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BARRY GRAHAM v. COMMISSIONER

OF TRANSPORTATION

(AC 37975)

Sheldon, Prescott and West, Js.

Argued May 23—officially released October 4, 2016

(Appeal from Superior Court, judicial district of New

London, Devine, J. [motions to dismiss; judgment;

motion to reargue, set aside judgment]; Cole-Chu, J.

[summary judgment motion; judgment; articulation].)

Ralph J. Monaco, with whom, on the brief, was Eric

J. Garofano, for the appellant (plaintiff).

Lorinda S. Coon, for the appellee (defendant).
Opinion

SHELDON, J. The plaintiff, Barry Graham, appeals

from the summary judgment rendered by the trial court

in favor of the defendant, the Commissioner of Transportation, in this action to recover damages under the

state defective highway statute, General Statutes § 13a144.1 The plaintiff commenced this action on July 9,

2012, to recover for injuries he claims to have suffered

on December 12, 2011, in a motor vehicle accident allegedly caused by the sliding of the vehicle that he was

then operating on untreated black ice in the northbound

lanes of Interstate 95 as it crosses the Thames River

between New London and Groton on the Gold Star

Memorial Bridge. The trial court granted the defendant’s motion for summary judgment on the ground

that because his statutory duty to keep the bridge in a

reasonably safe condition is purely reactive rather than

anticipatory, he did not breach that duty to the plaintiff

by failing to treat or otherwise remedy the icing condition that caused the plaintiff’s accident because he had

no actual notice of the specific patch of ice before

the accident occurred, and even if he had constructive

notice of that ice patch based upon prior reports to the

Department of Transportation (department) from the

state police about earlier ice related accidents on the

bridge that morning, he had insufficient time after

receiving such notice to remedy that ice patch before

it caused the plaintiff’s accident.

On appeal, the plaintiff claims that the trial court

erred in rendering summary judgment in favor of the

defendant because the evidence before it on the defendant’s motion, when considered in the light most favorable to the plaintiff, gave rise to a genuine issue of

material fact as to whether the defendant had sufficient

time, after receiving actual or constructive notice of

the dangerous icing condition that caused his accident,

to remedy that condition before the accident occurred.

The defendant opposes this claim in two ways. First,

he argues that the trial court ruled correctly, on the

undisputed facts before it, that he had insufficient time,

after receiving notice of the icing condition that later

caused the plaintiff’s accident, to remedy that condition

before the accident occurred. Second, as an alternative

ground for affirming the trial court’s ruling, the defendant argues, as he did both in his summary judgment

motion and in his prior, unsuccessful motion to dismiss,

that the trial court lacked subject matter jurisdiction

over this action because the plaintiff’s written notice

of intent to sue failed to satisfy the requirements of

§ 13a-144, upon which the state’s statutory waiver of

its sovereign immunity depends, insofar as the statute

required him to disclose the location of his accident and

resulting injuries. The plaintiff disputes the defendant’s

challenge to the legal sufficiency of his written notice

of intent to sue insofar as it describes the location of
his accident and resulting injuries.

We agree with the plaintiff that the trial court erred in

rendering summary judgment in favor of the defendant

because the evidence before it on the defendant’s

motion gave rise to a genuine issue of material fact

as to whether the defendant had sufficient time, after

receiving notice of the icing condition that caused the

plaintiff’s accident, to treat or otherwise remedy that

condition before the accident occurred. Therefore,

because we also agree with the plaintiff that the adequacy of his written notice of intent to sue to apprise

the defendant of the location of his accident and injuries

cannot be decided on this record as a matter of law,

we reverse the trial court’s judgment and remand this

case for further proceedings.

The following procedural history is relevant to our

disposition of this appeal. In the plaintiff’s original complaint dated July 5, 2012, as later revised on May 29,

2014, without substantive alteration as to the issues

now before us, he alleged that the defendant has a

statutory duty to keep and maintain all highways and

bridges within the state highway system in a reasonably

safe condition, and that that duty extends to Interstate

95, a public highway in that system. He further alleged

that, in the early morning hours of December 12, 2011,

employees, representatives and agents of the department became aware that the surface of Interstate 95

on the Gold Star Memorial Bridge had become icy and

unreasonably dangerous, based upon reports they had

received from the state police of numerous ice related

accidents on the bridge that morning. The plaintiff

alleged that later that morning, at 6:38 a.m., as he was

driving his pickup truck in the northbound lanes of the

bridge about one-tenth of one mile south of the New

London-Groton town line, it slid on black ice, rolled

over on its side and collided with a bridge structure,

causing him serious injuries. The plaintiff alleged that

the cause of his accident and resulting injuries was the

defendant’s breach of his statutory duty to keep the

bridge in a reasonably safe condition by failing to take

adequate measures, in response to the notice he had

received of its dangerous condition, either by treating

its icy surface, placing or utilizing warning signs in the

area to warn travelers of that dangerous condition, or

closing the bridge entirely until that dangerous condition could be remedied. Finally, the plaintiff alleged

that he had provided timely written notice to the defendant of his intent to sue in connection with his accident

and injuries within ninety days of their occurrence, as

required by § 13a-144.2

On September 12, 2012, the defendant moved to dismiss the plaintiff’s original complaint on the ground that

the location of the accident specified in the plaintiff’s

written notice of intent to sue described an area so

large that it failed to satisfy the requirements of § 13a-
144, in violation of the sovereign immunity doctrine.3

This motion was initially granted by the trial court,

Devine, J. Thereafter, however, upon reconsideration

of its ruling, the court determined that the language of

the plaintiff’s written notice was subject to at least one

reasonable interpretation that could be found to satisfy

the requirements of § 13a-144. Concluding, on that

basis, that the adequacy of the plaintiff’s written notice

to apprise the defendant of the location of his accident

and injuries was a disputed issue of fact that should

be decided by the finder of fact at trial, the court vacated

its initial ruling and denied the defendant’s motion to

dismiss.4

Thereafter, on May 8, 2014, the defendant moved for

summary judgment on three grounds: (1) that he did

not breach his statutory duty to keep and maintain the

bridge in a reasonably safe condition on the morning

of the plaintiff’s accident because he lacked actual

notice of the specific ice patch that caused that accident, and even if he had constructive notice of that ice

patch, he lacked sufficient time after receiving such

notice to remedy that ice patch before the plaintiff’s

accident occurred; (2) insofar as the plaintiff’s written

notice of intent to sue described the location of his

accident, it failed to satisfy the requirements of § 13a144; and (3) that the plaintiff could not prove that the

defendant’s breach of statutory duty under § 13a-144,

if any, was the sole proximate cause of his accident

and resulting injuries.

The defendant supported his motion with a memorandum of law and several attached exhibits, including:

sworn affidavits from four employees of his department, Peter Silva, James F. Wilson, Jay D’Antonio and

Theodore Engel; an excerpt from the certified transcript

of the deposition of state police Trooper Robert D.

Pierce, who responded to and investigated the plaintiff’s

accident; and copies of the plaintiff’s written notice of

intent to sue in connection with his accident, Trooper

Pierce’s police report concerning the accident, and the

department’s work log for the day of the accident.

The main thrust of the defendant’s argument on the

first of his three grounds for seeking summary judgment, to which the trial court ultimately limited its

decision on his motion, was that he did not breach his

statutory duty to remedy the ice patch that caused the

plaintiff’s accident and injuries because, although his

employees responded promptly to the first report they

received of an ice related accident on the bridge that

morning, they could not have reached the bridge with

the necessary equipment and materials to treat its icy

surface and make it reasonably safe for travel before

the plaintiff’s accident occurred. The department’s call

log showed, more particularly, that the department first

was notified of icing on the bridge at 5:49 a.m. that

morning, in a call from the state police to its Bridgeport
operations center, of which Silva was the supervisor.

