Amore v. Frankel

616 A.2d 1152, 29 Conn. App. 565, 1992 Conn. App. LEXIS 423
CourtConnecticut Appellate Court
DecidedNovember 24, 1992
Docket10677
StatusPublished
Cited by29 cases

This text of 616 A.2d 1152 (Amore v. Frankel) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amore v. Frankel, 616 A.2d 1152, 29 Conn. App. 565, 1992 Conn. App. LEXIS 423 (Colo. Ct. App. 1992).

Opinion

Cretella, J.

The issue presented in this appeal is whether a complaint that alleges facts sufficient to support a claim under General Statutes § lSa-1441 eliminates the preclusive effect of sovereign immunity. The plaintiffs appeal from the trial court’s dismissal of the action. We reverse the judgment in part and remand the case for further proceedings.

The plaintiffs, Alan and Ellen Amore, filed a two count complaint against Emil Frankel, the state commissioner of transportation. In count one, they claimed that the state owed them a duty to maintain the roads and sidewalks on the Storrs campus of the University [567]*567of Connecticut. The plaintiffs alleged that the state failed to reduce the hazards associated with icy and wet road conditions which ultimately caused the injuries that the named plaintiff sustained in a fall on an icy driveway. In count two, the plaintiffs claimed loss of consortium on behalf of the named plaintiffs wife.

Pursuant to Practice Book §§ 1422 and 143,3 the defendant filed a motion to dismiss, asserting that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The defendant also filed two supporting affidavits as evidence that the defendant was not responsible for the maintenance of the roads at issue.4 In light of these affidavits, the trial court found that the road “was outside the scope of the commissioner’s duty to maintain or repair pursuant to [General Statutes] section 13b-30 or 13a-144. Hence, the defendant’s motion to dismiss [was] granted.” The court reasoned that without proof of the defendant’s duty, the doctrine of sovereign immunity applied and deprived the court of subject matter jurisdiction. This appeal followed.

[568]*568I

The plaintiffs claim that the trial court improperly granted the defendant’s motion to dismiss. Since General Statutes § 13a-144 constitutes a waiver of sovereign immunity and since the complaint contains facts sufficient to state a claim under the statute, the plaintiffs argue that sovereign immunity is not applicable. Thus, immunity is not grounds for dismissal in such cases.

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 542, 590 A.2d 914 (1991). “A reviewing court should indulge every presumption in favor of a trial court’s subject matter jurisdiction. Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991).” Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn. App. 175, 180, 611 A.2d 891 (1992). The doctrine of sovereign immunity implicates subject matter jurisdiction and is grounds for granting a motion to dismiss. Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).

The common law doctrine of sovereign immunity dictates that suits against the state can be maintained only in exceptional circumstances. Tamm v. Burns, 222 Conn. 280, 283, 610 A.2d 590 (1992). One such circumstance is “where the legislature, by appropriate legislation consents to being sued.” Horton v. Meskill, 172 Conn. 615, 621, 376 A.2d 359 (1977); Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307 (1974). “The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed ‘by the use of express terms or by force [569]*569of a necessary implication.’ ” Duguay v. Hopkins, supra, 228; Skinner v. Angliker, 15 Conn. App. 297, 300, 544 A.2d 246 (1988).

We analyze the above stated principles in the context of a motion to dismiss. In doing so, our case law exploring the relationship between constitutional claims and sovereign immunity is instructive. When a party sues the state for infringing constitutional rights, our supreme court has held that “[t]o survive a motion to dismiss on the ground of sovereign immunity, a complaint ‘must allege sufficient facts to support a finding of a taking of land in a constitutional sense.’ ” Tamm v. Burns, supra, 284, quoting Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). Thus, in determining the effect of sovereign immunity, the focus is on the adequacy of the complaint. Id. If the complaint alleges facts sufficient to invoke a statutory waiver of immunity, then the trial court cannot properly grant a motion to dismiss solely on the basis of sovereign immunity.

In the case before us we conclude that the trial court improperly dismissed count one of the plaintiffs’ complaint. The defendant does not dispute that the plaintiffs’ complaint alleged facts that support a cause of action under our state’s defective highway statute. It is well established that through this statutory scheme the state has expressly consented to being sued. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). Therefore, by analogy to the holding in Horak v. State, supra, count one of the complaint on its face was sufficient to establish subject matter jurisdiction and to withstand the defendant’s motion to dismiss. In dismissing the case, the trial court improperly relied on evidentiary matter in the form of the affidavits to invoke the doctrine of sovereign immunity, notwithstanding the fact that the complaint alleged the statutory exception for cases involving highway defects.

