Petrocelli v. Shelton

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Petrocelli v. Shelton

JENNIFER PETROCELLI v. CITY
OF SHELTON ET AL.
(AC 46773)
Moll, Westbrook and Eveleigh, Js.

Syllabus

The defendant state of Connecticut appealed from the trial court’s judgment
denying its motion to dismiss the count of the plaintiff’s complaint asserted
against it. The defendant claimed that the plaintiff’s cause of action for
personal injuries pursuant to statute (§ 13a-144) was barred by the doctrine
of sovereign immunity because the defendant had abandoned that portion
of the defective sidewalk where the plaintiff fell and, thus, the court lacked
subject matter jurisdiction over her claim. Held:

The trial court properly denied the motion to dismiss because the question
of abandonment involved a disputed issue of fact, which was critical to the
determination of whether the court had subject matter jurisdiction, and the
court had discretion to postpone resolution of that question until after a
trial on the merits.

Argued November 14, 2024—officially released February 11, 2025

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of an allegedly defective state highway,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where United
Illuminating Company was cited in as a defendant;
thereafter, the court, Frechette, J., granted the motions
for summary judgment filed by the defendant Center
Motorsports, LLC, et al.; subsequently, the court denied
the motion to dismiss filed by the defendant state of
Connecticut, and the defendant state of Connecticut
appealed to this court. Affirmed.
Kevin S. Coyne, for the appellant (defendant state
of Connecticut).
Jeremy C. Virgil, with whom was Kyle D. Souza, for
the appellee (plaintiff).
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Petrocelli v. Shelton

Matthew L. Studer, with whom, on the brief, was
Jonathan D. Berchem, for the appellee (named defen-
dant).
Opinion

EVELEIGH, J. In this action brought, in part, pursuant
to the state highway defect statute, General Statutes
§ 13a-144,1 the defendant, the state of Connecticut,2
appeals from the judgment of the trial court denying
its motion to dismiss the claims asserted against it by
the plaintiff, Jennifer Petrocelli, on the ground that they
are barred by sovereign immunity.3 On appeal, the state
claims that the court improperly denied the motion to
dismiss because it did not have a duty to maintain and
repair the area where the alleged injury occurred and,
thus, is entitled to sovereign immunity. We disagree
and, accordingly, affirm the judgment of the trial court.
The plaintiff alleges the following facts. On January
11, 2020, at approximately 9:15 p.m., the plaintiff was
walking on the sidewalk adjacent to Center Street in
Shelton. Center Street is a public highway that is heavily
traveled, and its adjacent sidewalks are open to and
1
General Statutes § 13a-144, which serves as a waiver of the state’s sover-
eign immunity for monetary claims seeking recovery for injuries caused by
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, bridge or sidewalk which it is the duty of the Commis-
sioner of Transportation to keep in repair . . . may bring a civil action to
recover damages sustained thereby against the commissioner in the Superior
Court. . . .’’
2
The city of Shelton (city), United Illuminating Company, Barone Proper-
ties, LLC, and Center Motorsports, LLC, also were named as defendants in
the plaintiff’s complaint. The city is participating as an appellee in the present
appeal. The court rendered summary judgment in favor of the remaining
defendants, and they are not participating in this appeal.
3
‘‘Although the denial of a motion to dismiss generally is an interlocutory
ruling that does not constitute an appealable final judgment, the denial of
a motion to dismiss filed on the basis of a colorable claim of sovereign
immunity is an immediately appealable final judgment.’’ Filippi v. Sullivan,
273 Conn. 1, 6 n.5, 866 A.2d 599 (2005).
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Petrocelli v. Shelton

