author: MCDONALD, J. BERDON, J.,

text:
    CHRISTOPHER PRATO v. CITY OF NEW HAVEN
    (SC 15906)
    Callahan, C. X, and Borden, Berdon, Palmer and McDonald, Js.
    Argued May 27
    officially released September 1, 1998

      David A. Leff, for the appellant (plaintiff).

      Kenneth J. Mastroni, deputy corporation counsel, with whom, on the brief, was R. E. Phillips, for the appellee (defendant).
   Opinion

MCDONALD, J.

In this appeal, the sole issue is whether the defendant, the city of New Haven, had notice of a highway defect that injured the plaintiff, Christopher Prato, and, consequently, could be held liable to the plaintiff under General Statutes § 13a-149. After a trial to the court, the trial court rendered judgment for the defendant, on the basis that the plaintiff did not prove that the defendant had notice of the highway defect that resulted in the plaintiffs injury. We must decide whether evidence of prior bonfires at a certain intersection for several consecutive years gave the defendant the requisite notice under § 13a-149 of a subsequent bonfire on the highway on the date of the plaintiffs injury. Because our precedent clearly provides that § 13a-149 requires a municipality to have notice of an actual highway defect, and not merely of conditions that are likely to lead to such defect, we conclude that the defendant did not have notice of the defect as required by § 13a-149. We therefore affirm the trial court’s judgment.

The plaintiffs complaint alleged a violation of Connecticut’s highway defect statute. General Statutes § 13a-149. The trial court found the following facts. On July 3,1992, at approximately 11:30 p.m., several people built and ignited a bonfire in the roadway at the intersection of Clark and Pleasant Streets in New Haven. The plaintiff was present at this intersection in search of a friend when he came upon the bonfire. He watched as people ran from their homes with old couches, wooden planks and other debris, and within four or five minutes, the debris was ablaze. The plaintiff was standing about 150 feet from the newly ignited bonfire when he heard a loud explosion and was knocked on his back. An object had been blown out from the bonfire and struck his right eye, which was seriously and permanently injured. The incident occurred within, at most, a few minutes of the ignition of the bonfire. Police and rescue workers were notified of the blaze and of the plaintiffs injuries immediately after the plaintiff was injured. There is no evidence that the city actually knew of this particular bonfire before the plaintiff had been injured.

A bonfire at the intersection of Clark and Pleasant Streets just before midnight on the night of July 3 had been a neighborhood custom for the previous fifteen years. New Haven fire department records showed that firefighters responded to calls about this intersection between 10 p.m. and 1 a.m. on July 3 and 4 for the seven years preceding 1992. In addition, there was evidence that the defendant retained extra firefighters and public works employees on the night of July 3, 1992.

After a trial to the court, the trial court found for the defendant. The trial court concluded that, while the bonfire was a highway defect within the meaning of § 13a-149, the plaintiff failed to prove that the defendant had actual or constructive notice of the defect and a reasonable opportunity to remedy such defect. The trial court held that notice of the custom of annual bonfires was “not sufficient notice for purposes of [§ 13a-149].” Because the actual bonfire had existed for only ninety seconds before the accident, and the authorities had not been notified of its existence prior to the plaintiffs injury, the trial court concluded that the defendant did not have the requisite notice of the specific defect under § 13a-149.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book § 65-1, and General Statutes § 51-199 (c).

On appeal, the plaintiff argues that a history and pattern of annual bonfires at this intersection on July 3 established actual or constructive notice that someone would light a bonfire there on July 3, 1992. The plaintiff argues that the defendant’s retention of extra firefighting personnel on July 3,1992, indicates that it had actual notice that this pattern would continue and that a bonfire would be lit that night. The plaintiff argues, further, that the defendant had a duty to anticipate and prevent this highway defect, given the inherently dangerous nature of a fire in the middle of a crowded city street.

The defendant argues that it is not liable under § 13a-149 because it did not have notice, actual or constructive, of the specific fire set on July 3, 1992, until after the plaintiff was injured. The defendant argues that § 13a-149 requires it to have notice of the specific bonfire that caused the plaintiffs injury, not merely notice that there was a likelihood that a fire would be ignited in continuance of this Independence Day tradition. The defendant contends that the duty claimed by the plaintiff, if it existed, would arise out of negligence or failure to prevent the crime of lighting such a bonfire in a public street.

The trial court concluded that the defendant did not have the requisite notice of this highway defect under § 13a-149 as a matter of law. “When the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997).

To prove a breach of statutory duty under § 13a-149, “the plaintiff must prove, by a fair 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.” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); accord Janow v. Ansonia, 11 Conn. App. 1, 2-3, 525 A.2d 966 (1987).

