Argued
February 14, 2019
Superior
Court in the judicial district of New London, Cole-Chu, J.
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Lorinda S. Coon, Hartford, with whom, on the brief, was
Jessica M. Scully, for the appellant (defendant).
Thor
Holth, with whom, on the brief, was Lorena P. Mancini, New
London, for the appellee (plaintiff).
DiPentima,
C.J., and Prescott and Bright, Js.
OPINION
PRESCOTT,
J.
[191
Conn.App. 630] In this action, brought, in part, pursuant to
the state defective highway statute, General Statutes §
13a-144,[1] the defendant, James P. Redeker, the
Commissioner of Transportation (state),[2] appeals from the
judgment of the trial court denying the states motion to
dismiss the claims asserted against it on sovereign immunity
grounds.[3] The state claims that the court
improperly denied the motion to dismiss because (1) the
notice of claim (notice) provided by the plaintiff, Angela
Dudley, pursuant to § 13a-144, was patently defective in its
description of the location of the alleged defect, and (2)
the state did not have a duty to maintain and repair the area
in question. We affirm the judgment of the trial court.
[191
Conn.App. 631] The plaintiff alleges the following
facts.[4] On or about June 5, 2012, the
plaintiff was walking on the sidewalk adjacent to Route 643,
Lee Avenue, in New London, and was heading toward Route 213,
Ocean Avenue. On or about June 1, 2012, and for several
months prior, new utilities had been placed under the paved
portion of Ocean Avenue, in an area close to Lee Avenue.
During the course of construction, a manhole or inspection
plate located at the intersection of Lee and Ocean Avenues
was opened so that workers could access items underneath.
Once the work was completed, one or more employees, agents,
servants, or subcontractors for the state replaced the
manhole cover in such a manner as to leave it dislodged or
otherwise unstable.
When
the plaintiff arrived at the portion of the sidewalk located
at the corner of Ocean and Lee Avenues, she stepped onto
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the manhole cover, which was located in the grassy embankment
between the sidewalk area and the adjacent street. When she
stepped onto the manhole cover, it flipped up and struck her.
The plaintiff lost her balance and fell through the exposed
manhole into the sewage drain system. Consequently, the
plaintiff suffered physical injury, emotional distress, and
has a diminished capacity to earn a living.
The
plaintiff provided the state with written notice on August 8,
2012, advising the state of the injuries she sustained from
the allegedly defective manhole cover. The notice describes
the place of injury as "[s]idewalk and/or intersection
of Lee Avenue and Ocean Avenue, New London,
Connecticut." It further states, in relevant part:
"Cause of Injury and Defect: At approximately 5:20 p.m.,
June 5, 2012, [the plaintiff] was walking towards and/or onto
Ocean Avenue, a State of Connecticut owned or maintained
road, with due care along and/or [191 Conn.App. 632] upon the
sidewalk located at the northeast side of the intersection of
Ocean Avenue and Lee Avenue when she was caused to fall by
her foot landing on an improperly placed or replaced manhole
cover which flipped/tipped up and struck her, causing her to
lose her balance and fall partially into the manhole and
thereafter fail to regain her balance. The incident was
caused by the defective and/or dangerous condition of the
sidewalk and/or manhole cover, the State of Connecticut
Department of Transportations failure to remedy same, and/or
its agents, servants and/or employees failure to remedy
same....
"As a result of her fall, [the plaintiff] was caused to
fall into the sewage drainage system running under the
sidewalk and/or street and was caused to land knee-deep in
the contaminated water therein."
The
plaintiff commenced this action on May 28, 2014. The
operative complaint, filed on December 16, 2014, alleges four
counts. The first count alleges that the plaintiff is
entitled to relief against the state pursuant to § 13a-144.
The second count is a municipal highway defect claim against
the city pursuant to General Statutes § 13a-149. The third
and fourth counts sound in negligence and nuisance,
respectively, and are directed against the director of the
New London Public Works, Timothy Hanser.[5]
On
August 11, 2015, pursuant to Practice Book § 10-30 et seq.,
the state filed a motion to dismiss count one of the
complaint, arguing that the plaintiff had failed to comply
with the notice requirements of § 13a-144 and, therefore, her
action against the state was barred [191 Conn.App. 633] by
sovereign immunity. In its original motion to dismiss, dated
August 11, 2015, the state claimed that the notice was
patently defective for three reasons: (1) the location of the
alleged incident was different from that which the plaintiff
identified in her complaint; (2) the notice of the claim
identified multiple locations; and (3) the area described in
the notice contained multiple manhole covers. The state filed
an amended motion to dismiss on December 15, 2015, which
incorporated the three reasons set forth in its original
motion to dismiss and additionally alleged that count one was
barred ...