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   STOTLER v. DEPARTMENT OF TRANSPORTATION—DISSENT

   EVELEIGH, J., dissenting. I respectfully dissent. The
majority concludes that the Appellate Court properly
determined that the claim made by the plaintiff, Ellen
Stotler, administratrix of the estate of the decedent,
Paul A. Stotler III, related to an alleged defect in the
plan pursuant to which the highway was constructed,
rather than a claim that a defect in such plan or design
resulted in an otherwise actionable hazard, namely, one
that was in or near the roadway and which actually
obstructed travel. Therefore, the majority affirms the
judgment of the Appellate Court, which concluded that
the trial court should have granted the motion to dismiss
filed by the defendant, the Department of Transporta-
tion, because the plaintiff’s complaint did not state a
claim within the ambit of General Statutes § 13a-144
and, thus, was barred by the doctrine of sovereign
immunity. I respectfully disagree. In my view, the allega-
tions of the complaint, when read in a light most favor-
able to the plaintiff, establish that the allegations relate
to a claim of design defect that is intrinsic to the road
and is, therefore, actionable.
                             I
   ‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to [Practice
Book] § 10-31 (a) (1) may encounter different situations,
depending on the status of the record in the case. As
summarized by a federal court discussing motions
brought pursuant to the analogous federal rule, ‘[l]ack
of subject matter jurisdiction may be found in any one
of three instances: (1) the complaint alone; (2) the com-
plaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undis-
puted facts plus the court’s resolution of disputed facts.’
Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). Different rules and procedures will apply,
depending on the state of the record at the time the
motion is filed.
   ‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, ‘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 necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader.’ . . . Filippi v.
Sullivan, [273 Conn. 1, 8, 866 A.2d 599 (2005)]; see also
Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000),
overruled in part by Miller v. Egan, 265 Conn. 301, 325,
828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp.
v. Peabody, N.E., Inc., [239 Conn. 93, 99–100, 680 A.2d
1321 (1996)] (deciding jurisdictional question on plead-
ings alone).
   ‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss; Practice Book § 10-
31 (a); other types of undisputed evidence; see, e.g.,
Kozlowski v. Commissioner of Transportation, [274
Conn. 497, 504 n.7, 876 A.2d 1148 (2005)] (photographs
and deposition testimony); Ferreira v. Pringle, 255
Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement);
Shay v. Rossi, supra, 253 Conn. 139 n.7 (official records
of department of children and families); and/or public
records of which judicial notice may be taken; Cox v.
Aiken, [278 Conn. 204, 217, 897 A.2d 71 (2006)] (state
employees’ collective bargaining agreement); the trial
court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts ‘and need
not conclusively presume the validity of the allegations
of the complaint.’ Shay v. Rossi, supra, 140. Rather,
those allegations are ‘tempered by the light shed on
them by the [supplementary undisputed facts].’ Id., 141;
see also Barde v. Board of Trustees, 207 Conn. 59, 62,
539 A.2d 1000 (1988). If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits; see Practice Book § 10-31 (b); or
other evidence, the trial court may dismiss the action
without further proceedings. See, e.g., Ferreira v. Prin-
gle, supra, 344–45; Amore v. Frankel, 228 Conn. 358, 364,
367–69, 636 A.2d 786 (1994). If, however, the defendant
submits either no proof to rebut the plaintiff’s jurisdic-
tional allegations; Connecticut Hospital Assn. v. Pogue,
870 F. Sup. 444, 447 (D. Conn. 1994); or only evidence
that fails to call those allegations into question; Ostow &
Jacobs, Inc. v. Morgan-Jones, Inc., 189 F. Sup. 697, 698
(S.D.N.Y. 1960); the plaintiff need not supply counteraf-
fidavits or other evidence to support the complaint, but
may rest on the jurisdictional allegations therein. See id.