This court previously has held that “[t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.” (Emphasis added; internal quotation marks omitted.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919). The case of Jainchill v. Schwartz, 116 Conn. 522, 165 A. 689 (1933), illustrates this principle. In Jainchill, the plaintiff slipped on a Hartford sidewalk that was covered with a slippery substance caused by the defendant Schwartz’ practice of unpacking fish near the sidewalk. Id., 523, 524. The plaintiff had also sued the city of Hartford. This court held that the city was not liable because it did not know of the slippery condition on the sidewalk that day. Id., 525-26. While there was evidence that the city knew about Schwartz’ custom of unpacking fish in this manner, we held that knowledge of a custom that might create a defect did not establish notice of the slippery sidewalk on the morning of the accident. Id., 525. We concluded that conditions that are likely to produce a defect and the defect itself are distinguishable, and that liability attaches under the highway defect statute only if a municipality has notice of the defect itself. See id.; see also Carl v. New Haven, supra, 628.

Similarly, the predictability of a future defect is insufficient to prove that a municipality had notice of a defect. In Aaronson v. New Haven, 94 Conn. 690, 110 A. 872 (1920), a silent policeman was placed in the roadway to regulate traffic. Id., 692. The silent policeman had toppled over into the lanes of travel on numerous occasions. Id., 693. It was dislodged and rolled into the travel lanes at approximately 6:30 p.m. one evening, and someone had notified the police by 7 p.m. Id. It, nevertheless, still remained in the travel lanes at 7:30 p.m., when the plaintiffs car collided with it. The plaintiff sued the city of New Haven. We held that the city could be held liable because its officials had actual notice of the highway defect and ample time to remedy it. Id. This court was careful to point out, however, that its decision rested on the one-half hour lapse between the notice and the accident, and not on the fact that the silent policeman had toppled over in the past and had a propensity to topple over in the future. See generally id., 695-96. Despite the other occasions on which it had toppled over into the travel lanes, we indicated that the city did not receive actual or constructive notice of the defect until the police officer in charge was notified of the condition at 7 p.m. See id., 696; see also Pajor v. Wallingford, 47 Conn. App. 365, 374-77, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998) (even though city knew that water from melted snowbanks on adjacent property tended to flow across sidewalk, making ice and slippery conditions very probable, city did not have actual or constructive notice that sidewalk was defectively slippery on day of accident). Thus, the predictability of a future defect does not provide the requisite notice to establish municipal liability under § 13a-149.

The plaintiff argues that the defendant had constructive notice of the defect because of the annual custom of setting bonfires at this particular intersection on July 3. The defendant’s knowledge that Independence Day celebrations at this intersection would create conditions likely to produce a defect, however, does not suffice as constructive notice of the defect itself. The defendant did not have notice of the bonfire until after it was ignited and the authorities were notified of the plaintiffs injury. While a municipality does have a duty to inspect its streets and discover defects as they occur, ninety seconds was not enough time for the defendant to discover the defect through a reasonable inspection of its streets. The situation would be quite different if the bonfire had burned for some period of time before the plaintiff was injured. Then, the defendant could be charged with constructive notice of the defect if it had failed to discover the existence of the bonfire after an unreasonable length of time had elapsed. See, e.g., Zeidwig v. Derby, 129 Conn. 693, 697, 31 A.2d 24 (1943) (fence that city was charged with maintaining was defective for such length of time that city knew or should have known of condition). The facts of this case make clear, however, that the defect existed for only a few minutes before the injury occurred. This length of time is insufficient to charge the defendant with constructive or actual notice of the defect. Before the bonfire was ignited, the city had notice of a potential defect, but § 13a-149 does not render municipalities liable for potential highway defects.

The plaintiff argues, further, that, under principles of negligence, the city had a duty to inspect the intersection to discover defects. This argument confuses liability under § 13a-149 and general principles of negligence. Our cases clearly hold that a cause of action under § 13a-149 is not based upon negligence. “It is settled law in this state that the liability of the defendant under § 13a-149 is purely for breach of statutory duty and does not arise from negligence.” Lukas v. New Haven, supra, 184 Conn. 212. This does not mean, however, that negligence principles are wholly inapplicable. See White v. Burns, 213 Conn. 307, 322-23, 567 A.2d 1195 (1990) (under state highway liability statute, highway defect claim is not action in negligence, but principles of negligence are instructive); Sullivan v. Norwalk, 28 Conn. App. 449, 457, 612 A.2d 114 (1992) (upholding use of jury instruction in which “the court referred to common law negligence principles as a foundation for determining whether the defendant breached its duty under § 13a-149 . . . [b]ecause of the close parallel between negligence and § 13a-149”).

