Graham v. Commissioner of Transportation , 168 Conn. App. 570 ( 2016 )

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BARRY GRAHAM v. COMMISSIONER
OF TRANSPORTATION
(AC 37975)
Sheldon, Prescott and West, Js.
Argued May 23—officially released October 4, 2016
(Appeal from Superior Court, judicial district of New
London, Devine, J. [motions to dismiss; judgment;
motion to reargue, set aside judgment]; Cole-Chu, J.
[summary judgment motion; judgment; articulation].)
Ralph J. Monaco, with whom, on the brief, was Eric
J. Garofano, for the appellant (plaintiff).
Lorinda S. Coon, for the appellee (defendant).
Opinion
SHELDON, J. The plaintiff, Barry Graham, appeals
from the summary judgment rendered by the trial court
in favor of the defendant, the Commissioner of Trans-
portation, in this action to recover damages under the
state defective highway statute, General Statutes § 13a-
144.1 The plaintiff commenced this action on July 9,
2012, to recover for injuries he claims to have suffered
on December 12, 2011, in a motor vehicle accident alleg-
edly caused by the sliding of the vehicle that he was
then operating on untreated black ice in the northbound
lanes of Interstate 95 as it crosses the Thames River
between New London and Groton on the Gold Star
Memorial Bridge. The trial court granted the defen-
dant’s motion for summary judgment on the ground
that because his statutory duty to keep the bridge in a
reasonably safe condition is purely reactive rather than
anticipatory, he did not breach that duty to the plaintiff
by failing to treat or otherwise remedy the icing condi-
tion that caused the plaintiff’s accident because he had
no actual notice of the specific patch of ice before
the accident occurred, and even if he had constructive
notice of that ice patch based upon prior reports to the
Department of Transportation (department) from the
state police about earlier ice related accidents on the
bridge that morning, he had insufficient time after
receiving such notice to remedy that ice patch before
it caused the plaintiff’s accident.
On appeal, the plaintiff claims that the trial court
erred in rendering summary judgment in favor of the
defendant because the evidence before it on the defen-
dant’s motion, when considered in the light most favor-
able to the plaintiff, gave rise to a genuine issue of
material fact as to whether the defendant had sufficient
time, after receiving actual or constructive notice of
the dangerous icing condition that caused his accident,
to remedy that condition before the accident occurred.
The defendant opposes this claim in two ways. First,
he argues that the trial court ruled correctly, on the
undisputed facts before it, that he had insufficient time,
after receiving notice of the icing condition that later
caused the plaintiff’s accident, to remedy that condition
before the accident occurred. Second, as an alternative
ground for affirming the trial court’s ruling, the defen-
dant argues, as he did both in his summary judgment
motion and in his prior, unsuccessful motion to dismiss,
that the trial court lacked subject matter jurisdiction
over this action because the plaintiff’s written notice
of intent to sue failed to satisfy the requirements of
§ 13a-144, upon which the state’s statutory waiver of
its sovereign immunity depends, insofar as the statute
required him to disclose the location of his accident and
resulting injuries. The plaintiff disputes the defendant’s
challenge to the legal sufficiency of his written notice
of intent to sue insofar as it describes the location of
his accident and resulting injuries.
We agree with the plaintiff that the trial court erred in
rendering summary judgment in favor of the defendant
because the evidence before it on the defendant’s
motion gave rise to a genuine issue of material fact
as to whether the defendant had sufficient time, after
receiving notice of the icing condition that caused the
plaintiff’s accident, to treat or otherwise remedy that
condition before the accident occurred. Therefore,
because we also agree with the plaintiff that the ade-
quacy of his written notice of intent to sue to apprise
the defendant of the location of his accident and injuries
cannot be decided on this record as a matter of law,
we reverse the trial court’s judgment and remand this
case for further proceedings.
The following procedural history is relevant to our
disposition of this appeal. In the plaintiff’s original com-
plaint dated July 5, 2012, as later revised on May 29,
2014, without substantive alteration as to the issues
now before us, he alleged that the defendant has a
statutory duty to keep and maintain all highways and
bridges within the state highway system in a reasonably
safe condition, and that that duty extends to Interstate
95, a public highway in that system. He further alleged
that, in the early morning hours of December 12, 2011,
employees, representatives and agents of the depart-
ment became aware that the surface of Interstate 95
on the Gold Star Memorial Bridge had become icy and
unreasonably dangerous, based upon reports they had
received from the state police of numerous ice related
accidents on the bridge that morning. The plaintiff
alleged that later that morning, at 6:38 a.m., as he was
driving his pickup truck in the northbound lanes of the
bridge about one-tenth of one mile south of the New
London-Groton town line, it slid on black ice, rolled
over on its side and collided with a bridge structure,
causing him serious injuries. The plaintiff alleged that
the cause of his accident and resulting injuries was the
defendant’s breach of his statutory duty to keep the
bridge in a reasonably safe condition by failing to take
adequate measures, in response to the notice he had
received of its dangerous condition, either by treating
its icy surface, placing or utilizing warning signs in the
area to warn travelers of that dangerous condition, or
closing the bridge entirely until that dangerous condi-
tion could be remedied. Finally, the plaintiff alleged
that he had provided timely written notice to the defen-
dant of his intent to sue in connection with his accident
and injuries within ninety days of their occurrence, as
required by § 13a-144.2
On September 12, 2012, the defendant moved to dis-
miss the plaintiff’s original complaint on the ground that
the location of the accident specified in the plaintiff’s
written notice of intent to sue described an area so
large that it failed to satisfy the requirements of § 13a-
144, in violation of the sovereign immunity doctrine.3
This motion was initially granted by the trial court,
Devine, J. Thereafter, however, upon reconsideration
of its ruling, the court determined that the language of
the plaintiff’s written notice was subject to at least one
reasonable interpretation that could be found to satisfy
the requirements of § 13a-144. Concluding, on that
basis, that the adequacy of the plaintiff’s written notice
to apprise the defendant of the location of his accident
and injuries was a disputed issue of fact that should
be decided by the finder of fact at trial, the court vacated
its initial ruling and denied the defendant’s motion to
dismiss.4
Thereafter, on May 8, 2014, the defendant moved for
summary judgment on three grounds: (1) that he did
not breach his statutory duty to keep and maintain the
bridge in a reasonably safe condition on the morning
of the plaintiff’s accident because he lacked actual
notice of the specific ice patch that caused that acci-
dent, and even if he had constructive notice of that ice
patch, he lacked sufficient time after receiving such
notice to remedy that ice patch before the plaintiff’s
accident occurred; (2) insofar as the plaintiff’s written
notice of intent to sue described the location of his
accident, it failed to satisfy the requirements of § 13a-
144; and (3) that the plaintiff could not prove that the
defendant’s breach of statutory duty under § 13a-144,
if any, was the sole proximate cause of his accident
and resulting injuries.
The defendant supported his motion with a memoran-
dum of law and several attached exhibits, including:
sworn affidavits from four employees of his depart-
ment, Peter Silva, James F. Wilson, Jay D’Antonio and
Theodore Engel; an excerpt from the certified transcript
of the deposition of state police Trooper Robert D.
Pierce, who responded to and investigated the plaintiff’s
accident; and copies of the plaintiff’s written notice of
intent to sue in connection with his accident, Trooper
Pierce’s police report concerning the accident, and the
department’s work log for the day of the accident.
The main thrust of the defendant’s argument on the
first of his three grounds for seeking summary judg-
ment, to which the trial court ultimately limited its
decision on his motion, was that he did not breach his
statutory duty to remedy the ice patch that caused the
plaintiff’s accident and injuries because, although his
employees responded promptly to the first report they
received of an ice related accident on the bridge that
morning, they could not have reached the bridge with
the necessary equipment and materials to treat its icy
surface and make it reasonably safe for travel before
the plaintiff’s accident occurred. The department’s call
log showed, more particularly, that the department first
was notified of icing on the bridge at 5:49 a.m. that
morning, in a call from the state police to its Bridgeport
operations center, of which Silva was the supervisor.