That call reported that an ice related accident had

occurred on the bridge at 5:40 a.m. The operations center responded to the call by implementing its standard

protocol for responding to off-hour calls for service by

calling D’Antonio, the supervisor of the department’s

maintenance garage in Waterford, which services the

Gold Star Memorial Bridge, with instructions to call out

a crew to salt the bridge. The Waterford garage, which

was then closed, routinely dispatched two man work

crews, with one crew leader and one helper, to respond

to off-hour calls for service. When crew members were

called out to salt an icy bridge or highway, they had to

drive in their own nonemergency vehicles to the garage,

where the department’s deicing equipment and materials were stored, open the garage with the crew leader’s

key, start and load the salting truck, then drive to the

location where salting was to be performed. The garage

had two crew leaders in December, 2011: Engel, who

lived in Madison, approximately thirty to thirty-five

minutes away from the garage when there was no traffic, and another unnamed person whose town of residence was not disclosed. D’Antonio assigned Engel to

salt the bridge after the 5:40 a.m. accident was reported

to him pursuant to his general practice of alternating

off-hour call-outs between crew leaders so as not to

‘‘unduly burden’’ either one of them in the busy winter season.

After being called out at about 5:51 a.m. on December

12, 2011, Engel and his helper, William Grant, needed

more than one hour to get to and open the garage,

prepare and load a truck for salting operations and

drive the truck to the bridge. By the time they reached

the bridge, the plaintiff’s accident had already occurred,

and the state police, who had been on the bridge since

before 6 a.m. responding to other accidents, had closed

the bridge. On the basis of this evidence, the defendant

argued that he could not be held liable for the plaintiff’s

accident or injuries because he lacked sufficient time

after receiving constructive notice of ice on the bridge

at 5:49 a.m. to reach and treat the bridge before the

plaintiff’s accident occurred.

Finally, the defendant presented evidence, through

Silva’s sworn affidavit, that in addition to attempting

to treat the bridge with salt on the morning of the

plaintiff’s accident, his employees attempted, at 6:23

a.m., to warn motorists approaching the bridge of its

dangerous condition by illuminating electronic signboards positioned about one-tenth of one mile before

the start of the bridge in both directions, which read:

‘‘Slippery Conditions. Use Caution.’’ The plaintiff, he

contended, had to drive by one such illuminated signboard when he drove his truck onto the bridge approximately fifteen minutes later.

The plaintiff opposed the defendant’s motion for sum-
mary judgment with his own memorandum of law and

accompanying exhibits, including: an excerpt from the

certified transcript of the deposition of Diana Dean, the

driver who had been involved in the first ice related

accident reported to the defendant on the morning of

the plaintiff’s accident; the police report concerning

the Dean accident, which was written by state police

Trooper Christopher Sottile, who had responded to and

investigated that accident before the plaintiff’s accident

that morning; an excerpt from the certified transcript

of the deposition of Engel, the crew leader who had

been called out to treat the bridge after the Dean accident; the sworn affidavit of Silva, the supervisor of

the department’s operations center in Bridgeport, who

described the department’s standard protocol for

responding to off-hour calls and averred that the previously described electronic signboards had been illuminated before the plaintiff’s accident; the plaintiff’s

own sworn affidavit describing his accident and the

events leading up to it; another excerpt from the certified transcript of the deposition of Trooper Pierce, as

to his investigation of the plaintiff’s accident; the police

report of Trooper Pierce concerning the plaintiff’s accident; and work logs for the Waterford garage on the

day of Dean’s and the plaintiff’s accidents.

The plaintiff relied on these submissions to raise

issues of fact as to several aspects of the defendant’s

initial ground for seeking summary judgment. First,

Dean testified and Sottile wrote in his police report that

when her accident occurred at 5:40 a.m. on the morning

of the plaintiff’s accident, the entire surface of the roadway on the northbound side of the bridge was covered

with black ice, which caused her vehicle to spin out of

control in the right lane of the five lane bridge and

continue spinning all the way across the bridge until it

crashed into the cement barrier on the opposite side

of the roadway. Second, the plaintiff averred in his

affidavit and Trooper Pierce confirmed in his police

report that when the plaintiff’s accident occurred

almost one hour after the Dean accident, the entire

surface of the roadway on the northbound side of the

bridge was still completely covered with black ice.

Third, Engel testified, based upon his three years of

experience working at the Waterford garage in the winter, that when the outside temperature falls below freezing, the surface of the Gold Star Memorial Bridge, unlike

those of other nearby bridges, is prone to freezing over

completely, with black ice of the kind he saw on the

morning of December 12, 2011, due to the recurring

presence of ice fog in the area. The department’s work

logs confirmed that the air temperature at 6 a.m. on

that date was 27 degrees Fahrenheit, and the surface

temperature of the roadway was 24 degrees Fahrenheit.

Fourth, although Silva averred in his affidavit that electronic signboards warning of slippery conditions on the

bridge had been illuminated before the plaintiff drove
onto the bridge on the morning of his accident, both

the plaintiff and Engel swore that they had not seen

any such warning signs when they drove onto the northbound lanes of the bridge several minutes later. Fifth,

shortly after the plaintiff’s accident took place, the state

police closed the northbound lanes of the bridge

entirely until its icy surface could be treated by department personnel.

In light of the foregoing evidence, the plaintiff

claimed that the defendant was not entitled to summary

judgment on the first ground raised in his motion

because the reasonableness of a defendant’s response

to notice he receives of ice on a bridge or highway

is a multifactorial factual issue that must typically be

decided by the finder of fact at trial. Here, in particular,

the plaintiff claimed that he had presented evidence

raising several genuine issues of material fact about

factors upon which the ultimate resolution of that issue

in this case depends. Those issues included: whether

the defendant had actual notice of the dangerous icing

condition that caused his accident and injuries based

upon the reported observations by the state police of

black ice covering the entire northbound surface of

the bridge from almost one hour before the plaintiff’s

accident until the state police responded to it well after

it occurred; whether, in light of the magnitude of the

danger presented by the pervasive icing condition of

which the defendant had notice, as evidenced by the

numerous ice related accidents it had caused in subfreezing weather conditions known to cause icing due

to ice fog, it was reasonable for the defendant to call

out a work crew that predictably could not reach the

bridge and treat it until more than one hour after they

were first called out; whether, if a work crew called

out to treat the bridge could notreasonably be expected

to treat it for more than one hour after they were first

called out, adequate measures were taken in the interim

to warn motorists still using it of its dangerous icing

condition before that condition was remedied; and

whether, if the bridge could not be treated more quickly

and the motoring public could not be warned more

effectively of its dangerous condition before it was

treated, the bridge should have been closed to all traffic

before, not after, the plaintiff’s accident. In light of those

open, contested issues, the plaintiff insisted that the

reasonableness of the defendant’s response to the black

ice condition reported to the department before the

plaintiff’s accident presented a genuine issue of material

fact that should be decided by the finder of fact at trial.

On January 12, 2015, the trial court, Cole-Chu, J.,

heard oral argument on the defendant’s motion for summary judgment, at which the foregoing arguments were

presented. Thereafter, on May 12, 2015, the trial court

granted the defendant’s motion for summary judgment.

In its memorandum of decision, the trial court held that

‘‘despite . . . the drawing of inferences in the light
most favorable to the nonmoving party . . . the court

concludes that the defendant is entitled to judgment as

a matter of law. The court cannot conclude that the

defendant had actual notice of the black ice condition

which caused the plaintiff’s accident before the report

of that accident. Even treating the black ice on the

bridge in general as the defect which caused the plaintiff’s accident and treating the black ice accident on

the same bridge fifty minutes before the plaintiff’s accident as constructive notice to the defendant of that

defect, the court finds as a matter of law that the defendant’s response time was reasonable. Indeed, the plaintiff does not contend otherwise, other than by claiming

that the defendant should have anticipated the black ice

condition.’’5

(Citation omitted.) Thereafter, the plaintiff

filed this appeal.

I

We begin by noting that our standard of review as

to a trial court’s decision to grant a motion for summary

judgment is plenary. ‘‘Practice Book § 17-49 provides

that summary judgment shall be rendered forthwith if

the pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.’’ (Internal quotation marks omitted.)

Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193,

198, 931 A.2d 916 (2007). ‘‘In seeking summary judgment, it is the movant who has the burden of showing

the nonexistence of any issue of fact. The courts are

in entire agreement that the moving party for summary

judgment has the burden of showing the absence of

any genuine issue as to all the material facts, which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law. The courts hold

the movant to a strict standard. To satisfy his burden

the movant must make a showing that it is quite clear

what the truth is, and that excludes any real doubt as

to the existence of any genuine issue of material fact.

. . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to

the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish

that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents

establishing the existence of such an issue. . . . Once

the moving party has met its burden, however, the

opposing party must present evidence that demonstrates the existence of some disputed factual issue.

. . . It is not enough, however, for the opposing party

merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court

under Practice Book § [17-45].’’ (Internal quotation

marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46–47, 881 A.2d 194 (2005).
‘‘To prove a breach of statutory duty underthis state’s

defective highway statutes, the plaintiff must prove by

a preponderance of the evidence: (1) that the highway

was defective as claimed;(2)that the defendant actually

knew of the particular defect or that, in the exercise

of its supervision of highways in the city, it should have

known of that defect; (3) that the defendant, having

actual or constructive knowledge of this defect, failed

to remedy it having had a reasonable time, under all

the circumstances, to do so; and (4) that the defect

must have been the sole proximate cause of the injuries

and damages claimed, which means that the plaintiff

must prove freedom from contributory negligence.’’

(Footnote omitted; internal quotation marks omitted.)

Ormsby v. Frankel, 255 Conn. 670, 675–76, 768 A.2d 441

(2001). In granting the defendant’s motion for summary

judgment, the trial court predicated its decision on a

finding that the plaintiff could not establish the third

element of his cause of action, namely, that the state

failed to remedy the icing condition on the bridge after

having had a reasonable time to remedy such condition

afterreceiving notice thereof. In addition to this finding,

the trial court made a necessary subordinate finding

that the defendant had received constructive notice

of the defective icing condition, which triggered the

defendant’s duty to remedy that condition within a reasonable period of time.

On appeal, the plaintiff challenges the propriety of the

trial court’s conclusion that the defendant responded

reasonably, as a matter of law, to the notice he received

of the black ice that caused the plaintiff’s accident and

resulting injuries. Specifically, the plaintiff argues that

the trial court erroneously determined that the defendant’s response to the icing condition on the bridge

was reasonable as a matter of law because, under Connecticut law, the question of whether the defendant

reasonably responded to a highway defect of which he

had notice is a question of fact that must be decided

by the finder of fact at trial. In response, the defendant

contends that any issue of fact, including what constitutes a reasonable amount of time in particular circumstances for the defendant to respond to notice he

receives of a highway defect, may be resolved by summary judgment when the evidence supports only one

fair and reasonable conclusion. The defendant asserts

that, on the undisputed facts of this case, the only

rational conclusion to be drawn is that he acted reasonably because he had no more than forty-nine minutes

to remedy the defect at issue, the department followed

its standard protocol in responding to the defect, and

under the circumstances then existing, it had insufficient time to reach and treat the bridge before the

plaintiff’s accident occurred.

We agree with the plaintiff that, as a general matter,

Connecticut case law dictates that the question of
whether the defendant reasonably responded to the

report of a highway defect is a multifactorial determination that must be made by the finder of fact at trial.

See id., 693 (holding that ‘‘[t]he response time of the

defendant to react to a dangerous condition is a factspecific determination’’). Here, however, even if we

accept the defendant’s argument that summary judgment may appropriately be rendered in particular circumstances where the only rational conclusion to be

drawn from the evidence before the trial court is that

the defendant had insufficient time to remedy the complained-of defect after receiving notice of it before it

caused the plaintiff’s injuries, we conclude that the

record before the trial court in this case gave rise to

several genuine issues of material fact that precluded

the rendering of summary judgment on that ground.

A

Reasonableness of Defendant’s Response to

Notice of Highway Defect is Fact-Specific

Determination That Must Typically

Be Made By Trier of Fact

Under the state defective highway statute, it is well

established that ‘‘[t]he state is not an insurer of the

safety of travelers on the highways which it has a duty

to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether

or not the state has exercised reasonable care to make

and keep such roads in a reasonably safe condition for

the reasonably prudent traveler.’’ (Internal quotation

marks omitted.) Hall v. Burns, 213 Conn. 446, 462–63,

569 A.2d 10 (1990). The defendant’s ‘‘statutory obligation under § 13a-144 to keep the highway safe from

defects is a reactive obligation, not an anticipatory obligation.’’ Ormsby v. Frankel, supra, 255 Conn. 676. Thus,

‘‘[l]iability imposed on the defendant under § 13a-144

for a defective highway is based on proof of the existence of a defect and on the defendant’s failure to

remedy the defect within a reasonable time after receiving actual or constructive notice of the defect where

that defect is the sole proximate cause of a plaintiff’s

injury.’’ (Emphasis in original; internal quotation marks

omitted.) Hall v. Burns, supra, 462.

Although the present case involves a claim under

§ 13a-144, our courts have held that the defendant’s

duty to maintain the safety of state bridges and highways under § 13a-144 mirrors a municipality’s duty to

maintain the safety of municipal sidewalks, bridges and

highways under the parallel provisions of General Statutes § 13a-149. Therefore, our courts frequently have

relied on case law under one of those statutes to resolve

common issues arising underthe other, such as whether

the defendant or the municipality owed the plaintiff a

duty of care under particular circumstances, whether

the defendant received either actual or constructive

notice in those circumstances of a defect on a bridge
or highway it had the duty to maintain, and whether

the defendant, in responding to such notice, breached

the statutory duty of care.6

Furthermore, our analysis under the two statutes is

often guided by the general principles applicable to

negligence actions. While it is well settled that ‘‘the

liability of the defendant under § 13a-149 is purely for

breach of statutory duty and does not arise from negligence . . . [t]his does not mean, however, that negligence principles are wholly inapplicable’’ to the court’s

analysis. (Citation omitted; internal quotation marks

omitted.) Prato v. New Haven, 246 Conn. 638, 645, 717

A.2d 1216 (1998); see also White v. Burns, 213 Conn.

307, 322, 567 A.2d 1195 (1990) (‘‘There can be no question but that the nature of the duty resting upon the

state . . . is to exercise reasonable care to keep the

state highways in a reasonably safe condition for public

travelers whether by pedestrians or vehicles. . . . That

duty is that of reasonable care, that is, that degree of

care which the ordinarily prudent person would exercise under similar circumstances.’’ [Citation omitted.]).

The availability and effectiveness of the state’s chosen

course of action for remedying a known highway defect

will invariably depend on the facts and circumstances

presented in each case. For this reason, our courts have

insisted that the determination of whether the state

acted reasonably must be made by a trier of fact

apprised of all of the facts and circumstances of the

case.

It is noteworthy that the state defective highway statute, now § 13a-144, has existed in Connecticut for more

than 100 years. See Cloughessey v. Waterbury, 51 Conn.

405 (1884). Despite countless opportunities to do so,

our courts have refrained from setting a bright line rule

for what constitutes a reasonable response time, by

either the state or a municipality, when responding to

notice of a defective highway condition. See, e.g., Hall

v. Burns, supra, 213 Conn. 474–75 (holding that ‘‘in

order for the jury to determine whether the commissioner exercised reasonable care . . . it is only fair

that the jury be made aware of all of the circumstances

surrounding the commissioner’s statutory duty’’);

Goldstein v. Hartford, 144 Conn. 739, 740, 131 A.2d 927

(1957) (holding that ‘‘[w]hether [the commissioner’s]

duty has been performed is ordinarily a question of

fact’’); Nicefaro v. New Haven, 116 Conn. App. 610,

615–16, 976 A.2d 75 (‘‘What constitutes reasonable care

[under the statute] is a fact specific inquiry. . . . For

that reason, the circumstances of each case must be

examined.’’ [Citation omitted; internal quotation marks

omitted.]), cert. denied, 293 Conn. 937, 981 A.2d 1079

(2009).

