because
the sidewalk ended at a private driveway and small
patch of lawn shortly before the culvert. He claims that,
because the driveway and lawn are on private property,
members of the public were neither invited nor
expected to traverse those areas and, thus, the state
could not reasonably have expected members of the
public to fall into the culvert. We disagree. ‘‘The term
sidewalk is meant to apply to those areas that the public
uses for travel.’’ (Internal quotation marks omitted.)
Bellman v. West Hartford, supra, 96 Conn. App. 395.
‘‘The essential feature of a public use is that it is not
confined to privileged individuals or groups whose fit-
ness or eligibility is gauged by some predetermined
criteria, but is open to the indefinite public. It is the
indefiniteness or unrestricted quality of potential users
that gives a use its public character.’’ (Internal quotation
marks omitted.) Cuozzo v. Orange, 147 Conn. App. 148,
158, 82 A.3d 647 (2013), aff’d, 315 Conn. 606, 109 A.3d
903 (2015). As such, this court has not necessarily found
it dispositive that a plaintiff briefly crossed private prop-
erty while attempting to travel over a public way. See,
e.g., Sedita v. Steinberg, 105 Conn. 1, 5–8, 134 A. 243
(1926) (jury in tort case could find that pedestrian was
in ‘‘lawful use of the public highway, with the legal
status of a traveler’’ when he walked on private property
between buildings and curb, because space was
‘‘entirely open, and apparently open for the use of all
travelers who might choose to avail themselves of it
. . . and not marked off from, the sidewalk proper’’);
Crogan v. Schiele, 53 Conn. 186, 197–98, 1 A. 899 (1885)
(pedestrian did not necessarily cease to use highway
as traveler when she stepped into unguarded opening
on private property between building and sidewalk,
concluding ‘‘[t]here was nothing to mark the exact line
of separation between the sidewalk and the [private]
lot,’’ and, thus, ‘‘[t]he entire space [from the street] to
the [building] was apparently a public sidewalk: it does
not appear [the pedestrian] knew anything to the con-
trary . . . the [landowner] had thrown open to the pub-
lic and made part of the public domain that part of
his property covered by th[e] extended sidewalk’’).23
Rather, when it is unclear whether an area is ‘‘open to
the public,’’ we have generally left the question to the
finder of fact. Pramuka v. Cromwell, 160 Conn. App.
863, 878, 127 A.3d 320 (2015); see also id. (whether
parking lot and driveways on property of public school
‘‘are open to the public or contain sufficient restrictions
that would limit their public availability cannot be deter-
mined on the basis of the record . . . and, in fact, may
be questions more appropriately answered by a jury’’),
cert. denied, 320 Conn. 908, 128 A.3d 952 (2015); Bell-
man v. West Hartford, supra, 395 (court should have
held evidentiary hearing to determine whether driveway
of community center was ‘‘open [to] the public and
. . . actually used by the public’’; issue was ‘‘question
for the fact finder’’); see also Klein v. Norwalk, 305
Fed. Appx. 745, 747–48 (2d Cir. 2009) (drainage grate in
municipal parking lot could constitute highway defect
under § 13a-149 because pedestrians were expected and
reasonably anticipated to traverse area, which was open
to public, actually used by public, and incident to travel
on surrounding roadways and sidewalks).24
In the present case, the sidewalk crosses at least two
private driveways before the driveway leading to the
culvert. Although these driveways create a temporary
break in the sidewalk, the sidewalk evidently continues
immediately beyond them. It may not appear to a pedes-
trian or bicyclist that he or she must revert to the shoul-
der of the road upon encountering these driveways,
rather than simply cross the driveways and continue
on the path of the sidewalk. Put differently, the presence
of the driveway immediately before the culvert may
not have indicated to a bicyclist or pedestrian that the
sidewalk was ending. The small patch of lawn also does
not appear significant enough to alert a bicyclist or
pedestrian to this fact, at least in time for them to return
to the road and avoid falling into the culvert.25 Indeed,
Nicholas testified at his deposition that he did not real-
ize the sidewalk was ending when he fell into the
culvert.26 See Bartlett v. Metropolitan District Commis-
sion, supra, 125 Conn. App. 161 (‘‘the term public travel
refers to the normal or reasonably anticipated uses that
the public makes of a highway in the ordinary course
of travel’’ [internal quotation marks omitted]). More-
over, all of these features—the sidewalk, part of the
driveway, and the small patch of lawn—are located
within the state right-of-way line. A jury might therefore
conclude that the state should have reasonably
expected that pedestrians or bicyclists—especially
bicyclists at night—would accidentally cross the drive-
way and small patch of grass and, before realizing that
the sidewalk had ended, fall into the culvert.27 Nicholas
did just that, and the plaintiffs have, therefore, estab-
lished a cognizable highway defect claim under § 13a-
144. Accordingly, we conclude that the trial court prop-
erly denied the commissioner’s motion to dismiss.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER,
ZARELLA and EVELEIGH, Js., concurred.