That call reported that an ice related accident had
occurred on the bridge at 5:40 a.m. The operations cen-
ter responded to the call by implementing its standard
protocol for responding to off-hour calls for service by
calling D’Antonio, the supervisor of the department’s
maintenance garage in Waterford, which services the
Gold Star Memorial Bridge, with instructions to call out
a crew to salt the bridge. The Waterford garage, which
was then closed, routinely dispatched two man work
crews, with one crew leader and one helper, to respond
to off-hour calls for service. When crew members were
called out to salt an icy bridge or highway, they had to
drive in their own nonemergency vehicles to the garage,
where the department’s deicing equipment and materi-
als were stored, open the garage with the crew leader’s
key, start and load the salting truck, then drive to the
location where salting was to be performed. The garage
had two crew leaders in December, 2011: Engel, who
lived in Madison, approximately thirty to thirty-five
minutes away from the garage when there was no traf-
fic, and another unnamed person whose town of resi-
dence was not disclosed. D’Antonio assigned Engel to
salt the bridge after the 5:40 a.m. accident was reported
to him pursuant to his general practice of alternating
off-hour call-outs between crew leaders so as not to
‘‘unduly burden’’ either one of them in the busy win-
ter season.
After being called out at about 5:51 a.m. on December
12, 2011, Engel and his helper, William Grant, needed
more than one hour to get to and open the garage,
prepare and load a truck for salting operations and
drive the truck to the bridge. By the time they reached
the bridge, the plaintiff’s accident had already occurred,
and the state police, who had been on the bridge since
before 6 a.m. responding to other accidents, had closed
the bridge. On the basis of this evidence, the defendant
argued that he could not be held liable for the plaintiff’s
accident or injuries because he lacked sufficient time
after receiving constructive notice of ice on the bridge
at 5:49 a.m. to reach and treat the bridge before the
plaintiff’s accident occurred.
Finally, the defendant presented evidence, through
Silva’s sworn affidavit, that in addition to attempting
to treat the bridge with salt on the morning of the
plaintiff’s accident, his employees attempted, at 6:23
a.m., to warn motorists approaching the bridge of its
dangerous condition by illuminating electronic sign-
boards positioned about one-tenth of one mile before
the start of the bridge in both directions, which read:
‘‘Slippery Conditions. Use Caution.’’ The plaintiff, he
contended, had to drive by one such illuminated sign-
board when he drove his truck onto the bridge approxi-
mately fifteen minutes later.
The plaintiff opposed the defendant’s motion for sum-
mary judgment with his own memorandum of law and
accompanying exhibits, including: an excerpt from the
certified transcript of the deposition of Diana Dean, the
driver who had been involved in the first ice related
accident reported to the defendant on the morning of
the plaintiff’s accident; the police report concerning
the Dean accident, which was written by state police
Trooper Christopher Sottile, who had responded to and
investigated that accident before the plaintiff’s accident
that morning; an excerpt from the certified transcript
of the deposition of Engel, the crew leader who had
been called out to treat the bridge after the Dean acci-
dent; the sworn affidavit of Silva, the supervisor of
the department’s operations center in Bridgeport, who
described the department’s standard protocol for
responding to off-hour calls and averred that the pre-
viously described electronic signboards had been illu-
minated before the plaintiff’s accident; the plaintiff’s
own sworn affidavit describing his accident and the
events leading up to it; another excerpt from the certi-
fied transcript of the deposition of Trooper Pierce, as
to his investigation of the plaintiff’s accident; the police
report of Trooper Pierce concerning the plaintiff’s acci-
dent; and work logs for the Waterford garage on the
day of Dean’s and the plaintiff’s accidents.
The plaintiff relied on these submissions to raise
issues of fact as to several aspects of the defendant’s
initial ground for seeking summary judgment. First,
Dean testified and Sottile wrote in his police report that
when her accident occurred at 5:40 a.m. on the morning
of the plaintiff’s accident, the entire surface of the road-
way on the northbound side of the bridge was covered
with black ice, which caused her vehicle to spin out of
control in the right lane of the five lane bridge and
continue spinning all the way across the bridge until it
crashed into the cement barrier on the opposite side
of the roadway. Second, the plaintiff averred in his
affidavit and Trooper Pierce confirmed in his police
report that when the plaintiff’s accident occurred
almost one hour after the Dean accident, the entire
surface of the roadway on the northbound side of the
bridge was still completely covered with black ice.
Third, Engel testified, based upon his three years of
experience working at the Waterford garage in the win-
ter, that when the outside temperature falls below freez-
ing, the surface of the Gold Star Memorial Bridge, unlike
those of other nearby bridges, is prone to freezing over
completely, with black ice of the kind he saw on the
morning of December 12, 2011, due to the recurring
presence of ice fog in the area. The department’s work
logs confirmed that the air temperature at 6 a.m. on
that date was 27 degrees Fahrenheit, and the surface
temperature of the roadway was 24 degrees Fahrenheit.
Fourth, although Silva averred in his affidavit that elec-
tronic signboards warning of slippery conditions on the
bridge had been illuminated before the plaintiff drove
onto the bridge on the morning of his accident, both
the plaintiff and Engel swore that they had not seen
any such warning signs when they drove onto the north-
bound lanes of the bridge several minutes later. Fifth,
shortly after the plaintiff’s accident took place, the state
police closed the northbound lanes of the bridge
entirely until its icy surface could be treated by depart-
ment personnel.
In light of the foregoing evidence, the plaintiff
claimed that the defendant was not entitled to summary
judgment on the first ground raised in his motion
because the reasonableness of a defendant’s response
to notice he receives of ice on a bridge or highway
is a multifactorial factual issue that must typically be
decided by the finder of fact at trial. Here, in particular,
the plaintiff claimed that he had presented evidence
raising several genuine issues of material fact about
factors upon which the ultimate resolution of that issue
in this case depends. Those issues included: whether
the defendant had actual notice of the dangerous icing
condition that caused his accident and injuries based
upon the reported observations by the state police of
black ice covering the entire northbound surface of
the bridge from almost one hour before the plaintiff’s
accident until the state police responded to it well after
it occurred; whether, in light of the magnitude of the
danger presented by the pervasive icing condition of
which the defendant had notice, as evidenced by the
numerous ice related accidents it had caused in sub-
freezing weather conditions known to cause icing due
to ice fog, it was reasonable for the defendant to call
out a work crew that predictably could not reach the
bridge and treat it until more than one hour after they
were first called out; whether, if a work crew called
out to treat the bridge could not reasonably be expected
to treat it for more than one hour after they were first
called out, adequate measures were taken in the interim
to warn motorists still using it of its dangerous icing
condition before that condition was remedied; and
whether, if the bridge could not be treated more quickly
and the motoring public could not be warned more
effectively of its dangerous condition before it was
treated, the bridge should have been closed to all traffic
before, not after, the plaintiff’s accident. In light of those
open, contested issues, the plaintiff insisted that the
reasonableness of the defendant’s response to the black
ice condition reported to the department before the
plaintiff’s accident presented a genuine issue of material
fact that should be decided by the finder of fact at trial.
On January 12, 2015, the trial court, Cole-Chu, J.,
heard oral argument on the defendant’s motion for sum-
mary judgment, at which the foregoing arguments were
presented. Thereafter, on May 12, 2015, the trial court
granted the defendant’s motion for summary judgment.
In its memorandum of decision, the trial court held that
‘‘despite . . . the drawing of inferences in the light
most favorable to the nonmoving party . . . the court
concludes that the defendant is entitled to judgment as
a matter of law. The court cannot conclude that the
defendant had actual notice of the black ice condition
which caused the plaintiff’s accident before the report
of that accident. Even treating the black ice on the
bridge in general as the defect which caused the plain-
tiff’s accident and treating the black ice accident on
the same bridge fifty minutes before the plaintiff’s acci-
dent as constructive notice to the defendant of that
defect, the court finds as a matter of law that the defen-
dant’s response time was reasonable. Indeed, the plain-
tiff does not contend otherwise, other than by claiming
that the defendant should have anticipated the black ice
condition.’’5 (Citation omitted.) Thereafter, the plaintiff
filed this appeal.