The plaintiff argues that the city had constructive notice of the bonfire because it would have discovered it, and even might have prevented it, upon a reasonable inspection of the intersection on July 3, 1992. Under negligence principles, municipalities must use reasonable care in discovering the existence of a defect, and negligent ignorance of a defect may support a finding that the municipality should have discovered the defect. See Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990) (liability under state highway liability statute). That duty to make a reasonable inspection “depends upon the nature of the defect and the length of time it existed.” Id., 480. Thus, the circumstances of each case must be examined.

Although principles of negligence are instructive in applying § 13a-149, they do not eliminate the express requirements of the statute. Before one can rely upon the principles of reasonableness and ordinary care to infer notice of a defect under § 13a-149, the claimed highway defect must actually exist. Municipalities are not liable under § 13a-149 for failure to inspect and discover a potential defect, or a defect that might arise at some future time. We have held that, under the highway defect statutes, the state or municipality must have notice of an actual defect and a reasonable period during which to remedy it. See, e.g., Hall v. Burns, supra, 213 Conn. 479 (state highway); Lukas v. New Haven, supra, 184 Conn. 207 (municipal highway). We have also observed that the reasonable duty to inspect and discover defects does not arise until there is an actual defect in the highway. See Hall v. Burns, supra, 479-80; cf. Jainchill v. Schwartz, supra, 116 Conn. 525-26. A city may not be held liable for failing to discover that which does not exist.

Historically, the state and its municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control. “We can, of course, take judicial notice of the fact that this state has a state highway program that includes thousands of miles of state highways to which it appropriates substantial sums of money.” White v. Bums, supra, 213 Conn. 330. Municipalities similarly have a large number of sidewalks and streets to inspect. See Bazinet v. Hartford, 135 Conn. 484, 488, 66 A.2d 117 (1949) (“[w]hen the walks and streets of a city the size of Hartford are sheeted in snow and ice during the night, it would be too much to expect that they should all be made reasonably safe within an hour and a half after sunrise”).

The highway defect statute is one legislative exception to such immunity; Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997); and statutes in derogation of sovereign immunity must be strictly construed. E.g., White v. Burns, supra, 213 Conn. 312. Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiffs ability to recover when he or she is injured on a public highway. “Were it otherwise, and municipalities were charged with notice of defects which the future should develop upon the strength alone of their knowledge of such conditions as were calculated to produce them, the expansion of municipality liability for highway defects would be enormous, the burden of repair and remedy cast upon them be vastly enlarged, and a wide field of uncertainty opened up in which triers might wander comparatively unrestrained in speculations as to causes and anticipated results.” Carl v. New Haven, supra, 93 Conn. 628-29.

This court has consistently interpreted § 13a-149 in such a fashion, a construction that has never been rejected by the legislature. “[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) White v. Burns, supra, 213 Conn. 333. After decades of interpreting § 13a-149 to require notice of an actual defect, and not merely notice of potential defects or conditions likely to create a defect, the legislature has not amended § 13a-149 in this respect.

Accordingly, we hold that the trial court properly found that the defendant did not have actual or constructive notice of the specific highway defect that led to the plaintiffs injury. Accordingly, the trial court was correct in concluding that the defendant is not liable for the plaintiffs injuries under § 13a-149.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN and PALMER, Js., concurred.

BERDON, J.,

dissenting. Despite the fact that General Statutes § 13a-149 “permits recovery against a municipality if the municipality had nothing more than ‘constructive notice’ of the defect” causing a plaintiffs injury; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991); the majority concludes that the defendant in this case, the city of New Haven, cannot be held liable for failing to prevent the plaintiffs injury because it lacked notice of the defect that caused the injury. I find the conclusion that the defendant lacked constructive notice, or for that matter even, lacked actual notice, to be illogical under the facts of this case and, therefore, I dissent.

In the present case, the defendant’s own records and the other evidence demonstrate that every year for the fifteen years prior to this incident, in celebration of the July 4 holiday, a bonfire has been set at the intersection of Clark and Pleasant Streets in New Haven between 10 p.m. on July 3 and 12:30 a.m. on July 4. In anticipation of the bonfire being set over the July 4, 1992 holiday, the defendant arranged to have additional firefighters and public works employees on duty on the evening of July 3 and the morning of July 4. As anticipated, the bonfire was lit on the night of July 3, 1992, and the plaintiff, a pedestrian who happened to be traveling through the area, was struck in the face by a piece of debris that flew out of the fire. Subsequently, as a result of the injury, the plaintiff lost the use of his right eye.

