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*********************************************** 
ERIC BOYKIN v. STATE OF

CONNECTICUT ET AL.

(AC 39392)

Lavine, Alvord and Beach, Js.

Syllabus

The plaintiff sought to recover damages from the defendants, the state of

Connecticut and the Commissioner of Transportation, for injuries he

sustained as a result of an allegedly defective crosswalk button when

he was struck by a vehicle while he was walking in a pedestrian crosswalk. The trial court granted the defendants’ motion to dismiss for lack

of subject matter jurisdiction and rendered judgment for the defendants,

from which the plaintiff appealed to this court. The defendants claimed

that the written notice of claim that the plaintiff filed pursuant to the

state highway defect statute (§ 13a-144) was patently defective because

it failed to provide the defendants with sufficient notice of the cause

of the injuries that the plaintiff alleged. The trial court concluded that

because the written notice of claim, which constitutes a waiver of the

state’s sovereign immunity, failed to state sufficiently the cause of the

injuries alleged by the plaintiff, it failed to meet the minimum requirements of § 13a-144, thereby depriving the court of subject matter jurisdiction. The notice stated that the plaintiff was injured because, inter alia,

the defendants were negligent in failing to place a pedestrian crosswalk

button at the intersection, and to inspect and repair the crosswalk button

so as to provide a safe pedestrian crosswalk. Held that the trial court

improperly granted the defendants’ motion to dismiss, as the plaintiff’s

written notice of claim provided sufficient information as to the cause

of his injury to permit the commissioner to gather information about

the case intelligently and, therefore, was not patently defective; the

plaintiff provided the defendants with notice that the condition or

absence of a crosswalk button at the intersection caused his injury, and

the notice informed the defendants of his intent to file a claim and

furnished them with a guide as to how to conduct further inquiries to

protect their interests.

Argued October 19, 2017—officially released January 9, 2018

Procedural History

Action to recover damages for personal injuries sustained as a result of an allegedly defective state highway,

and for other relief, brought to the Superior Court in

the judicial district of Fairfield, where the court, Wenzel,

J., granted the defendants’ motion to dismiss and rendered judgment thereon, from which the plaintiff

appealed to this court. Reversed; further proceedings.

Brendon P. Levesque, with whom were Scott T. Garosshen and, on the brief, Kimberly A. Knox, for the

appellant (plaintiff).

Kevin S. Coyne, with whom, on the brief, was Joseph

M. Walsh, for the appellees (defendants).
Opinion

ALVORD, J. The plaintiff, Eric Boykin, appeals from

the judgment of the trial court dismissing the present

action against the defendants, the state of Connecticut

and James P. Redeker, Commissioner of Transportation

(commissioner),1

for lack of subject matter jurisdiction.

The plaintiff claims that the court improperly concluded

that sovereign immunity deprived it of subject matter

jurisdiction because his written notice of claim pursuant to the state highway defect statute, General Statutes

§ 13a-144,2 was patently defective in its description of

the cause of his injury. We agree with the plaintiff, and

accordingly, reverse the judgment of the trial court.

The record reveals the following procedural history.

On November 16, 2015, the plaintiff filed a single count

complaint, in which he alleged that on or about December 26, 2014, he was struck by a vehicle while walking

north on the western side of East Main Street in the

pedestrian crosswalk at the entrance of Interstate 95

south in Bridgeport. By a letter dated February 13, 2015,

the plaintiff sent written notice of his intent to bring

an action pursuant to § 13a-144 for personal injuries

sustained as a result of the incident. The commissioner

received the notice on February 17, 2015. The notice

described the cause of injury as follows: ‘‘On December

26, 2014 at approximately 6:06 p.m., Eric Boykin was

injured due to the negligence [of the] State of Connecticut Department of Transportation, who failed to place

a pedestrian cross walk button at the intersection of

East Main St., and I-95, Bridgeport, CT, failed to inspect

the pedestrian crossing, failed to repair the pedestrian

cross walk button and failed to provide a safe pedestrian

cross walk for pedestrians such as the plaintiff.’’3

On February 18, 2016, the commissioner filed a

motion to dismiss for lack of subject matter jurisdiction.

In his memorandum of law in support of the motion to

dismiss, the commissioner argued that the plaintiff’s

claim did not fall within § 13a-144’s waiver of sovereign

immunity because the written notice was patently

defective. Specifically, the commissioner argued, in relevant part, that ‘‘the notice is fatally defective as to

setting forth a general description of the cause of the

particular injury.’’4 The commissioner contended that

‘‘[b]ased upon the notice, the commissioner has absolutely no idea how the particular injury occurred or

what the cause of the injury was. The notice contains

nothing more than bald allegations of responsibility

. . . without specifying the specific nature or cause.’’