1
General Statutes § 13a-144 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 . . . .’’
2
The commissioner appealed from the denial of his motion to dismiss to
the Appellate Court, and we transferred the appeal to this court pursuant
to General Statutes § 51-199 (c) and Practice Book § 65-1. ‘‘Despite the
general rule that interlocutory rulings are not immediately appealable, the
denial of a motion to dismiss based on a colorable claim of sovereign
immunity is an appealable final judgment.’’ Cummings v. Dept. of Transpor-
tation, 313 Conn. 197, 199 n.3, 96 A.3d 552 (2014).
3
The commissioner appears to concede that these facts are undisputed.
4
Several of Nicholas’ friends were riding their bicycles along with him.
Nicholas led the group when he moved to the sidewalk.
5
The state right-of-way line extends just beyond the sidewalk. Thus, the
sidewalk, culvert, and part of the driveway and lawn are all within the state
right-of-way.
6
At oral argument before this court, the commissioner appeared to chal-
lenge the department’s responsibility for maintaining the culvert, for the
first time in this case. We decline to consider this claim because it ‘‘is well
settled that claims on appeal . . . cannot be raised for the first time at oral
argument before the reviewing court.’’ (Internal quotation marks omitted.)
Kramer v. Petisi, 285 Conn. 674, 686 n.10, 940 A.2d 800 (2008).
7
‘‘To prove a breach of statutory duty under [§ 13a-144], the plaintiff must
prove by a preponderance of the evidence: (1) that the highway was defective
as claimed; (2) that the [commissioner] actually knew of the particular
defect or that, in the exercise of [his] supervision of highways in the city,
[he] should have known of that defect; (3) that the [commissioner], having
actual or constructive knowledge of this defect, failed to remedy it having
had a reasonable time, under all the circumstances, to do so; and (4) that
the defect must have been the sole proximate cause of the injuries and
damages claimed, which means that the plaintiff must prove freedom from
contributory negligence.’’ (Internal quotation marks omitted.) Stotler v. Dept.
of Transportation, 142 Conn. App. 826, 835, 70 A.3d 114 (2013), aff’d, 313
Conn. 158, 96 A.3d 527 (2014).
8
For defective conditions in sidewalks, local roads, and bridges main-
tained by municipalities, one may assert a highway defect claim under § 13a-
149. Section 13a-149 imposes a duty on municipalities equivalent to the duty
imposed on the state by § 13a-144. ‘‘There is no substantial difference in
the duties imposed by [§§ 13a-144 and 13a-149] . . . .’’ Comba v. Ridgefield,
177 Conn. 268, 269–70, 413 A.2d 859 (1979). As such, case law arising under
§ 13a-149 is instructive with respect to claims brought against the state
pursuant to § 13a-144. See, e.g., McIntosh v. Sullivan, supra, 274 Conn.
266 n.4.
9
Although the facts are undisputed for purposes of the commissioner’s
appeal from the denial of his motion to dismiss, the state’s ultimate liability
under § 13a-144 nevertheless turns on the fact finder’s determination with
respect to whether Nicholas’ travel on the sidewalk fell within the ‘‘[r]eason-
able latitude’’ afforded to travelers on the highway, or whether he had
‘‘forfeited [his] rights’’ under § 13a-144. Hay v. Hill, supra, 137 Conn. 290;
see Serrano v. Burns, supra, 248 Conn. 429.