In denying that the defendant had adequate notice of the bonfire to justify the imposition of liability under § 13a-149, the majority relies upon the fact that previously this court has interpreted that section as requiring that notice be of the particular defect itself that caused the injury rather than notice of the conditions that naturally would produce such a defect. See Baker v. Ives, 162 Conn. 295, 305, 294 A.2d 290 (1972); Jainchill v. Schwartz, 116 Conn. 522, 525, 165 A. 689 (1933); Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919); see also Linn v. Hartford, 135 Conn. 469, 472, 22 A.2d 115 (1949). The rationale underlying this inteipretation is that if the law were to allow the imposition of liability where there was notice only of a condition that might be expected to produce a defect, “the expansion of municipality liability for highway defects would be enormous, the burden of repair and remedy cast upon them be vastly enlarged, and a wide field of uncertainty opened up in which triers might wander comparatively unrestrained in speculations as to causes and anticipated results.” Carl v. New Haven, supra, 628-29.

In limiting liability through a restrictive interpretation of notice, however, I do not believe that this court ever intended to relieve municipalities from liability under the statute to such an extent as to actually conflict with the purpose for which the statute was enacted. This court has explained that the liability created by § 13a-149 gives rise to a duty on the part of municipalities to, in effect, use reasonable care in maintaining its highways. Thus, although under § 13a-149 “[i]t is not the duty of a municipality to keep its highways reasonably safe for public travel under all circumstances, nor to use all possible means to bring that result about . . . [it is] its duty ... to make such efforts and employ such measures to that end as, in view of all the existing circumstances and conditions, are in themselves reasonable.” Cusick v. New Haven, 148 Conn. 548, 551, 172 A.2d 905 (1961); Cohen v. Hamden, 27 Conn. App. 487, 494, 607 A.2d 452 (1992).

In this case, the defendant’s knowledge of the annual practice of lighting a bonfire at the intersection of Clark and Pleasant Streets on July 3 placed the defendant on notice that, with almost near certainty, a dangerous defect would erupt at a particular location on its highway on the evening of July 3, 1992. In addition, the defendant was aware that the defect that almost certainly would erupt was inherently dangerous in nature. The defendant employed additional firefighting and public works personnel in anticipation of the imminent eruption of the defect. Indeed, it is reasonable to conclude that the defendant endorsed the annual ritual of lighting the bonfire on the basis of its failure to have its personnel and equipment positioned at the street intersection in order to prevent the bonfire’s ignition, or at least to extinguish it immediately upon its being ignited. Under these circumstances, it can hardly be said that the defendant lacked actual notice of the defect that injured the plaintiff.

Nevertheless, if the circumstances did not provide the defendant with actual notice of the defect, I would conclude that the defendant had at least constructive notice of the defect. “Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant. . . . Therefore, when a [municipality] fails to make or to have made a reasonable inspection which would have disclosed [a] dangerous condition, [its] negligent ignorance is, in the eyes of the law, equivalent to actual knowledge.” (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990).

In my view, the pattern of bonfires in the fifteen years prior to when the plaintiff was injured in 1992, provided adequate constructive notice to the defendant that a dangerous defect in the highway on the night of July 3, 1992, was extremely likely to erupt and could very likely lead to serious injury to person or property. This is not a situation such as existed in Jainchill v. Schwartz, supra, 116 Conn. 525-26, wherein the defendant municipality was charged with the knowledge that a local business was in the habit of unpackaging fish outside its store on the municipal sidewalk but, despite that knowledge, was found not to have had constructive notice that the sidewalk was in a dangerously defective condition caused by fish slime that spilled during the unpackaging. In concluding that the defendant did not have notice of the defective condition of the sidewalk, this court reasoned that the fish slime was not visible through the water that always also spilled out during the unpackaging and that, as a result, the particular defects had not been “so conspicuous as to attract the attention of the municipal authorities in the exercise of a reasonable supervision of the streets.” Id., 525. Consequently, the municipality could not be charged with constructive notice of the defect. Id., 525-26.

In the present case, the fact that the defendant engaged in preparatory efforts in anticipation of the bonfire demonstrates that the notice to the defendant was sufficient to subject it to liability under § 13a-149. Furthermore, finding that constructive notice existed in this situation would advance the public policy underlying § 13a-149 of encouraging municipalities to use reasonable care in maintaining safe conditions on their highways. Under these circumstances, I would hold that the notice was sufficient to justify the imposition of liability upon the defendant for the plaintiffs devastating and altogether preventable injuries.

Accordingly, I dissent.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. ...”

       Although the plaintiff also alleged common-law negligence, the trial court held that the negligence claim was precluded by § 13a-149. The negligence claim is not before us on appeal.

       The court in Jainchill stated: “The evidence goes no further than to justify the inference that the officers of the city might have known that the defendant Schwartz was accustomed to unpacking] fish in front of his market twice a week. This, at the most, would charge the city with a knowledge of conditions likely to produce defects on the walk.” Jainchill v. Schwartz, supra, 116 Conn. 525.

       The state highway liability statute can be found at General Statutes § 13a-144.

