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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 photographs 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 sufficiently notified of the cause of the plaintiff’s injury and its precise

location and condition such that it could identify, and begin its investigation 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 § 13a149 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 photographs, 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 sustained 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 dismiss and rendered judgment thereon, from which the

plaintiff appealed to this court. Reversed; further proceedings.

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 photographs 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 complaint, and procedural history are relevant to our resolution of this appeal. On September 27, 2019, at approximately 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 injuries 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 photographs 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 defendant 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 granting 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 essential 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 immunity for injuries caused by defective highways. . . .

This immunity has been legislatively abrogated by § 13a149, which allows a person to recover damages against

a municipality for injuries caused by a defective highway. . . . Section 13a-149 provides the exclusive remedy 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 meritorious 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. Seymour, 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 controversy 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.’’ (Citations 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, sufficiently 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 personal 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 surrounding 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 investigation 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 defendant was sufficiently notified of the cause of the plaintiff’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 requirements of a pleading’’ (internal quotation marks omitted)).

Without citing any relevant authority, the defendant

maintains, and the trial court agreed, that the photographs 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 photographs 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 photographs included in the plaintiff’s notice are appropriately considered in our assessment of the adequacy of

the notice.

In sum, we conclude that the language of the plaintiff’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 defendant’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 § 13a149, 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 § 13a144, 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. Wethersfield, Superior Court, judicial district of Hartford, Docket No. CV-19-6110067-

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. CV16-6060857-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-12-6030857-

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-10-6002897-S (January 17, 2012) (dismissing complaint

because notice described only ‘‘negligent maintenance of pedestrian sidewalks’’). Thus, the cases cited by the court and relied upon by the defendant

on appeal are inapposite.