Boykin v. State

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ERIC BOYKIN v. STATE OF
CONNECTICUT ET AL.
(AC 39392)
Lavine, Alvord and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, the state of
Connecticut and the Commissioner of Transportation, for injuries he
sustained as a result of an allegedly defective crosswalk button when
he was struck by a vehicle while he was walking in a pedestrian cross-
walk. The trial court granted the defendants’ motion to dismiss for lack
of subject matter jurisdiction and rendered judgment for the defendants,
from which the plaintiff appealed to this court. The defendants claimed
that the written notice of claim that the plaintiff filed pursuant to the
state highway defect statute (§ 13a-144) was patently defective because
it failed to provide the defendants with sufficient notice of the cause
of the injuries that the plaintiff alleged. The trial court concluded that
because the written notice of claim, which constitutes a waiver of the
state’s sovereign immunity, failed to state sufficiently the cause of the
injuries alleged by the plaintiff, it failed to meet the minimum require-
ments of § 13a-144, thereby depriving the court of subject matter jurisdic-
tion. The notice stated that the plaintiff was injured because, inter alia,
the defendants were negligent in failing to place a pedestrian crosswalk
button at the intersection, and to inspect and repair the crosswalk button
so as to provide a safe pedestrian crosswalk. Held that the trial court
improperly granted the defendants’ motion to dismiss, as the plaintiff’s
written notice of claim provided sufficient information as to the cause
of his injury to permit the commissioner to gather information about
the case intelligently and, therefore, was not patently defective; the
plaintiff provided the defendants with notice that the condition or
absence of a crosswalk button at the intersection caused his injury, and
the notice informed the defendants of his intent to file a claim and
furnished them with a guide as to how to conduct further inquiries to
protect their interests.
Argued October 19, 2017—officially released January 9, 2018
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of an allegedly defective state highway,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the court, Wenzel,
J., granted the defendants’ motion to dismiss and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Reversed; further proceedings.
Brendon P. Levesque, with whom were Scott T. Garo-
sshen and, on the brief, Kimberly A. Knox, for the
appellant (plaintiff).
Kevin S. Coyne, with whom, on the brief, was Joseph
M. Walsh, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff, Eric Boykin, appeals from
the judgment of the trial court dismissing the present
action against the defendants, the state of Connecticut
and James P. Redeker, Commissioner of Transportation
(commissioner),1 for lack of subject matter jurisdiction.
The plaintiff claims that the court improperly concluded
that sovereign immunity deprived it of subject matter
jurisdiction because his written notice of claim pursu-
ant to the state highway defect statute, General Statutes
§ 13a-144,2 was patently defective in its description of
the cause of his injury. We agree with the plaintiff, and
accordingly, reverse the judgment of the trial court.
The record reveals the following procedural history.
On November 16, 2015, the plaintiff filed a single count
complaint, in which he alleged that on or about Decem-
ber 26, 2014, he was struck by a vehicle while walking
north on the western side of East Main Street in the
pedestrian crosswalk at the entrance of Interstate 95
south in Bridgeport. By a letter dated February 13, 2015,
the plaintiff sent written notice of his intent to bring
an action pursuant to § 13a-144 for personal injuries
sustained as a result of the incident. The commissioner
received the notice on February 17, 2015. The notice
described the cause of injury as follows: ‘‘On December
26, 2014 at approximately 6:06 p.m., Eric Boykin was
injured due to the negligence [of the] State of Connecti-
cut Department of Transportation, who failed to place
a pedestrian cross walk button at the intersection of
East Main St., and I-95, Bridgeport, CT, failed to inspect
the pedestrian crossing, failed to repair the pedestrian
cross walk button and failed to provide a safe pedestrian
cross walk for pedestrians such as the plaintiff.’’3
On February 18, 2016, the commissioner filed a
motion to dismiss for lack of subject matter jurisdiction.
In his memorandum of law in support of the motion to
dismiss, the commissioner argued that the plaintiff’s
claim did not fall within § 13a-144’s waiver of sovereign
immunity because the written notice was patently
defective. Specifically, the commissioner argued, in rel-
evant part, that ‘‘the notice is fatally defective as to
setting forth a general description of the cause of the
particular injury.’’4 The commissioner contended that
‘‘[b]ased upon the notice, the commissioner has abso-
lutely no idea how the particular injury occurred or
what the cause of the injury was. The notice contains
nothing more than bald allegations of responsibility
. . . without specifying the specific nature or cause.’’
On April 29, 2016, the plaintiff filed an objection to
the commissioner’s motion to dismiss, arguing that the
written notice satisfied the requirements of § 13a-144
because it provided a ‘‘general description’’ of the cause
of injury, as required by the language of the statute.
