Shakia Rogers v. City of Hartford (2012)

MEMORANDUM OF DECISION

I.

PROCEDURAL CONTEXT

This action arises out of an alleged fall down, which occurred on March 18, 2010 at approximately 11:00 P.M. on or near 190/192 Enfield Street in Hartford, Connecticut.   Shakia Rogers herein after referred as “plaintiff” is a resident of Hartford, Connecticut.   The City of Hartford, is a municipal corporation and a defendant in this action herein after referred as “Hartford.”   On or about June 9, 2010, the plaintiff, as per General Statutes §§ 10–235 and 13a–149, filed Notice of Intent to Commence Action against the City of Hartford.¹  (Plaintiff's Exhibit–A).

On December 13, 2010, the plaintiff filed a complaint consisting of a one-count cause of action.   The plaintiff alleges that she was crossing the street on or near 190/192 Enfield Street, Hartford, Connecticut when she tripped and fell in a hole in the roadway.   She alleges, as a result of this trip and fall incident, that she sustained injuries to her left leg, left ankle, and left foot, including a ruptured Achilles tendon and permanent scarring.   Further she alleges that the defective roadway surface solely and proximately caused her to sustain and suffer personal injuries and losses.   The plaintiff asserts that she was in the exercise of due care at the time of the alleged incident.   The plaintiff alleges that the defective, dangerous and unsafe condition existed for some time prior to the incident, and the defendant, Hartford, it's agent(s), and/or employee(s) knew or in exercise of reasonable care should have known of the unsafe condition in time to remedy and/or correct said situation, but neglected to do so.   The plaintiff alleges that her injuries and damages were proximately caused by the breach of statutory duty.

On March 16, 2011, Hartford filed its answer and special defenses.   The defendant denies allegations numbers 3 through 12, leaving the plaintiff to her burden of proof, but admits numbers 1 and 2 of the complaint.   The defendant pleads the following special defenses:  (1) contributory negligence on the part of plaintiff's actions, as she failed to exercise the proper care and precaution which a reasonable person under similar circumstances would have exercised;  (2) Plaintiff herself was careless and negligent at the time of the incident alleged, and such carelessness and negligence was the cause of any injuries, losses and damages alleged to have been sustained by her;  (3) As a result of failure to exercise due care, the defendant was not the sole proximate cause of her injuries, if any.

The one-day trial on this matter was held on September 12, 2012 before this court, during which the court heard testimony from the plaintiff.   Hartford presented one witness.   The plaintiff called no witnesses.

The plaintiff introduced numerous documents as full exhibits and the defendant submitted some documents as full exhibits that included photographs, medical bills and reports.   Subsequently, the parties filed post-trial memorandum of law.

II.

FACTUAL FINDINGS

The court has considered the relevant Connecticut Statutes, applicable case law, all relevant evidence, the demeanor and credibility of all witnesses, and the arguments of the parties in reaching the decisions reflected in this memorandum

The plaintiff testified at trial that the incident took place on or near 190/192 Enfield Street in Hartford at night between 10:30 and 11:00.   She claims that it was dark outside, there was a light pole in the area, but the light was not turned on.   The plaintiff also testified that during this time there was an altercation between her sister and partner across the street from where she was standing.   She further testified that she was too focused on breaking up the altercation.   Plaintiff additionally testified that while she was crossing the street, her foot was struck in a pothole, she could not get it out, and so she had to slide her foot gradually out of the sneaker she was wearing.   She claims that when the back of her sneaker became caught in the pothole, and she fell down onto her right knee.

The plaintiff further testified that she was aware of the area, but she did not know there was a pothole in the street because it was dark that night.   She testified that “my mind focused on breaking up this altercation that is going on before it explodes to something that it does not need to be.”  (Trial Transcripts, dated September, 12, 2012, page 7.)

Plaintiff additionally testified that she went home after the incident and elevated her foot on a pillow.   The next day the plaintiff went to the hospital and was advised that she tore her Achilles tendon.   She was given medication and one week later, on April 7, 2012, underwent surgery.   The plaintiff claims that she had to wear a hard cast and use other assistive devices to walk, such as crutches for approximately two and one-half months.   Her hard casts were changed three times.   The plaintiff claims that she had difficulty getting around her house and performing everyday activities while using these assistive devices.   The plaintiff sustained medical expenses in the amount of $12,925.16 and lost wages in the amount of $1,056.00, a total of $13,981.16 (Plaintiff's Exhibit–1).