On April 29, 2016, the plaintiff filed an objection to

the commissioner’s motion to dismiss, arguing that the

written notice satisfied the requirements of § 13a-144

because it provided a ‘‘general description’’ of the cause

of injury, as required by the language of the statute.

On May 6, 2016, after a hearing, the court granted
the commissioner’s motion to dismiss. In its memorandum of decision, the court stated that it relied on this

court’s decision 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), and reasoned

that ‘‘[t]he more the court reads [the] language [of the

notice], the more ambiguous and open-ended it appears.

Suffice it to say that how any of these claimed features

caused injuries to plaintiff simply does not appear.

Uncertainty begins with the inconsistent statements

that the state failed to place a crosswalk button at this

location and then failed to repair the crosswalk button.

. . . The claims that the state was negligent or that the

crosswalk was unsafe are simply conclusions and add

nothing to the notice in terms of helping the reader

understand how such caused the claimed injury.’’ The

court concluded that the notice failed to meet the minimal requirements of § 13a-144 by failing to state sufficiently the cause of the injuries alleged and, therefore,

the state’s sovereign immunity was not waived, depriving the court of subject matter jurisdiction. This

appeal followed.

We begin by setting forth the standard of review and

legal principles that guide our analysis. ‘‘A motion to

dismiss . . . properly attacks the jurisdiction of the

court, essentially asserting that the plaintiff cannot as

a matter of law and fact state a cause of action that

should be heard by the court. . . . 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. . . .

Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis

for granting a motion to dismiss. . . . When a . . .

court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations

of the complaint in their most favorable light. . . . In

this regard, a court must take the facts to be those

alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a

manner most favorable to the pleader.’’ (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

The plaintiff brought this action pursuant to § 13a144, which provides a waiver of the state’s sovereign

immunity5

in civil actions alleging injuries caused by

defective state highways or sidewalks. The statute 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 sustained

thereby against the commissioner in the Superior Court.

No such action shall be brought except within two years
from the date of such injury, nor 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. . . .’’ General Statutes § 13a-144.

‘‘[Section] 13a-144 created a new cause of action not

authorized at common law, in derogation of sovereign

immunity. The notice requirement contained in § 13a144 is a condition precedent which, if not met, will

prevent the destruction of sovereign immunity. . . .

The notice [mandated under § 13a-144] is to be tested

with reference to the purpose for which it is required.

. . . The [notice] requirement . . . was not devised as

a means of placing difficulties in the path of an injured

person. The purpose [of notice is] . . . to furnish the

commissioner with such information as [will] enable

him to make a timely investigation of the facts upon

which a claim for damages [is] being made. . . . 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 himself in the event of

a lawsuit. . . . [In other words] [t]he purpose of the

requirement of notice is to furnish the [commissioner]

such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the

preservation of his interests, and such information as

would furnish him a reasonable guide in the conduct

of such inquiries, and in obtaining such information as

he might deem helpful for his protection. . . . 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. . . . [U]nder § 13a-144, the notice 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.’’ (Citations omitted; internal quotation marks omitted.) Filippi v. Sullivan, supra, 273

Conn. 8–10.

‘‘The cause of the injury required to be stated must

be interpreted to mean the defect or defective condition

of the highway which brought about the injury. . . . It

is sufficient and customary in defective highway cases

to state that the cause was a specified defective condition, without further statement that it in turn was due

to negligence in failing to keep the highway in repair

or otherwise.’’ (Internal quotation marks omitted.)

Frandy v. Commissioner of Transportation, supra, 132

Conn. App. 754.

On appeal, the plaintiff argues that he ‘‘provided the

defendants with more than sufficient information to

investigate the pedestrian crosswalk button at the speci-
fied location.’’ Specifically, he contends that ‘‘the notice

made clear that the negligence centered around the

crosswalk button, the lack of safety of the intersection

included the failure to have or repair a crosswalk button, the failure to inspect the intersection or crosswalk

button, leading to an unsafe pedestrian crosswalk.’’ The

commissioner responds that ‘‘[g]iven the limited

amount of information provided by the plaintiff, it was

impossible for the defendants to conduct a meaningful

inquiry or develop a defense to the plaintiff’s claim. The

defendants could not know whether the specific defect

was a pothole, a streetlight failure, or an automobile

driving into the crosswalk. Without being provided with

that knowledge, the defendants are left to guess as to

what caused the plaintiff’s alleged injuries. Accordingly,

the plaintiff’s notice is patently defective.’’ We do not

agree that the notice is patently defective.