   ‘‘Finally, 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. Gordon v. H.N.S. Management Co., 272
Conn. 81, 92, 861 A.2d 1160 (2004) (‘[w]hen issues of
fact are necessary to the determination of a court’s
jurisdiction . . . due process requires that a trial-like
hearing be held, in which an opportunity is provided
to present evidence and to cross-examine adverse wit-
nesses’ . . .); Schaghticoke Tribal Nation v. Harrison,
264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Like-
wise, if the question of jurisdiction is intertwined with
the merits of the case, a court cannot resolve the juris-
dictional question without a hearing to evaluate those
merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553
A.2d 175 (’[i]n some cases . . . it is necessary to exam-
ine the facts of the case to determine whether it is
within a general class that the court has power to hear’),
cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed.
2d 590 (1989). An evidentiary hearing is necessary
because ‘a court cannot make a critical factual [jurisdic-
tional] finding based on memoranda and documents
submitted by the parties.’ Coughlin v. Waterbury, 61
Conn. App. 310, 315, 763 A.2d 1058 (2001).’’ (Emphasis
omitted; footnotes omitted.) Conboy v. State, 292 Conn.
642, 650–54, 974 A.2d 669 (2009). Therefore, in view of
the fact that this motion to dismiss was on the basis
of the wording of the complaint, I view the allegations
‘‘in their most favorable light . . . including those facts
necessarily implied from the allegations, construing
them in a manner most favorable to the pleader.’’ (Inter-
nal quotation marks omitted.) Filippi v. Sullivan,
supra, 273 Conn. 8.
   The defective condition involved in the present case
is alleged to be a dangerously steep road surface that
channels descending traffic into a major crossing inter-
section immediately at the bottom of the slope, together
with the absence of an escape ramp to divert and con-
tain vehicles encountering runaway conditions, and the
absence of adequate warning signs to alert drivers to the
severity of the conditions they were about to encounter
before they were irrevocably committed to the descent.
In my view, these allegations are similar to those alleged
in Filippi, in which this court concluded that the trial
court properly denied the defendant’s motion to dis-
miss. In Filippi, the allegations were that the road con-
tained a blind curve and inadequate warning signs to
alert drivers of a graded blind curve concealing traffic
that had stopped. In my view, the majority’s reliance
upon McIntosh v. Sullivan, 274 Conn. 262, 875 A.2d 459
(2005), is misplaced. In McIntosh, the plaintiff claimed
that the defendant, the Commissioner of Transportation
(commissioner), was liable for injuries he suffered
when ‘‘rocks, boulders, ice and dirt’’ became dislodged
from a rock formation adjacent to the highway and
struck his car. (Internal quotation marks omitted.) Id.,
264. Specifically, the plaintiff in McIntosh claimed that
the highway was defectively designed in that it was
proximate to a rock face from which rocks might fall
at some point in the future, and the commissioner had
taken no steps to design the highway in a way that
avoided or ameliorated that potential hazard. Id. 264–65.
The commissioner claimed that the falling rocks did
not qualify as an actionable highway defect pursuant
to § 13a-144. Id., 267. This court agreed and held that
potential hazards arising from objects out of the road-
way are not actionable under § 13a-144. Id., 285.
  Unlike McIntosh, the present case alleges existing
hazards arising from the roadway’s design, layout and
surface condition, which makes the case clearly action-
able. ‘‘To prove a breach of statutory duty under this
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 [commis-
sioner] actually knew of the particular defect or that,
in the exercise of [his] supervision of highways in the
city, [he] should have known of that defect; (3) that the
[commissioner], having actual or constructive knowl-
edge 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 proxi-
mate cause of the injuries and damages claimed, which
means that the plaintiff must prove freedom from con-
tributory negligence.’’ (Internal quotation marks omit-
ted.) Id., 268. A highway defect is ‘‘[a]ny object in, upon,
or near the traveled path, which would necessarily
obstruct or hinder one in the use of the road for the
purpose of traveling thereon, or which, from its nature
and position, would be likely to produce that result
. . . .’’ (Internal quotation marks omitted.) Id., 268–69.
‘‘[I]f there is a defective condition that is not in the
roadway, it must be so direct a menace to travel over
the way and so susceptible to protection and remedial
measures which could be reasonably applied within the
way that the failure to employ such measures would
be regarded as a lack of reasonable repair.’’ (Internal
quotation marks omitted.) Id., 269.