10
In making this determination, we respectfully disagree with the dissent’s
focus on the fact that Nicholas was riding his bicycle against traffic ‘‘in
a manner contrary to established highway rules and regulations,’’ which,
according to the dissent, resulted in a ‘‘self-created’’ exigency. The commis-
sioner does not contend that it was improper for Nicholas to ride ‘‘against
traffic’’ before moving to the sidewalk, or otherwise argue that this fact
affects our analysis of whether Nicholas may be considered a traveler on
the highway.
11
It is unclear from the record how ‘‘heavy’’ the traffic was on Route
113, or whether that traffic volume continued after Nicholas moved to
the sidewalk.
12
Nicholas did not state in his deposition whether he planned to return
to the roadway. Photographs in the record reveal that Nicholas could have
continued over a grassy area toward Cutspring Road when the sidewalk
ended, had he not fallen into the culvert, or returned to the shoulder of
Route 113 before turning left. We respectfully disagree with the dissent’s
contention that ‘‘Nicholas’ exact trajectory upon departing Route 113 is
ultimately irrelevant.’’ This evidence is for the fact finder to weigh in
determining whether Nicholas ‘‘turned aside from his journey for a purpose
in no way connected with his passage over the highway,’’ and whether
exigent circumstances were present. O’Neil v. New Haven, supra, 80 Conn.
156. It is for this precise reason that the issue is more appropriate for
consideration at trial. See Conboy v. State, supra, 292 Conn. 654 (issue of
sovereign immunity could not be resolved on motion to dismiss because
state’s argument ‘‘turned on [the] particular resolution of [a] factual dispute’’
requiring ‘‘a full trial on the merits of the action’’).
13
The dissent’s suggestion that exigent circumstances were not present
because Nicholas ‘‘voluntarily left Route 113 due to the heavy traffic’’ directly
conflicts with this court’s recognition that modern traffic may constitute
an exigency requiring a traveler to depart from the immediate roadway. See
Ferreira v. Pringle, supra, 255 Conn. 347; Minacci v. Logudice, 126 Conn.
345, 348, 11 A.2d 354 (1940); see also Rusch v. Cox, supra, 10 Conn. Supp. 526.
As such, a fact finder could reasonably conclude that exigent circumstances
forced Nicholas to depart from the roadway, thus rendering him a traveler
on the highway for the purposes of § 13a-144. Again, we make no judgment
as to the likeliness of this finding, and simply hold that a ‘‘critical factual
dispute’’ prevents us from resolving the question of the trial court’s jurisdic-
tion at this juncture. Conboy v. State, supra, 292 Conn. 652.
14
General Statutes (Rev. to 2011) § 14-286 (a) provides in relevant part:
‘‘Each person operating a bicycle upon and along a sidewalk or across any
roadway upon and along a crosswalk shall yield the right-of-way to any
pedestrian . . . . No person shall operate a bicycle upon or along a sidewalk
or across a roadway upon and along a crosswalk if such operation is prohib-
ited by any ordinance of any city, town or borough . . . .’’ See also General
Statutes § 14-286a (b) (‘‘[e]very person operating a bicycle solely by hand
or foot power upon and along any sidewalk . . . shall be granted all of the
rights and shall be subject to all of the duties applicable to pedestrians
walking in such areas’’).
15
We also note that the question of whether Nicholas could also have
been deemed to be a traveler on the sidewalk when he fell into the culvert
is irrelevant to our analysis. The plaintiffs do not allege a defect in the
sidewalk, although they could have framed the alleged defect in this manner
in an effort to invoke § 13a-149. See also footnote 8 of this opinion. Rather,
the plaintiffs distinctly alleged a defect in the highway actionable against
the state under § 13a-144. Thus, the relevant question is whether Nicholas
was a traveler over the highway when he fell into the culvert. See Tuckel
v. Argraves, supra, 148 Conn. 358.