I
We begin by noting that our standard of review as
to a trial court’s decision to grant a motion for summary
judgment is plenary. ‘‘Practice Book § 17-49 provides
that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law.’’ (Internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193,
198, 931 A.2d 916 (2007). ‘‘In seeking summary judg-
ment, it is the movant who has the burden of showing
the nonexistence of any issue of fact. The courts are
in entire agreement that the moving party for summary
judgment has the burden of showing the absence of
any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. The courts hold
the movant to a strict standard. To satisfy his burden
the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as
to the existence of any genuine issue of material fact.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45].’’ (Internal quotation
marks omitted.) Martel v. Metropolitan District Com-
mission, 275 Conn. 38, 46–47, 881 A.2d 194 (2005).
‘‘To prove a breach of statutory duty under this state’s
defective highway statutes, the plaintiff must prove by
a preponderance of the evidence: (1) that the highway
was defective as claimed; (2) that the defendant actually
knew of the particular defect or that, in the exercise
of its supervision of highways in the city, it should have
known of that defect; (3) that the defendant, 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.’’
(Footnote omitted; internal quotation marks omitted.)
Ormsby v. Frankel, 255 Conn. 670, 675–76, 768 A.2d 441
(2001). In granting the defendant’s motion for summary
judgment, the trial court predicated its decision on a
finding that the plaintiff could not establish the third
element of his cause of action, namely, that the state
failed to remedy the icing condition on the bridge after
having had a reasonable time to remedy such condition
after receiving notice thereof. In addition to this finding,
the trial court made a necessary subordinate finding
that the defendant had received constructive notice
of the defective icing condition, which triggered the
defendant’s duty to remedy that condition within a rea-
sonable period of time.
On appeal, the plaintiff challenges the propriety of the
trial court’s conclusion that the defendant responded
reasonably, as a matter of law, to the notice he received
of the black ice that caused the plaintiff’s accident and
resulting injuries. Specifically, the plaintiff argues that
the trial court erroneously determined that the defen-
dant’s response to the icing condition on the bridge
was reasonable as a matter of law because, under Con-
necticut law, the question of whether the defendant
reasonably responded to a highway defect of which he
had notice is a question of fact that must be decided
by the finder of fact at trial. In response, the defendant
contends that any issue of fact, including what consti-
tutes a reasonable amount of time in particular circum-
stances for the defendant to respond to notice he
receives of a highway defect, may be resolved by sum-
mary judgment when the evidence supports only one
fair and reasonable conclusion. The defendant asserts
that, on the undisputed facts of this case, the only
rational conclusion to be drawn is that he acted reason-
ably because he had no more than forty-nine minutes
to remedy the defect at issue, the department followed
its standard protocol in responding to the defect, and
under the circumstances then existing, it had insuffi-
cient time to reach and treat the bridge before the
plaintiff’s accident occurred.
We agree with the plaintiff that, as a general matter,
Connecticut case law dictates that the question of
whether the defendant reasonably responded to the
report of a highway defect is a multifactorial determina-
tion that must be made by the finder of fact at trial.
See id., 693 (holding that ‘‘[t]he response time of the
defendant to react to a dangerous condition is a fact-
specific determination’’). Here, however, even if we
accept the defendant’s argument that summary judg-
ment may appropriately be rendered in particular cir-
cumstances where the only rational conclusion to be
drawn from the evidence before the trial court is that
the defendant had insufficient time to remedy the com-
plained-of defect after receiving notice of it before it
caused the plaintiff’s injuries, we conclude that the
record before the trial court in this case gave rise to
several genuine issues of material fact that precluded
the rendering of summary judgment on that ground.
A
Reasonableness of Defendant’s Response to
Notice of Highway Defect is Fact-Specific
Determination That Must Typically
Be Made By Trier of Fact
Under the state defective highway statute, it is well
established that ‘‘[t]he state is not an insurer of the
safety of travelers on the highways which it has a duty
to repair. Thus, it is not bound to make the roads abso-
lutely safe for travel. . . . Rather, the test is whether
or not 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.) Hall v. Burns, 213 Conn. 446, 462–63,
569 A.2d 10 (1990). The defendant’s ‘‘statutory obliga-
tion under § 13a-144 to keep the highway safe from
defects is a reactive obligation, not an anticipatory obli-
gation.’’ Ormsby v. Frankel, supra, 255 Conn. 676. Thus,
‘‘[l]iability imposed on the defendant under § 13a-144
for a defective highway is based on proof of the exis-
tence of a defect and on the defendant’s failure to
remedy the defect within a reasonable time after receiv-
ing actual or constructive notice of the defect where
that defect is the sole proximate cause of a plaintiff’s
injury.’’ (Emphasis in original; internal quotation marks
omitted.) Hall v. Burns, supra, 462.
Although the present case involves a claim under
§ 13a-144, our courts have held that the defendant’s
duty to maintain the safety of state bridges and high-
ways under § 13a-144 mirrors a municipality’s duty to
maintain the safety of municipal sidewalks, bridges and
highways under the parallel provisions of General Stat-
utes § 13a-149. Therefore, our courts frequently have
relied on case law under one of those statutes to resolve
common issues arising under the other, such as whether
the defendant or the municipality owed the plaintiff a
duty of care under particular circumstances, whether
the defendant received either actual or constructive
notice in those circumstances of a defect on a bridge
or highway it had the duty to maintain, and whether
the defendant, in responding to such notice, breached
the statutory duty of care.6
Furthermore, our analysis under the two statutes is
often guided by the general principles applicable to
negligence actions. While it is well settled that ‘‘the
liability of the defendant under § 13a-149 is purely for
breach of statutory duty and does not arise from negli-
gence . . . [t]his does not mean, however, that negli-
gence principles are wholly inapplicable’’ to the court’s
analysis. (Citation omitted; internal quotation marks
omitted.) Prato v. New Haven, 246 Conn. 638, 645, 717
A.2d 1216 (1998); see also White v. Burns, 213 Conn.
307, 322, 567 A.2d 1195 (1990) (‘‘There can be no ques-
tion but that the nature of the duty resting upon the
state . . . is to exercise reasonable care to keep the
state highways in a reasonably safe condition for public
travelers whether by pedestrians or vehicles. . . . That
duty is that of reasonable care, that is, that degree of
care which the ordinarily prudent person would exer-
cise under similar circumstances.’’ [Citation omitted.]).
The availability and effectiveness of the state’s chosen
course of action for remedying a known highway defect
will invariably depend on the facts and circumstances
presented in each case. For this reason, our courts have
insisted that the determination of whether the state
acted reasonably must be made by a trier of fact
apprised of all of the facts and circumstances of the
case.
It is noteworthy that the state defective highway stat-
ute, now § 13a-144, has existed in Connecticut for more
than 100 years. See Cloughessey v. Waterbury, 51 Conn.
405 (1884). Despite countless opportunities to do so,
our courts have refrained from setting a bright line rule
for what constitutes a reasonable response time, by
either the state or a municipality, when responding to
notice of a defective highway condition. See, e.g., Hall
v. Burns, supra, 213 Conn. 474–75 (holding that ‘‘in
order for the jury to determine whether the commis-
sioner exercised reasonable care . . . it is only fair
that the jury be made aware of all of the circumstances
surrounding the commissioner’s statutory duty’’);
Goldstein v. Hartford, 144 Conn. 739, 740, 131 A.2d 927
(1957) (holding that ‘‘[w]hether [the commissioner’s]
duty has been performed is ordinarily a question of
fact’’); Nicefaro v. New Haven, 116 Conn. App. 610,
615–16, 976 A.2d 75 (‘‘What constitutes reasonable care
[under the statute] is a fact specific inquiry. . . . For
that reason, the circumstances of each case must be
examined.’’ [Citation omitted; internal quotation marks
omitted.]), cert. denied, 293 Conn. 937, 981 A.2d 1079
(2009).