In Carl v. New Haven, 93 Conn. 622, 625, 107 A.

502 (1919), our Supreme Court held that, under the

municipal defective highway statute, now § 13a-149,
‘‘our municipalities, [with regard to] conditions produced by fallen snow or formed ice upon streets and

walks, are under no obligation to make them absolutely

safe, and much less to make them safe under all circumstances. What the law requires of them, and all that it

requires, is the exercise of such efforts and the employment of such measures—directed to the end that their

streets and walks be maintained in a reasonably safe

condition, all the circumstances of the situation considered—as, in view of the circumstances and conditions,

are in themselves reasonable.’’ The court further stated

that ‘‘[t]he circumstances to be taken into account, and

the considerations to be weighed, in determining what

is reasonable to be done, and what is a reasonable

condition to be sought after and attained, if reasonably

attainable, are many. . . . They involve, as prominent

elements in the decision, the location, extent and character of the use made of the street or walk, the practicability and efficiency of possible remedial measures, the

size of the problem which the municipality is called

upon to face in the existing emergency, the expenditure

involved in dealing with that problem in the several

possible ways, the physical resources that the municipality has at command which it can utilize to deal with

it, and so forth and so forth. It follows naturally and

necessarily from the variety of the elements which may

exist in different situations as they arise, that our

courts have never undertaken to lay down a rule defining with particularity and precision the duty owed

by our towns, cities and boroughs in their dealings

with the manifold problems which, in our climate, are

presented by formed ice or fallen snow upon public

highways or walks. They have realized, and frequently

expressed, the impossibility of framing one of universal application in other than general language which

is elastic in that it embodies the qualification of reasonableness under all the circumstances at every turn

of the definition. The accepted general rule looks constantly to the ever changing circumstances of situations,

and its key-note throughout is reasonableness in view of

the circumstances as they appear upon each occasion.’’

(Emphasis added.) Id., 625–26.

In the present case, the defendant has repeatedly

argued that, because the department followed its standard response protocol in responding to an off-hour

call for service after the Dean accident, its response

was reasonable as a matter of law. Our case law demonstrates, however, that assessing whether the defendant’s response to notice he received of a highway

defect was reasonable involves the consideration of

many different factors, some of which may be unique to

each case. Here, the defendant was required to respond

reasonably to notice of a dangerous black ice condition

that had caused numerous accidents on the bridge. In

responding to notice of a dangerous icing condition

on a bridge or highway, the defendant can obviously
consider taking several different courses of action.

First, he can attempt to fix the dangerous icing condition by treating the ice or removing it from the bridge’s

surface, although that might take too much time to

alleviate its immediate danger to travelers who are still

using the bridge. As a temporary response to a dangerous icing condition that cannot be treated or removed

immediately, the defendant can also take steps to warn

travelers still using the bridge of its dangerous condition

so they can avoid using it or minimize the danger arising

from continuing to use it, provided, of course, that the

warning is sufficiently prominent and pointed to inform

travelers of the true nature and extent of that danger,

and thus to induce them to use appropriate caution if

they choose to drive upon it. Finally, if warnings of the

dangerous condition would not suffice to warn travelers

still using the bridge of the danger arising from its use

before it is treated, the defendant could require travelers to avoid it altogether by closing the bridge until the

dangerous condition is remedied.

The plaintiff is entitled to have the finder of fact

assess the reasonableness of the defendant’s response

to the notice he received of the dangerous icing condition on the bridge on the morning of the plaintiff’s

accident unless the defendant can prove, based upon

the evidence before the trial court on his motion, that

there is no genuine issue of material fact that he had

insufficient time after receiving such notice to use any

of these measures, alone orin combination, to make the

bridge reasonably safe fortravelers before the plaintiff’s

accident occurred.

B

Genuine Issues of Material Fact that Bore Upon

Reasonableness of Defendant’s Response to

Notice he Received of Icy Condition That

Caused Plaintiff’s Accident and Injuries

Here, the plaintiff contends that there are genuine

issues of material fact as to several factors that could

have affected the finder of fact’s ultimate determination

as to whether the defendant had sufficient time, after

receiving notice of the dangerous condition that caused

the plaintiff’s accident and injuries, to remedy that condition before the accident occurred. We agree, concluding that alone or in combination, these open factual

questions should have precluded the trial court from

rendering summary judgment in favor of the defendant

in this case.

1

Whether and When Defendant Received Actual

Notice of Specific Defect That Caused

Plaintiff’s Accident and Injuries

One critical factor in determining the reasonableness

of the defendant’s response to any notice he received

of a highway defect is how much time he had to respond
to that notice after he first became chargeable with

having received it. The trial court agreed with the defendant’s claim that he never received actual notice of the

specific patch of ice that caused the plaintiff’s accident,

but at most became chargeable with constructive notice

of that ice patch upon receiving earlier reports from

the state police about black ice and other ice related

accidents on the bridge that morning. By that logic,

since the first report by the state police to the defendant’s Bridgeport operations center concerning an ice

related accident on the bridge that morning did not

come in until 5:49 a.m., the defendant could not be

charged with having constructive notice of that condition until that time, leaving him at most forty-nine

minutes before the plaintiff’s accident to remedy that

dangerous condition. Although the defendant now

accepts both aspects of the trial court’s ruling, both as

to his own lack of actual notice of the specific ice patch

that caused the plaintiff’s accident and as to a maximum

forty-nine minute time period he had to remedy that

ice patch after receiving constructive notice of it, the

plaintiff disagrees. He argues, to the contrary, that the

record before the trial court gives rise to genuine issues

of material fact as to whether the defendant received

actual notice of the black ice that caused his injury,

and whether he did so as early as 5:40 a.m., when

Trooper Sottile was first dispatched to the scene of the

Dean accident. There are two basic reasons why we

find this claim persuasive.

First, although both the defendant and the trial court

have suggested that the plaintiff was injured when his

pickup truck slid on an ‘‘ice patch’’ on the morning of

his accident, every eyewitness who observed the bridge

that morning, both before and after the Dean accident,

and before and after the plaintiff’s accident, described

it as covered with black ice. The latter description,

unlike the former, connotes a single, continuous sheet

of thin, invisible ice coating the entire roadway, rather

than a mottled, irregular surface dotted in isolated

places with individual ‘‘patches’’ of ice. So understood,

the evidence presented on the defendant’s motion gives

rise to a genuine issue of material fact as to whether

the ‘‘specific ice patch’’ that caused the Dean accident

was actually the same specific ice patch that later

caused the plaintiff’s accident. Testimony from Engel

suggested that pervasive icing of the sort that he and

the other witnesses observed on the bridge that morning

was the very sort of icing that the bridge regularly

experienced in subfreezing weather due to ice fog. The

department’s work records confirmed that both the outside air temperature and the roadway temperature that

morning were well below freezing, and thus conducive

to the ice fog and the formation of black ice. Finally,

considering those facts in a light most favorable to the

nonmoving party, both the invisible appearance of the

ice on the roadway and the manner in which both Dean
and the plaintiff lost control of their vehicles and spun

or slid to the cement barrier on the left side of the

roadway were consistent with the presence of a single

sheet of black ice covering the northbound lanes of

the bridge.

Second, the evidence established that the defendant

and the department routinely rely upon the state police

to respond to and report to them about highway defects

on state roads and bridges. For that reason, our

Supreme Court has held that actual notice to the state

police of a highway defect constitutes actual notice to

the defendant, which occurs when the state police first

learn of the defect, not the later time when they report

that defect to the defendant or the department. See

Lamb v. Burns, 202 Conn. 158, 173, 520 A.2d 190 (1987).

In Lamb, the plaintiff brought suit against the defendant

under § 13a-144 after she lost control of her car while

driving over an ice patch and struck a guard post. Id.,

159. At trial, the evidence showed that the state police

had received a call about the same ice patch seventyfive minutes before the plaintiff’s accident occurred and

arrived on scene thirty-five minutes before the accident.

