Bin Ding v. Lazaro

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BIN DING v. RUBEN A. LAZARO ET AL.
(AC 38297)
Lavine, Alvord and Pellegrino, Js.
Argued January 12—officially released March 14, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
referee.)
Lorinda S. Coon, for the appellant (defendant state
of Connecticut).
Anthony L. Cenatiempo, with whom, on the brief,
was Prerna Rao, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant state of Connecticut1
appeals from judgment of the trial court denying its
motion to dismiss count three of the plaintiff’s com-
plaint for lack of subject matter jurisdiction.2 The defen-
dant claims that the trial court improperly concluded
that sovereign immunity did not deprive it of subject
matter jurisdiction because the plaintiff’s statutorily
required notice of claim under the state highway defect
statute, General Statutes § 13a-144,3 was not patently
defective in its description of the place of injury.4 We
affirm the judgment of the trial court.
The record reveals the following procedural history.
By a letter dated October 19, 2012, the plaintiff, Bin
Ding, sent notice of his intent to bring an action pursu-
ant to § 13a-144 against the defendant for personal injur-
ies arising out of a motor vehicle accident that occurred
on October 4, 2012. The notice was received by the
Commissioner of Transportation on October 22, 2012.
The notice gave the following description of the location
of the defect and cause of injury: ‘‘A manhole and its
cover in East Main Street [in Stamford], just east of its
intersection with Crystal Street, caused a vehicle to
collide with the vehicle operated by the injured person
herein which was traveling on East Main Street in the
opposite direction. The manhole cover was not secure
and caused the chain reaction. See Police Accident
Report relative to a further explanation of the defect and
the cause of the collision, which led to injury, attached
hereto.’’ (Emphasis in original.) The referenced police
accident report contains a diagram of the intersection
of East Main Street and Crystal Street and the accident.5
The diagram uses rectangles to represent the positions
of the vehicles involved in the accident. The rectangles
with dashed lines indicate where the vehicles were just
before the accident, and the rectangles with solid lines
indicate where the vehicles were at the time of collision.
In front of the dashed rectangles representing Lazaro’s
vehicle is a circle denoting the manhole in question.
The police report states that Lazaro explained that the
accident was set in motion when a manhole cover was
knocked out of the catch basin, causing Lazaro to lose
control of his vehicle and to swerve into the plaintiff’s
lane of traffic.
On September 24, 2013, the plaintiff served a com-
plaint, which was amended on December 2, 2013 (opera-
tive complaint). In the operative complaint, the plaintiff
alleges that on October 4, 2012, Lazaro was driving ‘‘in
a westerly direction on East Main Street [in Stamford],
at or near its intersection with Crystal Street, when he
drove over a manhole cover lying on the road.’’ As
a result, Lazaro’s vehicle collided with the plaintiff’s
vehicle, injuring the plaintiff. Count three of the opera-
tive complaint asserts that the defendant breached its
statutory duty to maintain the roads in a reasonably
safe condition in violation of § 13a-144.
Pursuant to the trial management schedule, all dis-
positive motions, e.g., a motion to dismiss, were
required to be filed on October 7, 2014. The defendant
did not file its motion to dismiss at that time. On January
9, 2015, a one day trial commenced before an arbitrator.
On May 8, 2015, the arbitrator issued a decision, finding
in favor of the plaintiff and awarding a total of $45,000
in damages against the defendant, Lazaro, and the city
of Stamford. On May 13, 2015, the defendant filed a
claim for a trial de novo, pursuant to Practice Book
§ 23-66.
On July 14, 2015, fifteen days before the scheduled
trial date, the defendant filed a motion to dismiss count
three, arguing, in relevant part, that the plaintiff’s claim
was barred by the doctrine of sovereign immunity
because ‘‘the [plaintiff’s] notice of claim, which is a
condition precedent to suit under [§] 13a-144, is patently
defective . . . .’’ In particular, the defendant claimed
that the notice ‘‘does not provide adequate notice to
the state to locate the alleged defect’’ because there
are four manholes near the intersection of East Main
Street and Crystal Street.6 On July 31, 2015, the plaintiff
filed an objection to the defendant’s motion, arguing
that the notice received by the defendant was adequate,
thereby giving the court proper jurisdiction over the
claim. On August 3, 2015, after a hearing, the court
issued an oral decision denying the defendant’s motion
to dismiss. The court held that although the description
in the notice, when read alone, was nonspecific and
vague, the police accident report, which was attached
thereto and incorporated by reference, made the notice
sufficiently descriptive to withstand a motion to dis-
miss. The defendant now appeals from that decision.
We begin by setting forth the standard of review and
legal principles that govern 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 suit against the defendant pursu-
ant to § 13a-144. ‘‘[Section] 13a-144 created a new cause
of action not authorized at common law, in derogation
of sovereign immunity. The notice requirement con-
tained in § 13a-144 is a condition precedent which, if
not met, will prevent the destruction of sovereign immu-
nity. . . .
‘‘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 commis-
sioner 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 [commis-
sioner] such warning as would prompt him to make
such inquiries as he might deem necessary or prudent
for the preservation of his interests, and such informa-
tion as would furnish him a reasonable guide in the
conduct of such inquiries, and in obtaining such infor-
mation 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. . . .
