dissenting.
I agree with the opinion of the Appellate Court1 that the trial court should have denied the motion to dismiss. Within the broad allegations of the complaint, the plaintiff Alan Amore alleged a cause of action under General Statutes § 13a-144, which permits a suit for damages resulting from a defective highway that the defendant commissioner of transportation has a duty to maintain. General Statutes § 13b-30 extends the commissioner’s duty to maintain “the roads and drives on the grounds of state institutions,” including those of the University of Connecticut, upon request by the institution.
*370The commissioner argues that the plaintiffs complaint does not state a cause of action under § 13a-144 because of its failure to allege facts that bring the action under § 13b-30. On the basis of this claim, the majority concludes that the doctrine of sovereign immunity applies and the court is deprived of its subject matter jurisdiction. To put this issue in its proper perspective, subject matter jurisdiction must be defined. It “is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981).
1 find it difficult to appreciate this jurisdictional issue. Although the plaintiff failed to allege the specific statutes underlying his cause of action2—that is, §§ 13a-144 and 13b-30—the allegations of the complaint clearly state the following: At the time of the fall, the commissioner was responsible for the maintenance of the roads and drives at the University of Connecticut, including the driveway where the plaintiff fell.3 At the *371Appellate Court the commissioner did “not dispute that the plaintiffs complaint alleged facts that support a cause of action under our state’s defective highway statute [§ 13a-144].” Amore v. Frankel, 29 Conn. App. 565, 569, 616 A.2d 1152 (1992). The trial court “lacks subject matter jurisdiction only if it has no competence to entertain the action before it”; Bridgeport v. Debek, 210 Conn. 175, 180, 544 A.2d 728 (1989); once the complaint alleges a cause of action that is within the competence of the trial court to entertain—in this case an action under § 13a-144—the trial court has subject matter jurisdiction. See Gurliacci v. Mayer, 218 Conn. 531, 542-45, 590 A.2d 914 (1991).
The failure to make an allegation that the University of Connecticut invoked § 13b-30 does not implicate subject matter jurisdiction. This court’s reasoning in Gurliacci v. Mayer, supra, is illuminating. The plaintiff in Gurliacci brought an action for damages against the defendant, her fellow employee, based upon negligence. The defendant moved to dismiss on the ground that the court lacked subject matter jurisdiction because the action against a fellow employee was barred by the Worker’s Compensation Act (act). The act states that an employee “shall have no cause of action against . . . [a] fellow employee to recover damages” for negligence; the act, however, provides for two exceptions. (Emphasis added.) General Statutes § 7-465 (a). The plaintiff did not allege that she came within either exception. Gurliacci v. Mayer, supra, 542. This court held that the plaintiff’s failure to allege that her cause of action came within either exception did not implicate the subject matter jurisdiction of the court. Instead, the failure merely involved the legal sufficiency of the complaint, and sufficiency of the complaint is challenged by a motion to strike. Id., 544.
Justice Borden, writing for a unanimous court in Gurliacci, stated that “the fact that the plaintiff’s com*372plaint failed to allege facts that would have removed it from the operation of the fellow employee immunity rule merely reflects that the complaint failed to state a legally sufficient cause of action. Practice Book § 152. We have previously held that if a ‘pleading ... on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted,’ a motion to strike is required. Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984); see also Practice Book § 152. A motion to dismiss, by contrast, ‘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.’ (Emphasis in original.) Baskin’s Appeal from Probate, supra. In this case . . . [the defendant’s] motion in effect challenged the failure of the plaintiff’s original complaint to invoke the statutory exceptions to the fellow employee immunity rule. Because this challenge was to the legal sufficiency of the complaint . . . [the defendant’s] motion to dismiss was improper.” Gurliacci v. Mayer, supra, 544.4
Likewise, in the present case, the failure to allege that the University of Connecticut requested the commissioner to maintain its roads and drives does not implicate subject matter jurisdiction, but instead merely affects the legal sufficiency of the complaint. “The motion to dismiss cannot be used to test whether the *373complaint states a cause of action. That is the purpose of the motion to strike.” 1 Connecticut Practice-Practice Book Annotated (3d Ed. 1989 W. Moller & W. Horton) § 143, p. 310, comments. Nor may it be used on the ground that there are no factual issues. This is the purpose of the motion for summary judgment. Practice Book § 379.
The majority attempts to distinguish Gurliacci by pointing out that in this case there are affidavits that stated that the commissioner was not obligated to maintain the drive at the time of the incident.5 This distinction misses the point. The question here is not whether the commissioner had the responsibility to maintain the drive that would make him liable for defects, but whether the trial court has the power to hear and determine an action brought against him pursuant to § 13a-144. And, of course, the answer is yes.