The evidence was adduced at trial that due to the alleged incident plaintiff cannot play basketball, run, or dance any more.   She claims she has difficulty standing for a long period of time and walks with a limp.   Plaintiff further claims that she still has pain and her skin gets itchy when it sweats.   She claims that she cannot bend and squat all the way.   Her foot tends to burn when she stands for a long time and at times swells for which she takes a bath to calm it down.

During the cross examination, plaintiff explained that she lived on and off at 190 Enfield Street (place of accident) with Demetria Jacobs with whom she had an intimate relationship.   She conceded that the altercation, as mentioned above, was between Demetria and her sister.   The events moments before the alleged trip and fall were further explained by the plaintiff as follows “I was inside the apartment with Demetria.   My sister was going to pick me up.   She was outside and Demetria started an argument through the window with her.   I was in the process of leaving.   So, Demetria trying to stop me from leaving, and my sister happened to say something, one thing led to another, they arguing, Demetria at the time was intoxicated ․” Id., at pp. 41–42.

The evidence was adduced at trial that the altercation was in the middle of the street and then escalated and got across the street, near the tree.   (Exhibit–C.)   The plaintiff claims that she was still on the sidewalk.   Her explanation is as follows:  “I did not get in between them when they were in a verbal.   When they were having a verbal altercation I did not get in between, when they became physical that's when I tried, attempted to get to break it up, I did not make that far, Demetria ran up on my sister, I saw them tussling back and forth, fist fighting back and forth, in the face, Demetria broke her finger, I do not know how.”  (Trial Transcripts dated September 12, 2012, pp. 59–60.)   Plaintiff further conceded that she lived at 190 Enfield Street, for all intent and purposes, always spending time on the porch.   Plaintiff denied smoking marijuana that night, but admitted having done so in the past as per her medical reports reflect.

The parties stipulated to the plaintiff's life expectancy of 58 years.   The plaintiff is seeking economic and non-economic damages.

Hartford called Michael Gaffney, a claim investigator for the City, who testified that he was assigned to this case.   He testified that claims are first sent to the town clerk's office, go through the process, and are then forwarded to the corporation counsel and lastly ending on his desk.   He testified that upon review of the notice of claim, he learned that physical injury was claimed at which point he forwarded it to the Travelers Insurance Company, the city's insurance carrier, and started his investigation.   He further testified that he wanted to find out whether the incident was documented through either the police department, ambulance or fire departments so he could follow up.   He testified that he did not find anything on the alleged claim.   He went to the scene of accident and took photographs of the alleged condition of the pothole and forwarded them to the Travelers Insurance Company and to corporate counsel.   He further testified that during his investigation he was unable to determine the alleged location of the fall.   He conceded to some road deterioration in the general area, but not the alleged pothole.   He was asked whether he had any personal knowledge or from review of records pertaining to defective light poles in the area.   He responded that he had reviewed the complaint log and he found no such entry.   The court finds his testimony to be credible.

III.

APPLICABLE LAW(1) Statutory Requirements and Case Law

“To present a successful claim under General Statute § 13a–149, the plaintiff must prove, by a fair preponderance of evidence, (1) that highway was defective as claimed;  (2) that the defendant actually knew of 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.”  DeMatteo v. New Haven, 90 Conn.App. 305, 308 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).

The first element the plaintiff must prove in a § 13a–149 action against the city is that the highway was defective as claimed.  “[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.)  Reed v. Plymouth, 110 Conn.App. 657, 664, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961, A.2d 421 (2008).  “Such a defect has been defined as follows:  Any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result, would generally constitute a defect in the highway.”  (Internal quotation marks omitted.)   Chazen v. New Britain, 148 Conn. 349, 352, 170 A.2d 891 (1961).  “A municipality is not charged with the responsibility of keeping its streets and sidewalks in an absolutely safe condition.   Its responsibility is limited to using reasonable care to keep them in a reasonable safe condition for travel.”  Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981).

An element of constructive notice in the context of a claim arising under § 13a–149 is whether the defect would have been disclosed by a reasonable supervision of the streets of the town as a whole.   See Nicefaro v. New Haven, 116 Conn.App. 610, 618, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009), quoting Meallady v. New London, 116 Conn. 205, 209, 164 A. 391 (1933).

“The existence of constructive notice is a question of fact subject to the clearly erroneous standard of review.”  Nicefaro v. New Haven, 116 Conn.App. 613.   Here the applicable principles of law are set forth, “[T]he mere existence of a defect does not establish liability under § 13a–149.”  Id. at 616.   Rather, “[a] municipality is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose ․ That duty is a reactive obligation, not an anticipatory obligation ․ The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it.”  (Citations omitted;  internal quotation marks omitted.)  Id. at 614.

