Michelle Gall v. Town of Greenwich (2011)

MEMORANDUM OF DECISION

This is an action brought by the plaintiff Michelle Gall, pursuant to the terms of Conn. Gen.Stat. § 13a–149, which is the Connecticut Statute permitting a suit against a municipality based on a defective road.   It provides that 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.

The court finds the following facts.   The plaintiff a married woman 58 years old at the time of the incident herein, lived at 74 Hamilton Avenue in a six-family apartment building in Greenwich.   She shared an apartment with her husband and daughter and had resided there since 1998.

On the morning of December 7, 2006, a weekday, Mrs. Gall was attempting to cross Hamilton Avenue in front her home, intending to go to Livingston Street, a side street on which she had parked her car.¹

There existed, according to the plaintiff's testimony, since January or February 2006, a large pothole and cracks in Hamilton Avenue on the plaintiff's side of the street and slightly to her right as she exited her building.   Thus she was aware of their presence.   At the same time on that morning, there was a TAG bus parked directly in front of her building.   The bus was waiting for a ninety-plus year old woman aided by her daughter, approaching the bus to board.   They lived in the plaintiff's building and were her neighbors.

This was the first time the plaintiff had encountered the bus in crossing Hamilton Avenue.²  The traffic was heavy on Hamilton Avenue in both directions and she felt required to peer around the bus to see it.   The pothole was within a car length of the parked bus.   At the time she fell she was looking around the bus to see if there were oncoming cars.   At trial, the following question was asked by counsel for the plaintiff on direct examination:

Q. At the time that you fell were you in fact looking around the bus to see if there was any oncoming traffic?

A. Yes.

Transcript, p. 13

“To bring a successful claim under Sec. 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” ․ (Citations omitted;  internal quotation marks omitted.)   DeMatteo v. New Haven, 90 Conn.App. 305, 308, 876 A.2d 1246 (2005).

There is no dispute that the pothole in question was a defect in the highway.   In late October or November 2006, before the date of the incident, the plaintiff told a person who was vacuuming leaves on Hamilton Avenue and seemingly working from an orange Town of Greenwich truck, that the soon-to-be-offending pothole and the cracks needed repair.   There is no evidence, however, that the leaf worker ever told anyone in the Greenwich Department responsible for correcting such defects this information, or even whether the said worker had any duty or responsibility to report it to a higher authority.   Thus, there is insufficient evidence that the defendant had actual knowledge of the defect.

As to constructive knowledge, “our Supreme Court [has] set out the general rule defining constructive notice in reference to the municipal defective highway statute.   The court stated 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.   A municipality is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose.”  (Citations omitted;  internal quotation marks omitted.)  DeMatteo v. New Haven, supra, 90 Conn.App. 308.

There was no evidence presented concerning whether the defect, the pothole, would have been discovered had the defendant exercised reasonable supervision over the streets as a whole.   There is no evidence, for example, as to the policies or procedures of the Town regarding inspections, how often they are made, how many miles of roads need to be inspected, etc. for it to be determined if the defendant exercised reasonable supervision over the streets as a whole.   Thus the court cannot find that the defendant had constructive knowledge of the pothole on Hamilton Avenue on December 7, 2006.

The most serious impediment to the plaintiff's recovery in this case, however, is the requirement that she prove freedom from contributory negligence, i.e., that the defect was the sole proximate cause of her injury.  Rodriguez v. New Haven, 183 Conn. 473, 476, 439 A.2d 421 (1981).

The plaintiff had full knowledge of the pothole for at least eleven or twelve months, since January or February 2006.   When going to work in the mornings, she crossed Hamilton Avenue in the same general area on a regular basis to get to her car parked across the street on Livingston Street.   On the morning in question there was a TAG bus parked directly in front of her apartment building.   The pothole was to the right of the bus and less than a car length away.   Fearful of oncoming traffic, she peered around the bus and then she moved forward, and stepped into the pothole suffering injury.  “The question remains whether once armed with knowledge of a defective condition, the plaintiff exercised the degree of care proportionate to the existing known danger.   Knowledge of a dangerous condition generally requires greater care to meet the standard of reasonable care.   Pedestrians are required to act upon what they know and if failure so to act when there is nothing to prevent or excuse them from doing so is negligence which will prevent their recovery.”   Rodriguez v. New Haven, supra, 183 Conn. 479.   Whether the plaintiff was in the exercise of due care is a question to be answered by the trier of fact.   Id. 480.

The plaintiff here had safer, more prudent options for her walk to her car on that morning and at that time.   First, she might have waited a few moments until the TAG bus left.   There was no evidence that it was waiting for passengers other than the elderly neighbor with her daughter, who were about to board.   Also the plaintiff might well have walked up the sidewalk further to her right to a point where the stopped bus would have posed less of an obstruction to her view of the oncoming cars, and also would have provided her with a crossing route further from the pothole.

The court is not satisfied that the plaintiff's own contributory negligence was not a proximate cause of her injuries and therefore liability does not attach to the defendant.  Rodriguez v. New Haven, supra, 183 Conn. 476.

Accordingly, judgment may enter in favor of the defendant, the Town of Greenwich.

So ordered.

THE COURT

D'ANDREA, JTR

FOOTNOTES

FN1. The plaintiff allowed her daughter to use their building's assigned parking space so that the plaintiff frequently parked her car on Livingston Street, crossing Hamilton Avenue to get to it..  FN1. The plaintiff allowed her daughter to use their building's assigned parking space so that the plaintiff frequently parked her car on Livingston Street, crossing Hamilton Avenue to get to it.

FN2. The plaintiff was going to work at later than her usual time of leaving her home..  FN2. The plaintiff was going to work at later than her usual time of leaving her home.

D'Andrea, Frank H., J.T.R.