Betty Cushman v. II (2010)

MEMORANDUM OF DECISION

The plaintiff, Betty Cushman, seeks money damages for injuries she sustained when she fell on a city sidewalk.   The action was originally brought against Stephen Korta II, the Commissioner of Transportation for the State of Connecticut, and the city of Bridgeport.   On March 6, 2009, the plaintiff withdrew the action as to Korta.

As to the remaining defendant, the city of Bridgeport, the plaintiff's amended complaint alleges the following.   The city of Bridgeport is charged with the proper care and maintenance of its sidewalks, including those on Fairfield Avenue.   On March 17, 2006, at about 4:15 PM, the plaintiff was a pedestrian on the south side of Fairfield Avenue in Bridgeport in the vicinity of the intersection of Jetland and Fairfield Avenue.   As she walked on the sidewalk at a point twenty feet east of the street sign for Jetland and Fairfield Avenue, which is thirty-two feet east of that intersection, she stepped on an area of the sidewalk where a panel of cement sidewalk was raised higher than the adjacent sidewalk panels and brick surface causing her to fall and land on her face and left side and sustain injuries.   The plaintiff claims that her injuries were caused by the city in that it should have known of the defective condition and neglected to remedy it.   The plaintiff brings this action pursuant to General Statutes § 13a-149 and states that on June 9, 2006, she gave written notice of her intention to commence this action to the Bridgeport city clerk.

The case was tried to the court, which finds the following facts.   The plaintiff is sixty-seven years old, holds a masters of business administration, and is employed by the U.S. Postal Service as a corporate trainer.   She is five feet, two inches tall.   Although she professed not to know her weight, the evidence is that she was 190 pounds in May 2006,¹ and that her weight has not changed since.   On Friday March 17, 2006, St. Patrick's Day, she worked until 3:30 P.M. in Stamford.   She went to the Stamford railroad station where she met her husband who drove them to Bridgeport.   The couple was planning to have dinner at the Black Rock Castle Restaurant on Fairfield Avenue in Bridgeport.   Sometime between 4:40 P.M. and 4:45 P.M., the plaintiff's husband parked the car opposite the restaurant.   The plaintiff alighted from the car, walked over to a cross walk and crossed the street alone to the side of the street on which the restaurant was situated.   There was a sidewalk for pedestrians.   The plaintiff had to walk “a bit” to the restaurant.   It was light out and the weather was clear.   It was the first time the plaintiff had been to this area of Fairfield Avenue.   As the plaintiff proceeded on the sidewalk, there were pedestrians standing around.   The plaintiff walked looking straight ahead;  her view of the sidewalk and her path were unobstructed.   The plaintiff was wearing her contact lenses and was carrying only her purse.   As she reached a section of the sidewalk, her shoe hit a raised slab of sidewalk causing her to fall and sustain injuries.²  There were no warnings to alert pedestrians of a sudden elevation in the sidewalk.

General Statutes § 13a-149 provides:  “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.   No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.   If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.   No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”   In Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949), the Supreme Court held that the word “road,” as used in the statute, included a sidewalk.

“To bring a successful claim 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.”  (Internal quotation marks omitted.)  DeMatteo v. New Haven, 90 Conn.App. 305, 308, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).

The first element of the plaintiff's § 13a-149 action is that the highway was defective as claimed.  “Such a defect has been defined as follows:  Any 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, would generally constitute a defect in the highway.”  (Internal quotation marks omitted.)  Chazen v. New Britain, 148 Conn. 349, 352, 170 A.2d 891 (1961).   Whether there existed a defect is a question of fact for the trier.   See Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972).   The plaintiff alleges that the sidewalk was defective because “a panel of cement sidewalk was raised higher than the adjacent sidewalk panels and brick surface causing her to fall ․” The court is satisfied that the plaintiff proved that the sidewalk was defective given the observable difference in the elevations of the sidewalk panels.   See Dziurzynski v. New Haven, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 95 0248184 (January 24, 1996, Dorsey, S.T.R.) (difference in elevation of concrete panels at a joint amounting to one and one-quarter inches held to be a defect under § 13a-149).

