Steven Atwood v. Town of Hamden (2010)

MEMORANDUM OF DECISION

In a single-count revised complaint, the plaintiff Steven Atwood (Atwood) sought to recover damages from the Town of Hamden (town) pursuant General Statutes § 13a-149, the municipal highway defect statute, for injuries he alleged he sustained when he fell in a pothole located in the roadway in front of 46 Robert Street, Hamden, Connecticut.   The town denied all the material allegations of Atwood's complaint.   Although this case was initially claimed to the jury, the parties waived the jury trial in writing and this case was tried to the court on November 9, 2010.   Steven Atwood and his wife Carol Mihalcik Atwood testified and certain documents and photographs were introduced into evidence.

I.

Based on the credible evidence, the court makes the following findings of fact:  On December 26, 2006, Atwood resided in a single-family residence at 46 Robert Street in Hamden, Connecticut along with his wife, their four children and Mrs. Atwood's parents, who owned the residence.   Robert Street is a two-way street located between Dixwell Avenue and Lakeview Avenue and # 46 is one house from the corner with Lakeview (ex.   C).  Vehicles park on both sides of Robert Street (ex. 2).   The front entrance to # 46 is located adjacent to the driveway (ex. 1).   Mrs. Atwood's father usually parked in the driveway and Atwood usually parked his vehicle in front of the house facing downhill towards Dixwell Avenue.   His general practice was to exit his vehicle, walk in the street along the driver's side up to the driveway and use the driveway to approach the front entrance to his home.   Similarly, he would return to his vehicle in the same fashion using the driveway to get to the street.   Atwood walked up and down the driveway several times a day in this fashion and has been doing so since he began to reside at 46 Robert Street in 2001.

On December 26, 2006, Atwood, his wife, their four children, a friend of Atwood's and her child left Hamden sometime in the morning and traveled to the Westfarms Mall where they spent the day shopping.   Atwood drove them, as his wife does not drive.   Upon leaving the Westfarms Mall, they made at least one stop ¹ returning to Robert Street with pizza they had picked up at the Hamden Plaza.   Upon their return, Atwood parked his Honda Odyssey van on the street adjacent to the lip of the driveway to allow the children to get out of the van without walking on the grass and getting wet.   He also got out of the van, took his two-year-old son out of the car seat that was immediately behind him and walked in front of the van and across the grassy area in front of # 46 to bring his son into the house (ex. 1).   He then left the house, followed by some of his children, to unload packages from the rear of the van.   This time, he went around towards the back of the van by walking to a narrow grassy area adjacent to the other side of the driveway as well as his neighbor's driveway (ex. 1).   When Atwood stepped off the curb from the grassy area, he felt that his foot didn't land where he expected it to and he began to twist and fall, landing on the roadway facing out towards the street near the rear of the van.   Atwood had not looked at the roadway surface before stepping off the curb and he did not look after he fell to determine whether anything in the roadway caused his fall.²  The next day, Atwood noticed that there was a pothole adjacent to the curb at the spot where he testified he fell.   He had not seen this pothole before then, did not know how long it had been there or did not know how it had formed.

After his fall, Atwood experienced pain and swelling in his right foot that he treated with ice and rest.   At approximately 10:00 p.m. on December 26, 2006, emergency medical technicians arrived at 46 Robert Street to check his injuries and evaluate him (ex.   E).  The medical records in evidence (ex. 8) indicate that several hours later, when his foot was still not better, he went to Milford Hospital, arriving shortly after midnight on December 27, 2006.   After x-ray imaging, he was diagnosed with an “Acute Jones fracture base right fifth metatarsal” and he was instructed to avoid weight bearing, wear a cast shoe and follow up with an orthopaedic physician.   On December 28, 2006, Atwood saw an orthopaedic specialist, Dr. Enzo Sella, who treated him conservatively until September 17, 2007 when he concluded that Atwood had reached maximum medical improvement and had sustained a 5% impairment.

