Wasilewski v. Commissioner of Transportation ( 2014 )

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WALTER WASILEWSKI v. COMMISSIONER
OF TRANSPORTATION
(AC 35019)
Beach, Mullins and Borden, Js.
Argued May 20—officially released September 2, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Matthew J. Corcoran, for the appellant (plaintiff).
Lorinda S. Coon, with whom, on the brief, was Jacob
P. Riley, for the appellee (defendant).
Opinion
MULLINS, J. The plaintiff, Walter Wasilewski, appeals
from the judgment of the trial court granting the motion
to dismiss filed by the defendant, the Commissioner of
Transportation. The plaintiff claims that the trial court
improperly (1) did not hold oral argument before it
granted the motion to dismiss, and (2) ruled that it
lacked subject matter jurisdiction over his action
because his notice to the defendant of the alleged high-
way defects was patently defective and therefore insuf-
ficient under General Statutes § 13a-144. We affirm the
judgment of the trial court.
The following facts, as alleged in the plaintiff’s com-
plaint, and procedural history are relevant to the pre-
sent appeal. On December 11, 2010, at approximately
7 p.m., the plaintiff rode his bicycle in a southerly direc-
tion on Main Street, a state highway, in Middlefield. He
sustained injuries after he rode over a series of potholes,
all of which were located between 136 and 143 Main
Street. The plaintiff claimed that the defendant, by and
through his agents, employees, and servants, negli-
gently created, inspected, and maintained the specified
defects on the specified section of Main Street.
On March 10, 2011, the plaintiff served statutory
notice of his highway defect claim upon the defendant in
accordance with § 13a-144.1 The plaintiff alleged three
specific defects in his statutory notice.
The first defect he alleged was ‘‘a series of potholes
located along the center yellow line of Main Street
approximately 60 feet south of its intersection with
Ross [Road]2 and located between the properties known
as 143 Main Street, Middlefield, Connecticut and 140
Main Street, Middlefield, Connecticut.’’
The second defect he alleged was ‘‘a series of pot-
holes located in the southbound lane of travel of Main
Street, Middlefield, Connecticut located approximately
three feet north of the northern edge of the driveway
servicing the property know as 140 Main Street, Mid-
dlefield, Connecticut. These potholes were located
approximately midway between the yellow dividing line
and the western curbline of Main Street, Middlefield,
Connecticut.’’
The third defect he alleged was ‘‘a pothole on Main
Street, Middlefield, Connecticut located along the west-
ern curbline and abutting the south edge of the driveway
servicing the property known as 136 Main Street, Mid-
dlefield, Connecticut and abutting a small stone wall
fronting the property known as 136 Main Street, Mid-
dlefield, Connecticut.’’
After the plaintiff served this notice, on March 5,
2012, the defendant moved to dismiss the plaintiff’s
action on the ground that the plaintiff’s notice was
patently defective under § 13a-144. This defective
notice, the defendant claimed, deprived the court of
subject matter jurisdiction over the action. Specifically,
the defendant argued that ‘‘[t]he plaintiff has provided
a notice that is not vague, it is incorrect. The notice
identifies locations that do not exist.’’
Attached to the defendant’s motion to dismiss was
a true and accurate copy of an official tax assessment
map of a portion of the town of Middlefield that included
Main Street’s intersection with Ross Road. The map
shows that Main Street runs generally north and south;
when it reaches Ross Road, however, it turns and runs
generally in an easterly direction. On the portion of the
map that shows where Main Street runs in an easterly
direction, an office assistant for the Middlefield building
and land use department handwrote on the map the
house numbers for some of the properties on that sec-
tion of Main Street.
In particular, the office assistant transcribed the
house numbers for those houses located at 130, 136,
and 140 on the even numbered side of the street, and
135 and 143 across the street on the odd numbered side
of Main Street. These numbers also go in ascending
order as one travels from east to west. The court used
these house numbers to interpret the plaintiff’s statu-
tory notice.3 At house number 140 and where Main
Street intersects with Ross Road, Main Street turns in
a southerly direction. All these properties are located
to the east of the Ross Road and Main Street intersec-
tion; none of them is located to the south of that inter-
section.