       This explanation of constructive notice was provided in the context of an action brought against the state under the state defective highway liability statute, General Statutes § 13a-144. The same rationale applies to § 13a-149, because “there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by ... § 13a-149.” (Internal quotation marks omitted.) Hall v. Burns, supra, 213 Conn. 477.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    MARY DOE v. JOHN ROE ET AL.
    (SC 15901)
    Callahan, C. J., and Norcott, Katz, Palmer and McDonald, Js.
    Argued May 28
    officially released September 1, 1998

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox and Jean L. Welty, for the appellants (respondents).

      Douglas R. Daniels, for the appellee (petitioner).

      Penn Rhodeen, for the minor child.
   Opinion

PALMER, J.

The narrow question presented by this appeal is whether the Superior Court has subject matter jurisdiction to render judgment in accordance with an agreement that includes a promise by a surrogate mother to consent to the termination of her parental rights in Probate Court. The trial court, Pittman, J., rendered judgment in accordance with such an agreement. Subsequently, the trial court, Alander, J., upon review of the judgment, and after concluding that it purported to terminate the surrogate mother’s parental rights, vacated the judgment on the ground that, under the circumstances, the court that had approved the agreement lacked subject matter jurisdiction to do so. Because we conclude that approval of the agreement was within the authority of the Superior Court, we reverse.

The relevant facts and procedural history are undisputed. On January 25, 1994, the petitioner, Mary Doe, signed a surrogacy contract with the named respondent, John Roe, to carry a child fathered by him through artificial insemination. The petitioner further agreed to voluntarily surrender custody of the child to the named respondent and his wife, Jane Roe, upon birth, and to allow for the subsequent adoption of the child by Jane Roe. Jack Roe (child), who was conceived pursuant to this surrogacy contract, was bom on December 13, 1994. Immediately after the child’s birth, the petitioner turned him over to the respondents in accordance with the parties’ surrogacy contract.

On April 10, 1995, when the child was almost four months old, the petitioner filed an application for a writ of habeas corpus seeking custody of the child. On the same day, the petitioner also filed a declaratory judgment action seeking sole guardianship of the child and a determination that the surrogacy contract was void as against public policy and voidable because it was signed under duress and false pretenses. Thereafter, the respondents filed a counterclaim seeking: (1) specific performance of the surrogacy contract; (2) permanent custody of the child; and (3) an order enjoining the petitioner from attempting to form a parent-child relationship with the child.

On July 8,1996, the parties reported to Judge Pittman that they had reached an agreement settling all of the outstanding issues raised by the petitioner’s claims and the respondents’ counterclaim. The two part agreement (agreement), which the parties filed with the court, consisted of a stipulation and an open adoption and visitation agreement that was incorporated by reference into the stipulation. The agreement provided that the petitioner would execute the documents necessary to terminate her parental rights, thereby enabling Jane Roe to adopt the child. In return, the petitioner would receive: (1) visitation rights with the child; (2) access to information concerning the child; and (3) payment for certain legal and medical expenses. The agreement also provided for confidentiality and joint counseling, and set forth the specific terms of visitation by the petitioner. Moreover, the parties agreed to withdraw all existing legal and administrative proceedings against each other.

Judge Pittman canvassed each of the parties to ascertain “the voluntariness and the fact of everyone’s understanding the agreement.” The colloquy was interrupted when the petitioner indicated that she misunderstood the purported finality of the adoption arrangement. A discussion followed regarding whether the petitioner could seek to reopen the adoption in Probate Court if the respondents breached the agreement. Judge Pittman called a recess so the parties could clarify that the adoption of the child would become final after it was ordered by the Probate Court. Following the recess, Judge Pittman renewed her canvass of the parties regarding their understanding of all aspects of the agreement. Judge Pittman, satisfied that the parties understood the implications of the agreement, rendered judgment in accordance with it, and confirmed the respondents’ continued custody of the child. The following day, July 9, 1996, the respondents filed an application in Probate Court for stepparent adoption of the child.

On March 4, 1997, the respondents filed a motion in Superior Court, seeking to hold the petitioner in contempt for failing to comply with certain terms of the agreement. The respondents claimed that the petitioner had violated provisions of the agreement relating to custody and visitation, and that she had attempted to revoke her consent to the termination of her parental rights, also in breach of the agreement. With respect to the termination issue, the respondents sought an order from the court directing the petitioner to affirm her consent to the termination of her parental rights and enjoining her from contesting the termination proceedings.

On May 27, 1997, the petitioner filed a motion to dismiss the case for lack of subject matter jurisdiction. She claimed that, by rendering the 1996 judgment relating to the execution of termination documents, Judge Pittman, in effect, had sought to terminate her parental rights. Relying on Hao Thi Popp v. Lucas, 182 Conn. 545, 549-50, 438 A.2d 755 (1980), the petitioner asserted that the trial court, Pittman, J., lacked jurisdiction to render the 1996 judgment.

