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*********************************************** 
WILLIAM DOBIE v. CITY OF

NEW HAVEN ET AL.

(AC 42877)

Elgo, Cradle and Alexander, Js.

Syllabus

The plaintiff sought to recover damages for personal injuries that he sustained when his vehicle struck an open manhole while he was traveling

on a roadway maintained by the defendant city. The plaintiff alleged

that his injuries were the result of the city’s negligence, as one of its

snowplows had knocked off the manhole cover and its operator failed

to stop and secure the roadway. The city filed a motion to dismiss the

complaint, arguing that the facts alleged stated a claim of injury arising

out of a highway defect for which the defective highway statute (§ 13a149) provided the exclusive remedy and that the court lacked subject

matter jurisdiction because the plaintiff failed to give notice of his

injuries as required by the statute. The court sustained the plaintiff’s

objection to the motion, noting that the complaint alleged that the

plaintiff’s injuries were caused by the negligence of the snowplow driver

rather than by a defect in the road. The matter proceeded to trial and

a jury returned a verdict in favor of the plaintiff. The city filed a posttrial

motion to dismiss, renewing its claim that the court lacked subject

matter jurisdiction due to the plaintiff’s failure to provide the requisite

notice pursuant to § 13a-149. The court denied the motion, again stating

that the plaintiff was asserting a negligence claim rather than a defective

highway claim, and rendered judgment in favor the plaintiff, from which

the city appealed to this court. Held that the trial court improperly

denied the city’s posttrial motion to dismiss the plaintiff’s action for lack

of subject matter jurisdiction because § 13a-149 provided the plaintiff’s

exclusive remedy against the city and the plaintiff failed to comply with

its notice requirements: the plaintiff’s injuries were caused by an open

manhole, which constituted a highway defect within the meaning of

§ 13a-149 because it was an object in the traveled path that obstructed

or hindered the use of the road for the purpose of traveling, and the

city conceded that it was responsible for maintaining the road on which

the manhole was located; moreover, although the plaintiff did not plead

§ 13a-149 as a means for recovery, his sole remedy was under the statute

because the evidence invoked it, and the cause of the defect did not

alter this analysis because the city’s liability was based on the existence

of and its failure to remedy the defect; furthermore, the plaintiff failed

to provide notice to the city within ninety days of the accident, which was

a condition precedent to an action under § 13a-149, thereby depriving

the court of subject matter jurisdiction.

Argued November 16, 2020—officially released May 11, 2021

Procedural History

Action to recover damages for personal injuries sustained as a result of the named defendant’s alleged

negligence, and for other relief, brought to the Superior

Court in the judicial district of New Haven and tried

to the jury before Ozalis, J.; verdict for the plaintiff;

thereafter, the court denied the named defendant’s

motions to set aside the verdict and to dismiss, and

rendered judgment in accordance with the verdict, from

which the named defendant appealed to this court.

Reversed; judgment directed.

Thomas R. Gerarde, with whom, on the brief, was

Beatrice S. Jordan, for the appellant (named defendant).
Brendan K. Nelligan, with whom were Charles

Riether and Leann Riether, for the appellee (plaintiff).
Opinion

ELGO, J. The defendant city of New Haven1 appeals

from the judgment of the trial court, rendered following

a jury trial, in favor of the plaintiff, William Dobie. On

appeal, the defendant contends that the court improperly denied its posttrial motion to dismiss, which was

predicated on the plaintiff’s alleged failure to comply

with the requirements of General Statutes § 13a-149,

commonly known as the defective highway statute.2

See Ferreira v. Pringle, 255 Conn. 330, 331, 766 A.2d

400 (2001). We agree and, accordingly, reverse the judgment of the trial court.

The facts relevant to this appeal are largely undisputed. On the morning of January 21, 2011, the plaintiff

was traveling to his workplace on a route he had taken

for years. Snow had fallen the night before and there

were patches of snow on the roadways. As he operated

his motor vehicle on Canner Street, a municipal roadway in New Haven, the plaintiff followed a snowplow

operated by the defendant for approximately three

blocks.3 The blade of the plow was engaged and sparks

flew as it cleared the roadway.