On May 6, 2016, after a hearing, the court granted
the commissioner’s motion to dismiss. In its memoran-
dum of decision, the court stated that it relied on this
court’s decision in Frandy v. Commissioner of Trans-
portation, 132 Conn. App. 750, 34 A.3d 418 (2011), cert.
denied, 303 Conn. 937, 36 A.3d 696 (2012), and reasoned
that ‘‘[t]he more the court reads [the] language [of the
notice], the more ambiguous and open-ended it appears.
Suffice it to say that how any of these claimed features
caused injuries to plaintiff simply does not appear.
Uncertainty begins with the inconsistent statements
that the state failed to place a crosswalk button at this
location and then failed to repair the crosswalk button.
. . . The claims that the state was negligent or that the
crosswalk was unsafe are simply conclusions and add
nothing to the notice in terms of helping the reader
understand how such caused the claimed injury.’’ The
court concluded that the notice failed to meet the mini-
mal requirements of § 13a-144 by failing to state suffi-
ciently the cause of the injuries alleged and, therefore,
the state’s sovereign immunity was not waived, depriv-
ing the court of subject matter jurisdiction. This
appeal followed.
We begin by setting forth the standard of review and
legal principles that guide our analysis. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . 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 [determi-
nation] of the motion to dismiss will be de novo. . . .
Moreover, [t]he doctrine of sovereign immunity impli-
cates subject matter jurisdiction and is therefore a basis
for granting a motion to dismiss. . . . When a . . .
court decides a jurisdictional question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader.’’ (Citation omit-
ted; internal quotation marks omitted.) Filippi v. Sulli-
van, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The plaintiff brought this action pursuant to § 13a-
144, which provides a waiver of the state’s sovereign
immunity5 in civil actions alleging injuries caused by
defective state highways or sidewalks. The statute pro-
vides 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 Commis-
sioner of Transportation to keep in repair . . . may
bring a civil action to recover damages sustained
thereby against the commissioner in the Superior Court.
No such action shall be brought except within two years
from the date of such injury, nor unless notice of such
injury and a general description of the same and of the
cause thereof and of the time and place of its occurrence
has been given in writing within ninety days thereafter
to the commissioner. . . .’’ General Statutes § 13a-144.
‘‘[Section] 13a-144 created a new cause of action not
authorized at common law, in derogation of sovereign
immunity. The notice requirement contained in § 13a-
144 is a condition precedent which, if not met, will
prevent the destruction of sovereign immunity. . . .
The notice [mandated under § 13a-144] is to be tested
with reference to the purpose for which it is required.
. . . The [notice] requirement . . . was not devised as
a means of placing difficulties in the path of an injured
person. The purpose [of notice is] . . . to furnish the
commissioner with such information as [will] enable
him to make a timely investigation of the facts upon
which a claim for damages [is] being made. . . . The
notice requirement is not intended merely to alert the
commissioner to the occurrence of an accident and
resulting injury, but rather to permit the commissioner
to gather information to protect himself in the event of
a lawsuit. . . . [In other words] [t]he purpose of the
requirement of notice is to furnish the [commissioner]
such warning as would prompt him to make such inquir-
ies 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. . . . 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. . . . [U]nder § 13a-144, the notice must provide
sufficient information as to the injury and the cause
thereof and the time and place of its occurrence to
permit the commissioner to gather information about
the case intelligently.’’ (Citations omitted; internal quo-
tation marks omitted.) Filippi v. Sullivan, supra, 273
Conn. 8–10.
‘‘The cause of the injury required to be stated must
be interpreted to mean the defect or defective condition
of the highway which brought about the injury. . . . It
is sufficient and customary in defective highway cases
to state that the cause was a specified defective condi-
tion, without further statement that it in turn was due
to negligence in failing to keep the highway in repair
or otherwise.’’ (Internal quotation marks omitted.)
Frandy v. Commissioner of Transportation, supra, 132
Conn. App. 754.
On appeal, the plaintiff argues that he ‘‘provided the
defendants with more than sufficient information to
investigate the pedestrian crosswalk button at the speci-
fied location.’’ Specifically, he contends that ‘‘the notice
made clear that the negligence centered around the
crosswalk button, the lack of safety of the intersection
included the failure to have or repair a crosswalk but-
ton, the failure to inspect the intersection or crosswalk
button, leading to an unsafe pedestrian crosswalk.’’ The
commissioner responds that ‘‘[g]iven the limited
amount of information provided by the plaintiff, it was
impossible for the defendants to conduct a meaningful
inquiry or develop a defense to the plaintiff’s claim. The
defendants could not know whether the specific defect
was a pothole, a streetlight failure, or an automobile
driving into the crosswalk. Without being provided with
that knowledge, the defendants are left to guess as to
what caused the plaintiff’s alleged injuries. Accordingly,
the plaintiff’s notice is patently defective.’’ We do not
agree that the notice is patently defective.