used by pedestrians on a regular basis. The plaintiff
stepped into an open utility handhole4 on the sidewalk
in front of 61 Center Street, which caused her to fall.
Consequently, the plaintiff sustained personal injuries
and has a diminished capacity to earn a living. The
plaintiff provided the state with written notice on March
23, 2020, advising the state of the injuries she sustained
from the allegedly defective handhole.
The plaintiff commenced the present action in Febru-
ary, 2021. The operative complaint, filed on August 9,
2021, asserts five counts. The first count is a municipal
highway defect claim against the city of Shelton (city)
pursuant to General Statutes § 13a-149. The second
count alleges that the plaintiff is entitled to relief against
the state pursuant to § 13a-144. The third, fourth, and
fifth counts sound in negligence and are directed,
respectively, against two businesses that own property
abutting the sidewalk where the plaintiff was injured
and United Illuminating Company.5
On July 21, 2021, the state filed a motion to dismiss
the second count of the operative complaint pursuant to
Practice Book § 10-30 et seq., arguing that the plaintiff’s
claim did not fall within the waiver of sovereign immu-
nity contained in § 13a-144. In its memorandum of law
in support of its motion to dismiss, the state argued
that it did not have a duty pursuant to § 13a-144 to
maintain the sidewalk where the alleged incident
occurred and, therefore, the court lacked subject matter
jurisdiction over the plaintiff’s claim.
4
Merriam-Webster’s Online Dictionary defines a ‘‘handhole’’ in relevant
part as ‘‘a shallow form of manhole giving access to a top row of ducts
in an underground electrical system.’’ Merriam-Webster Online Dictionary,
available at https://www.merriam-webster.com/dictionary/handhole (last
visited February 3, 2025).
The plaintiff described the open handhole as a ‘‘hole/depression in the
sidewalk with two large screws/bolts sticking up near its edges.’’
5
The court rendered summary judgment in favor of the defendants named
in these counts. See footnote 2 of this opinion.
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On November 4, 2022, the plaintiff filed an objection
to the state’s motion to dismiss. On June 1, 2023, the
plaintiff filed a supplemental objection to the state’s
motion to dismiss along with several exhibits. In the
plaintiff’s supplemental objection, she referenced the
state’s revised responses to the city’s first request for
admissions, which had been filed with the court on
January 5 and March 23, 2023. In those responses, the
state admitted that it owned the handhole located on
the sidewalk directly in front of 61 Center Street.6 Spe-
cifically, the state first admitted that the handhole was
owned by the state ‘‘at some time prior to [January
11, 2020],’’ and then subsequently admitted that the
handhole was owned by the state ‘‘from 1992 until [it]
was taken out of service and abandoned in 1997.’’ The
state further admitted that the handhole contains an
abandoned loop detection system, which was serviced
by the state and controlled the traffic light at an intersec-
tion on Center Street.
In her supplemental objection, the plaintiff argued
that, even if the state intended to abandon the handhole,
it did not do so in a proper manner because it failed
to remove the handhole. In support of her argument,
the plaintiff cited deposition testimony from Arnold
Ozols, an employee with the Department of Transporta-
tion (department) who supervises traffic signal mainte-
nance and highway illumination. Ozols averred that if
a handhole is abandoned, it should be removed and the
ground should be ‘‘put . . . back to grade or patched.’’7
The plaintiff also cited § 11.18.03 of the Standard Speci-
fications for Roads, Bridges and Incidental Construc-
tion, Form 814A (1995),8 as promulgated by the depart-
ment, which relates to the removal and/or relocation of
6
In its previous response to the plaintiff’s request for admissions, the
state had denied owning the handhole.
7
Ozols’ deposition testimony was included in the exhibits attached to the
plaintiff’s supplemental objection.
8
The standard specifications also were included in the plaintiff’s exhibits.
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Petrocelli v. Shelton

traffic signal equipment and states, among other things,
that ‘‘[e]quipment shall be removed in such a manner
as to cause no hazard to pedestrians,’’ and, ‘‘[w]hen
poles, foundations, etc. are removed, the hole shall be
backfilled with clean fill material, which shall be com-
pacted and the ground restored to a grade and condition
compatible with the surrounding area.’’
On June 6, 2023, the city filed a memorandum in
opposition to the state’s motion to dismiss, along with
several exhibits. The exhibits included an affidavit from
Rimas Balsys, the city engineer, in which he averred
that certain intersections on Center Street, ‘‘including
all supporting equipment and wiring, are owned, con-
trolled, and maintained by the [state]’’; that, to the best
of his knowledge, ‘‘the handhole contains an abandoned
loop detection system’’; and that ‘‘[t]he [c]ity never
owned, maintained or controlled the subject handhol[e]
utility box, its cover or the electrical wiring and utility
components encapsulated therein.’’
The state subsequently filed its responses to the city’s
fourth request for admissions in which it admitted that,
on January 14, 2020, the state received a notification
from the Shelton Police Department about the handhole
identified in the notice attached to the plaintiff’s com-
plaint. On that same date, the state put a cover on the
handhole, but it advised the city at that time that it did
not believe that the handhole was one maintained by
the state. The state again admitted that it installed the
handhole as part of an intersection redesign in 1992
but stated that the handhole was abandoned and taken
out of service in 1997 and that the handhole remained
within the confines of a sidewalk maintained by the
city. The state further admitted that it did not have a
copy of any written notice to the city advising it that
the state intended to and/or planned to abandon the
handhole.
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On July 21, 2023, following a hearing held on July 19,
2023, the court, Frechette, J., issued a written order
denying the state’s motion to dismiss. The court con-
cluded that the issue of abandonment is a question of
fact for the jury to decide and, therefore, rejected the
state’s argument that it is not liable as a matter of law.
The court explained: ‘‘As pointed out in the plaintiff’s
supplemental objection . . . the [state] admits that it
owned the handhole some time prior to [January 11,
2020] . . . until it was taken out of service and aban-
doned in 1997. It is also not disputed that, on January
14, 2020, three days after the plaintiff’s fall, the [state]
exercised control over the handhole by replacing the
broken cover with a new cover that very well fit the
handhole. Having admitted ownership of the handhole,
the question of abandonment is clearly a question of
fact which the jury will have to decide at trial. Moreover,
the state’s subsequent repair of the handhole belies its
claim of abandonment. Accordingly, the [state’s] motion
to dismiss is denied.’’ (Internal quotation marks omit-
ted.) This appeal followed.

