ARMAND CUOZZO v. TOWN OF ORANGE, SC 19274
Judicial District of Ansonia-Milford
Municipalities; Public Highways; Whether Appellate Court Properly Reversed Judgment Dismissing Action for Failure to Provide Notice Pursuant to Highway Defect Statute (§ 13a-149) on Concluding that Determination that Accident Occurred on Public Highway was not Supported by Facts in Record. The plaintiff brought this action, alleging that he was a business invitee at a shopping plaza situated on property owned by the defendant town. He claimed that he was injured when his vehicle hit a pothole in the plaza's "exit/entrance driveway,” which connects to a town road, and that the town was liable under the municipal liability statute, General Statutes § 52-557n, because it failed to maintain the driveway. The town moved to dismiss, claiming that this action fell within the purview of the municipal highway defect statute, § 13a-149, and that the plaintiff had failed to comply with that statute's notice requirement. The trial court granted the motion to dismiss, concluding that the plaintiff had alleged a highway defect claim and that it lacked jurisdiction because the plaintiff had failed to comply with the ninety day notice requirement set forth in § 13a-149. The Appellate Court (147 Conn. App. 148) reversed and remanded for further proceedings, finding that the trial court improperly determined that the driveway on which the accident occurred was a “public highway” for purposes of § 13a-149. It concluded that the facts as alleged in the complaint and found in the affidavits submitted by the parties were insufficient to support the necessary determination that the public would normally or reasonably be expected to make use of the driveway in the ordinary course of travel. The court noted that the fact that the accident allegedly occurred on municipal property that is connected to a public road does not necessarily support a conclusion that the accident site fell within the purview of § 13a-149 and that nothing in the record here suggested that the driveway was open for the unrestricted use of all public travelers generally. The Supreme Court will now consider whether the Appellate Court properly determined that the trial court should not have dismissed the action for lack of subject matter jurisdiction on the ground that the plaintiff failed to provide timely notice under General Statutes § 13a-149.