16
The dissent’s concern that our holding will ‘‘ ‘eviscerate’ ’’ the state’s
sovereign immunity and ‘‘greatly increase the scope of its liability’’ under
§ 13a-144 is greatly exaggerated for at least three important reasons. First,
not all bicyclists traveling on the sidewalk may conceivably be classified
as travelers on the highway. If, for instance, a bicyclist never travels in the
shoulder of the roadway itself, a jury may not be able to find that he or she
was ever a traveler on the highway. Second, even if all bicyclists traveling
on the sidewalk are characterized as travelers on the highway, the state
will not be liable for most injuries that result from this situation. Municipali-
ties, rather than the state, are generally responsible for maintaining most
sidewalks, even those adjacent to state highways. See, e.g., Hornyak v.
Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Moleske v. MacDonald,
109 Conn. 336, 339, 146 A. 820 (1929); see General Statutes § 13a-144 (state
only responsible for defects in sidewalks which commissioner has ‘‘duty
. . . to keep in repair’’); see also Cartwright v. Frankel, Superior Court,
judicial district of Windham, Docket No. CV-94-0048749-S (March 19, 1996)
(16 Conn. L. Rptr. 322) (bicyclist could not maintain action against commis-
sioner for defective condition in sidewalk abutting state highway because,
as matter of law, commissioner ‘‘had no duty to maintain or repair the
sidewalk’’). Third, our holding is limited to the unique facts of this case,
wherein a municipal sidewalk leads directly to a hidden unguarded culvert
maintained by the state. Thus, our conclusion that factual issues need to
be resolved by a fact finder to determine whether the state enjoys sovereign
immunity in this case will not, as the dissent suggests, ‘‘invit[e] a plethora
of highway defect claims brought by plaintiffs whose injuries have only
dubious connections to actual state highway defects.’’
17
Although the facts are undisputed for purposes of this appeal from the
denial of the motion to dismiss, the state’s liability nevertheless depends
on a fact finder’s ultimate determination with respect to whether the state
reasonably should have expected the public to traverse the culvert area.
See McIntosh v. Sullivan, supra, 274 Conn. 296 (Katz, J., dissenting) (‘‘[t]o
the extent that there is a question in the present case as to whether the
connection to the roadbed is sufficient . . . that is a question for the trier
of fact’’); Serrano v. Burns, supra, 248 Conn. 426 (‘‘ ‘[w]hether there is a
defect in such proximity to the highway so as to be considered ‘‘in, upon,
or near the traveled path’’ of the highway must be determined on a case-
by-case basis after a proper analysis of its own particular circumstances,
and is generally a question of fact for the jury, which will not be disturbed
by this court unless the conclusion is one which could not be reasonably
reached by the trier’ ’’).
18
We note that the commissioner does not argue that the culvert does
not ‘‘ ‘obstruct or hinder’ ’’ travel over the sidewalk—and, incidentally, the
highway—simply because the sidewalk ends before the culvert. Kozlowski
v. Commissioner of Transportation, supra, 274 Conn. 502–503. Accordingly,
we focus on the commissioner’s claim that the culvert is in an area unin-
tended for public travel, and the state should not have reasonably expected
members of the public to encounter it, because they would have to cross
a private driveway and lawn to reach it. See Horrigan v. Washington, 144
Conn. App. 536, 545–46, 72 A.3d 1265 (jury reasonably concluded that storm
drain in grassy area more than three feet from paved portion of road was
not highway defect under § 13a-149; drain was in area ‘‘expected to be used
by travelers, but not in a position so as to necessarily obstruct or hinder
the common use of the road,’’ contrasted with obstructions such as ‘‘a
pothole or an exposed culvert in the paved portion’’ of the road [internal
quotation marks omitted]), cert. denied, 310 Conn. 939, 83 A.3d 344 (2013).