   ‘‘[A] defect in the design of a highway generally is
not actionable under § 13a-144. E.g., Donnelly v. Ives,
[159 Conn.163, 168, 268 A.2d 406 (1970)]. In Hoyt v.
Danbury, [69 Conn. 341, 352, 37 A. 1051 (1897)], [how-
ever] we recognized a limited exception to that general
rule.’’ McIntosh v. Sullivan, supra, 274 Conn. 280. This
exception provides that, ‘‘notwithstanding the general
rule that the state is not liable for damages sustained
by a traveler due to a defect in a highway’s design, the
state nevertheless may be liable if such a defect gave
rise to a hazard that otherwise would be actionable
under § 13a-144.’’ Id., 271. ‘‘[A] design defect can be
distinguished from a traditional highway defect claim
only insofar as the former includes an allegation that
the dangerous condition inhered in the highway’s plan
of design, that is, the defect was not created by some
other external condition, such as a particular occur-
rence, like a storm, or normal wear and tear.’’ Id., 282.
In other words, the highway, constructed according to a
defective plan of design, is rendered ‘‘in such a defective
condition as to have been out of repair from the begin-
ning.’’ (Internal quotation marks omitted.) Id., 281. ‘‘In
all other respects, however, a design defect claim is
indistinguishable from any other highway defect claim
and, accordingly, it is subject to all the same statutory
requirements, including the requirement that the
alleged defect actually be in the roadbed or so near to
it as to necessarily obstruct or hinder one in the use
of the road for the purpose of traveling thereon . . . .’’
(Internal quotation marks omitted.) Id., 282. For exam-
ple, in Hoyt, the plaintiff sued the city of Danbury on
the theory that the city had defectively designed a side-
walk on ‘‘a street descending a hill’’ on which the plain-
tiff slipped and fell. Hoyt v. Danbury, supra, 347–48.
This court ultimately rejected the plaintiff’s claim that
the design of the sidewalk was defective because it
noted that ‘‘[a]s to which, out of any appropriate modes
of building the particular sidewalk in question, was to
be chosen, it was for the borough to decide; and so
long as the mode selected was an appropriate and lawful
one, its decision was not subject to collateral review
. . . .’’ Id., 351. This court also opined, however, that
the sidewalk’s design would have been considered
defective—and, therefore, ‘‘inadmissible’’—if, for
example, the steps had not been accompanied by a
railing. Id., 352.
   The doctrine first espoused in Hoyt was followed in
Perrotti v. Bennett, 94 Conn. 533, 537–38, 109 A. 980
(1920), wherein the town of Hamden had installed a
drainpipe twelve inches below the surface of a highway
in accordance with a plan adopted for the purpose of
construction. In accordance with the plan of design,
twelve inches of gravel and sand were packed between
the surface of the road and the drainpipe. The plaintiff
was injured, several years after the drainpipe’s con-
struction beneath the road, when the roadway over the
pipe collapsed under the weight of the plaintiff’s truck.
Id. In Perrotti, this court held the plaintiff’s design
defect claim to be actionable under the defective high-
way statute and reversed the judgment of the trial court
dismissing the plaintiff’s claim, reasoning that, ‘‘[w]hen-
ever the plan [of design] in its execution creates a nui-
sance, or causes direct injury to another, liability
follows for the damage done. . . . If the plan [is] defec-
tive from the beginning, or if its defect originate[s]
shortly after the completion of the improvement, and
injury [is] ultimately necessarily the inevitable or proba-
ble result, the municipality will be liable. Clearly this
is just.’’ (Citations omitted.) Id., 539–40. This court con-
tinued: ‘‘The finding is that the drain was no[t] properly
protected, due to the covering of the roadway above
it. . . . Obviously from the time the drain was laid it
constituted a defect in the highway, whether this was
due to the want of adequate covering, or to the character
of the pipe, or both. Hoyt v. Danbury, [supra, 69 Conn.
352], expressly recognizes . . . this situation as cre-
ating an exception to the general rule of nonliability .
. . .’’ (Emphasis added.) Perrotti v. Bennett, supra, 541.