Id., 160. Ten minutes after they arrived, the state police

called the department. At that time, however, the

department’s local garage was closed. This, then, was

an off-hour call about an icy road condition. Id. In an

attempt to warn other motorists of the ice patch, the

responding officer lit road flares in the immediate area,

but then left the scene to check on another area. After

the road flares went out, but before the department’s

sand truck arrived to treat the ice patch, the plaintiff

drove over the ice patch, lost control of her vehicle,

and struck the guard post. Id. On appeal, our Supreme

Court held that, ‘‘[a]lthough the state police are not

statutorily charged with duties that concern the repair

or maintenance of state highways . . . the evidence in

the present case indicates that by custom the commissioner of transportation has availed himself of the assistance of the state police and that the state police have

assumed such duties. There was testimony that it is a

state trooper’s duty and usual procedure to report

defects found in the highway. There was further testimony that the [department] relies on the state police

to call about highway problems.’’ (Citation omitted;

internal quotation marks omitted.) Id., 171. On the basis

of this evidence, the court upheld the trial court’s

instruction that the jury ‘‘may consider that notice to

[the state police] is notice to the defendant . . . .’’

(Internal quotation marks omitted.) Id., 173.

Against this background, we conclude that, when the

evidence before the trial court is viewed in the light

most favorable to the plaintiff, there is a genuine issue

of material fact as to whether the pervasive black ice

that caused his accident was the same pervasive black

ice that caused the Dean accident fifty-eight minutes

earlier, and thus as to whether the defendant received
actual notice of that condition as of 5:40 a.m., when

Trooper Sottile was first dispatched to respond to the

Dean accident, rather than 5:49 a.m. when the state

police called the Bridgeport operations center to report

the Dean accident to the department.

‘‘In ruling on a motion for summary judgment, the

court’s function is not to decide issues of material fact,

but rather to determine whether any such issues exist.’’

Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031

(1988). The trial court erred in this case in deciding,

adversely to the plaintiff, the disputed issues left open

by the foregoing evidence as to whether and when the

defendant received actual notice of the specific defect

that caused the plaintiff’s accident and thus became

responsible for taking reasonable measures to remedy

that defect.

2

Whether Defendant Acted Unreasonably in

Responding to Notice of Icing Condition

The plaintiff also argues that the defendant acted

unreasonably in responding to initial reports of black

ice covering the northbound lanes of the Gold Star

Memorial Bridge by calling out a crew leader who lived

at least thirty to thirty-five minutes away from the

Waterford garage to respond to the dangerous icing

condition on the bridge. When viewing the evidence in

the light most favorable to the plaintiff, we conclude

that there is a genuine issue of material fact as to

whether the defendant’s decision to dispatch an

employee who lived at that distance from the garage

was unreasonable under the circumstances, particularly in light of the possible availability of at least one

other crew leader and the extreme danger posed to

travelers by invisible black ice completely coating a

five lane bridge on a major state thoroughfare at the

start of the morning commute.

The relevant evidence is as follows. In his motion for

summary judgment, the defendant argued that, despite

his employees’ reasonable efforts to reach the bridge

before the plaintiff’s accident occurred, it was physically impossible for them to do so because the assigned

crew leader, Engel, lived in Madison, thirty to thirtyfive minutes away from the garage, without traffic.

Engel had been dispatched on this occasion because it

was his turn under the alternating call-out system used

by garage supervisor, D’Antonio, so as not to unduly

burden either crew leader in the busy winter season.

No information about the location or potential availability of the other crew leader was presented. In his affidavit, Engel stated that he lives in Madison and thatit takes

him between thirty to thirty-five minutes of driving,

without traffic, to reach the Waterford garage. Engel

also stated that, of the two workers responding to the

bridge that morning, he was the only one who had
keys to the garage; therefore, even if his coworker had

arrived there first, he would have been forced to wait

until Engel arrived before accessing the truck and preparing it to treat the icing on the bridge.

During oral argument before this court, the plaintiff

argued that it was unreasonable for the defendant to

simply say, ‘‘well, the guy who is supposed to get all

of this going to fix it lives all the way down in Madison,

so don’t blame us that we couldn’t respond within fortyfive minutes.’’ We agree. On the basis of the defendant’s

evidence, we conclude that there was and is a genuine

issue of material fact as to whether calling out the other

crew leader, if he was then available, would have made

it possible to reach and treat the bridge before the

plaintiff’s accident occurred, thus potentially making

the defendant’s failure to do so unreasonable under all

of the circumstances then existing. There is nothing in

the record to show that there was a departmentwide

policy of alternating between available crew leaders on

off-hour call-outs, and even if there was such a policy,

however fair and appropriate it might be to follow it

under other circumstances, there would at least have

been a genuine issue of material fact as to whether

deviating from it would be required under circumstances if it was necessary to do so to ensure that

travelers would not be injured by an especially dangerous highway defect.

Although it is certainly possible that Engel lived

closer to the Waterford garage than the other crew

leader, the moving party on a summary judgment

motion bears the heavy burden of removing ‘‘any real

doubt as to the existence of any genuine issue of material fact.’’ (Internal quotation marks omitted.) Martel v.

Metropolitan District Commission, supra, 275 Conn.

46. The defendant failed to meet that burden with

respect to this issue, thus raising a genuine issue of

material fact as to whether the defendant, by following

its standard practice of alternating between crew leaders for its off-hour call-outs instead of using other, more

expeditious options, failed to respond reasonably to the

notice it received of the dangerous icing condition on

the bridge on the morning of the plaintiff’s accident.

3

Whether Defendant Failed to Make Adequate Use

of Available Temporary Remedies to Protect

Travelers While Icy Condition of Bridge

Was Being Remedied

Even if the defendant’s employees could not have

reached the bridge in time to treatit before the plaintiff’s

accident occurred, there is still a genuine issue of material fact as to whether the defendant could have

responded to the notice he received of its dangerous

icy condition in some manner other than physically

reaching it and applying deicing materials to it in no
less than fifty-eight minutes. In the present case, the

plaintiff argues, the defendant either could have placed

or utilized warning signs in the area to warn travelers

still using the bridge of its dangerously icy condition

or, if no such warnings would be sufficient to warn

motorists of its true dangers to the point of inducing

them not to drive on the bridge without using appropriate caution, closed the bridge altogether before it

was properly treated. We agree with the plaintiff that

any decision to use or forgo the use of such temporary

measures could have been considered by the finder of

fact in assessing whether the defendant acted reasonably in responding to the report of ice on the bridge

after the Dean accident.

From the outset of this action, the plaintiff has alleged

that the defendant breached his duty under § 13a-144

because, having received notice of the dangerous icing

condition on the bridge, he unreasonably failed to warn

travelers of that danger.7 The trial court did not address

this argument in its memorandum of decision, instead

focusing its entire analysis on the amount of time that

was required to reach the bridge with a work crew and

apply deicing materials to it. We conclude that there

are genuine issues of material fact as to whether the

defendant had sufficient time before the plaintiff’s accident occurred to respond to the danger posed by the

dangerous icing condition on the bridge by warning

travelers of it by remotely illuminating its prepositioned

electronic signboards with a suitable warning message.

The evidence before the court is as follows. In his

deposition, Trooper Pierce testified that there are two

electronic signs that are located approximately onetenth of one mile before the bridge in either direction.

Pierce also stated that, although the state police are

not notified when the signs are illuminated, he is aware

that the department has the ability to activate the signs.

The defendant presented evidence that the electronic

signboard located before the bridge in the northbound

lane of the highway was illuminated at 6:23 a.m. to warn

travelers to ‘‘use caution’’ due to ‘‘slippery conditions’’

on the bridge. The defendant’s claim in this regard rests

entirely on the affidavit of Silva, who so averred, adding

that ‘‘[the plaintiff] had to have driven past that sign

on his way over the bridge.’’

