Michael D. Neal v. City of Hartford (2010)

MEMORANDUM OF DECISION

Introduction

This case involves a claim by the plaintiff, Michael D. Neal, for damages for injuries he suffered when he tripped and fell on a sidewalk in Hartford.   The plaintiff brings his claim pursuant to General Statutes § 13a-149.

Trial on this matter was held before the court on November 23, 2010.   At that time the court heard testimony from James Paggioli, an employee of the City of Hartford public works' department, and the plaintiff.   The court also received numerous exhibits.

Admission from the Pleadings

The City of Hartford, in its answer, has admitted the allegation of the Amended Complaint that:  “At all relevant times herein mentioned the Defendant, City of Hartford, owned, maintained, controlled and was in possession of a sidewalk located at or near 106 Gillett Street, near Asylum Avenue in Hartford, Connecticut.”

Findings of Fact

Based upon a preponderance of the evidence the court finds the following additional facts:  The sidewalk in front of 106 Gillett Street in Hartford is a “city accepted” sidewalk which means that the city, and not the abutting landowner, is responsible for its inspection, repair, and maintenance, other than snow and ice removal.   On May 26, 2006, at approximately 2:30 p.m. the plaintiff was walking north on Gillett Street when he suddenly stumbled and fell on the sidewalk in front of 106 Gillett Street.   It was a sunny, clear day.   Pictures of the area where the plaintiff fell taken a few weeks thereafter indicate large cracks in the sidewalk, as well as areas where sizeable pieces of the sidewalk are missing.   The evidence did not establish how long this condition had existed prior to the plaintiff's fall.   The city had no records of complaints regarding this area of the sidewalk nor of any inspections indicating the condition of the walk.   The plaintiff did not see the depression in the sidewalk caused by the missing pieces until he fell.

Discussion

Recently, in Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 157-58 (2010), the Appellate Court had occasion to discuss the parameters of General Statutes § 13a-149.   The Court stated:  “Historically ․ 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 ․ The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed ․ The statutory provisions of § 13a-149 have two components that must be met in order to trigger its application:  (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair ․ Ownership of the property does not establish the applicability of § 13a-149 ․ Whether a highway is defective may involve issues of fact, but whether the facts alleged would if true, amount to a highway defect according to the statute is a question of law ․ [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 ․” (Citations and internal quotation marks omitted.)  “The word road or highway as used in the highway defect statute has usually been construed to include sidewalks ․ The term sidewalk is meant to apply to those areas that the public uses for travel ․ Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.”  (Citations and internal quotation marks omitted.)  Id., 160-1.

“To recover under § 13a-149, a 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.”  Nicefaro v. City of New Haven, 116 Conn.App. 610, 613, cert. denied, 293 Conn. 937 (2009).

The city first argues that the sidewalk was not defective.   It cites Hartung v. City of Meriden, 8 Conn.Sup. 54 (1940).   There the court held that a condition of a sidewalk in which there was less than an inch difference in the elevation between the flagstone sidewalk and the newer concrete walk was not a defect.   Here the pictures clearly show that the sidewalk in front of 106 Gillett Street was defective in that there were large cracks in the sidewalk as well as areas where sizeable pieces of the sidewalk were missing.

The city also argues that it did not have actual or constructive notice of the defect.   The court agrees.   There was no evidence that the city had actual notice of the sidewalk's condition.   In addition, the evidence did not establish how long the sidewalk had been in this condition.  “[T]o 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.”  (Citation and internal quotation marks omitted.)  Nicefaro v. City of New Haven, 116 Conn.App. 610, 614, cert. denied, 293 Conn. 937 (2009).   Paggioli described the defect as an “impact” defect, which the court understood to mean one caused by some large, heavy object impacting and cracking the sidewalk, rather than a defect resulting from ordinary wear and tear or deterioration.   Although the pieces missing from the sidewalk were not visible elsewhere in the pictures, implying that they had been cleared from the area, there was no evidence as to when or by whom this was done.

Lastly, the court agrees with the city that the defect was not the sole proximate cause of the plaintiff's injuries.   The defect is open and obvious such that the plaintiff should have been able to avoid it if he had been watchful of his surroundings and used due care.   It was a bright and sunny day, by the plaintiff's own testimony, and there was no evidence that there was anything obstructing his view of the sidewalk.   Although the plaintiff claims that the depression in the sidewalk that caused his fall was not visible from a distance, the defective condition was, that is, the cracks and absence of pieces of the sidewalk, and could have been seen if the plaintiff had been exercising due care.  “He was bound ․ to make a reasonable use of his senses to ascertain the conditions of the ground and the area over which he was passing.”  Chazen v. City of New Britain, 148 Conn. 349, 354 (1961).   Therefore the court cannot find that the defect in the sidewalk was the sole proximate cause of the plaintiff's injuries.

Conclusion

Judgment shall enter for the defendant, City of Hartford.

Jane S. Scholl, J.

Scholl, Jane S., J.