We begin by setting forth the relevant principles of
law and the applicable standard of review. ‘‘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. . . . The legislature waived the
state’s sovereign immunity from suit in certain pre-
scribed instances by the enactment of § 13a-144. . . .
The statute imposes the duty to keep the state highways
in repair upon . . . the [C]ommissioner [of Transporta-
tion] . . . and authorizes civil actions against the state
for injuries caused by the neglect or default of the state
. . . by means of any defective highway . . . . There
being no right of action against the sovereign state at
common law, the [plaintiff] must first prevail, if at all,
under § 13a-144. . . .
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‘‘[T]he doctrine of sovereign immunity implicates [a
court’s] subject matter jurisdiction and is therefore a
basis for granting a motion to dismiss. . . . 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. . . . In ruling on a motion
to dismiss for lack of subject matter jurisdiction, the
trial court must consider the allegations of the com-
plaint in their most favorable light . . . including those
facts necessarily implied from the allegations . . . .’’
(Citations omitted; internal quotation marks omitted.)
Giannoni v. Commissioner of Transportation, 322
Conn. 344, 348–49, 141 A.3d 784 (2016).
‘‘[I]f the complaint is supplemented by undisputed
facts established by [1] affidavits submitted in support
of the motion to dismiss . . . [2] other types of undis-
puted evidence . . . and/or [3] public records of which
judicial notice may be taken . . . the trial court, in
determining the jurisdictional issue, may consider these
supplementary undisputed facts and need not conclu-
sively presume the validity of the allegations of the
complaint. . . . Rather, those allegations are tempered
by the light shed on them by the [supplementary undis-
puted facts] . . . .9
‘‘Conversely, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
9
‘‘Other types of undisputed evidence that a trial court may consider in
deciding a motion to dismiss includes deposition testimony submitted in
support or opposition thereto.’’ Dudley v. Commissioner of Transportation,
191 Conn. App. 628, 635 n.6, 216 A.3d 753, cert. denied, 333 Conn. 930, 218
A.3d 69 (2019).
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Petrocelli v. Shelton

hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties. . . .
The trial court may [also] in its discretion choose to
postpone resolution of the jurisdictional question until
the parties complete further discovery or, if necessary, a
full trial on the merits has occurred.’’ (Citation omitted;
footnote in original; internal quotation marks omitted.)
Dudley v. Commissioner of Transportation, 191 Conn.
App. 628, 635–36, 216 A.3d 753, cert. denied, 333 Conn.
930, 218 A.3d 69 (2019).
‘‘We review a trial court’s denial of a motion to dis-
miss on the ground of sovereign immunity, based on
an application of § 13a-144, de novo. . . . [W]hether a
highway is defective may involve issues of fact, but
whether the facts alleged would, if true, amount to a
highway defect according to the statute is a question
of law over which we exercise plenary review. . . . In
undertaking this review, we are mindful of the well
established notion that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Citations
omitted; internal quotation marks omitted.) Giannoni
v. Commissioner of Transportation, supra, 322 Conn.
350.
In the present case, we conclude that the court prop-
erly denied the state’s motion to dismiss on the ground
that the question of whether the state abandoned the
handhole involves a disputed issue of fact that is critical
to the determination of whether the court has subject
matter jurisdiction pursuant to § 13a-144.
Section 13a-144 provides in relevant part that ‘‘[t]he
commissioner and the state shall not be liable in dam-
ages for injury to person or property when such injury
occurred on any highway or part thereof abandoned by
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the state or on any portion of a highway not a state
highway but connecting with or crossing a state high-
way, which portion is not within the traveled portion
of such state highway. . . .’’
The parties have cited no case law, and we have
found none, in which this court or our Supreme Court
has examined the issue of abandonment in the context
of § 13a-144. Nevertheless, in other circumstances, this
court has repeatedly concluded that the issue of aban-
donment is a question of fact. See, e.g., Montanaro v.
Aspetuck Land Trust, Inc., 137 Conn. App. 1, 21, 48
A.3d 107 (abandonment of highway in context of claim
for easement), cert. denied, 307 Conn. 932, 56 A.3d 715
(2012); see also Bueno v. Firgeleski, 180 Conn. App. 384,
396, 183 A.3d 1176 (2018) (abandonment of easement).
Because the question of whether the state abandoned
the handhole involves a critical factual dispute, the
court had the discretion to postpone the resolution of
that issue until a trial on the merits occurred. ‘‘[W]here
a jurisdictional determination is dependent on the reso-
lution of a critical factual dispute, it cannot be decided
on a motion to dismiss in the absence of an evidentiary
hearing to establish jurisdictional facts. . . . Likewise,
if the question of jurisdiction is intertwined with the
merits of the case, a court cannot resolve the jurisdic-
tional question without a hearing to evaluate those mer-
its.’’ (Citations omitted; footnote omitted.) Conboy v.
State, 292 Conn. 642, 652–53, 974 A.2d 669 (2009). The
trial court ‘‘may [also] in its discretion choose to post-
pone resolution of the jurisdictional question until the
parties complete further discovery or, if necessary, a
full trial on the merits has occurred.’’ Id., 653 n.16; see
also Giannoni v. Commissioner of Transportation,
supra, 322 Conn. 369 n.27 (‘‘ ‘critical factual dispute[s]’ ’’
existed regarding whether culvert was highway defect
and whether child was traveler on highway for purposes
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Petrocelli v. Shelton

of § 13a-144, which prevented court from resolving
jurisdictional question).
On appeal, the state claims that the court improperly
denied its motion to dismiss because the ‘‘uncontro-
verted’’ evidence that it had not used or maintained the
handhole since 1997 established that it had abandoned
the handhole.10 The state argues that the court improp-
erly relied on the evidence of its remedial repair of the
handhole, subsequent to the plaintiff’s alleged fall, as
an indication that it did not abandon the handhole. The
state argues that such evidence is relevant to a common-
10
To the extent that the state also argues that it did not have a duty to
maintain the handhole, regardless of whether it was abandoned, because it
was located on a sidewalk that is not within the state highway system, we
are not persuaded.
This court addressed a similar issue in Dudley v. Commissioner of Trans-
portation, supra, 191 Conn. App. 641–46, which involved an allegedly defec-
tive manhole cover. In Dudley, the trial court rejected the state’s argument
that it did not have a duty pursuant to § 13a-144 to maintain or repair the
sidewalk on which the plaintiff allegedly was injured, determining that the
plaintiff’s claim was not that the state had a duty to maintain the sidewalk
but, instead, that the state had a duty to maintain the allegedly defective
manhole cover. Id., 634. On appeal, this court agreed with the trial court
that the case ‘‘is not a sidewalk maintenance case [but, instead] is a state
highway storm drain system maintenance case.’’ (Internal quotation marks
omitted.) Id., 644. This court ultimately concluded that the allegedly defective
manhole cover was within the definition of ‘‘highway defect’’ pursuant to
§ 13a-144, as the record reflected that the allegedly defective manhole cover
was located near the traveled portion of the state highway, arguably within
the state’s right-of-way line, served state owned and operated highways,
and existed solely to service the state highway. Id., 646.
In the present case, similar to Dudley, the plaintiff’s claim is not that the
sidewalk was defective but, rather, that the handhole was defective. At oral
argument before this court, the state seemed to acknowledge that Dudley
controls this issue. Specifically, the state acknowledged that, faced with
Dudley, it could not argue that it did not have a duty to maintain the handhole
if it had not abandoned the handhole. Similarly, the state conceded that, if
the handhole was still in use, it would have had a duty to maintain the
handhole, even though it is located on a sidewalk. The state also admitted
that the sidewalk where the plaintiff fell was located within the state’s right-
of-way line. See Ferreira v. Pringle, 255 Conn. 330, 350–51, 766 A.2d 400
(2001) (state liability applied to defect embedded within shoulder of road
seven feet from paved area within state’s right-of-way line).
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Petrocelli v. Shelton

law negligence claim, not a statutory claim pursuant to
§ 13a-144. The state also contends that the plaintiff’s
claim that the state’s method of abandonment was
improper or negligent similarly is not relevant to a cause
of action under § 13a-144.11 We are not persuaded.