We conclude that the plaintiff’s notice provided suffi-
cient information as to the cause of his injury to permit
the commissioner to gather information about the case
intelligently and, therefore, was not patently defective.
We disagree with the commissioner that ‘‘each of the
plaintiff’s assertions in the notice with respect to causa-
tion fail to properly advise the defendants of the mecha-
nism by which he was injured.’’6 On the contrary, the
notice provides sufficient information that would allow
the commissioner to investigate the alleged defects that
made the crosswalk unsafe (i.e., the crosswalk button,
or lack thereof, at the pedestrian crosswalk of the
described intersection).
In reaching its decision, the trial court stated that it
relied on this court’s decision in Frandy. The plaintiff
in Frandy alleged that she was injured while riding
her bicycle on State Street in North Haven. Frandy
v. Commissioner of Transportation, supra, 132 Conn.
App. 752. The plaintiff sent a written notice of claim
to the commissioner describing the cause of injury as
follows: ‘‘Plaintiff’s injuries were caused as a result of
the defective condition of the pavement which caused
her to be thrown from her bicycle.’’ (Internal quotation
marks omitted.) Id. The plaintiff served her complaint
more than four months later, in which she alleged for
the first time that ‘‘ ‘the defective condition of the pave-
ment’ ’’ was a hole in the road. Id. The commissioner
filed a motion to dismiss one count of the complaint
on the basis of a lack of subject matter jurisdiction.
After a hearing, the trial court denied the motion to
dismiss. Id.On appeal, the commissioner in Frandy argued that
the trial court improperly denied his motion to dismiss
because the plaintiff’s notice of claim was defective in
that it failed to state a cause of injury as required by
§ 13a-144. Id., 754. This court agreed and reversed the
judgment of the trial court. Id., 754, 756. This court
concluded that the plaintiff’s notice patently failed to
meet the statutory requirement that the notice provide
a general description of the cause of injury because it
‘‘merely state[d] that the cause of the plaintiff’s bicycle
accident was due to ‘the defective condition of the
pavement’ but it [did] not specify the precise nature of
the claimed defect.’’ Id., 754. This court characterized
the plaintiff’s description of her cause of injury as a
‘‘conclusory phrase’’; id., 755; that would not provide the
commissioner the opportunity to ‘‘gather information
to protect himself in a lawsuit . . . .’’ Id., 756.
We conclude that the present case is distinguishable
from Frandy. In Frandy, the plaintiff’s notice only
alleged that her injuries were caused by the ‘‘defective
condition of the pavement which caused her to be
thrown from her bicycle.’’ (Internal quotation marks
omitted.) Id., 752. It provided no further indication of
what defect or defective condition caused the plaintiff
to be thrown from her bicycle. Until the plaintiff served
her complaint, which was served beyond the ninety day
period in which notice had to be filed, the plaintiff
provided the commissioner with no indication that her
injuries were caused by a hole in the road. Id. Unlike
the plaintiff in Frandy, the plaintiff here provided notice
that the claimed defect that caused his injury was the
condition of the crosswalk, namely, the condition or
absence of a crosswalk button at the intersection. In
effect, Frandy’s notice amounted merely to a legal con-
clusion that the pavement was ‘‘ ‘defective’ . . . .’’
Such a ‘‘conclusory phrase is not a description of the
relevant highway defect’’; id., 755; and could not be
expected to allow the commissioner to ‘‘gather informa-
tion to protect himself in a lawsuit without knowing
the nature of the defect . . . .’’ Id., 756. Here, the plain-
tiff’s notice provided the commissioner with notice of
the nature of the defect when it directed his attention
to the crosswalk button.
The trial court, in its memorandum of decision, rea-
soned: ‘‘Uncertainty begins with the inconsistent state-
ments that the state failed to place a crosswalk button
at this location and then failed to repair the crosswalk
button.’’ We note, however, that notice ‘‘need not be
expressed with the fullness and exactness of a pleading.