Notwithstanding such evidence, however, two witnesses who drove over the bridge that morning near the

time of the plaintiff’s accident did not see the electronic

signboard illuminated. First, the plaintiff’s affidavit

states that he did not see any warning signs that morning. Second, and perhaps more importantly, Engel, the

department’s crew leader who responded to the bridge

approximately ten to fifteen minutes after the plaintiff’s

accident, stated that he did not see the electronic signboard illuminated when he arrived at the bridge after

the plaintiff’s accident.
On the basis of Pierce’s deposition and Silva’s affidavit, it clearly appears that the defendant had the ability

to illuminate remotely the electronic signboard to warn

travelers of the dangerous condition on the bridge at

least fifteen minutes before the plaintiff’s accident. The

fact that the defendant’s employees attempted to do so

in that time frame also demonstrates that, in their view

at least, taking such a measure to warn travelers of the

dangerous condition of the bridge was appropriate in

the existing circumstances. The defendant, however,

failed to demonstrate the absence of any genuine issue

of material fact as to whether the warning sign was

actually illuminated that morning, for evidence from

two persons that they did not see the sign that morning,

including one of the defendant’s employees who regularly works on the bridge when it ices over in subfreezing conditions, puts that claim in dispute. Moreover,

even if the signboard was illuminated and worded as

Silva averred, a genuine issue of material fact might

still exist as to whetherit was so positioned and worded

to give reasonably prudent travelers sufficient warning

of a dangerous black ice condition that lay ahead of

them.8 For these additional reasons, we conclude that

the trial court should not have granted the defendant’s

motion for summary judgment on the ground that he

had insufficient time after receiving notice of the bridge’s dangerous condition to respond to it and remedy

that condition.

In addition to warning travelers of the danger caused

by black ice on the bridge, the plaintiff also claimed

that the defendant could have met his statutory duty

of care by closing the bridge before the plaintiff drove

over it. Preventing travelers from encountering a defect

on the highway is a remedy that the defendant could

have utilized, and the record demonstrates that this

could have been accomplished in much less time than

it took to reach the bridge and treat it with deicing

materials. Accordingly, a genuine issue of material fact

exists as to whether the defendant acted unreasonably

by failing to close the bridge after discovering it was

covered in black ice and receiving numerous reports of

accidents on it before the plaintiff’s accident occurred.

With respect to the conduct of the state police, our

courts have held that ‘‘[t]he words the legislature

employed in § 13a-144 unambiguously support the conclusion that the statute waives sovereign immunity for

defective highway claims based upon the neglect or

default not merely of the commissioner of transportation, but of the state or any of its employees, at least

when performing duties related to highway maintenance.’’ (Emphasis added; internal quotation marks

omitted.) Lamb v. Burns, supra, 202 Conn. 169. Furthermore, the court in Lamb held that ‘‘[t]here are no words

in § 13a-144 limiting or restricting the scope of the

phrase the state or any of its employees to [department]
employees only.’’ (Internal quotation marks omitted.)

Id., 170.

The record thus demonstrates that there is a genuine

issue of material fact as to whether the state police

responded unreasonably to the icing condition of the

bridge by failing to close the road before the plaintiff’s

accident.9

In his affidavit, Silva noted that the state

police have the authority to close the road if they believe

itis in the interest of public safety to do so.As previously

discussed, the police report prepared by Trooper Sottile

stated that ‘‘[t]he entire surface of the bridge was covered with black ice.’’ In support of his motion for summary judgment, the defendant submitted a call log

showing that calls were made from the state police to

the department at 5:48, 5:49, 5:51, and 6:01 a.m. that

morning, allreporting ice related accidents in the northbound lanes of the Gold Star Memorial Bridge. In his

affidavit, the plaintiff stated that state police officers

arrived at the scene less than five minutes after his

accident, and that department workers were on the

bridge five or ten minutes after the police arrived. During his deposition, Engel stated that by the time the

department’s truck reached the bridge, the state police

had already closed the northbound lanes of the bridge.

On the basis of the foregoing evidence, there is a

genuine issue of material fact as to whether the defendant should have utilized the available alternative remedy of closing the bridge to prevent the plaintiff and

others like him from driving on it and encountering the

dangerous black ice condition that caused his accident.

The plaintiff’s affidavit, coupled with Engel’s deposition, demonstrates that it takes approximately ten to

fifteen minutes to close the northbound lanes of the

Gold Star Memorial Bridge, a much shorter time than

it took the department to physically respond to the

bridge with a work crew and apply deicing materials

to it. Therefore, there is a genuine issue of material fact

as to whether the failure of the state police to close

the bridge before the plaintiff’s accident occurred was

unreasonable and whether the conduct of the state

police can provide a basis for finding the defendant

liable under § 13a-144. See Lamb v. Burns, supra, 202

Conn. 171.

In conclusion, our case law demonstrates that the

determination of what constitutes a ‘‘reasonable

response’’ by the defendant is a fact-specific determination. The plaintiff was entitled to have a trier of fact

consider whether the standard response protocol could

have prevented his accident if the department had

called other employees to treat the bridge that morning

and, in the event that the response time would not thus

have been materially reduced, whether the defendant

breached his statutory duty by failing to use available

temporary remedies to warn travelers of the bridge’s

dangerous icing condition or prevented them from
encountering that dangerous condition by closing the

bridge until it could properly be treated.

On the basis of the foregoing analysis, we conclude

that the trial court erred in ruling that the defendant’s

response to the black ice condition that caused the

plaintiff’s accident and resulting injuries was reasonable as a matter of law. Several genuine issues of material fact still exist, and these issues must be resolved

by the finder of fact at trial.

II

In the alternative, the defendant claims on appeal

that the trial court lacked subject matter jurisdiction

over this action because the plaintiff’s written notice

of intent to sue was patently defective.10 The defendant

argues, therefore, that the plaintiff’s claim is barred by

the doctrine of sovereign immunity. We disagree.

The following additional procedural history and evidence are relevant to the court’s disposition of this

alternative claim. After service of process was made

upon him, the defendant filed a motion to dismiss the

action for lack of subject matter jurisdiction. In support

of his motion to dismiss, the defendant submitted the

affidavit of Wilson, who stated that the northbound

lanes of the Gold Star Memorial Bridge are approximately 5931 feet long and have approximately 500,000

square feet of deck area. The defendant argued that

simply identifying the northbound lane of this bridge

in the plaintiff’s notice was not enough, and that the

description provided by the plaintiff was so vague that it

prevented the defendant from conducting an intelligent

investigation of the plaintiff’s claim.11

The plaintiff objected to the motion to dismiss,

arguing that the notice provision of § 13a-144 does not

demand precision and that his description of the northbound side of the Gold Star Memorial Bridge between

New London and Groton allowed the defendant to identify the location of the accident and conduct an intelligent investigation. He further argued that the defendant

could have relied on additional information within the

notice, such as the date and time of the accident, the

plaintiff’s name and vehicle information, and the

description of events provided by the plaintiff. The

plaintiff argued, therefore, that the notice was not patently defective and thus that the trial court had subject

matter jurisdiction over this action.

On March 21, 2013, the trial court, Devine, J., granted

the defendant’s motion to dismiss. In doing so, the trial

court held that ‘‘there [were] no facts set out in the

notice that would allow the defendant to determine

where on the bridge the alleged defect was located’’

because the defendant’s supporting affidavit demonstrated that the ‘‘northbound portion of the bridge is

over one mile long consisting of multiple lanes and . . .

has more than 500,000 [square] feet of deck area.’’
On April 1, 2013, the plaintiff moved for reconsideration. In his motion, the plaintiff argued that the notice

provided was not patently defective because the phrase,

‘‘between New London and Groton, Connecticut,’’

refers to a specific location on the bridge, namely, the

boundary line between the two municipalities. Additionally, the plaintiff argued that the defendant had

access to several police reports that would have further

detailed the location of his accident.