The snowplow stopped at the intersection of Canner

Street and Livingston Street, then proceeded through

the intersection. The plaintiff’s vehicle, which was

approximately two to three car lengths behind, followed

the snowplow through that intersection until the plaintiff heard a loud bang. The plaintiff continued through

the intersection. Moments later, the plaintiff’s vehicle

struck an open manhole in the road, rendering it inoperable.4 When the vehicle came to rest approximately ten

feet away, the plaintiff observed a manhole cover in

the roadway between the manhole and his vehicle.

At trial, the plaintiff testified that he did not observe

the open manhole prior to colliding with it. He further

testified that he did not witness the snowplow knock

the cover off the manhole. There also was undisputed

evidence that an orange cone was located on the side of

Canner Street in the vicinity of the manhole in question,

which the plaintiff had observed in that location for

weeks.

The plaintiff thereafter commenced this civil action.

In his original complaint, the plaintiff alleged one count

of negligence on the part of the defendant’s snowplow

operator. In response, the defendant moved to strike

that count, arguing in relevant part that it failed to state

a claim upon which relief may be granted ‘‘because it

fails to invoke a statute that abrogates governmental

immunity.’’ The court granted the defendant’s motion

and the plaintiff then filed the operative complaint, his

first amended complaint. That complaint contained one

count against the defendant sounding in negligence and

brought pursuant to General Statutes § 52-557n (a). The

defendant subsequently filed a motion to dismiss count
one of the operative complaint for lack of subject matter

jurisdiction, stating: ‘‘Count one of the complaint alleges

facts that state a claim of injury arising out of a highway

defect, for which . . . § 13a-149 provides the exclusive

remedy. The court lacks subject matter jurisdiction

because the plaintiff failed to give notice of his injuries

pursuant to § 13a-149.’’ By order dated December 21,

2015, the court sustained the plaintiff’s objection to the

motion to dismiss, concluding that ‘‘[t]he [operative]

complaint alleges that the plaintiff’s injuries were

caused by the negligence of the snowplow driver rather

than by a defect in the road.’’ The defendant then filed

an amended answer and special defenses in which it

alleged, inter alia, that the defendant was entitled to

governmental immunity pursuant to § 52-557n (a) (2)

(B).5

The matter proceeded to trial before a jury, which

heard testimony from the plaintiff; Jeffrey Pescosolido,

Director of Public Works for the defendant; Dale Keep,

an expert in snowplow operation and safety; and Robert

Sorrentino, an oral and maxillofacial surgeon who

treated the plaintiff. After the plaintiff presented his

case-in-chief, the defendant filed a motion for a directed

verdict on the basis of governmental immunity, which

the court denied. The defendant then rested without

presenting any evidence and the jury subsequently

returned a verdict in favor of the plaintiff.

On October 30, 2018, the defendant filed two posttrial

motions. In its motion to set aside the verdict, the defendant argued that the plaintiff had failed to prove that

its snowplow driver was negligent or that the plaintiff

was an identifiable victim subject to imminent harm.

The court denied that motion in a memorandum of

decision dated April 12, 2019.

In its posttrial motion to dismiss, the defendant

renewed its claim that the court lacked subject matter

jurisdiction due to the plaintiff’s failure to provide the

requisite notice pursuant to § 13a-149. By order dated

January 2, 2019, the court denied that motion, stating

in relevant part: ‘‘The evidence was clear and abundant

at trial, that the plaintiff was asserting a negligence

claim against [the defendant] and not a defective highway claim pursuant to § 13a-149. The jury interrogatories given to the jury specifically related to the negligence of the snowplow operator and whether such

injury caused the plaintiff’s injuries. As this court can

find no legal or factual basis upon which to grant the

defendant’s current motion to dismiss, said motion to

dismiss is denied.’’ The court, therefore, rendered judgment in favor the plaintiff, and this appeal followed.

