Superior Court of Connecticut, Judicial District of Hartford, Hartford
Filed Date October 29, 2015
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
PETER EMMETT WIESE, JUDGE.
On October 15, 2014, the plaintiff, Margarita Flores, filed a two-count complaint against the defendants, the city of Hartford and Mater, LLC, for a slip and fall incident that allegedly occurred on a sidewalk maintained by the city of Hartford and Mater, LLC. Count one of the plaintiff's complaint alleges that the city of Hartford was negligent, careless, and had violated General Statutes § 13a-149, the municipal highway defect statute, based on the following facts. On or about December 7, 2012, the plaintiff tripped and fell in front of 179 Mather Street in Hartford due to the dangerous and defective conditions of the sidewalk at that location. The plaintiff further alleges that, at the time of this incident, the city of Hartford was under a duty to keep the sidewalk in repair and free of defects. Count two of the complaint is predicated on these same facts, but alleges negligence, carelessness, and a violation of General Statutes § 13a-149 against Mater, LLC. The city of Hartford filed an answer on November 24, 2014.
In its November 24, 2014 answer, the defendant admitted paragraph 17 of the complaint, which alleged that " [o]n or about January 16, 2013, the plaintiff gave notice to the City Clerk of the defendant, City of Hartford, which stated the intention of the plaintiff to commence an action . . . pursuant to General Statutes § 13a-149." Subsequent to that answer, the defendant requested leave to file an amended answer on April 10, 2015. In paragraph 17 of its amended answer, the defendant denies receiving notice of the plaintiff's intention to commence an action against the city of Hartford " insofar as [the complaint] alleges that the Notice was delivered by the Plaintiff to the Town Clerk in accordance with Conn. Gen. Stat. § 13a-149." The plaintiff did not file an objection to the defendant's amended answer.
On April 27, 2015, the defendant filed a motion to dismiss that was accompanied by a memorandum of law, a copy of the notice for claim of personal injuries for the plaintiff that was received by Hartford Corporation Counsel on January 16, 2013, and an affidavit by Kelly Bilodeau, an Assistant Town Clerk for the city of Hartford. Bilodeau's affidavit indicates that she has worked in the office of the town and city clerk for fifteen years, and that there is no record in that office of a notice for claim of personal injuries filed by the plaintiff. The plaintiff filed an objection to the defendant's motion to dismiss on April 30, 2015. In support of her objection, the plaintiff provided the court with a copy of the defendant's initial answer from November 24, 2014. As further evidence of service of notice on the defendant, the plaintiff also attached the following three documents, each of which was originally attached to her complaint: (i) a notice of claim for personal injuries, which was addressed to the " City of Hartford, 550 Main Street, Hartford, CT 06103"; (ii) a copy of the certified mail receipt that was addressed to the " City of Hartford, 550 Main Street, Hartford, CT 06103"; and (iii) a delivery confirmation, indicating that the sent item arrived in " Hartford, CT 06114" at 6:26 a.m. on January 16, 2013. The defendant filed a reply on May 13, 2015. This court heard oral argument on the matter on August 3, 2015.
" When a . . . court decides a jurisdictional question raised by a pretrial 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 necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 154-55, 7 A.3d 414, cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011).
" [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." Cuozzo v. Orange, 315 Conn. 606, 616, 109 A.3d 903 (2015). " An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 653-54, 974 A.2d 669 (2009). " When issues of fact are necessary to the determination of a court's jurisdiction . . . due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Gordon v. H.N.S. Management Co., Inc., 272 Conn. 81, 92, 861 A.2d 1160 (2004); see also Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983).
" [I]n the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss . . . 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 establish the existence of a material fact . . ." (Citations omitted; internal quotation marks omitted.) Bartlett v. Metropolitan District Commission, supra, 125 Conn.App. 163-64.