The defendant objected to reconsideration, arguing

that the plaintiff’s new interpretation of the word

‘‘between’’ was disingenuous because he had not raised

this interpretation at any time priorto moving forreconsideration. Additionally, the defendant argued that the

words, ‘‘between New London and Groton,’’ referred

to the location of the bridge itself, not to the location

where the plaintiff claimed that the injury occurred.

Last,the defendant argued that, because the notice must

provide sufficient information on its face, it did not

matter whether the defendant could contact police officers to get accident reports.12

Upon reconsideration, the trial court, Devine, J.,

reversed its ruling, holding that ‘‘the use of the term

‘between’ is not patently defective because the term

‘between’ may refer to the entire Gold Star Memorial

Bridge or it may refer to the boundary line of New

London and Groton.’’ The trial court held, therefore,

that ‘‘the adequacy of the notice is a question for the

fact finder . . . .

13 (Citation omitted.)

As mentioned in the preceding paragraphs, the defendant claims that the words, ‘‘between New London and

Groton, Connecticut,’’ could not reasonably be said to

describe the towns’ boundary line on the bridge. The

defendant further argues that the plaintiff could easily

have referenced the town boundary line, but failed to

do so. Last, the defendant argues that the plaintiff’s

description of ‘‘Interstate 95 Northbound on the Gold

Star Memorial Bridge between New London and Groton, Connecticut,’’ references an area so large that it

could not conduct an intelligent investigation and,

therefore, the notice was patently defective. We disagree and conclude that the word ‘‘between’’ precludes

this court from concluding that the notice was patently

defective as a matter of law. Accordingly, we reject the

defendant’s alternative ground for affirmance.

Before addressing the defendant’s argument, we note

that our standard of review is plenary. Questions as to

whether the doctrine of sovereign immunity bars a

claim necessarily implicate the court’s subject matter

jurisdiction. See Filippi v. Sullivan, 273 Conn. 1, 8, 866

A.2d 599 (2005). ‘‘This court has often stated that the

question of subject matter jurisdiction, because it

addresses the basic competency of the court, can be

raised by any of the parties, or by the court sua sponte,
at any time. . . . [T]he court has a duty to dismiss,

even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot

confer subject matter jurisdiction on the court, either

by waiver or by consent.’’ (Citations omitted; internal

quotation marks omitted.) Webster Bank v. Zak, 259

Conn. 766, 774, 792 A.2d 66 (2002); see also Kozlowski

v. Commissioner of Transportation, 274 Conn. 497,

502, 876 A.2d 1148 (2005) (same). ‘‘[W]hether subject

matter jurisdiction exists is a question of law, and our

review of the court’s resolution of that question is plenary. . . . Likewise, whether the plaintiff’s notice was

patently defective and, thus, failed to meet statutory

requirements also is a question of law requiring our

plenary review.’’ (Citation omitted; internal quotation

marks omitted.) Tyson v. Sullivan, 77 Conn. App. 597,

601, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d

254 (2003); see also Filippi v. Sullivan, supra, 8 (‘‘A

motion to dismiss tests, inter alia, whether, on the face

of the record, the court is without jurisdiction. . . .

[O]ur review of the court’s ultimate legal conclusion

and resulting [determination] of the motion to dismiss

will be de novo.’’ [Internal quotation marks omitted.]).

‘‘It is well established law that the state is immune

from suit unless it consents to be sued by appropriate

legislation waiving sovereign immunity . . . . Section

13a-144 creates a legislative exception to this common

law rule and therefore must be strictly construed. . . .

The statutorily required notice is a condition precedent

to maintaining a cause of action, and if this requirement

is not met, no cause of action exists.’’(Citations omitted;

internal quotation marks omitted.) Bresnan v. Frankel,

224 Conn. 23, 25–26, 615 A.2d 1040 (1992); see also

Warkentin v. Burns, 223 Conn. 14, 17–18, 610 A.2d 1287

(1992). ‘‘The notice requirement is not intended merely

to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect [the state]

in the event of a lawsuit.’’ (Internal quotation marks

omitted.) Lussier v. Dept. of Transportation, 228 Conn.

343, 354, 636 A.2d 808 (1994). At the same time, however, ‘‘[t]he requirement as to notice was not devised

as a means of placing difficulties in the path of an

injured person.’’ (Internal quotation marks omitted.)

Id.; see also Filippi v. Sullivan, supra, 273 Conn. 9

(same); Bresnan v. Frankel, supra, 29 (same). As such,

‘‘[t]he plaintiff is not required to be a cartographer’’ in

orderto satisfy the requirements of § 13a-144. Lussier v.

Dept. of Transportation, supra, 358. Rather, the plaintiff

must provide ‘‘sufficient information as to the injury

and the cause thereof and the time and place of its

occurrence to permit the commissioner to gather information about the case intelligently.’’ (Internal quotation

marks omitted.) Serrano v. Burns, 70 Conn. App. 21,

25, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d

1066 (2002).
‘‘Unless a notice, in describing the place or cause of

an injury, patently meets or fails to meet this test, the

question of its adequacy is one for the jury and not for

the court, and the cases make clear that this question

must be determined on the basis of the facts of the

particular case.’’ Morico v. Cox, 134 Conn. 218, 223, 56

A.2d 522 (1947). ‘‘[T]here are two categories of cases

in which the written notice is patently defective because

of a problem with the description of the place of injury.

The first category consists of situations [in which] a

court has found that the notice stated a location different from the [actual] place of . . . injury. . . . The

second category consists of situations [in which] the

description is so vague in its breadth that the [commissioner] could not be reasonably expected to make a

timely investigation based on the information provided.’’ (Citations omitted; internal quotation marks

omitted.) Filippi v. Sullivan, supra, 273 Conn. 10 n.6.

In the present case, the defendant claims that the

plaintiff’s notice falls within the second category of

patently defective notices. The notice supplied by the

plaintiff on December 28, 2011, described the location

of injury as on the northbound lane of the Gold Star

Memorial Bridge ‘‘between New London and Groton

. . . .’’ The notice also states that the injury occurred

when the plaintiff’s ‘‘vehicle slid into the cement barricade separating the north and southbound lanes . . . .’’

On this description alone, we disagree with the defendant that this accident could have happened ‘‘anywhere

on the more than one mile long bridge.’’ Rather, even

considering the language of the notice is its broadest

terms, the location of the injury was on the left side of

the bridge along the cement barricade separating the

north and southbound lanes. Therefore, the area in

question is statistically smaller than the 500,000 square

feet stated by Wilson in his affidavit. Even so, the leftmost lane of Interstate 95 northbound on the Gold Star

Memorial Bridge measures more than one mile in

length. If the plaintiff’s notice only stated that the accident occurred ‘‘on the northbound lane of the bridge

along the cement barricade separating the north and

southbound lanes,’’ the defendant’s argument would be

more persuasive. The plaintiff, however, did not

describe it in this manner; instead, the plaintiff

described the location of injury as ‘‘Northbound on the

Gold Star Memorial Bridge between New London and

Groton, Connecticut.’’

The trial court, Devine, J., correctly determined that

the word ‘‘between’’ has several definitions that, when

applied to the facts of this case, could produce very

different results. Definitions of the word ‘‘between’’

include, inter alia: ‘‘an intermediate position in relation

to two other objects . . . in the interval . . . in the

space that separates.’’ Webster’s Third New International Dictionary (2002). Applying these definitions to
the phrase, ‘‘[n]orthbound on the Gold Star Memorial

Bridge between New London and Groton, Connecticut,’’

the notice could reasonably be interpreted as referencing the leftmost side of the northbound lane at the point

where the towns meet, i.e., the town line. Therefore,

an alternate—but equally reasonable—interpretation of

the notice would place the location of injury at a specific

side and at a specific point in the northbound lanes of

the bridge. This description would satisfy the purpose

of the notice requirement and would not be patently

defective. See Serrano v. Burns, supra, 70 Conn. App.