“[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.)  Id. “[O]ur Supreme Court has stated that [i]nferences as to prior existence [of a highway defect] for a considerable time, which might arise from a condition necessarily more or less permanent or of slow development are permitted in certain circumstances.”   (Internal quotation marks omitted.)  Id. at 616;  compare Burlant v. Hartford, 111 Conn. 36, 37, 149 A. 132 (1930) (discussing undisputed evidence of effect of frost on level of flagstone walk rendered unavailable any such inferences) with Linn v. Hartford, 135 Conn. 469, 471–72, 66 A.2d 115 (1949) (explaining “[i]n view of the character of the pavement in question, the finding that the condition had developed gradually over a period of a year or more was sufficient to sustain the conclusion that the defendant had constructive notice”).

(2) Legal Standard as to Credibility

The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct.  Christie v. Eager, 129 Conn. 62, 64–65 (1942).

“[T]he trier of fact's assessment of the credibility of witnesses is made on the basis of its first hand observation of their conduct, demeanor and attitude ․ The weight to be given to their evidence and to the credibility of witnesses is solely within the determination of the trier of fact.”  Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839 (2006).  “It is well established that [t]he trier of fact may accept or reject the testimony of any witness ․ The trier can, as well, decide what—all, none, or some—of witness' testimony to accept or reject.”  Wilson v. Hryniewicz, 51 Conn.App. 627, 633, cert. denied, 248 Conn. 904 (1999).

The trier of fact must evaluate the credibility of both testimonial and documentary evidence.  Coombs v. Phillips, 5 Conn.App. 626, 627 (1985) (per curiam).   In determining the credibility of witnesses the trier of fact may believe all or part of the witness's testimony.  State v. Rothernberg, 195 Conn. 253, 257 (1985);  Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 25 (1965).   The trier of fact may even reject testimony that is uncontradicted, Barrila v. Blake, 190 Conn. 631, 639 (1983), or may “accept it even though it is in conflict with that of several other witnesses.”   Martino v. Palladino, 143 Conn. 547, 549 (1956) (citation omitted).   In sum, “[t]he trier of fact determines with finality the credibility of witnesses and the weight to be accorded to their testimony.”  State v. Penland, 174 Conn. 153, 157–58, cert. denied, 98 S.Ct. 2237 (1978).   The Supreme Court cannot retry facts or pass on credibility of witnesses.  Griffin v. Nationwide Moving & Storage Co., Inc., 187 Conn. 405, 422 (1982).

“The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the compliant.”  Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523 (1992).   The defendant has the burden of proving its special defense.  Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 230 (2009).

IV.

ANALYSIS

The court carefully considered the following evidence:

During cross-examination, plaintiff conceded her familiarity and knowledge with the area of the alleged fall.   She conceded that she resided in the neighborhood for approximately two years and spent much time on the porch a lot prior to March 18, 2010.   As mentioned earlier, the plaintiff's description of the events just moments prior to the alleged fall is cause for concern for the court.   The court can draw an inference that under such a chaotic set of circumstances, plaintiff's assertion that exercising due care is neither persuasive nor credible.

In the case before the court, the plaintiff alleges that she had not seen the pothole prior to the day of the incident.   She further asserts that it was dark and the light pole adjacent to the area of the alleged fall was not functioning.   The plaintiff submitted photographs of the area, taken approximately three months after the claimed incident.   These photographs indicate unevenness and general deterioration in the road.   Aside from her testimony, the plaintiff did not present any corroborating testimony from any witness or evidence pertaining to the existence of pothole prior to the incident, such as time frame around which the pothole formed.

Gaffney's testimony also shows that he took photographs of the alleged area approximately three months after the incident.   He conceded that the road was not in perfect condition;  there was general deterioration of the road but he found no potholes in the road.   He further testified that he did not receive any complaints about potholes or light pole malfunction on Enfield Street.

As far as the plaintiff's burden of actual notice of defect is concerned, the court was presented with no such evidence.   Further, the plaintiff failed to prove that the city had constructive notice of the defect on the date of the incident.   The plaintiff did not submit any evidence as to how long the pothole existed, the measurements of the pothole, as to show its dangerous character.   Therefore, based upon the evidence presented by the plaintiff, the court cannot find that the city had constructive notice of the alleged defect.

Lastly, the plaintiff must prove that she was free from contributing to the accident.   In view of the foregoing, it is not necessary for the court to address the issue of sole proximate cause.

V.

CONCLUSION

The plaintiff has failed to prove her claim by a fair preponderance of the evidence;  the court finds for the defendant.

Judgment may enter accordingly.

BY THE COURT,

M. Nawaz Wahla, 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 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.”.  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 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.”

Wahla, M. Nawaz, J.