We conclude that the plaintiff’s notice provided sufficient information as to the cause of his injury to permit

the commissioner to gather information about the case

intelligently and, therefore, was not patently defective.

We disagree with the commissioner that ‘‘each of the

plaintiff’s assertions in the notice with respect to causation fail to properly advise the defendants of the mechanism by which he was injured.’’6 On the contrary, the

notice provides sufficient information that would allow

the commissioner to investigate the alleged defects that

made the crosswalk unsafe (i.e., the crosswalk button,

or lack thereof, at the pedestrian crosswalk of the

described intersection).

In reaching its decision, the trial court stated that it

relied on this court’s decision in Frandy. The plaintiff

in Frandy alleged that she was injured while riding

her bicycle on State Street in North Haven. Frandy

v. Commissioner of Transportation, supra, 132 Conn.

App. 752. The plaintiff sent a written notice of claim

to the commissioner describing the cause of injury as

follows: ‘‘Plaintiff’s injuries were caused as a result of

the defective condition of the pavement which caused

her to be thrown from her bicycle.’’ (Internal quotation

marks omitted.) Id. The plaintiff served her complaint

more than four months later, in which she alleged for

the first time that ‘‘ ‘the defective condition of the pavement’ ’’ was a hole in the road. Id. The commissioner

filed a motion to dismiss one count of the complaint

on the basis of a lack of subject matter jurisdiction.

After a hearing, the trial court denied the motion to

dismiss. Id.

On appeal, the commissioner in Frandy argued that

the trial court improperly denied his motion to dismiss

because the plaintiff’s notice of claim was defective in

that it failed to state a cause of injury as required by

§ 13a-144. Id., 754. This court agreed and reversed the

judgment of the trial court. Id., 754, 756. This court

concluded that the plaintiff’s notice patently failed to
meet the statutory requirement that the notice provide

a general description of the cause of injury because it

‘‘merely state[d] that the cause of the plaintiff’s bicycle

accident was due to ‘the defective condition of the

pavement’ but it [did] not specify the precise nature of

the claimed defect.’’ Id., 754. This court characterized

the plaintiff’s description of her cause of injury as a

‘‘conclusory phrase’’; id., 755; that would not provide the

commissioner the opportunity to ‘‘gather information

to protect himself in a lawsuit . . . .’’ Id., 756.

We conclude that the present case is distinguishable

from Frandy. In Frandy, the plaintiff’s notice only

alleged that her injuries were caused by the ‘‘defective

condition of the pavement which caused her to be

thrown from her bicycle.’’ (Internal quotation marks

omitted.) Id., 752. It provided no further indication of

what defect or defective condition caused the plaintiff

to be thrown from her bicycle. Until the plaintiff served

her complaint, which was served beyond the ninety day

period in which notice had to be filed, the plaintiff

provided the commissioner with no indication that her

injuries were caused by a hole in the road. Id. Unlike

the plaintiff in Frandy, the plaintiff here provided notice

that the claimed defect that caused his injury was the

condition of the crosswalk, namely, the condition or

absence of a crosswalk button at the intersection. In

effect, Frandy’s notice amounted merely to a legal conclusion that the pavement was ‘‘ ‘defective’ . . . .’’

Such a ‘‘conclusory phrase is not a description of the

relevant highway defect’’; id., 755; and could not be

expected to allow the commissioner to ‘‘gather information to protect himself in a lawsuit without knowing

the nature of the defect . . . .’’ Id., 756. Here, the plaintiff’s notice provided the commissioner with notice of

the nature of the defect when it directed his attention

to the crosswalk button.

The trial court, in its memorandum of decision, reasoned: ‘‘Uncertainty begins with the inconsistent statements that the state failed to place a crosswalk button

at this location and then failed to repair the crosswalk

button.’’ We note, however, that notice ‘‘need not be

expressed with the fullness and exactness of a pleading.

. . . Under § 13a-144, the notice 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.’’ (Emphasis added; internal quotation marks

omitted.) Oberlander v. Sullivan, 70 Conn. App. 741,

746, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806

A.2d 1061 (2002).7 The sufficiency of the notice, with

respect to the cause of injury, is a matter to be determined by the jury. See Filippi v. Sullivan, supra, 273

Conn. 11.