On March 14, 2012, the plaintiff filed a motion for a
thirty day extension of time to respond to the defen-
dant’s motion to dismiss; the court granted that motion
on March 15, 2012. The plaintiff then filed a motion for
a ninety day extension of time to respond on April 9,
2012. The court granted it in part on April 23, 2012, and
ordered the plaintiff to file his brief on or before May
18, 2012. The plaintiff accordingly filed his objection to
the motion to dismiss on May 18, 2012. He did not
submit any exhibits in support of his objection and
instead relied upon the tax assessment map submitted
by the defendant. Neither party claimed the motion
to dismiss after the plaintiff filed his objection, and,
therefore, it never appeared on the short calendar.
Nonetheless, in a written memorandum of decision,
the court granted the motion to dismiss on July 26,
2012. The court found that the plaintiff alleged that he
was traveling southbound on Main Street at the time
of the accident; however, a person traveling southbound
on Main Street does not go from 143 Main Street to 136
Main Street. Therefore, as to the plaintiff’s first alleged
defect—potholes located sixty feet south of Main
Street’s intersection with Ross Road and between the
properties known as 143 and 140 Main Street—the court
found that there is no location that fits the plaintiff’s
description. The court noted that ‘‘neither 140 Main
Street nor 143 Main Street lie south of Ross Road.’’
As to the second defect—a series of potholes located
in the southbound travel lane approximately three feet
north of the north edge of the driveway servicing 140
Main Street—the court found that the plaintiff’s descrip-
tions set forth separate and mutually exclusive loca-
tions of the defect. Specifically, the court found that
three feet away from the driveway would be in the
northbound travel lane, as the southbound travel lane
runs in front of 143 Main Street, not 140 Main Street.
‘‘Therefore, the defect was either in the southbound
travel lane (in front of 143 Main Street) or three feet
north of 140 Main Street (in the northbound travel lane).
The defect could not be both in the southbound travel
lane and three feet north of 140 Main Street.’’
As to the third defect—a pothole located ‘‘along the
western curbline and abutting the south edge of the
driveway servicing the property known as 136 Main
Street’’—the court found that ‘‘Main Street does not
have a western curbline at 136 Main Street. It has north-
ern and southern curblines. Only the northern edge of
the 136 Main Street property abuts Main Street, so it is
not possible for the defect to be on Main Street and
abutting the south edge of the driveway. The area
described as the location of the third defect does not
exist.’’ (Emphasis in original.)
On the basis of the foregoing, the court concluded:
‘‘[T]he notice here was not merely vague, it was so
inaccurate that it described locations of the alleged
defects that were mutually exclusive, leaving the defen-
dant with no way to infer any reasonable estimate of
the location of the defects.’’ The plaintiff filed a motion
to reargue on August 15, 2012, in which he contended
that the court had deprived him of his right to have oral
argument on the motion and had incorrectly concluded
that his notice described ‘‘defects that were mutually
exclusive.’’ The court denied the motion to reargue on
August 16, 2012. This appeal followed.
The plaintiff claims that the court improperly did not
hold oral argument on the motion to dismiss before it
granted the motion, even though he was entitled to oral
argument as a matter of right under Practice Book § 11-
18. The plaintiff also claims that the court improperly
concluded that his notice was insufficient because ‘‘only
an absurd and unreasonable interpretation of the lan-
guage . . . would result in any confusion or question
as to the location described.’’ We are not persuaded by
either claim.
