February 14, 2019
to recover damages for, inter alia, personal injuries
sustained as a result of an allegedly defective state
highway, and for other relief, brought to the Superior Court
in the judicial district of New London, where the action was
withdrawn as against the defendant city of New London;
thereafter, the court, Cole-Chu, J., denied the
named defendant's motion to dismiss, and the named
defendant appealed to this court. Affirmed.
Lorinda S. Coon, with whom, on the brief, was Jessica M.
Scully, for the appellant (defendant).
Holth, with whom, on the brief, was Lorena P. Mancini, for
the appellee (plaintiff).
DiPentima, C. J., and Prescott and Bright, Js.
action, brought, in part, pursuant to the state defective
highway statute, General Statutes § 13a-144,
defendant, James P. Redeker, the Commissioner of
Transportation (state),  appeals from the judgment of the trial
court denying the state's motion to dismiss the claims
asserted against it on sovereign immunity
grounds. 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.
plaintiff alleges the following facts. 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.
the plaintiff arrived at the portion of the sidewalk located
at the corner of Ocean and Lee Avenues, she stepped onto 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.
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 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. . . .
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
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.
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 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 by sovereign immunity because the plaintiff did not
allege that the incident occurred on a state highway and,
therefore, the state did not have a duty to maintain or
repair the sidewalk on which the plaintiff allegedly was
injured. The court heard oral argument on the state's
motion to dismiss on June 30, 2016. On August 17, 2016, the
court received the last of several posthearing briefs on the
court filed a memorandum of decision on June 9, 2017,
rejecting all four of the state's claimed grounds for
dismissal. In its analysis, the court consolidated its
discussion of the first three grounds related to whether the
plaintiff's notice was patently defective. Recognizing
that the purpose of such notice is to provide the state with
adequate information upon which it can make a timely
investigation of the alleged facts, the court concluded that
the notice provided sufficient factual information upon which
the state reasonably could identify the location of the
allegedly defective manhole cover. In particular, the court
noted that the notice states that the plaintiff was walking
on a sidewalk at the time of the incident and, further, that
only one of the manhole covers in the area described in the
notice is located within a sidewalk. Accordingly, the court
concluded that the notice was not patently defective.
the fourth ground of the amended motion to dismiss, the court
determined that the plaintiff's argument was not that the
state had a duty to maintain the sidewalk, but instead, that
the state had a duty to maintain the allegedly defective
manhole cover. It concluded that further factual development
was necessary to resolve this matter and, thus, rejected the
state's argument that it is not liable as a matter of
law. This appeal followed. Additional facts and procedural
history will be set forth as necessary.
begin by setting forth the relevant principles of law and the
applicable standard of review. ‘‘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. . . . The legislature waived the state's
sovereign immunity from suit in certain prescribed instances
by the enactment of § 13a-144. . . . The statute imposes
the duty to keep the state highways in repair upon . . . the
commissioner . . . and authorizes civil actions against the
state for injuries caused by the neglect or default of the
state . . . by means of any defective highway . . . . There
being no right of action against the sovereign state at
common law, the [plaintiff] must first prevail, if at all,
under § 13a-144. ...
doctrine of sovereign immunity implicates [a court's]
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. . . . 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. . . . In ruling on a motion to dismiss for lack of
subject matter jurisdiction, the trial court must consider
the allegations of the complaint in their most favorable
light . . . including those facts necessarily implied from
the allegations . . . .'' (Citations omitted;
internal quotation marks omitted.) Giannoni v.
Commissioner of Transportation, 322 Conn. 344, 348, 141
A.3d 784 (2015).
[deciding] a jurisdictional question raised by a pretrial
motion to dismiss on the basis of the complaint alone, [a
court] 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. . . .
contrast, if the complaint is supplemented by undisputed
facts established by  affidavits submitted in support of
the motion to dismiss . . .  other types of undisputed
evidence . . . and/or  public records of which judicial
notice may be taken . . . the trial court, in determining the
jurisdictional issue, may consider these supplementary
undisputed facts and need not conclusively presume the
validity of the allegations of the complaint. . . . Rather,
those allegations are tempered by the light shed on them by
the [supplementary undisputed facts] . . .
.'' (Footnote added; internal quotation marks
omitted.) Norris v. Trumbull, 187 Conn.App. 201,
209, 201 A.3d 1137 (2019).
where 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. . . .
Likewise, if the question of jurisdiction is intertwined with
the merits of the case, a court cannot resolve the
jurisdictional question without a hearing to evaluate those
merits. . . . An evidentiary hearing is necessary because a
court cannot make a critical factual [jurisdictional] finding
based on memoranda and documents submitted by the parties. .
. . The trial court may [also] in its discretion choose to
postpone resolution of the jurisdictional question until the
parties complete further discovery or, if necessary, a full
trial on the merits has occurred. . . .
review a trial court's denial of a motion to dismiss on
the ground of sovereign immunity, based on an application of
§ 13a-144, de novo.'' (Citations omitted;
internal quotation marks ...