On appeal, the defendant contends that the uncontroverted evidence adduced by the plaintiff at trial established that the condition that caused his injuries was,

as a matter of law, a ‘‘highway defect’’ within the meaning of § 13a-149. Because the plaintiff did not comply
with the notice requirements of that statute, the defendant claims that the court improperly denied its posttrial motion to dismiss for lack of subject matter jurisdiction.6

Before considering the merits of the defendant’s

claim, some additional context is necessary. As a general matter, ‘‘[a] town is not liable for highway defects

unless made so by statute.’’ Hornyak v. Fairfield, 135

Conn. 619, 621, 67 A.2d 562 (1949). That immunity ‘‘has

been legislatively abrogated by § 13a-149, which allows

a person to recover damages against a municipality

for injuries caused by a defective highway.’’ Martin v.

Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997);

see also Cuozzo v. Orange, 315 Conn. 606, 609 n.1, 109

A.3d 903 (2015) (Supreme Court ‘‘has long recognized

that § 13a-149 applies to publicly traversed roadways’’);

Ferreira v. Pringle, supra, 255 Conn. 356 (‘‘[t]he term

‘defect’ and the adjective ‘defective’ have been used in

statutes defining the right to recover damages for injuries due to public roads or bridges in Connecticut

since 1672’’).

Section 13a-149 provides in relevant part that ‘‘[a]ny

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. . . .’’ Our Supreme

Court has ‘‘long defined a highway defect as [a]ny object

in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for

the purpose of traveling thereon, or which, from its

nature and position, would be likely to produce that

result . . . .’’ (Internal quotation marks omitted.)

Giannoni v. Commissioner of Transportation, 322

Conn. 344, 379, 141 A.3d 784 (2016) (Espinosa, J., dissenting); see also Kozlowski v.Commissioner of Transportation, 274 Conn. 497, 502–503, 876 A.2d 1148 (2005);

Hewison v. New Haven, 34 Conn. 136, 142 (1867).

‘‘[W]hether a highway is defective may involve issues

of fact, but whether the facts alleged would, if true,

amount to a highway defect according to the statute is

a question of law’’; (internal quotation marks omitted)

McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459

(2005); over which we exercise plenary review.

The precedent of our Supreme Court further instructs

that, ‘‘in an action against a municipality for damages

resulting from a highway defect, [§ 13a-149] is the plaintiff’s exclusive remedy.’’ Ferreira v. Pringle, supra, 255

Conn. 341. That statute requires, ‘‘[a]s a condition precedent’’ to an action thereunder, the plaintiff to provide

‘‘a municipality with notice within ninety days of the

accident.’’7

Id., 354. The failure to comply with that

requirement deprives the Superior Court of jurisdiction

over a plaintiff’s action. Id.; see also Bagg v. Thompson,

114 Conn. App. 30, 41, 968 A.2d 468 (2009) (‘‘the failure

to provide the notice required by [§ 13a-149] deprives

the court of subject matter jurisdiction over the
action’’); Bellman v. West Hartford, 96 Conn. App. 387,

394, 900 A.2d 82 (2006) (‘‘[i]f § 13a-149 applies, the plaintiff must comply with the notice provisions set forth

therein in order for the trial court to have subject matter

jurisdiction’’).

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. See Khan v.

Hillyer, 306 Conn. 205, 209, 49 A.3d 996 (2012). ‘‘Subject

matter jurisdiction involves the authority of the court

to adjudicate the type of controversy presented by the

action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without

jurisdiction . . . .’’ (Internal quotation marks omitted.)

Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769 (2018).

Under our rules of practice, a motion to dismiss for

lack of subject matter jurisdiction may be raised at any

time. See Practice Book §§ 10-30 and 10-33; Stroiney

v. Crescent Lake Tax District, 205 Conn. 290, 294, 533

A.2d 208 (1987). In the present case, the defendant’s

posttrial motion to dismiss was predicated on the plaintiff’s failure to comply with the notice requirements

of § 13a-149. The question, then, is whether the court

properly determined, as a matter of law, that the condition that caused his injuries was not a highway defect

within the ambit of § 13a-149.