19
In light of Hay, we respectfully disagree with the dissent’s contention
that Kozlowski and Chazen provide ‘‘clear guidance’’ on this issue. See
Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 502–504;
Chazen v. New Britain, supra, 148 Conn. 353–54; Hay v. Hill, supra, 137
Conn. 287. Moreover, despite the dissent’s contention to the contrary, we
believe that Hay bears more than ‘‘some similarity’’ to the present case. In
both Hay and the present case, the defect at issue was an unguarded culvert
between eight to twelve feet from the road covered in shrubbery. Hay
v. Hill, supra, 286–87. Thus, we look more aptly to Hay in making our
determination, despite the dissent’s characterization of Kozlowski as ‘‘most
instructive.’’ See Kozlowski v. Commissioner of Transportation, supra, 499.
We further disagree with the dissent’s bases for distinguishing Hay. The
dissent first notes that the culvert in Hay was unmarked, ‘‘despite the state’s
practice at that time of placing posts on the road side of culverts,’’ and that,
in the present case, the culvert had posts facing the road. However, the
plaintiff in Hay approached the culvert from the road and, thus, the existence
or absence of posts facing the road was at issue. Hay v. Hill, supra, 137
Conn. 286–87. Here, because Nicholas approached the culvert from the
sidewalk, the issue in this case with respect to liability is whether posts or
other warnings facing the sidewalk were necessary. As such, the lack of
posts facing the road in Hay is an insufficient basis for distinguishing that
case. Likewise, we fail to see how the fact that Hay involved a challenge
to a jury verdict—as opposed to a motion to dismiss on the ground of
sovereign immunity—affects our analysis. The ultimate issue—whether a
jury could reasonably find that the hidden unguarded culvert constitutes a
highway defect—is the same. See Conboy v. State, supra, 292 Conn. 654.
20
As a preliminary matter, we note that it is undisputed that the culvert
is located within the state right-of-way line. See Serrano v. Burns, supra,
248 Conn. 427 n.7 (‘‘[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’’); see also Ferreira v. Pringle, supra, 255 Conn. 350.
The culvert itself is also maintained by the state and is part of the state
highway system. But see footnote 6 of this opinion.
21
We note that a police report completed on the night of the accident
states that the owner of one of the residences near the culvert had informed
town engineers about ‘‘the overgrown brush surrounding the . . . culvert
as well as . . . [the] lack of guard rails on either side of it’’ two weeks
before the accident.
22
Although the dissent criticizes us for ‘‘[b]ypassing the well settled
requirement that waivers of sovereign immunity should be strictly construed
in favor of the state,’’ we question whether the dissent has given sufficient
consideration to the principles that: (1) when ruling on a motion to dismiss,
the trial court ‘‘must consider the allegations of the complaint in their most
favorable light’’; (internal quotation marks omitted) Kozlowski v. Commis-
sioner of Transportation, supra, 274 Conn. 501; (2) ‘‘in determining whether
a court has subject matter jurisdiction, every presumption favoring jurisdic-
tion should be indulged’’; (internal quotation marks omitted) Conboy v.
State, supra, 292 Conn. 650; (3) travelers are afforded ‘‘reasonable latitude
. . . to meet the exigencies of travel’’; Hay v. Hill, supra, 137 Conn. 290;
and (4) ‘‘[w]hether there is a defect in such proximity to the highway so as
to be considered in, upon, or near the traveled path of the highway must
be determined on a case-by-case basis after a proper analysis of its own
particular circumstances, and is generally a question of fact for the jury
. . . .’’ (Internal quotation marks omitted.) Baker v. Ives, supra, 162 Conn.
