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CATHERINE MURPHY v. TOWN OF CLINTON
(AC 45238)
Prescott, Moll and Seeley, Js.
Syllabus
The plaintiff sought, pursuant to the municipal defective highway statute
(§ 13a-149), to recover damages and other relief for personal injuries
she sustained when she fell on a road owned by the defendant town.
The plaintiff tripped after stepping into a defective water main hole
cover that had sunken below the grade of the surrounding pavement.
One month later, the plaintiff, via certified mail, sent to the defendant
a written notice of her injuries and of her intent to commence a civil
action pursuant to § 13a-149. The plaintiff included three color photo-
graphs in the notice, in which the water main hole cover was visible
from three different distances within the intersection, and the plaintiff
referenced the three photographs in her notice. The trial court granted
the defendant’s motion to dismiss the complaint, finding that the court
lacked jurisdiction because the notice provided by the plaintiff was
deficient because of the absence of a statement describing what the
alleged defect was and the use of mere conclusory statements of a
defect. The trial court also stated that attaching photographs to the
notice did not remedy the absence of descriptive language of the alleged
defect in the plaintiff’s complaint. On the plaintiff’s appeal to this court,
held that the trial court improperly granted the defendant’s motion to
dismiss the plaintiff’s complaint for lack of subject matter jurisdiction
as the language of the plaintiff’s notice and the appended photographs,
considered together, sufficiently described the cause of her injury and
patently met the requirements of § 13a-149: the defendant was suffi-
ciently notified of the cause of the plaintiff’s injury and its precise
location and condition such that it could identify, and begin its investiga-
tion into, the defective condition of the water main hole cover, and to
require more of a notice would go beyond the statutory requirements
of § 13a-149; moreover, the trial court improperly concluded that the
photographs included with the notice should not be considered in
assessing the adequacy of the notice, as there is no language in § 13a-
149 that prohibits the consideration of photographs that are included
in a notice, and there is no statutory language that otherwise limits the
assessment of the adequacy of the notice to the express words set forth
therein, the written notice expressly referred to the enclosed photo-
graphs, and to prohibit the consideration of photographs included in a
notice sent pursuant to § 13a-149, and thereby render their inclusion a
nullity, would run afoul not only of the notice’s statutory purpose of
aiding a municipality in the prompt investigation of a condition that
may endanger public safety but also of the requirements to construe
the statute broadly and to interpret the notice as a whole.
Argued November 9, 2022—officially released January 3, 2023
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of an allegedly defective municipal
highway, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
court, Shah, J., granted the defendant’s motion to dis-
miss and rendered judgment thereon, from which the
plaintiff appealed to this court. Reversed; further pro-
ceedings.
Evan K. Buchberger, for the appellant (plaintiff).
Richard C. Buturla, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Catherine Murphy,
appeals from the judgment of the trial court granting
the motion to dismiss filed by the defendant, the town
of Clinton, for lack of subject matter jurisdiction over
the plaintiff’s complaint on the basis that she failed to
comply with the requirements of the notice provision
of the municipal defective highway statute, General
Statutes § 13a-149.1 On appeal, the plaintiff claims that
the court improperly granted the defendant’s motion
to dismiss for lack of subject matter jurisdiction
because the written notice and the accompanying pho-
tographs that she sent to the defendant sufficiently
described the cause of her injury in compliance with the
requirements of § 13a-149.2 We agree and, accordingly,
reverse the judgment of the trial court.
The following facts, as alleged in the plaintiff’s com-
plaint, and procedural history are relevant to our resolu-
tion of this appeal. On September 27, 2019, at approxi-
mately 6:20 p.m., the plaintiff tripped and fell while
crossing the intersection of Grove Street and West
Grove Street in Clinton. As a result of the fall, the
plaintiff sustained various injuries to her right leg and
right foot. On October 28, 2019, the plaintiff, via certified
mail, sent to the defendant a written notice of her injur-
ies and of her intent to commence a civil action pursuant
to § 13a-149. In the notice, the plaintiff stated that while
‘‘walking across the intersection of Grove Street and
West Grove Street . . . she stepped into a defective
water main hole cover causing serious personal injuries
to her right leg.’’ The plaintiff included three color pho-
tographs with the notice, in which the water main hole
cover is visible from three different distances within
the intersection. Additionally, in the notice, the plaintiff
referenced the three photographs; the notice indicates
that the water main hole cover ‘‘is more fully shown
[i]n the photos attached hereto’’ and directs the defen-
dant to ‘‘[s]ee [the] attached [p]hotos.’’ On May 25, 2021,
the plaintiff commenced the present action by way of
a one count complaint, alleging liability on the part of
the defendant pursuant to § 13a-149.