. . . Under § 13a-144, the notice must provide sufficient
information as to the injury and the cause thereof and
the time and place of its occurrence to permit the com-
missioner to gather information about the case intelli-
gently.’’ (Emphasis added; internal quotation marks
omitted.) Oberlander v. Sullivan, 70 Conn. App. 741,
746, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806
A.2d 1061 (2002).7 The sufficiency of the notice, with
respect to the cause of injury, is a matter to be deter-
mined by the jury. See Filippi v. Sullivan, supra, 273
Conn. 11.
We conclude that the plaintiff’s notice was not pat-
ently defective, as it ‘‘both informed the defendant of
the plaintiff’s intent to file a claim and furnished the
defendant with a guide as to how to conduct further
inquiries to protect its interests.’’ Tedesco v. Dept. of
Transportation, 36 Conn. App. 211, 214, 650 A.2d 579(1994).
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Although the plaintiff also names the state as a defendant, for ease of
discussion, we refer only to the commissioner throughout this opinion.
2
General Statutes § 13a-144, which serves as a waiver of the state’s sover-
eign immunity for claims arising out of certain highway defects, provides
in relevant part: ‘‘Any person injured in person or property through the
neglect or default of the state . . . by means of any defective highway . . .
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
. . . 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. . . .’’
3
In his complaint, the plaintiff attributed his injuries to ‘‘the defective
roadway, crosswalk and associated traffic and/or pedestrian control sys-
tems . . . .’’
4
In his motion to dismiss, the commissioner also claimed that the notice
was patently defective in describing the location of the incident. The court
rejected this claim, concluding that the location described was ‘‘reasonably
definite and limited,’’ and ‘‘looking to the notice as a whole, the commissioner
reading the notice should understand the location as the pedestrian cross-
walk within the intersection.’’
5
‘‘It is the established law of our state that the state is immune from suit
unless the state, by appropriate legislation, consents to be sued.’’ (Internal
quotation marks omitted.) Salgado v. Commissioner of Transportation, 106
Conn. App. 562, 566, 942 A.2d 546 (2008).
6
At oral argument before this court, the plaintiff conceded that, under
our case law, the allegations that the commissioner ‘‘failed to inspect the
pedestrian crossing’’ and ‘‘failed to provide a safe pedestrian crosswalk for
pedestrians such as the plaintiff’’ are too vague to meet the notice require-
ments of § 13a-144. The plaintiff argued, however, that under our Supreme
Court’s decision in Filippi v. Sullivan, supra, 273 Conn. 1, the inclusion of
these allegations in the notice does not render it patently defective.
Although Filippi concerned the notice’s description of the location of
the accident, we are guided by its reasoning. There, the plaintiff brought
an action against the commissioner for injuries he sustained in an automobile
accident allegedly caused by the commissioner’s failure to post lane closure
signs on a portion of Interstate 95. Id., 2–3. The commissioner filed a motion
to dismiss on the ground that the notice was patently defective in that it
‘‘ ‘describe[d] two different and distinct locations,’ ’’ and therefore failed to
sufficiently describe the location of the accident. Id., 6. Although the notice
provided that the accident occurred at a point in the road immediately after
a ‘‘ ‘graded blind curve’ ’’ between two exits on Interstate 95; id., 6 n.3;
evidence in the record established that there was more than one curve in
the road between the points identified. Id., 11.
On appeal from the trial court’s denial of the commissioner’s motion to
dismiss, our Supreme Court concluded that the notice was not patently
defective. Id., 11–12. The court acknowledged that, although the notice
described two different locations that were almost two miles apart from
one another and the accident could have occurred in only one of those
locations, no evidence in the record ‘‘indicate[d] that there is more than
one graded blind curve immediately prior to either of those two points.’’
(Emphasis in original.) Id., 11. Thus, the court could not conclude that ‘‘the
notice necessarily was too vague to permit the commissioner to identify
the location of the accident and injury with reasonable certainty.’’ Id.
Just as one of the alleged locations in Filippi was legally insufficient, the
plaintiff here concedes that two of his alleged causes of injury are legally
insufficient to provide adequate notice to the commissioner. The inclusion
of a cause of injury that would be legally insufficient on its own, however,
does not invalidate the notice provided by the statements regarding the
crosswalk signal, just as the inclusion of a second location in Filippi did
not invalidate the entire notice, as it does not make the notice ‘‘too vague
to permit the commissioner to identify’’ the cause of the accident and injury
‘‘with reasonable certainty.’’ Id.
7
Furthermore, we agree with the plaintiff that ‘‘[w]hether there was no
button or the button was broken is irrelevant. The point is, in the absence
of a working crosswalk button, there was no method to ensure safe passage
across the street. . . . Once on notice that there was a problem with a
crosswalk button, the commissioner could easily gather information about
the matter.’’