In Carl v. New Haven, 93 Conn. 622, 625, 107 A.
502 (1919), our Supreme Court held that, under the
municipal defective highway statute, now § 13a-149,
‘‘our municipalities, [with regard to] conditions pro-
duced by fallen snow or formed ice upon streets and
walks, are under no obligation to make them absolutely
safe, and much less to make them safe under all circum-
stances. What the law requires of them, and all that it
requires, is the exercise of such efforts and the employ-
ment of such measures—directed to the end that their
streets and walks be maintained in a reasonably safe
condition, all the circumstances of the situation consid-
ered—as, in view of the circumstances and conditions,
are in themselves reasonable.’’ The court further stated
that ‘‘[t]he circumstances to be taken into account, and
the considerations to be weighed, in determining what
is reasonable to be done, and what is a reasonable
condition to be sought after and attained, if reasonably
attainable, are many. . . . They involve, as prominent
elements in the decision, the location, extent and char-
acter of the use made of the street or walk, the practica-
bility and efficiency of possible remedial measures, the
size of the problem which the municipality is called
upon to face in the existing emergency, the expenditure
involved in dealing with that problem in the several
possible ways, the physical resources that the munici-
pality has at command which it can utilize to deal with
it, and so forth and so forth. It follows naturally and
necessarily from the variety of the elements which may
exist in different situations as they arise, that our
courts have never undertaken to lay down a rule defin-
ing with particularity and precision the duty owed
by our towns, cities and boroughs in their dealings
with the manifold problems which, in our climate, are
presented by formed ice or fallen snow upon public
highways or walks. They have realized, and frequently
expressed, the impossibility of framing one of univer-
sal application in other than general language which
is elastic in that it embodies the qualification of rea-
sonableness under all the circumstances at every turn
of the definition. The accepted general rule looks con-
stantly to the ever changing circumstances of situations,
and its key-note throughout is reasonableness in view of
the circumstances as they appear upon each occasion.’’
(Emphasis added.) Id., 625–26.
In the present case, the defendant has repeatedly
argued that, because the department followed its stan-
dard response protocol in responding to an off-hour
call for service after the Dean accident, its response
was reasonable as a matter of law. Our case law demon-
strates, however, that assessing whether the defen-
dant’s response to notice he received of a highway
defect was reasonable involves the consideration of
many different factors, some of which may be unique to
each case. Here, the defendant was required to respond
reasonably to notice of a dangerous black ice condition
that had caused numerous accidents on the bridge. In
responding to notice of a dangerous icing condition
on a bridge or highway, the defendant can obviously
consider taking several different courses of action.
First, he can attempt to fix the dangerous icing condi-
tion by treating the ice or removing it from the bridge’s
surface, although that might take too much time to
alleviate its immediate danger to travelers who are still
using the bridge. As a temporary response to a danger-
ous icing condition that cannot be treated or removed
immediately, the defendant can also take steps to warn
travelers still using the bridge of its dangerous condition
so they can avoid using it or minimize the danger arising
from continuing to use it, provided, of course, that the
warning is sufficiently prominent and pointed to inform
travelers of the true nature and extent of that danger,
and thus to induce them to use appropriate caution if
they choose to drive upon it. Finally, if warnings of the
dangerous condition would not suffice to warn travelers
still using the bridge of the danger arising from its use
before it is treated, the defendant could require travel-
ers to avoid it altogether by closing the bridge until the
dangerous condition is remedied.
The plaintiff is entitled to have the finder of fact
assess the reasonableness of the defendant’s response
to the notice he received of the dangerous icing condi-
tion on the bridge on the morning of the plaintiff’s
accident unless the defendant can prove, based upon
the evidence before the trial court on his motion, that
there is no genuine issue of material fact that he had
insufficient time after receiving such notice to use any
of these measures, alone or in combination, to make the
bridge reasonably safe for travelers before the plaintiff’s
accident occurred.
B
Genuine Issues of Material Fact that Bore Upon
Reasonableness of Defendant’s Response to
Notice he Received of Icy Condition That
Caused Plaintiff’s Accident and Injuries
Here, the plaintiff contends that there are genuine
issues of material fact as to several factors that could
have affected the finder of fact’s ultimate determination
as to whether the defendant had sufficient time, after
receiving notice of the dangerous condition that caused
the plaintiff’s accident and injuries, to remedy that con-
dition before the accident occurred. We agree, conclud-
ing that alone or in combination, these open factual
questions should have precluded the trial court from
rendering summary judgment in favor of the defendant
in this case.
1
Whether and When Defendant Received Actual
Notice of Specific Defect That Caused
Plaintiff’s Accident and Injuries
One critical factor in determining the reasonableness
of the defendant’s response to any notice he received
of a highway defect is how much time he had to respond
to that notice after he first became chargeable with
having received it. The trial court agreed with the defen-
dant’s claim that he never received actual notice of the
specific patch of ice that caused the plaintiff’s accident,
but at most became chargeable with constructive notice
of that ice patch upon receiving earlier reports from
the state police about black ice and other ice related
accidents on the bridge that morning. By that logic,
since the first report by the state police to the defen-
dant’s Bridgeport operations center concerning an ice
related accident on the bridge that morning did not
come in until 5:49 a.m., the defendant could not be
charged with having constructive notice of that condi-
tion until that time, leaving him at most forty-nine
minutes before the plaintiff’s accident to remedy that
dangerous condition. Although the defendant now
accepts both aspects of the trial court’s ruling, both as
to his own lack of actual notice of the specific ice patch
that caused the plaintiff’s accident and as to a maximum
forty-nine minute time period he had to remedy that
ice patch after receiving constructive notice of it, the
plaintiff disagrees. He argues, to the contrary, that the
record before the trial court gives rise to genuine issues
of material fact as to whether the defendant received
actual notice of the black ice that caused his injury,
and whether he did so as early as 5:40 a.m., when
Trooper Sottile was first dispatched to the scene of the
Dean accident. There are two basic reasons why we
find this claim persuasive.
First, although both the defendant and the trial court
have suggested that the plaintiff was injured when his
pickup truck slid on an ‘‘ice patch’’ on the morning of
his accident, every eyewitness who observed the bridge
that morning, both before and after the Dean accident,
and before and after the plaintiff’s accident, described
it as covered with black ice. The latter description,
unlike the former, connotes a single, continuous sheet
of thin, invisible ice coating the entire roadway, rather
than a mottled, irregular surface dotted in isolated
places with individual ‘‘patches’’ of ice. So understood,
the evidence presented on the defendant’s motion gives
rise to a genuine issue of material fact as to whether
the ‘‘specific ice patch’’ that caused the Dean accident
was actually the same specific ice patch that later
caused the plaintiff’s accident. Testimony from Engel
suggested that pervasive icing of the sort that he and
the other witnesses observed on the bridge that morning
was the very sort of icing that the bridge regularly
experienced in subfreezing weather due to ice fog. The
department’s work records confirmed that both the out-
side air temperature and the roadway temperature that
morning were well below freezing, and thus conducive
to the ice fog and the formation of black ice. Finally,
considering those facts in a light most favorable to the
nonmoving party, both the invisible appearance of the
ice on the roadway and the manner in which both Dean
and the plaintiff lost control of their vehicles and spun
or slid to the cement barrier on the left side of the
roadway were consistent with the presence of a single
sheet of black ice covering the northbound lanes of
the bridge.
Second, the evidence established that the defendant
and the department routinely rely upon the state police
to respond to and report to them about highway defects
on state roads and bridges. For that reason, our
Supreme Court has held that actual notice to the state
police of a highway defect constitutes actual notice to
the defendant, which occurs when the state police first
learn of the defect, not the later time when they report
that defect to the defendant or the department. See
Lamb v. Burns, 202 Conn. 158, 173, 520 A.2d 190 (1987).