Before addressing the merits of the plaintiff’s claims,
we set forth our standard of review. ‘‘A motion to dis-
miss tests, inter alia, whether, on the face of the record,
the court is without jurisdiction. . . . [W]hether sub-
ject matter jurisdiction exists is a question of law, and
our review of the court’s resolution of that question is
plenary. . . . Likewise, whether the plaintiff’s notice
was patently defective and, thus, failed to meet statu-
tory requirements also is a question of law requiring our
plenary review.’’ (Citation omitted; internal quotation
marks omitted.) Tyson v. Sullivan, 77 Conn. App. 597,
601, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d
254 (2003). ‘‘Ordinarily, the question of the adequacy
of notice 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 facts in a particular case.
. . . Before submitting the question to the jury, how-
ever, the trial court must first determine whether, as a
matter of law, a purported notice patently meets or fails
to meet . . . the statutory requirements.’’ (Internal
quotation marks omitted.) Id., 601 n.7.
‘‘In enacting § 13a-144, the legislature explicitly
waived the state’s sovereign immunity in certain actions
in which the injuries allegedly resulted from a defective
highway. . . . [B]ecause there was no right of action
against the sovereign state at common law, a plaintiff,
in order to recover, must bring himself within § 13a-
144.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 602. ‘‘The test as to whether a notice of claim
is patently defective is not whether the written descrip-
tion is exactly the same as the other evidence of the
place of injury but rather . . . whether it provides suf-
ficient 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. The purpose of the requirement of notice
is to furnish the party against whom a claim was to be
made 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 protection. . . . Accord-
ingly, the sufficiency of notice is to be tested with refer-
ence to the purpose for which it is required . . . .
‘‘There are many circumstances when precision will
be difficult, if not impossible to achieve. . . . [P]reci-
sion is, therefore, not essential in order to comply with
[the notice provisions of] § 13a-144. . . . What is
required is reasonable definiteness.’’ (Citations omitted;
internal quotation marks omitted.) Serrano v. Burns,
70 Conn. App. 21, 25–26, 796 A.2d 1258, cert. denied,
261 Conn. 932, 806 A.2d 1066 (2002).
Turning first to the adequacy of the plaintiff’s statu-
tory notice, we conclude that the notice given to the
defendant failed to satisfy the statutory notice require-
ment. This court has determined that statutory notice
that provides the wrong location of the accident is inad-
equate notice. See Ozmun v. Burns, 18 Conn. App. 677,
680–81, 559 A.2d 1143 (1989). Here, the plaintiff has
done precisely that. The plaintiff’s notice provided loca-
tions of the defects that either did not exist or could
not have been geographically accurate. These descrip-
tions in turn resulted in a notice that lacked ‘‘reasonable
definiteness,’’ and therefore was patently defective
under § 13a-144. Accordingly, we agree with the court’s
analysis and assessment, and we reject the plaintiff’s
claim that the court ‘‘erred in granting the motion to
dismiss because the highway defects were properly
noticed.’’4
Our resolution of the merits of the plaintiff’s statutory
notice claim is also dispositive of the plaintiff’s claim
that he is entitled to a reversal because the court
improperly did not hold oral argument on the motion
to dismiss before granting it. In making his claim, the
plaintiff relies on Practice Book § 11-18 (a), which pro-
vides in relevant part: ‘‘Oral argument is at the discretion
of the judicial authority except as to motions to dismiss
. . . . For those motions, oral argument shall be a mat-
ter of right, provided: (1) the motion has been marked
ready in accordance with the procedure that appears
on the short calendar on which the motion appears, or
(2) a nonmoving party files and serves on all other
parties . . . a written notice stating the party’s inten-
tion to argue the motion or present testimony. Such a
notice shall be filed on or before the third day before
the date of the short calendar date and shall contain
(A) the name of the party filing the motion and (B) the
date of the short calendar on which the matter
appears.’’
‘‘[E]ven though Practice Book § 11-18 grants . . .
oral argument as a matter of right, it is not automatic
but must be claimed for argument as provided [by the
rule].’’ (Internal quotation marks omitted.) Curry v.
Allan S. Goodman, Inc., 95 Conn. App. 147, 152, 895
A.2d 266 (2006). The plaintiff further argues that he
could not claim the motion for oral argument as a matter
of right because it was not scheduled for short calendar
after he filed his objection to the motion to dismiss.