If we substitute the facts of this case for those of Gurliacci, Justice Borden's logic in Gurliacci demonstrates the point. “An examination of the result of [Amore’s] argument further supports our conclusion. Interpreting the language of [§ 13b-30] as subject matter jurisdictional, taken to its logical conclusion, would require a trial court, after trial, to dismiss for lack of subject matter jurisdiction a complaint that at the outset properly alleged [that a request was made to maintain the roads and drives at a state agency] if the factfinder ultimately concluded that the defendant [commissioner had never received such a request]. Thus, the court would be compelled to conclude that *374it had no subject matter jurisdiction over the case that it had tried solely because the plaintiff failed to establish an essential element of his cause of action. We decline to adopt such a bizarre interpretation of [§ 13b-30].” Id., 544-45. This analysis does not change simply because the commissioner submitted affidavits that state he is not responsible for maintaining the drive. The majority confuses a motion to dismiss with motions to strike and for summary judgment.6
Furthermore, the complaint is sufficient even if the failure to allege that the university requested the commissioner to maintain its roads and drives does implicate subject matter jurisdiction. In determining whether the complaint alleges facts sufficient to establish subject matter jurisdiction, two well established principles must be considered. First, “[a] reviewing court should indulge every presumption in favor of the trial court’s subject matter jurisdiction.” Miko v. Commissioner on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991). Second, we must view “the factual allegations of the complaint in the light most favorable to the plaintiff.” Tamm v. Burns, *375222 Conn. 280, 285 n.3, 610 A.2d 590 (1992). These principles mandate that we read the plaintiffs allegations to include the allegation that the University of Connecticut requested the commissioner to assume the duty to repair and maintain its roads and drives including the driveway on which the plaintiff fell.
The second issue, never reached by the majority, raises the question of whether the driveway comes within § 13b-30 so that the commissioner has a duty to maintain it. This purely legal issue of whether the term “drive” within § 13b-30 includes a driveway does not involve the court’s jurisdiction to entertain an action for damages under § 13a-144. Gurliacci v. Mayer, supra.
I respectfully dissent.
Amare v. Frankel, 29 Conn. App. 565, 616 A.2d 1152 (1992).
Our general practice in this state is to require fact pleading only. Although Practice Book § 109A states that pleadings should recite to statutes, “we have held that § 109A is merely directory and not mandatory.” Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993).
The plaintiff specifically alleges the following: “The Commissioner of Transportation is responsible for the maintenance of highways, sidewalks, roads, and drives on the grounds of State institutions, including, but not limited to the Storrs campus of the University of Connecticut.
“At all pertinent times, said highways, sidewalks, roads, and drives included a driveway that ran from the vicinity of the Wilbur Cross Library on the Storrs campus, forming a‘T’ intersection with Glenbrook Road; said ‘T’ intersection runs approximately between Storrs Hall and Wood Hall.
“On March 6,1989, at about 9:00 in the morning, Alan Amore was walking from the Waring Chemistry Building toward the Castleman Building on the Storrs campus. As he proceeded toward the chemistry building, he walked along Glenbrook Road, on the same side of Glenbrook Road as the chemistry building. He proceeded to walk across the surface of the aforementioned driveway, walking essentially parallel to Glenbrook Road. The surface of the driveway was wet and icy. It was neither sanded, nor salted. As a result thereof, Alan Amore fell, suffering the personal injuries and losses set forth in greater detail below.”
In attempting to distinguish Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), from the present case the majority in footnote 8 demonstrates its confusion. It states that in Gurliacci, unlike this case, “the motion to dismiss was not accompanied by supporting affidavits that demonstrated by uncontroverted facts that the plaintiff could not as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis altered.) In determining whether we have subject matter jurisdiction, we are not concerned with the sufficiency of a cause of action; we simply determine whether the court had jurisdiction in cases of that general class.
The majority relies on the commissioner’s affidavits that the maintenance of the drive on which the plaintiff fell is the responsibility of the university. It is interesting to note that the commissioner does not contest the existence of his duty to maintain the roads and drives at the University of Connecticut under General Statutes §§ 13a-144 and 13b-30. Indeed, in Cairns v. Shugrue, 186 Conn. 300, 441 A.2d 185 (1982), the commissioner conceded that a request was made by the University of Connecticut pursuant to § 13b-30.
The majority in its attempt to equate the motion to dismiss with the motion to strike or for summary judgment relies on Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Standard Tallow Corp., however, did not involve whether the court had subject matter jurisdiction, but rather whether it had jurisdiction in personam, which is jurisdiction over the person. See Fine v. Wencks, 117 Conn. 683, 169 A. 58 (1933). In Standard Tallow Corp., in order to determine whether the court had personal jurisdiction over the out-of-state defendant, the court was required to determine whether there were “minimum contacts” within this state to satisfy the standards set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its progeny. Facts were necessary in order to establish whether there were those minimum contacts. That, however, has no relevance to this case.
Whether an issue is litigated by a motion to dismiss or a motion to strike is not a matter of trivia—the consequences are significant. The granting of the motion to dismiss puts the plaintiff out of court. Practice Book § 145. The granting of the motion to strike allows the party whose pleading has been stricken to file a new pleading with fifteen days. Practice Book § 157.