In Lamb, the plaintiff brought suit against the defendant
under § 13a-144 after she lost control of her car while
driving over an ice patch and struck a guard post. Id.,
159. At trial, the evidence showed that the state police
had received a call about the same ice patch seventy-
five minutes before the plaintiff’s accident occurred and
arrived on scene thirty-five minutes before the accident.
Id., 160. Ten minutes after they arrived, the state police
called the department. At that time, however, the
department’s local garage was closed. This, then, was
an off-hour call about an icy road condition. Id. In an
attempt to warn other motorists of the ice patch, the
responding officer lit road flares in the immediate area,
but then left the scene to check on another area. After
the road flares went out, but before the department’s
sand truck arrived to treat the ice patch, the plaintiff
drove over the ice patch, lost control of her vehicle,
and struck the guard post. Id. On appeal, our Supreme
Court held that, ‘‘[a]lthough the state police are not
statutorily charged with duties that concern the repair
or maintenance of state highways . . . the evidence in
the present case indicates that by custom the commis-
sioner of transportation has availed himself of the assis-
tance of the state police and that the state police have
assumed such duties. There was testimony that it is a
state trooper’s duty and usual procedure to report
defects found in the highway. There was further testi-
mony that the [department] relies on the state police
to call about highway problems.’’ (Citation omitted;
internal quotation marks omitted.) Id., 171. On the basis
of this evidence, the court upheld the trial court’s
instruction that the jury ‘‘may consider that notice to
[the state police] is notice to the defendant . . . .’’
(Internal quotation marks omitted.) Id., 173.
Against this background, we conclude that, when the
evidence before the trial court is viewed in the light
most favorable to the plaintiff, there is a genuine issue
of material fact as to whether the pervasive black ice
that caused his accident was the same pervasive black
ice that caused the Dean accident fifty-eight minutes
earlier, and thus as to whether the defendant received
actual notice of that condition as of 5:40 a.m., when
Trooper Sottile was first dispatched to respond to the
Dean accident, rather than 5:49 a.m. when the state
police called the Bridgeport operations center to report
the Dean accident to the department.
‘‘In ruling on a motion for summary judgment, the
court’s function is not to decide issues of material fact,
but rather to determine whether any such issues exist.’’
Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031
(1988). The trial court erred in this case in deciding,
adversely to the plaintiff, the disputed issues left open
by the foregoing evidence as to whether and when the
defendant received actual notice of the specific defect
that caused the plaintiff’s accident and thus became
responsible for taking reasonable measures to remedy
that defect.
2
Whether Defendant Acted Unreasonably in
Responding to Notice of Icing Condition
The plaintiff also argues that the defendant acted
unreasonably in responding to initial reports of black
ice covering the northbound lanes of the Gold Star
Memorial Bridge by calling out a crew leader who lived
at least thirty to thirty-five minutes away from the
Waterford garage to respond to the dangerous icing
condition on the bridge. When viewing the evidence in
the light most favorable to the plaintiff, we conclude
that there is a genuine issue of material fact as to
whether the defendant’s decision to dispatch an
employee who lived at that distance from the garage
was unreasonable under the circumstances, particu-
larly in light of the possible availability of at least one
other crew leader and the extreme danger posed to
travelers by invisible black ice completely coating a
five lane bridge on a major state thoroughfare at the
start of the morning commute.
The relevant evidence is as follows. In his motion for
summary judgment, the defendant argued that, despite
his employees’ reasonable efforts to reach the bridge
before the plaintiff’s accident occurred, it was physi-
cally impossible for them to do so because the assigned
crew leader, Engel, lived in Madison, thirty to thirty-
five minutes away from the garage, without traffic.
Engel had been dispatched on this occasion because it
was his turn under the alternating call-out system used
by garage supervisor, D’Antonio, so as not to unduly
burden either crew leader in the busy winter season.
No information about the location or potential availabil-
ity of the other crew leader was presented. In his affida-
vit, Engel stated that he lives in Madison and that it takes
him between thirty to thirty-five minutes of driving,
without traffic, to reach the Waterford garage. Engel
also stated that, of the two workers responding to the
bridge that morning, he was the only one who had
keys to the garage; therefore, even if his coworker had
arrived there first, he would have been forced to wait
until Engel arrived before accessing the truck and pre-
paring it to treat the icing on the bridge.
During oral argument before this court, the plaintiff
argued that it was unreasonable for the defendant to
simply say, ‘‘well, the guy who is supposed to get all
of this going to fix it lives all the way down in Madison,
so don’t blame us that we couldn’t respond within forty-
five minutes.’’ We agree. On the basis of the defendant’s
evidence, we conclude that there was and is a genuine
issue of material fact as to whether calling out the other
crew leader, if he was then available, would have made
it possible to reach and treat the bridge before the
plaintiff’s accident occurred, thus potentially making
the defendant’s failure to do so unreasonable under all
of the circumstances then existing. There is nothing in
the record to show that there was a departmentwide
policy of alternating between available crew leaders on
off-hour call-outs, and even if there was such a policy,
however fair and appropriate it might be to follow it
under other circumstances, there would at least have
been a genuine issue of material fact as to whether
deviating from it would be required under circum-
stances if it was necessary to do so to ensure that
travelers would not be injured by an especially danger-
ous highway defect.
Although it is certainly possible that Engel lived
closer to the Waterford garage than the other crew
leader, the moving party on a summary judgment
motion bears the heavy burden of removing ‘‘any real
doubt as to the existence of any genuine issue of mate-
rial fact.’’ (Internal quotation marks omitted.) Martel v.
Metropolitan District Commission, supra, 275 Conn.
46. The defendant failed to meet that burden with
respect to this issue, thus raising a genuine issue of
material fact as to whether the defendant, by following
its standard practice of alternating between crew lead-
ers for its off-hour call-outs instead of using other, more
expeditious options, failed to respond reasonably to the
notice it received of the dangerous icing condition on
the bridge on the morning of the plaintiff’s accident.
3
Whether Defendant Failed to Make Adequate Use
of Available Temporary Remedies to Protect
Travelers While Icy Condition of Bridge
Was Being Remedied
Even if the defendant’s employees could not have
reached the bridge in time to treat it before the plaintiff’s
accident occurred, there is still a genuine issue of mate-
rial fact as to whether the defendant could have
responded to the notice he received of its dangerous
icy condition in some manner other than physically
reaching it and applying deicing materials to it in no
less than fifty-eight minutes. In the present case, the
plaintiff argues, the defendant either could have placed
or utilized warning signs in the area to warn travelers
still using the bridge of its dangerously icy condition
or, if no such warnings would be sufficient to warn
motorists of its true dangers to the point of inducing
them not to drive on the bridge without using appro-
priate caution, closed the bridge altogether before it
was properly treated. We agree with the plaintiff that
any decision to use or forgo the use of such temporary
measures could have been considered by the finder of
fact in assessing whether the defendant acted reason-
ably in responding to the report of ice on the bridge
after the Dean accident.
From the outset of this action, the plaintiff has alleged
that the defendant breached his duty under § 13a-144
because, having received notice of the dangerous icing
condition on the bridge, he unreasonably failed to warn
travelers of that danger.7 The trial court did not address
this argument in its memorandum of decision, instead
focusing its entire analysis on the amount of time that
was required to reach the bridge with a work crew and
apply deicing materials to it. We conclude that there
are genuine issues of material fact as to whether the
defendant had sufficient time before the plaintiff’s acci-
dent occurred to respond to the danger posed by the
dangerous icing condition on the bridge by warning
travelers of it by remotely illuminating its prepositioned
electronic signboards with a suitable warning message.
The evidence before the court is as follows. In his
deposition, Trooper Pierce testified that there are two
electronic signs that are located approximately one-
tenth of one mile before the bridge in either direction.
Pierce also stated that, although the state police are
not notified when the signs are illuminated, he is aware
that the department has the ability to activate the signs.