We conclude that the plaintiff’s notice was not patently defective, as it ‘‘both informed the defendant of
the plaintiff’s intent to file a claim and furnished the

defendant with a guide as to how to conduct further

inquiries to protect its interests.’’ Tedesco v. Dept. of

Transportation, 36 Conn. App. 211, 214, 650 A.2d 579

(1994).

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1 Although the plaintiff also names the state as a defendant, for ease of

discussion, we refer only to the commissioner throughout this opinion.

2 General Statutes § 13a-144, which serves as a waiver of the state’s sovereign immunity for claims arising out of certain highway defects, provides

in relevant part: ‘‘Any person injured in person or property through the

neglect or default of the state . . . by means of any defective highway . . .

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

. . . may bring a civil action to recover damages sustained thereby against

the commissioner in the Superior Court. 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. . . .’’

3

In his complaint, the plaintiff attributed his injuries to ‘‘the defective

roadway, crosswalk and associated traffic and/or pedestrian control systems . . . .’’

4

In his motion to dismiss, the commissioner also claimed that the notice

was patently defective in describing the location of the incident. The court

rejected this claim, concluding that the location described was ‘‘reasonably

definite and limited,’’ and ‘‘looking to the notice as a whole, the commissioner

reading the notice should understand the location as the pedestrian crosswalk within the intersection.’’

5

‘‘It is the established law of our state that the state is immune from suit

unless the state, by appropriate legislation, consents to be sued.’’ (Internal

quotation marks omitted.) Salgado v. Commissioner of Transportation, 106

Conn. App. 562, 566, 942 A.2d 546 (2008).

6 At oral argument before this court, the plaintiff conceded that, under

our case law, the allegations that the commissioner ‘‘failed to inspect the

pedestrian crossing’’ and ‘‘failed to provide a safe pedestrian crosswalk for

pedestrians such as the plaintiff’’ are too vague to meet the notice requirements of § 13a-144. The plaintiff argued, however, that under our Supreme

Court’s decision in Filippi v. Sullivan, supra, 273 Conn. 1, the inclusion of

these allegations in the notice does not render it patently defective.

Although Filippi concerned the notice’s description of the location of

the accident, we are guided by its reasoning. There, the plaintiff brought

an action against the commissioner for injuries he sustained in an automobile

accident allegedly caused by the commissioner’s failure to post lane closure

signs on a portion of Interstate 95. Id., 2–3. The commissioner filed a motion

to dismiss on the ground that the notice was patently defective in that it

‘‘ ‘describe[d] two different and distinct locations,’ ’’ and therefore failed to

sufficiently describe the location of the accident. Id., 6. Although the notice

provided that the accident occurred at a point in the road immediately after

a ‘‘ ‘graded blind curve’ ’’ between two exits on Interstate 95; id., 6 n.3;

evidence in the record established that there was more than one curve in

the road between the points identified. Id., 11.

On appeal from the trial court’s denial of the commissioner’s motion to

dismiss, our Supreme Court concluded that the notice was not patently

defective. Id., 11–12. The court acknowledged that, although the notice

described two different locations that were almost two miles apart from

one another and the accident could have occurred in only one of those

locations, no evidence in the record ‘‘indicate[d] that there is more than

one graded blind curve immediately prior to either of those two points.’’

(Emphasis in original.) Id., 11. Thus, the court could not conclude that ‘‘the

notice necessarily was too vague to permit the commissioner to identify

the location of the accident and injury with reasonable certainty.’’ Id.

Just as one of the alleged locations in Filippi was legally insufficient, the

plaintiff here concedes that two of his alleged causes of injury are legally

insufficient to provide adequate notice to the commissioner. The inclusion

of a cause of injury that would be legally insufficient on its own, however,

does not invalidate the notice provided by the statements regarding the
crosswalk signal, just as the inclusion of a second location in Filippi did

not invalidate the entire notice, as it does not make the notice ‘‘too vague

to permit the commissioner to identify’’ the cause of the accident and injury

‘‘with reasonable certainty.’’ Id.

7 Furthermore, we agree with the plaintiff that ‘‘[w]hether there was no

button or the button was broken is irrelevant. The point is, in the absence

of a working crosswalk button, there was no method to ensure safe passage

across the street. . . . Once on notice that there was a problem with a

crosswalk button, the commissioner could easily gather information about

the matter.’’