On December 26, 2006, Atwood has been out of work due to a hernia repair operation that he underwent on December 7, 2006 and for which his employer authorized short-term disability on December 14, 2006 through February 12, 2007 (ex.   F).  Although he was cleared to return to work from the hernia operation as of January 2, 2007 (ex.   A), he remained out of work until February 12, 2007 as a result of his foot injury (ex. 8).

II.

This action is brought pursuant to General Statutes § 13a-149.  “Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiff's ability to recover when he or she is injured on a public highway.”  Prato v. New Haven, 246 Conn. 638, 647, 717 A.2d 1216 (1998).   In order to prevail in this action, Atwood had to establish the following four elements 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).

A.

The town maintains that the plaintiff has failed to establish the first element because the pothole did not make the roadway unsafe for travel, citing Frechette v. New Haven, 104 Conn. 83, 132 A. 467 (1926), for the proposition that roadways, as compared to sidewalks, must be free of defects that would make them unsafe for travel by vehicles, not pedestrians.   However, the proper standard is that the roadway must be free of defects which make it unsafe “in view of its proper use, and of those events which may naturally be expected to arise as incident to that use, by the traveling public.”  Upton v. Windham, 75 Conn. 288, 292, 53 A. 660 (1902) quoted with approval in Frechette v. New Haven, supra, 104 Conn. 88.   The law imposes a greater duty of care on municipalities to pedestrians to maintain their sidewalks, as opposed to their roadways, in a condition that is reasonably safe for walking, Nicefaro v. New Haven, 116 Conn.App. 610, 618, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009).   However, there may be circumstances, such as a defect that could make it reasonably unsafe for a person getting in or out of a parked motor vehicle, where a duty to keep the roadway free of such a defect may exist.   In this case, however, the pothole is located close to the curb in narrow area between two driveways where a vehicle cannot park (ex. 2).   Accordingly, it is more probable than not that the pothole is not a defect within the meaning of § 13a-149.

B.

Even if the pothole is a defect within the statute's ambit, “the mere existence of a defect does not establish liability under § 13a-149.”   Langton v. Westport, 38 Conn.App. 14, 19, 658 A.2d 602 (1995).   A plaintiff must demonstrate 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.”  (Internal quotation marks omitted.)”  Nicefaro v. New Haven, supra, 116 Conn.App. 616.  “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 ․ the reasonable duty to inspect and discover defects does not arise until there is an actual defect in the highway.”   Prato v. New Haven, supra, 246 Conn. 646.

In highway defect cases, generally the plaintiff must prove that the specifically alleged defect, here the pothole adjacent to the curb, existed before the accident occurred.  Linn v. Hartford, 135 Conn. 469, 471, 66 A.2d 115 (1949).   In certain circumstances, the law permits a fact finder to draw an inference “as to prior existence [of a defect] for a considerable time, which might arise from a condition necessarily more or less permanent or of slow development,” Burlant v. Hartford, 111 Conn. 36, 37, 149 A. 132 (1930), however there was no evidence presented to the court that this pothole, or indeed any pothole, is either permanent or slowly develops.   See Nicefaro v. New Haven, supra, 116 Conn.App. 619 (testimony from the city's deputy director of parks that as trees grow the sidewalk grates surrounding them rise “over a moderate period of time” sufficed for the court to draw an inference of the defect's prior existence).

There is no direct evidence that the pothole existed before December 27, 2006, the day after the fall, when Atwood observed it at the location where he believed he had stepped off the curb and therefore concluded that he had stepped into it, causing him to twist his ankle and fall.   Consequently, the plaintiff asks the court to draw an inference of its prior existence, based on the court's common knowledge and its review of certain photographs of the pothole, specifically exhibits 2 and 5, showing its size, some debris within it, a jagged edge and the pothole's location near the curb.   Examining this evidence, however, the court cannot determine whether the pothole formed overnight between December 26 and 27, 2006, or the day before, the week before or the month before December 26, 2006.   Without evidence from which the court can infer constructive notice of the pothole, the court cannot impose any duty upon the town which has no general obligation to inspect its streets “in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur.”  Ormsby v. Frankel, 255 Conn. 670, 677, 768 A.2d 441 (2001).³

C.

