Iris M. Rivera v. City of Hartford et al. (2012)

MEMORANDUM OF DECISION

I

The plaintiff, Iris Rivera, seeks to recover against the City of Hartford ¹ (city) pursuant to General Statutes § 13a–149 for injuries she sustained after she tripped and fell on the asphalt curbway ² of a city sidewalk in front of 72 Vine Street in Hartford.

In her complaint, the plaintiff alleges the following.   On June 6, 2009, at approximately one o'clock in the afternoon, the plaintiff tripped and fell while exercising due care as she walked from the sidewalk toward the street and onto the curbway.   The plaintiff alleges that as a result of her fall, she sustained severe, painful and permanent injuries.   The city owned, controlled and was in possession of the curbway, and was responsible for maintaining the curbway in proper and safe condition.   The plaintiff's injuries were proximately caused by the city's negligence, carelessness and maintenance of defective roadway in that, inter alia, the city failed to maintain the curbway in a safe and proper condition, maintained the curbway in such a manner that the asphalt became cracked, uneven and contained a depression and failed to repair the curbway.   Pursuant to General Statutes § 13a–149,³ the city is liable to the plaintiff for her injuries and losses.   The city filed an answer in which it admits the filing of proper notice by the plaintiff, as required under § 13a–149, but denies allegations of negligence as set forth in the complaint.

After a trial held before the court on November 22, 2011, the court finds the following facts.   The plaintiff lived with her sister at 72 Vine Street for three to four months prior to the incident.   At approximately one o'clock on the afternoon on the day of the incident, the plaintiff was walking down the front walkway leading from 72 Vine Street toward the street.   The depression in the curbway was not visible to the plaintiff as she walked toward the street, although the depression was visible to her once she stepped onto the sideway adjacent to the curbway.   The plaintiff was walking toward the street to meet her niece, who had pulled up alongside the curbway to park her car.   As the plaintiff stepped from the sidewalk onto the curbway, she was looking at her niece.   The plaintiff was not looking at ground or curbway in front of her.   As a result, the plaintiff conceded that she did not see the depression in the curbway.

As a result of the plaintiff's fall, she was hospitalized and she suffered injuries to her right knee, incurred medical bills and expenses, and experienced pain and suffering.

II

“To recover under § 13a–159, 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.”  (Internal quotation marks omitted.)   Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009).

The city first argues that the curbway was not a defect because it was reasonably safe for pedestrians.  “[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.”  (Internal quotation marks omitted.)  Read v. Plymouth, 110 Conn.App. 657, 664, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).   In the present case, photographs taken of the area where the plaintiff fell show that the asphalt in the curbway was cracked and uneven, and that pieces of asphalt were missing from the curbway.   In the opinion of the court, the photographs show that the condition of the curbway in the area of the plaintiff's fall was defective.

The city also argues that it did not have actual or constructive notice of the defect.   There was no evidence submitted that the city had actual notice of the depression in the curbway.  “[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.”  (Internal quotation marks omitted.)  Lombardi v. East Haven, 126 Conn.App. 563, 575, 12 A.3d 1032 (2011).  “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 ․ The nature of the defect is an important consideration in determining whether a municipality is chargeable with constructive notice of it.”  (Citation omitted;  internal quotation marks omitted.)  Tirendi v. Waterbury, 128 Conn. 464, 468, 23 A.2d 919 (1942).

In the photographs presented to the court, there is grass growing in the cracks between the curbway and the concrete sidewalk, and between the curbway and the curb.   There are pieces of asphalt missing around the depression that caused the plaintiff's fall, and there are dirt and stones in the depression left by the missing asphalt.   The evidence presented by the plaintiff did not, however, establish how long the curbway had been in that condition.   The plaintiff did not present sufficient evidence as to the dimensions of the depression, such as size or depth.   Nor did the plaintiff present evidence, such as testimony from a city employee, as to when inspections of the sidewalks and curbway on Vine Street had last taken place.   Also, the area where the plaintiff fell is not an area where pedestrians usually walk.   Accordingly, the court concludes that the plaintiff has not met her burden in establishing that the city had constructive notice as to the defect in the curbway.

Lastly, the city argues that the defect was not the sole proximate cause of the plaintiff's injuries, and that the plaintiff failed to exercise reasonable care.   Photos presented by the plaintiff show that the nature of the depression and where the plaintiff marked she fell indicate that the depression was visible and should have been seen by the plaintiff upon a reasonable lookout by her.   In the instant case, the plaintiff has failed to prove that the defect was the sole proximate cause of her fall.   The court takes into consideration that the plaintiff's fall took place in the middle of day, and that the plaintiff was familiar with the area having resided there for several months prior to the incident.   There is no evidence that there was anything obstructing the plaintiff's view of the curbway.   Although the depression was not visible to the plaintiff from the distance of the front walkway, the depression was visible to the plaintiff once she encountered the sidewalk, and could have been seen by the plaintiff had she been exercising reasonable care.   The plaintiff's failure to watch where she was walking was a proximate cause of her fall.   Under those circumstances, the court cannot find that the plaintiff was in exercise of due care, and therefore the defect was not the sole proximate cause of the plaintiff's fall.

Based on the foregoing, judgment is entered in favor of the defendant, the City of Hartford.

Stengel, JTR

FOOTNOTES

FN1. This action was originally brought against both the city of Hartford and Vine Associates Limited Partnership.   On November 1, 2010, the court (Sheldon, J.) granted a motion for summary judgment as to Vine Associates Limited Partnership..  FN1. This action was originally brought against both the city of Hartford and Vine Associates Limited Partnership.   On November 1, 2010, the court (Sheldon, J.) granted a motion for summary judgment as to Vine Associates Limited Partnership.

FN2. The curbway consists of a strip of asphalt running between the concrete sidewalk in front of 72 Vine Street and the curb..  FN2. The curbway consists of a strip of asphalt running between the concrete sidewalk in front of 72 Vine Street and the curb.

FN3. General Statutes § 13a–149 provides:  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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   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.   If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.   No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby..  FN3. General Statutes § 13a–149 provides:  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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   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.   If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.   No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.

Stengel, Robert F., J.T.R.