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Dudley v. Commissioner of Transportation

Appellate Court of Connecticut

August 6, 2019

Angela DUDLEY
v.
COMMISSIONER OF TRANSPORTATION et al.

         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 state’s 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 Transportation’s 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 ...


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