The final crucial element of a cause of action under § 13a-149 is that the defect must be the sole proximate cause of the plaintiff's injuries.  “Because a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence.   To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill.”  (Citations omitted;  internal quotation marks omitted.)  Nicefaro v. New Haven, supra, 116 Conn.App. 621.   The evidence establishes that Atwood did not exercise the requisite care because he failed to look at the roadway before he stepped off the curb.   Moreover, if the court credits his testimony that his vehicle was parked in such a way to block the nearby street light and his home porch light from illuminating the pothole in the roadway, then the court must conclude that his conduct in parking in such a manner, and not the pothole solely, contributed to his injury.

III.

The court concludes that the plaintiff has failed to establish, by a fair preponderance of the evidence, the requisite elements for a cause of action pursuant to General Statutes § 13a-149.   Accordingly, judgment shall enter for the defendant Town of Hamden on the complaint.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. Both Steven Atwood and Carol Atwood testified that after they left the Westfarms Mall they drove to the Festival of Lights in Hartford before returning to Hamden where they picked up pizza.   At his deposition, however, Atwood testified that they had returned directly to Hamden from the Westfarms Mall. Whether they went to the Festival of Lights has no bearing on the court's ultimate conclusion here and the court makes no factual finding in that regard..  FN1. Both Steven Atwood and Carol Atwood testified that after they left the Westfarms Mall they drove to the Festival of Lights in Hartford before returning to Hamden where they picked up pizza.   At his deposition, however, Atwood testified that they had returned directly to Hamden from the Westfarms Mall. Whether they went to the Festival of Lights has no bearing on the court's ultimate conclusion here and the court makes no factual finding in that regard.

FN2. There is some inconsistency in the evidence regarding the time of day when Atwood fell, specifically whether he fell around the time of sunset or later, but the evidence established that there was both a street light nearby and a front door light at # 46 which, more probably than not, would both have been illuminated at the time he fell.   Atwood testified that he could see in front of him, did not have trouble seeing his friend's vehicle which was parked across the street from # 46 and could have seen the roadway if he had looked.   It is also more probable than not that Atwood's vehicle was parked in a manner to block the full illumination from the two light sources..  FN2. There is some inconsistency in the evidence regarding the time of day when Atwood fell, specifically whether he fell around the time of sunset or later, but the evidence established that there was both a street light nearby and a front door light at # 46 which, more probably than not, would both have been illuminated at the time he fell.   Atwood testified that he could see in front of him, did not have trouble seeing his friend's vehicle which was parked across the street from # 46 and could have seen the roadway if he had looked.   It is also more probable than not that Atwood's vehicle was parked in a manner to block the full illumination from the two light sources.

FN3. Even if the evidence sufficed for the court to conclude the pothole had existed for a sufficient period of time to establish constructive notice, the plaintiff failed to offer evidence to establish that the town would have discovered the pothole but did not because it failed to have a program of reasonable inspection of all its streets in place or negligently conducted an inspection program of all its streets.   It has long been established that the duty of a municipality is only to exercise reasonable care to keep its highways reasonably safe for intended travel.   See, e.g., Smith v. Milford, 89 Conn. 24, 92 A. 675 (1914);  Upton v. Windham, 75 Conn. 288, 53 A. 660 (1902)..  FN3. Even if the evidence sufficed for the court to conclude the pothole had existed for a sufficient period of time to establish constructive notice, the plaintiff failed to offer evidence to establish that the town would have discovered the pothole but did not because it failed to have a program of reasonable inspection of all its streets in place or negligently conducted an inspection program of all its streets.   It has long been established that the duty of a municipality is only to exercise reasonable care to keep its highways reasonably safe for intended travel.   See, e.g., Smith v. Milford, 89 Conn. 24, 92 A. 675 (1914);  Upton v. Windham, 75 Conn. 288, 53 A. 660 (1902).

Lager, Linda K., J.