The defendant presented evidence that the electronic
signboard located before the bridge in the northbound
lane of the highway was illuminated at 6:23 a.m. to warn
travelers to ‘‘use caution’’ due to ‘‘slippery conditions’’
on the bridge. The defendant’s claim in this regard rests
entirely on the affidavit of Silva, who so averred, adding
that ‘‘[the plaintiff] had to have driven past that sign
on his way over the bridge.’’
Notwithstanding such evidence, however, two wit-
nesses who drove over the bridge that morning near the
time of the plaintiff’s accident did not see the electronic
signboard illuminated. First, the plaintiff’s affidavit
states that he did not see any warning signs that morn-
ing. Second, and perhaps more importantly, Engel, the
department’s crew leader who responded to the bridge
approximately ten to fifteen minutes after the plaintiff’s
accident, stated that he did not see the electronic sign-
board illuminated when he arrived at the bridge after
the plaintiff’s accident.
On the basis of Pierce’s deposition and Silva’s affida-
vit, it clearly appears that the defendant had the ability
to illuminate remotely the electronic signboard to warn
travelers of the dangerous condition on the bridge at
least fifteen minutes before the plaintiff’s accident. The
fact that the defendant’s employees attempted to do so
in that time frame also demonstrates that, in their view
at least, taking such a measure to warn travelers of the
dangerous condition of the bridge was appropriate in
the existing circumstances. The defendant, however,
failed to demonstrate the absence of any genuine issue
of material fact as to whether the warning sign was
actually illuminated that morning, for evidence from
two persons that they did not see the sign that morning,
including one of the defendant’s employees who regu-
larly works on the bridge when it ices over in subfreez-
ing conditions, puts that claim in dispute. Moreover,
even if the signboard was illuminated and worded as
Silva averred, a genuine issue of material fact might
still exist as to whether it was so positioned and worded
to give reasonably prudent travelers sufficient warning
of a dangerous black ice condition that lay ahead of
them.8 For these additional reasons, we conclude that
the trial court should not have granted the defendant’s
motion for summary judgment on the ground that he
had insufficient time after receiving notice of the brid-
ge’s dangerous condition to respond to it and remedy
that condition.
In addition to warning travelers of the danger caused
by black ice on the bridge, the plaintiff also claimed
that the defendant could have met his statutory duty
of care by closing the bridge before the plaintiff drove
over it. Preventing travelers from encountering a defect
on the highway is a remedy that the defendant could
have utilized, and the record demonstrates that this
could have been accomplished in much less time than
it took to reach the bridge and treat it with deicing
materials. Accordingly, a genuine issue of material fact
exists as to whether the defendant acted unreasonably
by failing to close the bridge after discovering it was
covered in black ice and receiving numerous reports of
accidents on it before the plaintiff’s accident occurred.
With respect to the conduct of the state police, our
courts have held that ‘‘[t]he words the legislature
employed in § 13a-144 unambiguously support the con-
clusion that the statute waives sovereign immunity for
defective highway claims based upon the neglect or
default not merely of the commissioner of transporta-
tion, but of the state or any of its employees, at least
when performing duties related to highway mainte-
nance.’’ (Emphasis added; internal quotation marks
omitted.) Lamb v. Burns, supra, 202 Conn. 169. Further-
more, the court in Lamb held that ‘‘[t]here are no words
in § 13a-144 limiting or restricting the scope of the
phrase the state or any of its employees to [department]
employees only.’’ (Internal quotation marks omitted.)
Id., 170.
The record thus demonstrates that there is a genuine
issue of material fact as to whether the state police
responded unreasonably to the icing condition of the
bridge by failing to close the road before the plaintiff’s
accident.9 In his affidavit, Silva noted that the state
police have the authority to close the road if they believe
it is in the interest of public safety to do so. As previously
discussed, the police report prepared by Trooper Sottile
stated that ‘‘[t]he entire surface of the bridge was cov-
ered with black ice.’’ In support of his motion for sum-
mary judgment, the defendant submitted a call log
showing that calls were made from the state police to
the department at 5:48, 5:49, 5:51, and 6:01 a.m. that
morning, all reporting ice related accidents in the north-
bound lanes of the Gold Star Memorial Bridge. In his
affidavit, the plaintiff stated that state police officers
arrived at the scene less than five minutes after his
accident, and that department workers were on the
bridge five or ten minutes after the police arrived. Dur-
ing his deposition, Engel stated that by the time the
department’s truck reached the bridge, the state police
had already closed the northbound lanes of the bridge.
On the basis of the foregoing evidence, there is a
genuine issue of material fact as to whether the defen-
dant should have utilized the available alternative rem-
edy of closing the bridge to prevent the plaintiff and
others like him from driving on it and encountering the
dangerous black ice condition that caused his accident.
The plaintiff’s affidavit, coupled with Engel’s deposi-
tion, demonstrates that it takes approximately ten to
fifteen minutes to close the northbound lanes of the
Gold Star Memorial Bridge, a much shorter time than
it took the department to physically respond to the
bridge with a work crew and apply deicing materials
to it. Therefore, there is a genuine issue of material fact
as to whether the failure of the state police to close
the bridge before the plaintiff’s accident occurred was
unreasonable and whether the conduct of the state
police can provide a basis for finding the defendant
liable under § 13a-144. See Lamb v. Burns, supra, 202
Conn. 171.
In conclusion, our case law demonstrates that the
determination of what constitutes a ‘‘reasonable
response’’ by the defendant is a fact-specific determina-
tion. The plaintiff was entitled to have a trier of fact
consider whether the standard response protocol could
have prevented his accident if the department had
called other employees to treat the bridge that morning
and, in the event that the response time would not thus
have been materially reduced, whether the defendant
breached his statutory duty by failing to use available
temporary remedies to warn travelers of the bridge’s
dangerous icing condition or prevented them from
encountering that dangerous condition by closing the
bridge until it could properly be treated.
On the basis of the foregoing analysis, we conclude
that the trial court erred in ruling that the defendant’s
response to the black ice condition that caused the
plaintiff’s accident and resulting injuries was reason-
able as a matter of law. Several genuine issues of mate-
rial fact still exist, and these issues must be resolved
by the finder of fact at trial.
II
In the alternative, the defendant claims on appeal
that the trial court lacked subject matter jurisdiction
over this action because the plaintiff’s written notice
of intent to sue was patently defective.10 The defendant
argues, therefore, that the plaintiff’s claim is barred by
the doctrine of sovereign immunity. We disagree.
The following additional procedural history and evi-
dence are relevant to the court’s disposition of this
alternative claim. After service of process was made
upon him, the defendant filed a motion to dismiss the
action for lack of subject matter jurisdiction. In support
of his motion to dismiss, the defendant submitted the
affidavit of Wilson, who stated that the northbound
lanes of the Gold Star Memorial Bridge are approxi-
mately 5931 feet long and have approximately 500,000
square feet of deck area. The defendant argued that
simply identifying the northbound lane of this bridge
in the plaintiff’s notice was not enough, and that the
description provided by the plaintiff was so vague that it
prevented the defendant from conducting an intelligent
investigation of the plaintiff’s claim.11
The plaintiff objected to the motion to dismiss,
arguing that the notice provision of § 13a-144 does not
demand precision and that his description of the north-
bound side of the Gold Star Memorial Bridge between
New London and Groton allowed the defendant to iden-
tify the location of the accident and conduct an intelli-
gent investigation. He further argued that the defendant
could have relied on additional information within the
notice, such as the date and time of the accident, the
plaintiff’s name and vehicle information, and the
description of events provided by the plaintiff. The
plaintiff argued, therefore, that the notice was not pat-
ently defective and thus that the trial court had subject
matter jurisdiction over this action.
On March 21, 2013, the trial court, Devine, J., granted
the defendant’s motion to dismiss. In doing so, the trial
court held that ‘‘there [were] no facts set out in the
notice that would allow the defendant to determine
where on the bridge the alleged defect was located’’
because the defendant’s supporting affidavit demon-
strated that the ‘‘northbound portion of the bridge is
over one mile long consisting of multiple lanes and . . .
has more than 500,000 [square] feet of deck area.’’
