Jaydean Blassingame v. Hartford Housing Authority (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 111)

FACTS

The plaintiff, Jaydean Blassingame, filed a single-count complaint on March 30, 2011, against the defendant, Hartford Housing Authority, alleging negligence.   In her complaint, the plaintiff alleges the following relevant facts.   On or about April 22, 2009, at approximately 9:30 p.m., the plaintiff parked her vehicle near her residence, located at 113 Nelton Court.   The defendant “controlled and maintained” that location.   The plaintiff, upon exiting her car, slipped and fell due to defects in the walkway leading to her apartment.   The plaintiff suffered injuries that were a result of the defendant's failure to use reasonable care to keep the area free from such a dangerous condition.   On May 14, 2009, the plaintiff sent notice to the defendant describing the time and place of the plaintiff's injury and that she intended to seek damages.   On June 24, 2011, the defendant filed an answer and special defenses.   The defendant's third special defense alleged that the plaintiff failed to comply with the notice requirement of General Statutes § 8–67.

On October 13, 2011, the defendant filed a motion for summary judgment accompanied by a supporting memorandum of law.   In support of the motion, the defendant submits the following evidence:  (1) the May 14, 2009, notice letter the plaintiff sent to the defendant;  (2) the affidavit of Roy Boling, the deputy executive director of finance and planning at the Hartford Housing Authority;  and (3) selections from the legislative history of General Statutes § 8–67.

On October 17, 2011, the plaintiff filed a memorandum in opposition to the motion for summary judgment.   In support of her opposition, the plaintiff submits a copy of the May 14, 2009, notice letter sent to the defendant.   The matter was heard at short calendar on October 31, 2011, at which time the plaintiff represented to the court that he had received communications regarding the pending matter from the defendant.   The plaintiff presented that evidence to the judge but did not file the evidence with the court.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

“Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”   (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant argues that the plaintiff failed to give proper notice to the defendant under General Statutes § 8–67, because the notice was addressed to the Hartford Housing Authority and not the chairman or secretary of the authority, and, therefore, the defendant is entitled to judgment as a matter of law.   The plaintiff counters that notice to the defendant was sufficient, the defendant had actual notice of the claim, and that the plaintiff's claim should not be defeated by mere technicalities.

General Statutes § 8–67 provides:  “Any person injured in person or property within the boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action ․ to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or secretary of the authority within six months after the cause of action therefore arose.”   (Emphasis added.)   The defendant's motion for summary judgment assails only to whom the plaintiff sent notice and does not challenge the content of the notice.

“[C]ompliance with the notice provision of § 8–67 is not essential to a determination of liability, but concerns only whether the plaintiff has taken the proper steps to warrant recovery.   As such, the notice provision of § 8–67 operates as a condition subsequent to liability rather than a condition precedent ․ A notice provision is a condition precedent when the statute containing the notice provision creates a new cause of action unrecognized by the common law ․ Section 8–67 did not create liability where none existed ․ Rather, it provides procedural limitations on the ability to recover on a cause of action already available ․ Indeed, [a] written notice is not a condition precedent to the bringing of the action but is a limitation creating a condition subsequent ․ Compliance with the statute is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery.”   (Citations omitted;  internal quotation marks omitted.)  Fields v. Housing Authority, 63 Conn.App. 617, 621–22, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001).  “The time limitations and notice provisions act to limit ability to recover, as do typical statutes of limitations, but do not become essential elements of a plaintiff's cause of action against a housing authority for negligence.”  White v. Edmonds, 38 Conn.App. 175, 184, 659 A.2d 748 (1995).

In Fields v. Housing Authority, the court examined the legislative history of General Statutes § 8–67.   When construing a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ The legislative history of § 8–67 is instructive.   The notice statute originally was engaged to bring notice obligations for housing authorities in line with those for municipalities generally ․ The statute then was repealed in 1959 ․ It is apparent from the discussions surrounding the repeal of the statute that numerous claimants had failed to comply with the statute, resulting in the claimants inundating the legislature with requests for validating acts.

“The statute was reenacted, however, in 1983, with the intent of reestablishing a statutory limitation period and requiring written notice of the claimant's intent to bring an action and of the time and place of the injuries.   The notice was to be provided to the chairman or secretary of the housing authority because, in the absence of notice, housing authorities were frequently unaware of claims until months or years after the injuries had occurred.”