‘‘With respect to the degree of precision required of
a claimant in describing the place of injury, in many
cases exactness of statement as to place cannot be
expected, for the excitement and disturbance caused
by the accident . . . make it impossible to observe
with any carefulness the place where the accident
occur[red] . . . . In such cases reasonable definite-
ness is all that can be expected or should be
required. . . .
‘‘Such precision is, therefore, not essential in order
to comply with § 13a-144. . . . [Rather] [u]nder § 13a-
144, the notice must provide sufficient information as
to the injury and the cause thereof and the time and
place of its occurrence to permit the commissioner to
gather information about the case intelligently.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
8–10.
‘‘ ‘[T]here are two categories of cases in which the
written notice is patently defective because of a prob-
lem 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 different from
the [actual] place of . . . injury. . . . [E.g.,] Ozmun v.
Burns, 18 Conn. App. 677, 679 n.3, 680–81, 559 A.2d
1143 (1989) (notice describing location using ‘‘north’’
in place of ‘‘south’’ and ‘‘east’’ in place of ‘‘west’’); Zotta
v. Burns, [8 Conn. App. 169, 170, 511 A.2d 373 (1986)]
(location identified as ‘‘route 6 in Bolton’’ [when] acci-
dent [actually] occurred on ‘‘Camp Meeting Road in
Bolton’’). The second category consists of situations [in
which] the ‘‘description is so vague in its breadth that
the [commissioner] could not be reasonably expected
to make a timely investigation based on the information
provided.’’ . . . [E.g.,] Bresnan v. Frankel, [224 Conn.
23, 25–26, 615 A.2d 1040 (1992)] (location identified
as ‘‘Route 14A, Plainfield, Connecticut,’’ without any
further detail [even though] Route 14A was six mile
stretch of road); Schaap v. Meriden, 139 Conn. 254, 256,
93 A.2d 152 (1952) (location [of the defect] identified as
‘‘near the edge of a manhole cover’’ without [identifica-
tion of which] particular one of numerous manhole
covers); Murray v. Commissioner of Transportation,
31 Conn. App. 752, 753, 626 A.2d 1328 (1993) (location
identified simply as ‘‘the northern curbline of Route
22,’’ a public highway running through North Haven).’ ’’
Filippi v. Sullivan, supra, 273 Conn. 10 n.6.
The defendant claims that the plaintiff’s notice falls
within the second category of patently defective notices
because it does not specify which of the four manholes
near the intersection of East Main Street and Crystal
Street in Stamford was defective. We do not agree that
the notice is patently defective. The notice states that
the defective manhole is located on ‘‘East Main Street,
just east of its intersection with Crystal Street . . . .’’
The accompanying police accident report diagram fur-
ther narrows the potential location of the manhole in the
identified intersection by specifying that the manhole in
question is located in the westbound lane of East Main
Street near, but prior to, the point at which it intersects
with Crystal Street. On the basis of the description of
the place of injury in the notice and the accompanying
diagram, the defendant reasonably could be expected
to make a timely investigation of the accident and the
complained of defect. Accordingly, we conclude that
the plaintiff’s notice was not patently defective. ‘‘The
sufficiency of the notice with respect to the place of
injury, therefore, is a matter to be determined by the
jury.’’ Id., 11.
The judgment is affirmed.
In this opinion the other judges concurred.
APPENDIX
1
Ruben A. Lazaro and the city of Stamford are defendants in this action;
however, neither is a party to this appeal. Therefore, throughout this opinion,
we refer to the state of Connecticut as the defendant.
2
‘‘Although the denial of a motion to dismiss generally is an interlocutory
ruling that does not constitute an appealable final judgment, the denial of
a motion to dismiss filed on the basis of a colorable claim of sovereign
immunity is an immediately appealable final judgment.’’ Filippi v. Sullivan,
273 Conn. 1, 6 n.5, 866 A.2d 599 (2005).
3
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. . . .’’
4
The defendant further claims that the trial court lacked subject matter
jurisdiction because the plaintiff cannot prove that it had actual or construc-
tive notice of the defect. Whether a plaintiff has sufficiently proved that the
defendant, in a highway defect case, had actual or constructive notice of
the defect is a question of fact that does not implicate the subject matter
jurisdiction of our courts. See Graham v. Commissioner of Transportation,
168 Conn. App. 570, 595, 608, 148 A.3d 1147 (2016); Ormsby v. Frankel, 54
Conn. App. 98, 103, 734 A.2d 575 (1999), aff’d 255 Conn. 670, 768 A.2d 441(2001). Accordingly, we reject the defendant’s claim.
5
See Appendix.
6
The defendant attached to its motion to dismiss, inter alia, a portion of
the deposition of Kenneth Hyatt, who is the general maintenance supervisor
for one of the defendant’s maintenance facilities. On October 5, 2012, the
day after the accident, Hyatt was notified that there was a loose manhole
cover near the intersection of East Main Street and Crystal Street. He found
four manhole covers in that area, but none of them had a loose cover.