At trial, the plaintiff offered uncontroverted testimony that his injuries were caused by a collision

between his vehicle and an open manhole in a municipal

roadway in New Haven.8 That manhole plainly was an

object in the traveled path that necessarily obstructed

or hindered the use of the road for the purpose of

traveling. See Giannoni v. Commissioner of Transportation, supra, 322 Conn. 379 (Espinosa, J., dissenting);

see also Machado v. Hartford, 292 Conn. 364, 366, 972

A.2d 724 (2009) (defendant city liable under § 13a-149

for injuries sustained by plaintiff when vehicle ‘‘hit a

large depression in the roadway’’ and then collided with

exposed manhole cover); Federman v. Stamford, 118

Conn. 427, 429–30, 172 A. 853 (1934) (improperly

installed manhole cover constituted highway defect);

Dudley v. Commissioner of Transportation, 191 Conn.

App. 628, 646, 216 A.3d 753 (‘‘the allegedly defective

manhole cover is within the definition of ‘highway

defect’ ’’), cert. denied, 333 Conn. 930, 218 A.3d 69

(2019). Furthermore, the evidence at trial demonstrated, and the defendant concedes, that the roadway

in question was one that the defendant was ‘‘bound to

keep . . . in repair.’’ General Statutes § 13a-149. Those

undisputed facts conclusively establish, as a matter of

law, that the condition that caused the plaintiff’s injuries

was a highway defect within the purview of § 13a-149.

As our precedent makes clear, it matters little that

the plaintiff’s complaint did not invoke § 13a-149 or that

his action was predicated on § 52-557n (a). See, e.g.,
Himmelstein v. Windsor, 116 Conn. App. 28, 39, 974

A.2d 820 (2009) (‘‘the absence of citation to § 13a-149

in [the plaintiff’s nuisance allegation] is of no importance, as a complaint may still contain allegations sufficient to invoke that statute’’), aff’d, 304 Conn. 298, 39

A.3d 1065 (2012). Like the plaintiffs in Ferreira v. Pringle, supra, 255 Conn. 335–36, and Bellman v. West Hartford, supra, 96 Conn. App. 393, the plaintiff in the present case claims that his cause of action was in

negligence pursuant to § 52-557n. That statute provides

in relevant part: ‘‘Except as otherwise provided by law,

a political subdivision of the state shall be liable for

damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or

any employee, officer or agent thereof acting within

the scope of his employment or official duties . . . provided, no cause of action shall be maintained for damages resulting from injury to any person or property

by means of a defective road or bridge except pursuant

to section 13a-149. . . .’’ (Emphasis added.) General

Statutes § 52-557n (a) (1). Our Supreme Court has construed § 52-557n ‘‘to provide that an action under [§ 13a149] is a plaintiff’s exclusive remedy against a municipality . . . for damages resulting from injury to any

person or property by means of a defective road or

bridge.’’ (Internal quotation marks omitted.) Wenc v.

New London, 235 Conn. 408, 412–13, 667 A.2d 61 (1995).

For that reason, ‘‘[e]ven if a plaintiff does not plead

§ 13a-149 as a means for recovery, if the allegations in

the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff’s exclusive remedy is § 13a149.’’ Bellman v. West Hartford, supra, 393–94.