On April 1, 2013, the plaintiff moved for reconsidera-
tion. In his motion, the plaintiff argued that the notice
provided was not patently defective because the phrase,
‘‘between New London and Groton, Connecticut,’’
refers to a specific location on the bridge, namely, the
boundary line between the two municipalities. Addi-
tionally, the plaintiff argued that the defendant had
access to several police reports that would have further
detailed the location of his accident.
The defendant objected to reconsideration, arguing
that the plaintiff’s new interpretation of the word
‘‘between’’ was disingenuous because he had not raised
this interpretation at any time prior to moving for recon-
sideration. Additionally, the defendant argued that the
words, ‘‘between New London and Groton,’’ referred
to the location of the bridge itself, not to the location
where the plaintiff claimed that the injury occurred.
Last, the defendant argued that, because the notice must
provide sufficient information on its face, it did not
matter whether the defendant could contact police offi-
cers to get accident reports.12
Upon reconsideration, the trial court, Devine, J.,
reversed its ruling, holding that ‘‘the use of the term
‘between’ is not patently defective because the term
‘between’ may refer to the entire Gold Star Memorial
Bridge or it may refer to the boundary line of New
London and Groton.’’ The trial court held, therefore,
that ‘‘the adequacy of the notice is a question for the
fact finder . . . .13 (Citation omitted.)
As mentioned in the preceding paragraphs, the defen-
dant claims that the words, ‘‘between New London and
Groton, Connecticut,’’ could not reasonably be said to
describe the towns’ boundary line on the bridge. The
defendant further argues that the plaintiff could easily
have referenced the town boundary line, but failed to
do so. Last, the defendant argues that the plaintiff’s
description of ‘‘Interstate 95 Northbound on the Gold
Star Memorial Bridge between New London and Gro-
ton, Connecticut,’’ references an area so large that it
could not conduct an intelligent investigation and,
therefore, the notice was patently defective. We dis-
agree and conclude that the word ‘‘between’’ precludes
this court from concluding that the notice was patently
defective as a matter of law. Accordingly, we reject the
defendant’s alternative ground for affirmance.
Before addressing the defendant’s argument, we note
that our standard of review is plenary. Questions as to
whether the doctrine of sovereign immunity bars a
claim necessarily implicate the court’s subject matter
jurisdiction. See Filippi v. Sullivan, 273 Conn. 1, 8, 866
A.2d 599 (2005). ‘‘This court has often stated that the
question of subject matter jurisdiction, because it
addresses the basic competency of the court, can be
raised by any of the parties, or by the court sua sponte,
at any time. . . . [T]he court has a duty to dismiss,
even on its own initiative, any appeal that it lacks juris-
diction to hear. . . . Moreover, [t]he parties cannot
confer subject matter jurisdiction on the court, either
by waiver or by consent.’’ (Citations omitted; internal
quotation marks omitted.) Webster Bank v. Zak, 259
Conn. 766, 774, 792 A.2d 66 (2002); see also Kozlowski
v. Commissioner of Transportation, 274 Conn. 497,
502, 876 A.2d 1148 (2005) (same). ‘‘[W]hether subject
matter jurisdiction exists is a question of law, and our
review of the court’s resolution of that question is ple-
nary. . . . Likewise, whether the plaintiff’s notice was
patently defective and, thus, failed to meet statutory
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); see also Filippi v. Sullivan, supra, 8 (‘‘A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[O]ur review of the court’s ultimate legal conclusion
and resulting [determination] of the motion to dismiss
will be de novo.’’ [Internal quotation marks omitted.]).
‘‘It is well established law that the state is immune
from suit unless it consents to be sued by appropriate
legislation waiving sovereign immunity . . . . Section
13a-144 creates a legislative exception to this common
law rule and therefore must be strictly construed. . . .
The statutorily required notice is a condition precedent
to maintaining a cause of action, and if this requirement
is not met, no cause of action exists.’’ (Citations omitted;
internal quotation marks omitted.) Bresnan v. Frankel,
224 Conn. 23, 25–26, 615 A.2d 1040 (1992); see also
Warkentin v. Burns, 223 Conn. 14, 17–18, 610 A.2d 1287
(1992). ‘‘The notice requirement is not intended merely
to alert the commissioner to the occurrence of an acci-
dent and resulting injury, but rather to permit the com-
missioner to gather information to protect [the state]
in the event of a lawsuit.’’ (Internal quotation marks
omitted.) Lussier v. Dept. of Transportation, 228 Conn.
343, 354, 636 A.2d 808 (1994). At the same time, how-
ever, ‘‘[t]he requirement as to notice was not devised
as a means of placing difficulties in the path of an
injured person.’’ (Internal quotation marks omitted.)
Id.; see also Filippi v. Sullivan, supra, 273 Conn. 9
(same); Bresnan v. Frankel, supra, 29 (same). As such,
‘‘[t]he plaintiff is not required to be a cartographer’’ in
order to satisfy the requirements of § 13a-144. Lussier v.
Dept. of Transportation, supra, 358. Rather, the plaintiff
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 infor-
mation about the case intelligently.’’ (Internal quotation
marks omitted.) Serrano v. Burns, 70 Conn. App. 21,
25, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d
1066 (2002).
‘‘Unless a notice, in describing the place or cause of
an 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 facts of the
particular case.’’ Morico v. Cox, 134 Conn. 218, 223, 56
A.2d 522 (1947). ‘‘[T]here are two categories of cases
in which the written notice is patently defective because
of a problem with the description of the place of injury.
The first category consists of situations [in which] a
court has found that the notice stated a location differ-
ent from the [actual] place of . . . injury. . . . The
second category consists of situations [in which] the
description is so vague in its breadth that the [commis-
sioner] could not be reasonably expected to make a
timely investigation based on the information pro-
vided.’’ (Citations omitted; internal quotation marks
omitted.) Filippi v. Sullivan, supra, 273 Conn. 10 n.6.
In the present case, the defendant claims that the
plaintiff’s notice falls within the second category of
patently defective notices. The notice supplied by the
plaintiff on December 28, 2011, described the location
of injury as on the northbound lane of the Gold Star
Memorial Bridge ‘‘between New London and Groton
. . . .’’ The notice also states that the injury occurred
when the plaintiff’s ‘‘vehicle slid into the cement barri-
cade separating the north and southbound lanes . . . .’’
On this description alone, we disagree with the defen-
dant that this accident could have happened ‘‘anywhere
on the more than one mile long bridge.’’ Rather, even
considering the language of the notice is its broadest
terms, the location of the injury was on the left side of
the bridge along the cement barricade separating the
north and southbound lanes. Therefore, the area in
question is statistically smaller than the 500,000 square
feet stated by Wilson in his affidavit. Even so, the left-
most lane of Interstate 95 northbound on the Gold Star
Memorial Bridge measures more than one mile in
length. If the plaintiff’s notice only stated that the acci-
dent occurred ‘‘on the northbound lane of the bridge
along the cement barricade separating the north and
southbound lanes,’’ the defendant’s argument would be
more persuasive. The plaintiff, however, did not
describe it in this manner; instead, the plaintiff
described the location of injury as ‘‘Northbound on the
Gold Star Memorial Bridge between New London and
Groton, Connecticut.’’
The trial court, Devine, J., correctly determined that
the word ‘‘between’’ has several definitions that, when
applied to the facts of this case, could produce very
different results. Definitions of the word ‘‘between’’
include, inter alia: ‘‘an intermediate position in relation
to two other objects . . . in the interval . . . in the
space that separates.’’ Webster’s Third New Interna-
tional Dictionary (2002). Applying these definitions to
the phrase, ‘‘[n]orthbound on the Gold Star Memorial
Bridge between New London and Groton, Connecticut,’’
the notice could reasonably be interpreted as referenc-
ing the leftmost side of the northbound lane at the point
where the towns meet, i.e., the town line. Therefore,
an alternate—but equally reasonable—interpretation of
the notice would place the location of injury at a specific
side and at a specific point in the northbound lanes of
the bridge. This description would satisfy the purpose
of the notice requirement and would not be patently
defective. See Serrano v. Burns, supra, 70 Conn. App.
