Gilberto Carrion v. City of Hartford (2011)

MEMORANDUM OF DECISION MOTION TO STRIKE

In a one-count complaint against the defendant, City of Hartford, the plaintiff, Gilberto Carrion, alleges that he sustained injuries when, on January 11, 2009, at approximately 2:14 p.m. he was walking along the street near 21 Bartholomew Street in Hartford, and fell as a result of an uncovered manhole.   The plaintiff brings this action pursuant to General Statutes § 13a–149.¹  Pending before the court is the defendant's motion to strike to which the plaintiff has objected.   The matter was heard at short calendar on September 12, 2011.

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․” Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252.

The defendant argues that because the plaintiff failed to provide the defendant with notice of the time of day that the alleged injury occurred, and instead listed only the date, the plaintiff has not adhered to the applicable notice requirements, and his complaint should be stricken.   In reply, the plaintiff argues that “[w]hile the notice does not include a temporal measurement in the form of a.m. (ante meridiem) or p.m. (post meridiem), the notice does include a calendar date thereby allowing the Defendant to investigate the claim which is the general purpose underlying the statute.”

Our Supreme Court has held that “[a]s a condition precedent to maintaining an action under § 13a–149, a plaintiff must provide a municipality with notice that meets the statutory requirements ․ The statute requires that the notice contain the following five essential elements:  (1) written notice of the injury;  (2) a general description of that injury;  (3) the cause;  (4) the time;  and (5) the place thereof ․ A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality ․

“In determining whether the notice is sufficient, we must look to the purpose of the statute ․ The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim.   Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests ․ [T]he statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims.”  (Citations omitted.)  Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003).

Failure to include a specific time of day with a date, when providing a defendant with notice pursuant to the defective highway statute has been held not to be a fatal defect to that plaintiff's defective highway claim.   See Lily v. Woodstock, 59 Conn. 219, 22 A.40 (1890) and Taufik v. City of West Haven, Superior Court, judicial district of New Haven, Docket No. CV 116018454 (October 7, 2011, Alexander, J.).   The defendant supplies no authority to the contrary.   This result is in accord with the purpose of the notice requirement as described by the court in Salemme v. Seymour, supra, 262 Conn. 787.

CONCLUSION

Accordingly, the defendant's motion to strike is hereby denied.

Peck, J.

FOOTNOTES

FN1. General Statutes § 13a–149 provides in relevant part:  “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 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 ․.  FN1. General Statutes § 13a–149 provides in relevant part:  “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 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 ․

Peck, A. Susan, J.