We likewise disagree with the plaintiff that the cause

of a particular highway defect, in this case an open

manhole, alters the analysis of whether a municipality is

liable under the highway defect statute. As our Supreme

Court has explained, ‘‘if two sources of negligence combine to create a defect, which defect is then the sole

proximate cause of a plaintiff’s injuries, the party bound

to maintain the area wherein the defect is located can

still be held liable under the relevant highway defect

statute. . . . [I]t follows that the manner in which a

defect is created in and of itself has no bearing on . . .

liability under the statute. Rather, it is the existence of

the defect and the . . . actual or constructive knowledge of and failure to remedy that defect that are of

primary importance in making out a prima facie case

of . . . liability . . . . Indeed, this court previously

has concluded on several occasions that a municipality

may be liable under the applicable highway defect statute despite the fact that the defect was created by the

negligence of a third party. . . . Because there exists

a statutory duty to maintain highways such that they

are safe for ordinary use, liability under the highway

defect statutes is premised on the existence of and the
failure to remedy a defect, rather than on negligence

in creating . . . a nuisance or other obstruction to

present a danger to travelers.’’9

(Citations omitted;

emphasis in original; internal quotation marks omitted.)

Himmelstein v. Windsor, 304 Conn. 298, 314–15, 39

A.3d 1065 (2012); see also Machado v. Hartford, supra,

292 Conn. 377–78.

The evidence presented at trial further demonstrated

that the defendant had knowledge of the highway defect

at issue. The plaintiff offered uncontroverted testimony

that, soon after his vehicle collided with the open manhole, a snowplow approached with the defendant’s

name and insignia on it. After stopping at the scene,

its driver informed the plaintiff that he had knocked

the cover off the manhole. As our Supreme Court

explained in a case that also concerned a highway

defect involving a manhole, the fact that ‘‘the defective

condition which produced [the] plaintiff’s injury was

due to the act of [the defendant municipality’s] own

representatives . . . in itself would be sufficient to

impute to it notice of that [defective] condition.’’ Federman v. Stamford, supra, 118 Conn. 430. That logic

applies equally to the present case.10

The plaintiff also contends that ‘‘the unique circumstances of this case would not have permitted [him] to

pursue’’ a highway defect action. We disagree. At trial,

the plaintiff offered the testimony of an expert in snowplow operation and safety, who testified that, as a matter of uniform operating procedure, ‘‘when a snowplow

operator hits [an obstacle in the roadway] every safety

bell that they have should go off. And they should stop,

find out what it was they did and to protect the scene

. . . for the traveling public and find out about the

damage to the truck before they leave the scene.’’ The

plaintiff also presented the testimony of the defendant’s

Director of Public Works, who similarly testified that,

when the defendant’s snowplows ‘‘hit something

abruptly,’’ including manhole covers, the driver is supposed to stop the vehicle. That undisputed testimony

undermines the plaintiff’s contention that the circumstances of this case precluded him from pursuing a

claim that the defendant failed to take reasonable measures to remedy the defective roadway condition that

he encountered on the morning of January 21, 2011.

The plaintiff brought this action pursuant to § 52-

557n (a), which provides in relevant part that ‘‘no cause

of action shall be maintained for damages resulting

from injury to any person or property by means of a

defective road or bridge except pursuant to section 13a149. . . .’’ The evidence at trial unequivocally established that the plaintiff’s injuries were caused by a collision between his vehicle and an object in the traveled

path that necessarily obstructed or hindered the use of

the road for the purpose of traveling—namely, an open

manhole. For that reason, the plaintiff’s exclusive rem-
edy was pursuant to the highway defect statute. Ferreira v. Pringle, supra, 255 Conn. 341. The plaintiff,

therefore, was obligated to comply with the notice provisions of § 13a-149 in order for the Superior Court to

have jurisdiction over his action. See id., 340; Bellman

v. West Hartford, supra, 96 Conn. App. 394. Because

the plaintiff failed to do so, we conclude that the court

improperly denied the defendant’s posttrial motion to

dismiss the plaintiff’s action for lack of subject matter

jurisdiction.

The judgment is reversed and the case is remanded

with direction to grant the defendant’s posttrial motion

to dismiss and to render judgment accordingly.

In this opinion the other judges concurred.

1 The plaintiff also named Geico General Insurance Company as a defendant in his complaint. At trial, the court rendered a directed verdict in favor

of Geico General Insurance Company, the propriety of which the plaintiff

does not contest in this appeal. We therefore refer to the city of New Haven

as the defendant in this opinion.