28 (‘‘[T]he defendant has offered no proof that the ‘rear
lot’ of a particular rest stop encompasses such an expan-
sive area that it fails to guide him in making an intelli-
gent inquiry into the case. Given the record before us,
the defendant is not being asked to range over a six
mile stretch of roadway or check a score of manhole
covers or several rest areas to try to locate where it
was that the plaintiff fell and was injured.’’); see also
Lussier v. Dept. of Transportation, supra, 228 Conn.
357 (‘‘The notice involved herein did not patently . . .
[fail] to meet this test. . . . The road in question is only
three-tenths of one mile long. The notice recites that
the car landed in the Shunock River and that the river
crosses under route 617 at only one place.’’ [Citation
omitted; internal quotation marks omitted.]).
Still, the defendant argues that the only reasonable
interpretation of the phrase, ‘‘between New London and
Groton,’’ is that the plaintiff was trying to describe the
bridge itself. This argument, however, begs the ques-
tion: if the plaintiff was trying to describe the location
of the bridge itself, why not simply state, ‘‘Northbound
on the Gold Star Memorial Bridge?’’ We are mindful that
the plaintiff could have referenced the town boundary in
his notice and, had he done so, he would have provided
the defendant with a more precise location. The require-
ments of § 13a-144, however, do not demand such pre-
cise language from the plaintiff. See Lussier v. Dept.
of Transportation, supra, 228 Conn. 358. Rather, what
is required of the plaintiff is sufficient information to
allow the defendant to conduct an intelligent investiga-
tion of his highway defect claim. Serrano v. Burns,
supra, 70 Conn. App. 25–26; Tedesco v. Dept. of Trans-
portation, 36 Conn. App. 211, 214, 650 A.2d 579 (1994).
Due to the inconsistent results of applying different—
yet reasonable—interpretations to the words, ‘‘between
New London and Groton, Connecticut,’’ this court can-
not rule as a matter of law that the plaintiff’s written
notice of intent to sue was patently defective. As such,
the question of adequacy is reserved for the trier of fact.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings consistent
with this opinion.
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 . . . . No such action shall be
brought . . . 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 commis-
sioner. . . .’’
2
The plaintiff’s notice, which was attached to his original complaint,
provides:
DATE AND TIME OF December 12, 2011 at approximately 6:28
INJURY a.m.
LOCATION OF INJURY Interstate 95 Northbound on the Gold Star
Memorial Bridge between New London and
Groton, Connecticut
DESCRIPTION OF EVENT On December 12, 2011, Mr. Graham was
traveling northbound on Interstate 95 in his
Ford Ranger pick-up truck across the Gold
Star Memorial Bridge between New London
and Groton, Connecticut. This bridge is
known to the Department of Transporta-
tion, State Police, and other State personnel
to become icy if the temperature is below
freezing when the bridge has any moisture
on it. As Mr. Graham traveled over the said
bridge at a reasonable rate of speed below
the speed limit, his vehicle slid into the
cement barricade separating the north and
southbound lanes, and then flipped over
causing injury and harm to him. As a direct
and proximate result of the negligence and
carelessness of the State by failing to treat
the bridge with de-icing substances and
other methods of creating a safe travel con-
dition, Mr. Graham was seriously injured.
DESCRIPTION OF INJURY As a direct and proximate result of the
aforementioned accident, Mr. Graham sus-
tained a concussion, post-concussive syn-
drome, right arm injury, right shoulder
injury, neck injury, numbness in right arm,
and loss of false teeth.
3
See part II of this opinion.
4
Subsequent to the trial court’s ruling, the defendant moved for reconsider-
ation, which was denied by the court. The defendant did not file an interlocu-
tory appeal from the trial court’s denial of his motion to dismiss.
5
On October 14, 2015, the plaintiff filed a motion for articulation, asserting
that he never conceded that fifty minutes was a reasonable response time.
Two weeks later, the trial court, Cole-Chu, J., issued a memorandum stating
that regardless of any such concession, the court would have ruled the same
way on the defendant’s motion based upon the evidence before it.
6
‘‘In interpreting [the terms of § 13a-144] we have on many occasions
looked to and applied the rationale in cases involving statutory actions
against municipalities under what is now General Statutes § 13a-149 since
there is no material difference in the obligation imposed on the state by
§ 13a-144 and that imposed on municipalities by § 13a-149 . . . and cases
cited.’’ (Citation omitted.) Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406
(1970). ‘‘Because [t]here is no substantial difference in the duties imposed by
those statutes . . . we treat them as identical . . . .’’ (Citation omitted;
internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 266
n.4, 875 A.2d 459 (2005).
7
In his reply memorandum on motion for summary judgment, the defen-
dant argued that the plaintiff’s allegation that the defendant breached his
statutory duty by failing ‘‘to place or utilize warning signs in the area to
warn approaching travelers of the existing hazardous and dangerous condi-
tion’’ was not an actionable defect under Connecticut law. The present case,
however, is distinguishable from the cases cited by the defendant. Stotler
v. Dept. of Transportation, 313 Conn. 158, 168–75, 96 A.3d 527 (2014). In
Stotler, the plaintiff alleged that the lack of adequate warning signs coupled
with the steep grade of the road rendered the road defective. Id., 169–70.
In the present case, the plaintiff is not alleging that the lack of warning signs
is a defect. Instead, the allegations in the complaint are fairly interpreted to
mean that the failure to use available warning signs rendered the defendant’s
response unreasonable under the circumstances.
8
Several factors could be considered by a jury when assessing the ade-
quacy of the electronic sign in question, such as the physical dimensions
of the sign, how prominently it is displayed along the highway, and whether
it has a standard message or whether such message can be tailored to
address specific dangerous conditions.
9
The facts of Lamb are analogous to the facts in this case in all but one
respect. In Lamb, the evidence at trial proved that the officer who responded
to an earlier accident used flares to warn travelers of the ice that ultimately
caused the plaintiff’s accident. Lamb v. Burns, supra, 202 Conn. 160. At
this stage of the present case, there is no evidence that the state police
used road flares on the Gold Star Memorial Bridge prior to the plaintiff’s
accident. Nonetheless, the Lamb court suggests that a jury may consider
the conduct of the state police when assessing the reasonableness of the
state’s conduct in responding to reports of defective conditions.
10
The location of injury provided by the plaintiff stated that the accident
occurred on ‘‘Interstate 95 Northbound on the Gold Star Memorial Bridge
between New London and Groton, Connecticut.’’ See footnote 2 of this
opinion.
11
The gravamen of the defendant’s argument throughout these proceed-
ings is that the Gold Star Memorial Bridge is more than one mile long and
has 500,000 square feet of deck area—therefore, the plaintiff’s description,
‘‘Northbound on the Gold Star Memorial Bridge between New London and
Groton,’’ was so vague that it could not supply the defendant with sufficient
information to intelligently investigate the claim.
12
The defendant correctly asserted that the location of injury must be
furnished by the plaintiff or his representative and cannot be provided by
third parties. See Warkentin v. Burns, 223 Conn. 14, 17–19, 610 A.2d 1287
(1992). The defendant is also correct that police reports cannot cure defects
in the notice. See id., 17. Our Supreme Court, however, has concluded that
Practice Book § 10-31 allows parties opposing motions to dismiss to submit
supporting documentation as to facts not apparent on the record. See Lussier
v. Dept. of Transportation, 228 Conn. 343, 357–58, 636 A.2d 808 (1994). The
court in Lussier further held that the trial court may rely on police reports
to provide context when the court determines whether the notice was so
vague that it was patently defective. Id.
13
The defendant raised this issue again in his motion for summary judg-
ment and argued a substantially similar position to the trial court, Cole-
Chu, J. The trial court rendered summary judgment in favor of the defendant,
but declined to rule on this particular issue.