On September 30, 2021, pursuant to Practice Book
§ 10-30 et seq., the defendant filed a motion to dismiss
the plaintiff’s complaint, arguing that the trial court
lacked subject matter jurisdiction on the basis of the
plaintiff’s failure to describe sufficiently the cause of
her injury in the notice, as required under § 13a-149.
On November 15, 2021, the plaintiff filed an objection
to the defendant’s motion to dismiss. On November 29,
2021, the court, Shah, J., held a hearing regarding the
defendant’s motion to dismiss.
On January 12, 2022, the court issued an order grant-
ing the defendant’s motion to dismiss the plaintiff’s
complaint on the basis that ‘‘the plaintiff’s notice is not
sufficient under [§ 13a-149] and the savings clause [of
§ 13a-149] is not applicable.’’ The court explained that,
‘‘[i]n order to maintain an action under § 13a-149, a
plaintiff must provide a municipality with notice that
meets the statutory requirements . . . . The statute
requires that the notice contain the following five essen-
tial elements: (1) written notice of the injury; (2) a
general description of that injury; (3) the cause; (4) the
time; and (5) the place thereof.’’ (Internal quotation
marks omitted.) The court further determined that
‘‘[t]he notice provided by the plaintiff is similar to a
line of cases where the courts have found the notice
is deficient because of the absence of what the alleged
defect is and mere conclusory statements of a defect.
Attaching photographs does not remedy the absence of
descriptive language of the alleged defect.’’ This appeal
followed.
We begin by setting forth the relevant legal standard.
‘‘Under the common law, municipalities enjoyed immu-
nity for injuries caused by defective highways. . . .
This immunity has been legislatively abrogated by § 13a-
149, which allows a person to recover damages against
a municipality for injuries caused by a defective high-
way. . . . Section 13a-149 provides the exclusive rem-
edy for a person seeking redress against a municipality
for such injuries. . . . Under § 13a-149, the plaintiff
must provide statutory notice within ninety days of the
accident in order for an action to lie for damages caused
by a defective highway that the town must maintain.
[T]he notice which the statute prescribes comprehends
five essential elements: (a) written notice of the injury;
(b) a general description of that injury; (c) the cause;
(d) the time [and date], and (e) the place thereof. . . .
The purpose of the notice requirement is not to set a
trap for the unwary or to place an impediment in the
way of an injured party who has an otherwise meritori-
ous claim. Rather, the purpose of notice is to allow the
municipality to make a proper investigation into the
circumstances surrounding the claim in order to protect
its financial interests. . . . More specifically . . . the
statutory notice assists a town in settling claims
promptly in order to avoid the expenses of litigation
and encourages prompt investigation of conditions that
may endanger public safety, as well as giving the town
an early start in assembling evidence for its defense
against meritless claims.’’ (Citations omitted; internal
quotation marks omitted.) Beeman v. Stratford, 157
Conn. App. 528, 534–35, 116 A.3d 855 (2015). A notice
that patently fails to meet this test in describing the
place or cause of the injury is defective as a matter of
law. See Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522
(1947); Pajor v. Wallingford, 47 Conn. App. 365, 379,
704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714
A.2d 7 (1998).3
‘‘[Section] 13a-149 is liberally construed, particularly
when compared to General Statutes § 13a-144, the com-
panion statute providing for liability as a result of
defects on state highways. The state highway notice
requirement must be strictly construed since § 13a-144,
unlike § 13a-149, does not contain a saving clause. A
necessary corollary to this is that the municipal highway
notice requirement should be liberally construed since
it, unlike § 13a-144, does contain a saving clause.’’
(Internal quotation marks omitted.) Salemme v. Sey-
mour, 262 Conn. 787, 796 n.7, 817 A.2d 636 (2003).