2 The defendant also claims that the court improperly denied its motion

to set aside the verdict. In light of our conclusion that the court improperly

denied its posttrial motion to dismiss, we do not address that claim.

3

It is undisputed that the defendant is responsible for maintaining its

municipal roadways, which includes snow removal.

4 As the plaintiff testified, it was ‘‘a violent collision with [the vehicle’s

front tire and] the front of that manhole and then the front tire came up,

[the] back tire went in and [then] came out. The [vehicle] traveled not too

much longer and just died.’’

5 General Statutes § 52-557n (a) (2) (B) provides in relevant part that a

municipality ‘‘shall not be liable for damages to person or property caused

by . . . negligent acts or omissions which require the exercise of judgment

or discretion as an official function of the authority expressly or impliedly

granted by law.’’

6 At oral argument before this court, the defendant’s counsel clarified that

the defendant was not contesting the propriety of the denial of its pretrial

motion to dismiss, as that decision necessarily was predicated on the pleadings set forth in the plaintiff’s complaint.

In this regard, we note that ‘‘[t]rial courts addressing motions to dismiss for

lack of subject matter jurisdiction . . . may encounter different situations,

depending on the status of the record in the case.’’ Conboy v. State, 292

Conn. 642, 650, 974 A.2d 669 (2009). When a court is presented with a pretrial

motion to dismiss, it generally is obligated to ‘‘consider the allegations

of the complaint in their most favorable light.’’ (Internal quotation marks

omitted.) Tremont Public Advisors, LLC v. Connecticut Resources Recovery

Authority, 333 Conn. 672, 688, 217 A.3d 953 (2019). The court’s decision on

a posttrial motion to dismiss is different, as it no longer is confined to the

operative pleadings and properly admitted evidence may be considered. See

D’Angelo v. McGoldrick, 239 Conn. 356, 365–66 n.8, 685 A.2d 319 (1996).

For that reason, there is ‘‘no inconsistency’’ when a trial court denies a

pretrial motion to dismiss, but thereafter grants a posttrial one. Id.

7 General Statutes § 13a-149 obligates a plaintiff to provide ‘‘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 . . . within ninety days thereafter . . . 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. . . .’’

8 At trial, the following colloquy occurred:

‘‘[The Plaintiff’s Counsel]: When you got to the area of [the] manhole,

what happened to your vehicle?

‘‘[The Plaintiff]: The cover had gotten flipped off so I went down into the

manhole, the front tire of the truck—a violent collision with the front of

that manhole and then the front tire came up, back tire went in and that

came out. The truck traveled not too much longer and just died.

* * *

‘‘[The Plaintiff’s Counsel]: [How] . . . violent was the impact when you

fell into the manhole cover with your truck?

‘‘[The Plaintiff]: Well, it was pretty violent. The truck that I was driving
at the time was a small Ford Ranger so the tires were smaller so they went

down quite deep into the manhole. The truck struck the other side, which

is an immovable object. It hit it hard enough the back tire went through

the same thing and the truck just died after it came out of the manhole.

‘‘[The Plaintiff’s Counsel]: And did your body strike any part of the interior

of the [truck]?

‘‘[The Plaintiff]: Yes, it did.

‘‘[The Plaintiff’s Counsel]: And . . . what part of your body struck what

part of the interior of your truck please?

‘‘[The Plaintiff]: The truck—my face and jaw hit the steering wheel. My

body got thrown against . . . the driver side door of the truck and back

against the rear windshield, the back window of the truck.’’

9 Moreover, this is not a case in which the plaintiff has alleged that the

condition that caused his injuries was created by the negligence of a third

party—his claim is that the defendant, in the course of maintaining its

municipal roadways, negligently caused that condition.

10 For that reason, the plaintiff’s reliance on Prato v. New Haven, 246

Conn. 638, 717 A.2d 1216 (1998), is unavailing. Unlike the present case, in

Prato ‘‘[t]here [was] no evidence that the [defendant municipality] actually

knew of this particular [defect] before the plaintiff had been injured.’’ Id., 640.