Judge Alander held a hearing on the motion to dismiss on June 9, 1997. At the hearing, the respondents withdrew that portion of their contempt motion that sought an order requiring the petitioner to consent to the termination of her parental rights. The respondents, however, pressed their motion insofar as it sought enforcement of the provisions of the agreement relating to custody and visitation. Judge Alander concluded that Judge Pittman, in rendering the 1996 judgment, had intended to finalize the termination of the petitioner’s parental rights, a matter over which the Superior Court, under the circumstances, lacked subject matter jurisdiction. Although it is undisputed that the custody and visitation issues were within the jurisdiction of the Superior Court, Judge Alander also declined to enforce those provisions of the agreement on the ground that they could not be severed from the provisions dealing with the termination of the petitioner’s parental rights. The custody and visitation provisions, Judge Alander stated, were “afterthought^]” to an agreement concerned primarily with termination and adoption. Consequently, Judge Alander denied the respondents’ motion for contempt and vacated the 1996 judgment in its entirety.

The respondents appealed to the Appellate Court from the judgment of the trial court, Alander, J., vacating the 1996 judgment. We transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book § 65-1, and General Statutes § 51-199 (c).

On appeal, the respondents and the child’s attorney claim, first, that the trial court, Pittman, J., had jurisdiction to render a judgment incorporating an executory agreement to terminate parental rights and to undertake adoption proceedings in the Probate Court. Accordingly, they ask this court to fully reinstate the 1996 judgment. Alternatively, the respondents claim that, even if the trial court, Pittman, J., did not have jurisdiction to render a judgment incorporating the parties’ agreement regarding the termination of the petitioner’s parental rights, the custody and visitation provisions of the agreement were severable from the termination provisions and, therefore, within the jurisdiction of the trial court, Pittman, J. As to those portions of the 1996 judgment, the respondents claim that General Statutes § 52-212a prevents the petitioner from opening or setting aside the 1996 judgment because more than four months have elapsed since it was rendered. Consequently, in the event that we affirm Judge Alander’s decision to vacate the portions of the agreement relating to the termination of parental rights, the respondents seek reversal of Judge Alander’s decision with respect to the those portions of the agreement dealing with custody and visitation.

The petitioner counters that Judge Alander properly vacated the 1996 judgment. Specifically, she asserts, and the respondents do not contest, that there are two, and only two, statutorily authorized vehicles for terminating parental rights, namely: (1) a petition to the Probate Court pursuant to General Statutes (Rev. to 1995) § 45a-715, as amended by Public Acts 1995, No. 95-349, § 4; and (2) a direct petition to the Superior Court on behalf of a child in the custody of the commissioner of children and families pursuant to General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3. See Hao Thi Popp v. Lucas, supra, 182 Conn. 550. She argues, further, that because an integral part of the 1996 judgment purported to effectuate a termination of parental rights, and because that termination was not effectuated pursuant to either one of the two statutorily authorized vehicles, the trial court, Pittman, J., lacked subject matter jurisdiction to effect such a termination.

We conclude that the 1996 judgment incorporating the parties’ agreement did not terminate the petitioner’s parental rights and, accordingly, the trial court, Pittman, J., did not lack subject matter jurisdiction to render the 1996 judgment. We therefore reverse the judgment of the trial court, Alander, J., vacating the 1996 judgment.

A determination regarding a trial court’s subject matter jurisdiction is a question of law. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 618, 674 A.2d 805 (1996); see also Practice Book § 60-5, formerly Practice Book § 4061.

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” (Citations omitted; internal quotation marks omitted.) Demar v. Open Space & Conservation Commission, 211 Conn. 416, 423-24, 559 A.2d 1103 (1989).

There is no dispute that the trial court, Pittman, J., had subject matter jurisdiction over the generic procedural vehicles that gave rise to the 1996 judgment. The causes of action before that court were presented in a writ of habeas corpus action and a declaratory judgment action. Both of these actions are within the statutorily defined jurisdiction of the Superior Court. See General Statutes §§ 46b-l (8) and 52-29 (a).

The petitioner claims, nevertheless, that the trial court, Pittman, J., lacked jurisdiction to approve an agreement that requires a surrogate mother to accede to termination of her parental rights in Probate Court, citing Hao Thi Popp v. Lucas, supra, 182 Conn. 545, in support of her position. The petitioner’s claim is predicated on her underlying contention that Judge Pittman, in rendering the 1996judgment, effectuated the termination of her parental rights. Because we disagree with the petitioner’s underlying contention, we reject her jurisdictional claim.