   Read in the light most favorable to the plaintiff, the
allegations contained in the complaint clearly place the
claims within the purview of § 13a-144, as interpreted
and applied in Hoyt and its progeny. The plan of design
in Perrotti, pursuant to which the drainpipe that ulti-
mately collapsed under the weight of passing trucks
was built into the roadway, only twelve inches under
its surface, made the roadway intrinsically defective
from the outset as built. Similarly, the plan of design
in the present case provided for the road, which has
always been open to truck traffic, to be built on a steep
downhill grade. This plan of design is alleged—and may
be proved—by the plaintiff to have been defective from
the outset because its incorporation into the roadway
created a condition intrinsic to the roadway. This
defect, the plaintiff further alleges, constituted a nui-
sance such that, when the roadway was used as
intended by trucks, ‘‘injury [was] ultimately necessarily
the inevitable or probable result . . . .’’ Id., 539.
   Furthermore, I respectfully disagree with the majori-
ty’s overly narrow interpretation of what may constitute
a design defect. The majority concludes that, because
the downhill grade is not ‘‘an actionable hazard in the
road that necessarily obstructed travel,’’ the design of
the highway in this case cannot be claimed to be an
actionable defect. Although I agree with the majority
that, ultimately, this doctrine’s roots are planted in
Hoyt, it is my opinion that Hoyt stands for the proposi-
tion that a road may be defectively designed when it
is inherently unsafe. Indeed, the defect complained of
in the present case is not so different from the situation
that this court intimated would qualify as a design defect
in Hoyt. It is, ultimately, a decision for the state, and
not this court, to decide whether the best place for a
road open to trucks is along the downslope of a moun-
tain. Cf. Hoyt v. Danbury, supra, 69 Conn. 351. But
having made that design decision, the state is required
to implement it safely. A road with an extremely steep
downhill grade that is traversed by large trucks, without
warning signs and with no truck runoff is defective in
the same way that a staircase with no railing is defective.
To recognize that people will occasionally slip while
descending stairs is to recognize reality. It is similarly
uncontroversial to recognize that if people slip on a set
of stairs which does not possess a railing, they will be
without means through which they can stabilize them-
selves, and as a result they will be injured when they
fall. Along those same lines, when trucks descend a
mountain road with a steep declining grade, occasion-
ally their brakes will fail.1 In the absence of a truck
runoff, an accident is all but certain to occur as a result.
Both of these aforementioned risks are inherent to the
respective chosen designs. The court in Hoyt intimated
that these types of inherent risks—when not accounted
for by safety features—may give rise to a design defect
claim. Indeed, would the majority decision still be the
same if the design of this highway was on an inherently
dangerous 30 percent slope?
   I also find the case of Rusch v. Cox, 130 Conn. 26,
31 A.2d 457 (1943), instructive. In that case, the plaintiff,
the administrator of the decedent’s intestate estate,
claimed that the death of the decedent had been caused
by a defective highway. Id., 28. In Rusch, the plaintiff’s
decedent had been killed when the car in which he was
traveling as a passenger slammed into a wooden fence
that lined the side of the highway. Id., 29–30. At the
point where the vehicle containing the decedent struck
the fence, the fence suddenly and drastically narrowed
the width of the shoulder of the highway from over
eight feet to four feet in width. Id. The trial court con-
cluded that the design of the fence created a dangerous
and defective condition in the highway. Id., 30. On
appeal, this court determined that ‘‘[w]e may not hold
that the conclusion of the trial court that the staggering
of the fences under the circumstances constituted a
defective road was unreasonable, as a matter of law.’’
Id., 30–31. Thus, just as a highway with a defectively
designed guardrail might be considered to be defective,
so too might a road with an extreme downhill grade
and no accompanying safety measures. In both
instances, the injury arose simply from the way in which
the road was designed, not from some other condition
or obstacle on the road itself.
  As a result, this case presents an entirely different
question than did the rocky ledge high above the road-
way in McIntosh. That claimed defect, by contrast, was
not built into the roadway by design and, thus, was not
an intrinsic defect to the road itself. On the other hand,
the 10 percent downhill grade built into the relevant
section of Route 44 has been claimed by the plaintiff
to be an intrinsic defect in the design of the road. This
10 percent downhill grade may be shown to present an
unacceptable risk of brake failure in trucks that travel
over this section of road. Thus, similar to the plan in
Perrotti that called for the drainpipe to be built only
twelve inches under the road, the plan of design provid-
ing for the steep downhill grade in Route 44 could be
considered defective because the execution of that plan
created a nuisance from which ‘‘injury [was] ultimately
necessarily the inevitable or probable result . . . .’’