28 (‘‘[T]he defendant has offered no proof that the ‘rear

lot’ of a particularrest stop encompasses such an expansive area that it fails to guide him in making an intelligent inquiry into the case. Given the record before us,

the defendant is not being asked to range over a six

mile stretch of roadway or check a score of manhole

covers or several rest areas to try to locate where it

was that the plaintiff fell and was injured.’’); see also

Lussier v. Dept. of Transportation, supra, 228 Conn.

357 (‘‘The notice involved herein did not patently . . .

[fail] to meet this test. . . . The road in question is only

three-tenths of one mile long. The notice recites that

the car landed in the Shunock River and that the river

crosses under route 617 at only one place.’’ [Citation

omitted; internal quotation marks omitted.]).

Still, the defendant argues that the only reasonable

interpretation of the phrase, ‘‘between New London and

Groton,’’ is that the plaintiff was trying to describe the

bridge itself. This argument, however, begs the question: if the plaintiff was trying to describe the location

of the bridge itself, why not simply state, ‘‘Northbound

on the Gold Star Memorial Bridge?’’ We are mindful that

the plaintiff could have referenced the town boundary in

his notice and, had he done so, he would have provided

the defendant with a more precise location. The requirements of § 13a-144, however, do not demand such precise language from the plaintiff. See Lussier v. Dept.

of Transportation, supra, 228 Conn. 358. Rather, what

is required of the plaintiff is sufficient information to

allow the defendant to conduct an intelligent investigation of his highway defect claim. Serrano v. Burns,

supra, 70 Conn. App. 25–26; Tedesco v. Dept. of Transportation, 36 Conn. App. 211, 214, 650 A.2d 579 (1994).

Due to the inconsistent results of applying different—

yetreasonable—interpretations to the words, ‘‘between

New London and Groton, Connecticut,’’ this court cannot rule as a matter of law that the plaintiff’s written

notice of intent to sue was patently defective. As such,

the question of adequacy is reserved for the trier of fact.

The judgment is reversed and the case is remanded

with direction to deny the defendant’s motion for summary judgment and for further proceedings consistent

with this opinion.

In this opinion the other judges concurred.

1 General Statutes § 13a-144 provides in relevant part: ‘‘Any person injured
in person or property through the neglect or default of the state or any of

its employees by means of any defective highway, bridge or sidewalk which

it is the duty of the Commissioner of Transportation to keep in repair . . .

may bring a civil action to recover damages . . . . No such action shall be

brought . . . unless 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

has been given in writing within ninety days thereafter to the commissioner. . . .’’

2 The plaintiff’s notice, which was attached to his original complaint,

provides:

DATE AND TIME OF

INJURY

December 12, 2011 at approximately 6:28

a.m.

LOCATION OF INJURY Interstate 95 Northbound on the Gold Star

Memorial Bridge between New London and

Groton, Connecticut

DESCRIPTION OF EVENT On December 12, 2011, Mr. Graham was

traveling northbound on Interstate 95 in his

Ford Ranger pick-up truck across the Gold

Star MemorialBridge between New London

and Groton, Connecticut. This bridge is

known to the Department of Transportation, State Police, and other State personnel

to become icy if the temperature is below

freezing when the bridge has any moisture

on it. As Mr. Graham traveled over the said

bridge at a reasonable rate of speed below

the speed limit, his vehicle slid into the

cement barricade separating the north and

southbound lanes, and then flipped over

causing injury and harm to him. As a direct

and proximate result of the negligence and

carelessness of the State by failing to treat

the bridge with de-icing substances and

other methods of creating a safe travel condition, Mr. Graham was seriously injured.

DESCRIPTION OF INJURY As a direct and proximate result of the

aforementioned accident, Mr. Graham sustained a concussion, post-concussive syndrome, right arm injury, right shoulder

injury, neck injury, numbness in right arm,

and loss of false teeth.

3 See part II of this opinion.

4 Subsequentto the trial court’s ruling,the defendant moved forreconsideration, which was denied by the court. The defendant did not file an interlocutory appeal from the trial court’s denial of his motion to dismiss.

5 On October 14, 2015, the plaintiff filed a motion for articulation, asserting

that he never conceded that fifty minutes was a reasonable response time.

Two weeks later, the trial court, Cole-Chu, J., issued a memorandum stating

that regardless of any such concession, the court would have ruled the same

way on the defendant’s motion based upon the evidence before it.

6

‘‘In interpreting [the terms of § 13a-144] we have on many occasions

looked to and applied the rationale in cases involving statutory actions

against municipalities under what is now General Statutes § 13a-149 since

there is no material difference in the obligation imposed on the state by

§ 13a-144 and that imposed on municipalities by § 13a-149 . . . and cases

cited.’’ (Citation omitted.) Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406

(1970). ‘‘Because [t]here is no substantial difference in the duties imposed by

those statutes . . . we treat them as identical . . . .’’ (Citation omitted;

internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 266

n.4, 875 A.2d 459 (2005).

7

In his reply memorandum on motion for summary judgment, the defendant argued that the plaintiff’s allegation that the defendant breached his

statutory duty by failing ‘‘to place or utilize warning signs in the area to

warn approaching travelers of the existing hazardous and dangerous condition’’ was not an actionable defect under Connecticut law. The present case,

however, is distinguishable from the cases cited by the defendant. Stotler

v. Dept. of Transportation, 313 Conn. 158, 168–75, 96 A.3d 527 (2014). In

Stotler, the plaintiff alleged that the lack of adequate warning signs coupled
with the steep grade of the road rendered the road defective. Id., 169–70.

In the present case, the plaintiff is not alleging that the lack of warning signs

is a defect. Instead, the allegations in the complaint are fairly interpreted to

mean that the failure to use available warning signs rendered the defendant’s

response unreasonable under the circumstances.

8 Several factors could be considered by a jury when assessing the adequacy of the electronic sign in question, such as the physical dimensions

of the sign, how prominently it is displayed along the highway, and whether

it has a standard message or whether such message can be tailored to

address specific dangerous conditions.

9 The facts of Lamb are analogous to the facts in this case in all but one

respect. In Lamb, the evidence at trial proved that the officer who responded

to an earlier accident used flares to warn travelers of the ice that ultimately

caused the plaintiff’s accident. Lamb v. Burns, supra, 202 Conn. 160. At

this stage of the present case, there is no evidence that the state police

used road flares on the Gold Star Memorial Bridge prior to the plaintiff’s

accident. Nonetheless, the Lamb court suggests that a jury may consider

the conduct of the state police when assessing the reasonableness of the

state’s conduct in responding to reports of defective conditions.

10 The location of injury provided by the plaintiff stated that the accident

occurred on ‘‘Interstate 95 Northbound on the Gold Star Memorial Bridge

between New London and Groton, Connecticut.’’ See footnote 2 of this

opinion.

11 The gravamen of the defendant’s argument throughout these proceedings is that the Gold Star Memorial Bridge is more than one mile long and

has 500,000 square feet of deck area—therefore, the plaintiff’s description,

‘‘Northbound on the Gold Star Memorial Bridge between New London and

Groton,’’ was so vague that it could not supply the defendant with sufficient

information to intelligently investigate the claim.

12 The defendant correctly asserted that the location of injury must be

furnished by the plaintiff or his representative and cannot be provided by

third parties. See Warkentin v. Burns, 223 Conn. 14, 17–19, 610 A.2d 1287

(1992). The defendant is also correct that police reports cannot cure defects

in the notice. See id., 17. Our Supreme Court, however, has concluded that

Practice Book § 10-31 allows parties opposing motions to dismiss to submit

supporting documentation as to facts not apparent on the record. See Lussier

v. Dept. of Transportation, 228 Conn. 343, 357–58, 636 A.2d 808 (1994). The

court in Lussier further held that the trial court may rely on police reports

to provide context when the court determines whether the notice was so

vague that it was patently defective. Id.

13 The defendant raised this issue again in his motion for summary judgment and argued a substantially similar position to the trial court, ColeChu, J. The trial courtrendered summary judgment in favor of the defendant,

but declined to rule on this particular issue.