Furthermore, a notice sent pursuant to § 13a-149 should
be interpreted as a whole. See Schmidt v. Manchester,
92 Conn. 551, 554, 103 A. 654 (1918).
‘‘The failure to comply with [the requirements of
§ 13a-149] deprives the Superior Court of jurisdiction
over a plaintiff’s action. . . . It is well established that
a determination regarding a trial court’s subject matter
jurisdiction is a question of law over which our review
is plenary. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . . Under our rules
of practice, a motion to dismiss for lack of subject
matter jurisdiction may be raised at any time.’’ (Cita-
tions omitted; internal quotation marks omitted.) Dobie
v. New Haven, 204 Conn. App. 583, 589–90, 254 A.3d
321, cert. granted, 338 Conn. 901, 258 A.3d 90 (2021);
see Practice Book § 10-30.
The plaintiff claims that the language in the notice,
aided by the inclusion of the photographs, sufficiently
describes the cause of her injury, such that her notice
satisfies that prong of § 13a-149. The defendant argues
that the language that the plaintiff used in the notice was
conclusory because she failed to indicate the manner
in which the water main hole cover was defective and
that the three photographs included in the plaintiff’s
notice could not operate to cure the lack of express
language describing the defect.4 For the reasons that
follow, we conclude that the language of the notice, in
conjunction with the appended photographs, suffi-
ciently describes the cause of the plaintiff’s injury in
accordance with § 13a-149.5
The notice states that the plaintiff ‘‘stepped into a
defective water main hole cover causing serious per-
sonal injuries to her right leg.’’ (Emphasis added.) The
plaintiff also included three color photographs with the
notice, in support of the assertion that the water main
hole cover located at the intersection of Grove Street
and West Grove Street was the cause of her injury.
Each photograph makes unmistakable that the cover
is depressed, that is, markedly lower than the grade of
the surrounding pavement. The language of the notice
and the appended photographs go well beyond merely
asserting a ‘‘defect’’; rather, they paint a picture that
gave notice to the defendant that the plaintiff’s injury
was caused by a water main hole cover, in a particular
location, that was not sufficiently flush with the sur-
rounding pavement. Accordingly, we conclude that the
notice patently meets the requirements of § 13a-149 and
is sufficient to notify the defendant of the cause of the
plaintiff’s injury.6
Indeed, as previously stated, one purpose of a notice
under § 13a-149 is to aid a defendant in ‘‘prompt investi-
gation of conditions that may endanger public safety
. . . .’’ (Internal quotation marks omitted.) Beeman v.
Stratford, supra, 157 Conn. App. 535. Construing the
notice requirements of § 13a-149 liberally, a reasonable
inference can be drawn from the language of the notice
and the appended photographs that not only did a water
main hole cover cause this plaintiff’s injuries but that
the specific defect of the cover was that it was
depressed, i.e., sunken into the ground. Here, the defen-
dant was sufficiently notified of the cause of the plain-
tiff’s injury—and, moreover, its precise location and
condition—such that it could identify, and begin its
investigation into, the defective condition of the water
main hole cover. To require more of a notice would go
beyond the statutory requirements of § 13a-149. Bassin
v. Stamford, 26 Conn. App. 534, 539, 602 A.2d 1044
(1992) (‘‘[t]he sufficiency of the notice is to be tested
by the purpose of the statute, and not by the require-
ments of a pleading’’ (internal quotation marks omit-
ted)).
Without citing any relevant authority, the defendant
maintains, and the trial court agreed, that the photo-
graphs included in the notice should not be considered
in assessing the adequacy of the notice. We reject this
proposition. First, we observe that there is no language
in § 13a-149 that prohibits the consideration of photo-
graphs that are included in a notice; there is also no
statutory language that otherwise limits the assessment
of the adequacy of the notice to the express words
set forth therein. Second, the written notice expressly
referred to the enclosed photographs. We fail to see
why words describing the defect would be sufficient
but a picture showing the defect would not. Third, to
prohibit the consideration of photographs included in
a notice sent pursuant to § 13a-149, and thereby render
their inclusion a nullity, would run afoul not only of
the notice’s statutory purpose of aiding a municipality
in the prompt investigation of a condition that may
endanger public safety but also of the requirements to
construe the statute broadly and to interpret the notice
as a whole. Accordingly, we conclude that the photo-
graphs included in the plaintiff’s notice are appropri-
ately considered in our assessment of the adequacy of
the notice.
In sum, we conclude that the language of the plain-
tiff’s notice and the appended photographs, considered
together, sufficiently describe the cause of her injury
and patently meet the requirements of § 13a-149.