The second element is 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 the defect.   The third element is 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.   The plaintiff is not required to demonstrate that the city had actual notice of the defect.   The general rule is that to charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.   The test is not would the defect have been discovered had the particular portion of the street in question been examined, but would it have been discovered had the municipality exercised reasonable supervision over its streets as a whole.   The nature of the defect is an important consideration in determining whether a municipality is chargeable with constructive notice of it.”  (Citations omitted;  internal quotation marks omitted.)  Tirendi v. Waterbury, 128 Conn. 464, 468, 23 A.2d 919 (1942).   Both the nature of the defect and its appearance in photographs in evidence persuade the court that it had existed for a sufficient length of time and was of such a dangerous character that the defendant, by the exercise of reasonable care, could and should have discovered and remedied it.   See Leverone v. New London, 118 Conn. 463, 466-67, 173 A. 108 (1934).   Therefore, the plaintiff proved the second and third elements of her claim.   The plaintiff's case founders on the fourth element, “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.”  (Internal quotation marks omitted.)  DeMatteo v. New Haven, supra, 90 Conn.App. 308.   “The general definition of what constitutes contributory negligence is this:  It is the doing, or the omitting to do, that which under the circumstances a reasonable man would not have done, or would not have omitted to do, to avoid any injury resulting to himself from the negligence of the defendant.”   Hubbard v. N.Y., N.H. & H.R. Co., 72 Conn. 24, 27, 43 A. 550 (1899).   The plaintiff, in walking along the sidewalk, was not bound to keep her eyes continually upon it, but was required to exercise such watchfulness as persons of ordinary prudence would observe.   See Lawson v. Waterbury, 115 Conn. 716, 718, 161 A. 667 (1932).   The court finds that the plaintiff did not prove that she did so.   The differential in elevations between sidewalk panels was, or should have been, visible to the plaintiff given the weather conditions on that day.   The court does not credit that, on approaching the defect as the plaintiff did, the difference in elevations was as imperceptible as the plaintiff claimed.

Were this a common-law negligence action, the rule of comparative negligence would apply and the plaintiff's damages would be reduced only by her percentage of comparative negligence, unless that negligence was found to be the predominant cause of her injuries.   However, this is not a common-law negligence action.  “It is settled law in this state that the liability of [a town] under § 13a-149 is purely for breach of a statutory duty and does not arise from negligence.”  Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981).   Such liability represents a penalty for the town's failure to perform adequately its statutory duty to repair its roads, and it is solely the town's failure in that regard that renders it liable.   See White v. Burns, 213 Conn. 307, 315-16, 567 A.2d 1195 (1990).   Therefore, comparative negligence “does not apply to actions for personal injuries based on General Statutes § 13a-149.”  Lukas v. New Haven, supra, 184 Conn. 212.

“The problem for the plaintiff is that under § 13a-149 the plaintiff must show sole proximate cause, and this she cannot do under the circumstances.   The accident occurred on a ․ bright, sunny day.   There was no obstruction of the elevation in the sidewalk complained of.   It was an open and obvious danger.”   Coogan v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 04 5000190 (May 25, 2006, Blue, J.).   Here, as in such cases as Casertano v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0282321 (August 30, 2005, Weise, J.), “the plaintiff failed to exercise reasonable care by not observing the defect and taking appropriate action to avoid it.”   See also Violette v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 08 5021528 (January 7, 2010, Hale, J.T.R.) (judgment entered for defendants because plaintiff's failure to observe cracks in the crosswalk constituted negligence).

For this reason, judgment shall enter for the defendant.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

FN1. Plaintiff's Exhibit F..  FN1. Plaintiff's Exhibit F.

FN2. Three photographs of the elevated sidewalk, exhibits A, B and C, were admitted into evidence.   Of these, exhibit B appears to be taken while the photographer was standing over the elevation.   Exhibits A and C appear to be taken on the approach to the elevation, that is, taken from the vantage point of someone walking toward the elevation, as the plaintiff was.   In exhibit A, the most extreme portion of the elevation is circled in blue ink.   The plaintiff testified at trial that she fell to the right of this circle..  FN2. Three photographs of the elevated sidewalk, exhibits A, B and C, were admitted into evidence.   Of these, exhibit B appears to be taken while the photographer was standing over the elevation.   Exhibits A and C appear to be taken on the approach to the elevation, that is, taken from the vantage point of someone walking toward the elevation, as the plaintiff was.   In exhibit A, the most extreme portion of the elevation is circled in blue ink.   The plaintiff testified at trial that she fell to the right of this circle.

Levin, Bruce L., J.