Margarita Castillo v. City of Hartford (2012)

MEMORANDUM OF DECISION

Margarita Castillo, plaintiff, has brought this action against the City of Hartford pursuant to Sec. 13a–149 of the Connecticut General Statutes alleging a slip and fall on a city street.   The plaintiff in her amended complaint alleges that on or about January 18, 2010 at approximately 7:30 p.m., while walking “west on the south sidewalk of Flatbush Avenue in the City of Hartford, State of Connecticut, adjacent to the north side of 283 Hillside Avenue” she stepped down from the sidewalk onto the street and was caused to suddenly, and without warning, trip and fall due to a defective hole abutting “the sidewalk.”   She alleges that at the time mentioned above she exercised due care and was free of any contributory negligence.   She further alleges that this fall and the injuries resulting therefrom, were solely due to the negligence and carelessness of the defendant city, its servants, agents or employees.

Plaintiff further alleges that the defendant knew, or had it exercised due care or proper diligence, should have known of the aforesaid condition and as a result of the negligence of the defendant she suffered low back pain, restricted lumbosacral spine ranges of motion, right shoulder pain, right knee pain, lumbar hyperflexion/hyperextension injury, right shoulder rotator cuff injury, right knee traumatic chondromalacia patella, right upper arm contusion.   Plaintiff also claims a 5% permanent impairment to her right shoulder and a 5% permanent impairment to her lumbosacral spine.

The plaintiff filed her amended complaint on September 17, 2010.   On October 14, 2010, the defendant filed an answer.   In its answer the defendant denies paragraph 9 of the amended complaint in which the plaintiff alleges that she exercised due care and was free of any contributory negligence.   The defendant further denied the allegations in paragraph 10 in which the plaintiff claims that the occurrence was totally due to the negligence and carelessness of the defendant, its servants/agents/employees.

In the opinion of this court the issue of contributory negligence by the plaintiff has been adequately raised in the original answer.

The allegations and the evidence in this case are to the effect that the plaintiff, at a location on Flatbush Avenue in Hartford where she frequently crossed the street, some distance from a crosswalk, stepped off the curb or sidewalk onto the street into a hole that was covered by snow.   She further claims that she had observed some work being done by road crews in this area about a week before the accident.

The plaintiff brings this action under Section 13a–149 of the Connecticut General Statutes.   This is the exclusive remedy for injuries sustained from a defect in a city street.   It is basic Connecticut law that to prove a breach of statutory duty under this state's defective highway statute the plaintiff must prove by a 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, they should have known of the defect;  3) that the defendant, having actual or constructive knowledge of the 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.  Machado v. City of Hartford, 292 Conn. 364, 376 (2009).

The exhibits submitted in this case fail to show any adequate evidence of a hole in which the plaintiff might have been injured.   Certain of the photographs submitted indicate an area of grass or soil between the sidewalk and the curbstone;  they also show the patched area where work had been done by the city.   Some snow had been removed from the sidewalk and apparently some but not all from the area of the alleged hole but they fail to show a hole.   In the only picture without snow a patch is shown on the roadway that goes clear up to the curb but shows no hole.   The plaintiff testified at first that she did not look down before she walked in the subject area but she later testified that she looked down and could not see the area because it was filled with snow.   There had been no complaints to the city about the condition of the roadway in the area where the alleged fall occurred.   In the opinion of the Court there was insufficient evidence to show that there was a defect in the highway at the location complained of by the plaintiff, nor has the plaintiff proven that the city had actual or constructive notice of any such alleged defective condition.

The court is of the opinion that in addition to failure to prove by a preponderance of the evidence that there was a defect in the highway known to the defendant, the plaintiff has failed to prove that she was free from her own negligence.   As stated above, the fourth element of an action under Section 13a–149 is that the defect must have been “the sole proximate cause of the injuries and the damages claimed.”   Some short distance from an existing crosswalk plaintiff stepped off the curb into the street in an area where she often walked but on this occasion she stepped in an area covered with snow and fell and injured herself.

In Smith v. New Haven, 258 Conn. 58 (2001), Justice Borden outlines the history of the “sole proximate cause doctrine” and also approves the application of Section 13a–142 Connecticut General Statutes, the State Highway Statute, to city streets and cites Williamson v. Commissioner of Transportation, 209 Conn. 310 which holds that even if the road were defective, if there is any negligence by the [plaintiff], “even one percent” she may not recover.   There was sufficient negligence by plaintiff to invoke this doctrine.

Judgment may enter for the defendant.

Hale, JTR

Note:  The court reluctantly feels constrained to comment that while the presentation of the evidence in court was done very well by each of the attorneys, the workmanship in presenting the pleadings on each side of the case was substandard.   The amended complaint has missing paragraphs and is unclear as to the location of the alleged accident.   The defendant attempted to file an amended answer at the same time briefs were filed and almost four months after the answer was filed.   The court refuses to accept this amended answer.

Hale, Robert J., J.T.R.