300. In prioritizing the principle that waivers of sovereign immunity should
be strictly construed in favor of the state, the dissent’s reliance on Stotler
v. Dept. of Transportation, 313 Conn. 158, 187–88, 96 A.3d 527 (2014), is
misplaced. That principle did not govern the result in Stotler. Stotler involved
an alleged defect in the design of a highway, and this court therefore empha-
sized, in concluding that the plaintiff’s claim was barred by sovereign immu-
nity, that it did not fall within the ‘‘narrow exception in [Hoyt v. Danbury,
69 Conn. 341, 37 A. 1051 (1897)] to the general rule precluding liability for
design defects.’’ (Emphasis added.) Stotler v. Dept. of Transportation, supra,
313 Conn. 174. Moreover, this court recognized in Stotler that, under the
plaintiff’s theory of liability, based simply on the highway’s ‘‘steep downhill
grade’’ and lack of safety measures, ‘‘virtually every design defect claim
pertaining directly to the layout of the road would be actionable . . . . We
simply cannot construe the defective highway statute in a manner that would
eviscerate the general rule precluding liability for design defect claims
under Hoyt and its progeny.’’ (Citations omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) Id., 182. The present case, by
contrast, does not involve a design defect, but rather, a hidden unguarded
culvert maintained by the state at the end of a municipal sidewalk. As
explained previously; see footnote 16 of this opinion; our holding that genu-
ine issues of material fact exist as to the state’s sovereign immunity in this
unique case will not result in ‘‘virtually every’’ highway defect claim being
actionable. Stotler v. Dept. of Transportation, supra, 313 Conn. 182.
23
See also Giarnese v. Litchfield, Superior Court, judicial district of Litch-
field, Docket No. CV-12-6006890-S (May 6, 2013) (56 Conn. L. Rptr. 97, 98)
(motorcyclist’s claim actionable under § 13a-149 because, although accident
occurred on private property, road appeared to be extension of public road
on which motorcyclist was traveling; motorists were ‘‘likely to mistake entry
to [private] property as a continuation of a public street’’); Dawson v. New
Haven, Superior Court, judicial district of New Haven, Docket No. CV-08-
5016831-S (October 26, 2009) (denying city’s motion for summary judgment
on § 13a-149 claim because issue of fact existed as to whether walkway
was public sidewalk or private walkway, despite fact that walkway was on
private property and installed by private developer).
24
Cf. Cuozzo v. Orange, supra, 147 Conn. App. 164 (pothole in driveway
of shopping center could not constitute highway defect under § 13a-149
because driveway led to private retail stores and was not in public area that
‘‘one may reasonably anticipate is open to all . . . a myriad of restrictions of
use may limit travel to certain persons, certain types of use or certain types
of vehicles . . . nothing in the record . . . suggests that the driveway was
open for the unrestricted use of all public travelers generally’’); Read v.
Plymouth, 110 Conn. App. 657, 665–66, 955 A.2d 1255 (pedestrian’s claim
failed under § 13a-149 when he fell into dumpster at town waste station
because access to station was restricted to residents, and thus, not generally
open to public; station was restricted to permit holding residents, open
during limited hours, and guarded by locked gate during off-hours), cert.
denied, 289 Conn. 955, 961 A.2d 421 (2008).
25
Contrary to the dissent’s assertions, a jury could reasonably conclude
that Nicholas’ ride over the driveway and small patch of lawn was not a
conscious choice and intentional forgoing of his opportunity to return to
Route 113, but rather, an inadvertent mistake, especially since it was dark.
We do not ‘‘speculatively suggest,’’ as the dissent asserts, that this interpreta-
tion of Nicholas’ ride is the correct one; we simply use it to demonstrate
that there are issues of fact that need to be decided by a fact finder in
order to determine whether the state enjoys sovereign immunity from the
plaintiffs’ claim.
26
Nicholas stated: ‘‘I was riding and I felt the sidewalk end. . . . I felt
grass, and then I went into the ditch . . . .’’
27
In sum, the record has not been sufficiently developed for us to deter-
mine, as a matter of law, that Nicholas was not a traveler on the highway
when he fell into the culvert, or that the culvert is not a highway defect.
‘‘[W]here a jurisdictional determination is dependent on the resolution of a
critical factual dispute, it cannot be decided on a motion to dismiss . . . .’’
(Internal quotation marks omitted.) Stotler v. Dept. of Transportation, supra,
313 Conn. 187. Rather, an evidentiary hearing may be necessary to determine
these ‘‘critical factual dispute[s]’’; Conboy v. State, supra, 292 Conn. 652; or
the trial court may ‘‘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.’’ Id., 654 n.16. Thus, ‘‘we
conclude that, at this stage of the proceedings, an unresolved factual dispute
exists that renders consideration of the state’s legal argument premature.’’
Id., 645.