Perrotti v. Bennett, supra, 94 Conn. 541.
   Further, in Bovat v. Waterbury, 258 Conn. 574, 579,
783 A.2d 1001 (2001), this court affirmed a jury award
for the plaintiff where the allegations were as follows:
‘‘(1) the defendant maintained the road without proper
lighting; (2) the road was not reasonably safe for the
uses or purposes intended; (3) the defendant main-
tained the road in a state of disrepair, causing it to be
dangerous and hazardous; (4) the layout, grade or
design of the road was improper; (5) the road was
designed with an extremely sharp curve with a utility
pole placed at the apex of the curve at the edge of the
roadway, thereby creating a dangerous and hazardous
condition; (6) the defendant failed to remedy the stated
conditions when it was aware or should have been
aware of them in the performance of routine inspec-
tions; and (7) the defendant failed to warn travelers of
the dangerous and hazardous conditions.’’ We also held
that the city could be held liable for both a design defect
and a defect in repair and maintenance. Id., 585. I fail
to see any major distinction between Bovat and the
present case. Certainly, the allegations in Bovat, which
stated that the road was designed with an extremely
sharp curve with a utility pole placed at the apex of
the curve at the edge of the roadway, are virtually identi-
cal to the allegations in the present case which indicate
that the road was designed with a very steep slope for
trucks with an intersection located at the bottom of the
hill. Further, the absence of warning signs, which is an
allegation contained in this case, was also present in
Bovat. Id. Therefore, I would conclude that the allega-
tions are sufficient, when read in a light most favorable
to the plaintiff, to defeat the motion to dismiss the
complaint. Therefore, I respectfully dissent from the
majority opinion.
                                      II
  In view of my position in part I of this dissent, unlike
the majority and the Appellate Court, I also consider
the defendant’s claim that the highway’s design was
not, as a matter of law, the sole proximate cause of
the accident and, therefore, the trial court improperly
denied its motion for summary judgment.2 See footnote
5 of the majority opinion. I conclude that there is a
genuine issue of material fact primarily established by
the affidavit of one of the plaintiff’s experts, Douglas
Rowland. Rowland concluded that ‘‘the condition of
the truck, including its brake components, was not a
substantial factor in causing the accident.’’ Further, he
concluded that ‘‘the only substantial factor in causing
the accident was a dangerously defective condition of
Route 44, including inadequate signage, the lack of a
[b]rake [c]heck [a]rea at the top of the mountain, and
the lack of an [e]mergency [e]scape [r]amp at the bot-
tom of the mountain. Had these defects not existed,
the accident would not have occurred.’’ In my view,
this affidavit was sufficient to defeat summary judg-
ment, and the opinions therein, if found by a fact finder,
would be sufficient to establish sole proximate cause.
  Accordingly, I would conclude that the Appellate
Court improperly reversed the judgment of the trial
court denying the defendant’s motion to dismiss this
action for lack of subject matter jurisdiction, and that
a genuine issue of material fact regarding the issue of
sole proximate cause existed. Therefore, I respect-
fully dissent.
   1
     At least one expert in the present case determined that in this case, the
condition of the truck ‘‘was not a substantial factor in causing the accident.’’
In other words, at least one expert would have concluded that this accident
came about solely due to the design of the road.
   2
     I note that ‘‘[t]he denial of a motion for summary judgment ordinarily
is an interlocutory ruling and, accordingly, not a final judgment for purposes
of appeal.’’ Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 653, 954
A.2d 816 (2008). Nonetheless, in light of my conclusion that the Appellate
Court should have affirmed the trial court’s denial of the defendant’s motion
to dismiss, I would address this issue ‘‘in the interest of judicial economy,
on the assumption that it will arise on remand.’’ Mueller v. Tepler, 312 Conn.
631, 646 n.14,        A.3d     (2014).