We agree with the plaintiff that he was entitled to
oral argument on the motion to dismiss as a matter of
right under Practice Book § 11-18. We nonetheless deem
the court’s decision to grant the motion without hearing
oral argument on it to be harmless error. ‘‘In order to
constitute reversible error . . . the ruling must be both
erroneous and harmful. . . . The burden of proving
harmful error rests on the party asserting it . . . and
the ultimate question is whether the erroneous action
would likely affect the result.’’ (Citations omitted.)
Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157(1982). The plaintiff contends that he ‘‘believes that the
court would have benefitted in making its decision if
it had heard oral argument on the [m]otion to [d]ismiss.’’
Given the extent of the patent deficiencies in the notice,
however, and the plenary standard of review that we
apply in this case, the court’s failure to hold oral argu-
ment on the motion before granting it was harmless
error. We therefore reject the plaintiff’s claim that the
court improperly failed to hold oral argument on the
motion to dismiss before granting it warrants a reversal
of the judgment.
The judgment is affirmed.
In this opinion the other judges 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 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
The plaintiff’s statutory notice refers to ‘‘Ross Street,’’ not Ross Road,
in Middlefield. We nonetheless treat the plaintiff’s references as being to
Ross Road. The parties do not dispute that the plaintiff intended to refer
to Ross Road, and the court likewise treated the plaintiff’s references to
Ross Street as being to Ross Road.
3
The tax assessment map also contains building lot numbers that are
printed on the map. The building lot numbers 136 and 140 are situated on
the section of Main Street that runs in the generally north and south direction.
Those building lots are located to the south of the intersection of Main
Street and Ross Road. Building lot number 143 is located to the east of the
intersection of Main Street and Ross Road. The building lot numbers and
the house numbers are not situated on the same pieces of property. The
plaintiff’s statutory notice simply makes reference to the ‘‘properties known
as’’ ‘‘136,’’ ‘‘140’’ and ‘‘143.’’ The plaintiff has not challenged, either in the
trial court or in this court, the trial court’s interpretation of the phrase
‘‘properties known as’’ to be a reference to the house numbers rather than
the building lot numbers. Thus, we will treat the plaintiff’s statutory notice
as referring to house numbers rather than building lot numbers, as did the
trial court.
4
During oral argument before this court, the plaintiff referred to the tax
assessment map and argued that the description in his notice pertained to
the building lot numbers 136, 140, and 143 located south of Main Street’s
intersection with Ross Road, not to the three house numbers 136, 140, and
143 that are located to the northeast of the intersection and that were
handwritten on the map. This argument does not help his case. First, the
court looks to the written notice to ascertain its adequacy and to determine
whether it provides reasonable definiteness regarding the time, place, and
location of the accident. See Ozmun v. Burns, supra, 18 Conn. App. 680–81
(rejecting plaintiff’s argument that notice was sufficient where plaintiff
claimed (1) statute only required general description and (2) availability of
photographs contributed to making notice sufficient).
Second, the plaintiff’s notice only uses the phrase ‘‘property known as’’
when referring to numbers 136, 140 and 143. There is no clarification in the
notice that was served on the defendant and presented to the court that
the phrase ‘‘property known as’’ was meant to refer to building lot numbers
rather than house numbers. Because the house numbers and building lot
numbers connote very different locations on the map, there is an inherent
ambiguity in the notice that the plaintiff provided. That ambiguity itself
supplies a further basis to conclude that the plaintiff’s notice was insufficient
because the description of two completely different locations of the place
of injury does not provide sufficient information that would have permitted
the defendant to gather information about this case intelligently. Indeed,
the accident could not have happened both where the building lots 136,
140, and 143 were located and also where the house numbers 136, 140, and
143 were located. See Zotta v. Burns, 8 Conn. App. 169, 174, 511 A.2d 373(1986) (notice is at best ambiguous and therefore insufficient under § 13a-
144 when it describes two locations where alleged accident occurred).