Hao Thi Popp v. Lucas, supra, 182 Conn. 545, is the leading case on the limits of Superior Court jurisdiction over the termination of parental rights. The Hao Thi Popp controversy arose out of a unique factual scenario that we observed was likely to occur “perhaps once in a generation”: the separation of children from their parents during a war. Id., 546. The plaintiff, a Vietnamese mother, gave up two of her children for adoption immediately before the northern Vietnamese army invaded Saigon, presumably in an effort to save them. Id., 547-48. She signed a document relinquishing her parental rights to a private adoption agency, which arranged for the defendant, an American, to adopt the two children. Id., 548. When the plaintiff eventually arrived in the United States, she began efforts to regain custody of her children. Id., 549. The plaintiff sought to abrogate the purported relinquishment document in the Connecticut courts. See id. The trial court found that the plaintiffs relinquishment of her parental rights in Vietnam was voluntary and irrevocable. Id. “The court then applied the [statutorily mandated] ‘best interests of the child’ test . . . and ruled that the children should remain with [the defendant].” (Citations omitted.) Id.

On appeal to this court, we determined that “[t]he relinquishment document signed by the plaintiff did not terminate the plaintiffs parental rights under Connecticut law. Even if the relinquishment were irrevocable under Vietnamese law, we would not accord comity to it.” Id., 550. We concluded, however, that the trial court’s ruling itself, that is, its finding that the plaintiffs relinquishment was irrevocable, terminated her parental rights. Id. We noted that, in Connecticut, the sole vehicles for terminating parental rights were by decree of the Probate Court or by order of the juvenile division of the Superior Court in a proceeding brought by the commissioner of children and youth services, now the commissioner of children and families. Id. Because neither procedure was followed in the Hao Thi Popp case, we concluded that the trial court lacked subject matter jurisdiction to terminate the plaintiffs parental rights. Id., 549.

By contrast, in this case, the 1996 judgment Judge Pittman rendered did not, by itself, alter the petitioner’s parental status. Although the petitioner had placed the issue of the validity of the surrogacy contract before the court in her declaratory judgment action filed on April 10, 1995, that issue, together with all the other pending issues, was subsumed in the agreement submitted to Judge Pittman by the parties. In the agreement, the petitioner promised to consent to the termination of her parental rights. The transcript of the July 8, 1996 hearing before Judge Pittman reveals the parties’ awareness of the fact that the actual termination of parental rights, a necessary precursor to adoption, was not effectuated immediately by the 1996 judgment, but, instead, would happen, if at all, sometime in the future. In canvassing the parties at the 1996 hearing, Judge Pittman confirmed only that the parties understood the agreement.

Judge Pittman did not purport to make a final determination regarding the termination of the petitioner’s parental rights and the adoption. Both of these matters remained to be resolved by the Probate Court. Accordingly, Judge Pittman did not make a finding regarding the best interests of the child because that determination was to be made by the Probate Court in connection with its resolution of the petition for the termination of parental rights. See General Statutes § 45a-717 (f) (l). Although, under the terms of the 1996 judgment, the petitioner has agreed to consent to the termination of her parental rights in Probate Court, that court must make an independent determination whether termination is in the best interests of the child. Furthermore, the child’s attorney will have an opportunity to express his or her view regarding whether termination is in the best interests of the child. Consequently, we know of no reason why the parties were precluded from agreeing to settle their claims in the maimer in which they did, nor are we aware of any reason why the court lacked authority to accept the parties’ agreement in settlement of their claims.

We conclude, therefore, that the 1996 judgment did not effect a termination of the petitioner’s parental rights. It merely approved an executory agreement between the parties. The fact that the agreement included a promise to consent to the termination of parental rights in the Probate Court did not deprive the trial court, Pittman, J., of subject matter jurisdiction.

For the foregoing reasons, the trial court, Pittman, J., had subject matter jurisdiction to render the 1996 judgment in accordance with the agreement. Consequently, we reverse the judgment of the trial court, Alander, J., vacating the 1996 judgment.

The judgment is reversed.

In this opinion the other justices concurred.

       Jane Roe also is a respondent in this action. Accordingly, the Roes hereinafter are referred to collectively as the respondents.

       The validity of this surrogacy contract or surrogacy contracts in general is not at issue in this appeal.

       The child’s older brother had been conceived by the same parties under a similar surrogacy contract and was adopted by Jane Roe in 1994.

       In Michaud v. Wawruck, 209 Conn. 407, 415-16, 551 A.2d 738 (1988), this court recognized a biological parent’s ability to terminate her parental rights while retaining contact with the child and the adoptive family through an “open adoption agreement,” provided that such an arrangement is determined to be in the best interests of the child.