In support of its motion to dismiss, the defendant argues that the plaintiff failed to provide sufficient notice of her intent to sue the defendant. Specifically, the defendant argues that General Statutes § 13a-149 requires that the town or city clerk be given notice of the intent to commence an action against the city of Hartford, and that the plaintiff failed to provide notice when she did not specifically direct the notice to be delivered to the town or city clerk. Moreover, the defendant relies on Bilodeau's affidavit, which asserts that the office of the town clerk for the city of Hartford has no record of the plaintiff's notice of claim for personal injuries. The plaintiff argues that (i) the defendant's initial answer from November 24, 2014, where it admitted to receiving the requisite statutory notice, (ii) her notice of a claim for personal injuries, and (iii) the delivery confirmation of that notice indicate that she provided the requisite statutory notice.
Commonly referred to as the municipal highway defect statute,  General Statutes § 13a-149 states in relevant part that " [n]o action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrences, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough . . ."  " [Section] 13a-149 is the exclusive remedy against a municipality for damages resulting from a defective road."  Brennan v. Fairfield, 255 Conn. 693, 701-02, 768 A.2d 433 (2001).
" Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control . . . The highway defect statute . . . is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed ." (Emphasis in original.) Bartlett v. Metropolitan District Commission, supra, 125 Conn.App. 157; see also Novicki v. New Haven, 47 Conn.App. 734, 738-39, 709 A.2d 2 (1998) (legislation waiving sovereign immunity must be strictly construed). " As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident." Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001). " [A] plaintiff who alleges that notice was provided to a defendant pursuant to § 13a-149 bears the burden of proving that the notice was delivered and actually received [by the designated party]." Rivera v. Meriden, 72 Conn.App. 766, 772, 806 A.2d 585 (2002); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). (" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.")
Moreover, " [a]s a general rule statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions [of] the party making them, just as would any extrajudicial statements of the same import." (Emphasis added.) Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 542, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). " The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage." Id., 541. " A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." Id., 542. " In contrast with a judicial admission, which prohibits any further dispute of a party's factual allegation contained in its pleadings on which the case is tried, an evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it."  (Internal quotation marks omitted.) Id. Although an evidential admission from a superseded pleading is not conclusive on the admitting party, such admissions " have some probative value." Dreier v. Upjohn Co., 196 Conn. 242, 247, 492 A.2d 164 (1985); see also Auth v. Wesley, Superior Court, judicial district of Hartford, Docket No. CV-01-0806612-S (March 15, 2007, Wiese, J.) [43 Conn. L. Rptr. 67, 2007 Conn. Super. LEXIS 748] (genuine issue of material fact remained in summary judgment context where defendant admitted in a superceded pleading that a particular individual was a lessee of a vehicle involved in a motor vehicle collision).
In the present case, the focus of the defendant's argument that the town clerk for the city of Hartford was not given notice of the plaintiff's cause of action, as required by § 13a-149, is that the plaintiff did not address the notice to the town clerk; instead, the plaintiff merely addressed the notice to " The City of Hartford, 550 Main Street, Hartford, CT 06103." Evidence submitted by the defendant suggests that this caused the notice to be delivered to Hartford Corporation Counsel on January 16, 2013. At the outset, it is worth noting that the language of § 13a-149 does not require the plaintiff to affirmatively address the written notice to the town or city clerk; rather, the statute merely requires that the notice ultimately be " given to a selectman or the clerk of such town, or to the clerk of such city . . . [within ninety days]." General Statutes § 13a-149. See Brennan v. Fairfield, supra, 255 Conn. 707 (" The statute does not require the plaintiff to include the name of the town clerk or selectman in her notice"). For example, in Figueroa v. City of Norwalk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-11-6021993 (July 17, 2012, Tyma, J.) [54 Conn. L. Rptr. 406, 2012 Conn. Super. LEXIS 1841], the court denied a motion to dismiss on the ground of improperly addressed notice when it was undisputed that the city clerk was given the notice that was originally provided to an improper party. The court came to a similar conclusion in Costello v. Norwalk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-268834-S (April 25, 1991, Katz, J.) (3 Conn. ...