“The legislature is presumed to be aware of the judicial construction of relevant legislation ․

“Thus, the legislature was aware from the prior judicial decisions that persons could be injured on housing authority property and be denied recovery for failing to provide the statutory notice.”  (Citations omitted;  internal quotation marks omitted.)  Fields v. Housing Authority, supra, 63 Conn.App. 622–24.

The May 14, 2009 notice letter sent by the plaintiff is addressed to the Hartford Housing Authority and contains the salutation “Dear Sir/Madam.”   The plaintiff asserts that the notice was sufficient because the defendant had actual knowledge of the plaintiff's injury.   While there is no direct appellate authority addressing whether a notice letter addressed to the housing authority with a generic salutation complies with the statute, the Superior Court has dealt with it on at least one occasion.

In Smith v. Bridgeport Housing Authority, Superior Court, judicial district of Bridgeport, Docket No. CV 08 5015100 (February 6, 2009, Arnold, J.) [47 Conn. L. Rptr. 157], the court granted the defendant's motion for summary judgment on the sole ground that the plaintiff failed to send the notice to the chairman or secretary of the housing authority.   In that case, the plaintiff addressed the notice letter to the Bridgeport Housing Authority.  Id. The court stated:  “The fact that plaintiff's claim was acknowledged by the defendant's liability insurance carrier ․ and that the defendant has actual knowledge, does not meet the statutory requirement regarding notice contained in § 8–67 ․ The notice was not given to any of the persons designated to receive notice by the clear and unambiguous language of § 8–67.  ‘An insinuation that the proper individual most likely received the notice from another town employee is not sufficient to satisfy the statutory requirement.’  Bellman v. West Hartford, 96 Conn.App. 387, 398, 900 A.2d 82 (2006).”  Id.

The Superior Court dealt with a similar issue in Fontanella v. Stafford Housing Authority, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 06 5000168 (August 29, 2007, Sferrazza, J.), rev'd, 111 Conn.App. 490, 959 A.2d 1088 (2008).   In that case, the trial court held that a notice letter addressed to the executive director of the housing authority failed to comply with the statutory requirements of § 8–67, because he was neither the chairman or secretary.  Id. As a result, the court granted the defendant's motion for summary judgment.  Id. On appeal, the Appellate Court found that the individual the letter was addressed to identified himself as the executive director and another individual submitted an affidavit identifying herself as the secretary of the authority.  Fontanella v. Stafford Housing Authority, 111 Conn.App. 490, 493, 959 A.2d 1088 (2008).   The court held:  “Because [General Statutes] § 8–41(a) indicates that the secretary and executive director shall be the same individual, the conflicting accounts result in a genuine issue of material fact regarding the identity of the statutory secretary.   As a result, summary judgment was inappropriate in the present case.”  Id.

In the present action, the plaintiff failed to meet the statutory requirements of § 8–67.   Unlike the plaintiff in Fontanella v. Stafford Housing Authority, the plaintiff, in the present action, addressed the letter to the Hartford Housing Authority and did not identify any specific individual in the salutation.   Thus, there is no genuine issue of material fact as to whether the individual it was addressed to was the secretary or chairman.

The plain meaning of the statute is clear that the notice letter must be addressed to the chairman or secretary of the authority.   The plaintiff failed to comply with that requirement.   The affidavit submitted by the defendant states that the letter the defendant received was addressed to the Hartford Housing Authority and not the chairman of the authority.   It adds that this is the only notice letter the defendant received from the plaintiff regarding this action.   The plaintiff failed to counter this with any evidence.   In fact, the plaintiff's evidence demonstrates only that the letter was addressed to the Hartford Housing Authority and did not contain a salutation to a specific individual.   In Fields v. Housing Authority, the court responded to the same argument and stated:  “The plaintiff's position would make the notice provision meaningless if somehow an employee of the insurance carrier is put on notice of a suit.   We hold that just as a municipal employee cannot waive notice on behalf of the municipality ․ neither can an employee of a housing authority or its insurance carrier waive the notification to the housing authority that is required by § 8–67.”  Fields v. Housing Authority, supra, 63 Conn.App. 623–24.   The notice requirement cannot be waived by the mere fact that the defendant has actual notice of the suit.   As a result, the defendant has raised at least one legally sufficient defense that entitles it to judgment as a matter of law.   Therefore, the court must grant the defendant's motion for summary judgment.

For the foregoing reasons, the court grants the defendant's motion for summary judgment.

Woods, J.

Woods, Glenn A., J.