       We note that when the parties presented the agreement to Judge Pittman, they had already completed the appropriate probate forms for termination of parental rights and stepparent adoption. Specifically, on July 5, 1996, the petitioner had executed a consent to termination of parental rights as part of the application for stepparent adoption and an affidavit of consent to termination of parental rights.

       The agreement also provided the petitioner visitation rights with the child’s older brother, who had been conceived by the same parties under a previously executed surrogacy contract. See footnote 3 of this opinion.

       The petitioner agreed, inter alia, to withdraw another action that she had already commenced against the respondents.

       The transcript reveals the following pertinent colloquy:
      “The Court: But, rather than continue the controversy through the court, this is an acceptable resolution to you?
      “[Petitioner]: Yes, for now.
      “The Court: Well, I need to know more than for now.
      “[Petitioner]: Until next year when it’s reviewed again.
      “The Court: Because, this appears to conclude and foreclose the possibility for requesting a review of the — what will be a formalized adoption for [the child] and a custodial arrangement, which would certainly appear not to be one that can be opened and redone. . . .”

       We hereinafter refer to this judgment as the 1996 judgment.

       The respondents have retained custody of the child since the child’s birth.

       Judge Alander also ordered, however, that the child remain in the custody of the respondents under the previous pendente lite orders; see footnote 10 of this opinion; and ordered the petitioner’s “visitation . . . suspended until further order of the court.”

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.”

       General Statutes (Rev. to 1995) § 45a-715 (a), as amended by Public Acts 1995, No. 95-349, § 4, provides: “Any of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor; (2) the guardian of the child; (3) the selectmen of any town having charge of any foundling child; (4) a duly authorized officer of any child care facility or child-placing agency or organization or any children’s home or similar institution approved by the commissioner of children and families; (5) a blood relative of the child, descended from a common ancestor not more than three generations removed from the child, if the parent or parents have abandoned or deserted the child; (6) the commissioner of children and families, provided the custodial parent of such minor child has consented to the termination of parental rights and the child has not been committed to the commissioner, and no application for commitment has been made; provided in any case hereunder where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join in the petition.”
      General Statutes (Rev. to 1995) § 45a-715 (e), as amended by Public Acts 1995, No. 95-349, § 4, provides in relevant part: “A petition under this section shall be filed in the court of probate for the district in which the petitioner or the child resides or, in the case of a minor who is under the guardianship of any child care facility or child-placing agency, in the court of probate for the district in which the main office or any local office of the agency is located."
      Subsections (a) and (e) of § 45a-715 were subsequently amended by Public Acts 1996, No. 96-130, § 5. Those amendments are not relevant to this appeal.

       General Statutes (Rev. to 1995) § 17a-112 (a) provides in relevant part: “In respect to any child committed to the commissioner of children and families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child . . . .” Public Acts 1996, No. 96-246, § 18, incorporated technical amendments to subsection (a) that are not relevant to this appeal.

       A petition for termination of parental rights filed in the Probate Court also may be transferred to the Superior Court. General Statutes (Rev. to 1995) § 45a-715 (g) provides in relevant part: “Before a hearing on the merits in any case in which a petition for termination of parental rights is contested in a court of probate, the court of probate shall, on the motion of any legal party except the petitioner or may on its own motion or that of the petitioner, under rules adopted by the judges of the supreme court, transfer the case to the superior court.”

       Having concluded that the trial court, Pittman, J., had subject matter jurisdiction with respect to the entire agreement, we do not address the severability of the custody and visitation provisions.

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law . . .

       General Statutes § 46b-l provides in relevant part: “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving ... (8) habeas corpus and other proceedings to determine the custody and visitation of children . . . .”

       General Statutes § 52-29 (a) provides: “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       At the hearing at which Judge Pittman approved the 1996 agreement, the following exchange ensued:
      “Ms. Welty [Respondents’ Counsel]: [It is] my understanding, Mr. Wallace, that the provisions with respect to the termination of parental rights and the adoption, anticipates [sic] that they will be filed today, in fact, and [the petitioner] has already signed all of the probate documents and a consent for a stepparent adoption, and that it’s the intent of the parties that the adoption be finalized as soon as possible.

      “Mr. Wallace [Petitioner’s Counsel]: That’s correct.” (Emphasis added.)

       General Statutes § 45a-717 (f) provides in relevant part: “[T]he court may approve a petition for termination of parental rights based on consent filed pursuant to this section terminating the parental rights and may appoint a guardian of the person of the child, or if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence that (1) the termination is in the best interest of the child and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child. . . .”

       We note that a stipulated judgment, which is “a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction”; Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); “is binding to the same degree as a judgment obtained through litigation, and . . . can be set aside only if obtained by fraud, accident or mistake.” (Internal quotation marks omitted.) Housing Authority v. Lamothe, 225 Conn. 757, 767, 627 A.2d 367 (1993).