[570]*570The applicable provisions of § 13a-144 did not require construction or analysis beyond the express terms. Section 13a-144 provides in pertinent part that “[a]ny person injured in person or property through the neglect of default of the state or any of its employees by means of any defective highway ... or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action . . . .” (Emphasis added.) As it pertains to the plaintiff’s case, this language makes abundantly clear that an element of the plaintiffs’ case is the existence of a duty to maintain the roadway in question.

The question in this case is not one of statutory interpretation but one of factual application to a clear and unambiguous statutory provision. Specifically, the issue is whether the defendant owed the plaintiffs a duty to maintain the roads and sidewalks upon which the named plaintiff sustained his injuries. The defendant asks that we review the facts in a light most favorable to the state.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Borrelli v. State, No. Cv 01-0096706 S (Nov. 13, 2002)
2002 Conn. Super. Ct. 14669 (Connecticut Superior Court, 2002)
Sastrom v. Pomizano, No. Cv-01-0094333-S (May 14, 2002)
2002 Conn. Super. Ct. 6179 (Connecticut Superior Court, 2002)
Honan v. Dimyan, No. Cv00-033 82 02 S (Nov. 8, 2001)
2001 Conn. Super. Ct. 15090 (Connecticut Superior Court, 2001)
Vogel v. State, No. Cv 99-0588391-S (Jun. 14, 2001)
2001 Conn. Super. Ct. 7524 (Connecticut Superior Court, 2001)
Reynolds v. Allicock, No. Fa99-0721565 (Feb. 9, 2001)
2001 Conn. Super. Ct. 2456 (Connecticut Superior Court, 2001)
Young v. Red, No. Fa00-0630654 (Oct. 2, 2000)
2000 Conn. Super. Ct. 12676 (Connecticut Superior Court, 2000)
Griffin v. Hartford Life Ann. Ins. Co., No. Cv99-0156063s (Aug. 7, 2000)
2000 Conn. Super. Ct. 9566 (Connecticut Superior Court, 2000)
Webster Bank v. Lecuyer, No. Cv99-0152934s (Jun. 8, 2000)
2000 Conn. Super. Ct. 6979 (Connecticut Superior Court, 2000)
Serrano v. Zwanch, No. Cv 00 0156832 (Jun. 5, 2000)
2000 Conn. Super. Ct. 6808 (Connecticut Superior Court, 2000)
Koslosky v. First National Bank, No. Cv99-0154324s (Apr. 13, 2000)
2000 Conn. Super. Ct. 3934 (Connecticut Superior Court, 2000)
Lupkus v. Otis Elevator, No. Cv 99 0155302 (Apr. 7, 2000)
2000 Conn. Super. Ct. 4120 (Connecticut Superior Court, 2000)
Tilcon, Inc. v. First Union National Bank, No. Cv 98 489997 (Sep. 13, 1999)
1999 Conn. Super. Ct. 12619 (Connecticut Superior Court, 1999)
McCarthy v. Yantorno, No. Cv 99 0078474s (Aug. 18, 1999)
1999 Conn. Super. Ct. 11449 (Connecticut Superior Court, 1999)
De Hass v. University of State, No. Cv 99 69640 S (Aug. 17, 1999)
1999 Conn. Super. Ct. 11376 (Connecticut Superior Court, 1999)
Villager Pond, Inc. v. Town of Darien
734 A.2d 1031 (Connecticut Appellate Court, 1999)
Masih v. University of Connecticut, No. Cv98057218 (Aug. 24, 1998)
1998 Conn. Super. Ct. 1922 (Connecticut Superior Court, 1998)
Beadles v. Department, Children Families, No. Cv96-0564494 (Aug. 20, 1998)
1998 Conn. Super. Ct. 1859 (Connecticut Superior Court, 1998)
Leonardi v. City of Waterbury, No. Cv 86 143187 (Feb. 9, 1998)
1998 Conn. Super. Ct. 2392 (Connecticut Superior Court, 1998)
Martin v. State, No. Cv96-0394753s (Nov. 5, 1997)
1997 Conn. Super. Ct. 11673 (Connecticut Superior Court, 1997)
Brown v. the Commissioner of Transportation, No. 32 46 64 (Oct. 3, 1996)
1996 Conn. Super. Ct. 7742 (Connecticut Superior Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
616 A.2d 1152, 29 Conn. App. 565, 1992 Conn. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amore-v-frankel-connappct-1992.