Section 13a-144 is silent as to the manner in which
the state may establish that it abandoned a highway,
or part thereof, pursuant to that provision. Accordingly,
we look to common-law principles governing abandon-
ment for guidance. See, e.g., Escobar-Santana v. State,
347 Conn. 601, 618, 298 A.3d 1222 (2023) (because legis-
lature did not directly address question in statutory
language, court looked to state’s common law for addi-
tional guidance).

‘‘While nonuse of [a] highway may, in some circum-
stances, conclusively establish the intent to abandon
. . . where abandonment is found there most fre-
quently is some affirmative act of an intention to aban-
don.’’ (Citation omitted.) Montanaro v. Aspetuck Land
Trust, Inc., supra, 137 Conn. App. 21. ‘‘[A]bandonment
implies . . . a voluntary and intentional renunciation,
but the intent may be inferred as a fact from the sur-
rounding circumstances . . . . Most frequently, where
abandonment has been held established, there has been
found present some affirmative act indicative of an
intention to abandon . . . but nonuser, as of an ease-
ment, or other negative or passive conduct may be
sufficient to signify the requisite intention and justify
a conclusion of abandonment. The weight and effect
of such conduct depends not only upon its duration
11
The state argues that the plaintiff’s claim that the state did not properly
abandon the handhole would, instead, arguably be a basis for a claim to
the Claims Commissioner. See, e.g., Graham v. Commissioner of Transpor-
tation, 330 Conn. 400, 443 n.6, 195 A.3d 664 (2018) (Claims Commissioner
may grant party permission to sue state for negligence pursuant to General
Statutes § 4-141 et seq.).
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but also upon its character and the accompanying cir-
cumstances.’’ (Internal quotation marks omitted.) Nich-
ols v. Oxford, 182 Conn. App. 674, 680–81, 191 A.3d 219,
cert. denied, 330 Conn. 912, 193 A.3d 560 (2018).
On the basis of the foregoing, the fact finder12 may
ultimately find that the state’s nonuse of the handhole,
from 1997 until the alleged incident in 2020, reflected
its intention to abandon the handhole. The state, how-
ever, has provided no legal support for its argument that
its nonuse of the handhole during that time conclusively
established, as a matter of law, that it abandoned the
handhole. The fact finder may find, after further factual
development, that the state’s nonuse of the handhole
should have been accompanied by an affirmative act
in order to indicate an intent to abandon, or that its
failure to remove the handhole and its remedial repair
of the handhole,13 as currently reflected in the plaintiff’s
exhibits, demonstrate that it did not abandon the hand-
hole. There is, again, no legal support for the state’s
contention that the fact finder would be prohibited from
considering such evidence in its analysis.
At this stage of the proceedings, the arguments
advanced by the plaintiff and the city in opposition to
the state’s motion to dismiss, along with the exhibits
included in support thereof, sufficiently placed into dis-
pute the issue of abandonment, such that the court had
12
In the event that there is a jury trial, the factual question of whether
the state abandoned the handhole shall be submitted to the jury by way of
a special interrogatory, and the court shall reserve for itself the ultimate
question of whether, on the basis of the facts found, it has jurisdiction over
the plaintiff’s claim. See Sanchez v. Hartford, 227 Conn. App. 771, 775, 322
A.3d 1108 (court submitted interrogatories to jury to make factual findings
and reserved for itself question of whether governmental immunity would
apply to facts presented), cert. denied, 350 Conn. 922, 325 A.3d 1093 (2024).
13
Section 4-7 (a) of the Connecticut Code of Evidence provides in relevant
part that evidence of subsequent remedial measures ‘‘is admissible when
offered to prove controverted issues such as ownership, control or feasibility
of precautionary measures.’’
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Petrocelli v. Shelton

discretion to postpone resolution of the jurisdictional
question until after a full trial on the merits has
occurred. See Conboy v. State, supra, 292 Conn. 653
n.16. Accordingly, we conclude that the court properly
denied the state’s motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.