Accordingly, the court improperly granted the defen-
dant’s motion to dismiss the plaintiff’s complaint for
lack of subject matter jurisdiction.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion to dismiss
and for further proceedings according to law.
1
General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. No action for any such
injury sustained on or after October 1, 1982, shall be brought except within
two years from the date of such injury. No 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 occurrence, 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, or to the secretary or treasurer of such
corporation. . . . No notice given under the provisions of this section shall
be held invalid or insufficient by reason of an inaccuracy in describing the
injury or in stating the time, place or cause of its occurrence, if it appears
that there was no intention to mislead or that such town, city, corporation
or borough was not in fact misled thereby.’’
2
The plaintiff alternatively claims that the trial court erred in concluding
that the savings clause contained in § 13a-149 was inapplicable. Because
we conclude that the plaintiff’s notice was sufficient under § 13a-149, we
do not address this alternative claim.
3
We leave for another day whether the adequacy of a notice given pursuant
to § 13a-149 that does not patently meet the test for adequacy is a question
to be determined by the trier of fact or a question of law for the court. See
Dudley v. Commissioner of Transportation, 191 Conn. App. 628, 640 n.9,
216 A.3d 753, cert. denied, 333 Conn. 930, 218 A.3d 69 (2019).
4
The defendant also argues that the language in the plaintiff’s notice
is similar to the language of the notice in Frandy v. Commissioner of
Transportation, 132 Conn. App. 750, 34 A.3d 418 (2011), cert. denied, 303
Conn. 937, 36 A.3d 696 (2012). In Frandy, the plaintiff brought an action
pursuant to the state defective highway statute, § 13a-144, which, like § 13a-
149, contains a written notice requirement. Id., 752. Pursuant to § 13a-144,
the plaintiff sent a written notice describing the cause of her injury as a
‘‘defective condition of the pavement.’’ Id. This court reversed the trial
court’s denial of the defendant’s motion to dismiss, holding that the notice
failed to state the cause of the plaintiff’s injury as required by § 13a-144
because it did ‘‘not specify the precise nature of the claimed defect.’’ Id.,
754. We decline to draw parallels between Frandy, which concerns § 13a-
144, and this case, which concerns § 13a-149. See Beeman v. Stratford,
supra, 157 Conn. App. 541 n.10 (declining invitation to consider case law
arising under § 13a-144 in resolving claim concerning notice pursuant to
§ 13a-149 on basis that notice requirement of § 13a-149 is liberally construed
whereas notice requirement of § 13a-144 is strictly construed). Moreover,
even if we were to draw such parallels, the contents of the notice in this
case exceed those of Frandy and are sufficient under § 13a-149.
5
Because we conclude that the language of the notice and the appended
photographs, considered together, sufficiently describe the cause of the
injury, we need not consider whether the language of the notice, without
more, would satisfy that requirement of § 13a-149.
6
In its order granting the defendant’s motion to dismiss, the trial court
cited one appellate case and several Superior Court cases, upon which the
defendant relies in its appellate brief, to support its determination that the
plaintiff did not describe sufficiently the cause of her injury in her written
notice. Those cases, however, concern notices that alleged only that a defect
existed, without more. See, e.g., Ross v. New London, 3 Conn. Cir. 644, 648,
222 A.2d 816 (concluding that notice was insufficient because it did not
‘‘contain a definite or intelligible statement of any distinct cause of injury’’),
cert. denied, 154 Conn. 717, 221 A.2d 272 (1966); Castillo-Blain v. Wethers-
field, Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S (November 5, 2019) (69 Conn. L. Rptr. 417, 418) (dismissing complaint
because notice described only ‘‘defect . . . in the crosswalk’’); Sherard v.
New Haven, Superior Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX-S (January 7, 2019) (67 Conn. L. Rptr. 607, 609) (dismissing
complaint because notice described cause of plaintiff’s injury only as ‘‘defect
in the sidewalk due to its state of disrepair’’); Bencivengo v. Madison,
Superior Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-
S (May 1, 2013) (dismissing complaint because notice described cause of
plaintiff’s injury only as ‘‘a defective condition upon a walkway and/or
bridge’’); Platt v. Naugatuck, Superior Court, judicial district of Waterbury,
Docket No. CV-XX-XXXXXXX-S (January 17, 2012) (dismissing complaint
because notice described only ‘‘negligent maintenance of pedestrian side-
walks’’). Thus, the cases cited by the court and relied upon by the defendant
on appeal are inapposite.