Ozzeir Headley ppa Priscilla Johnson v. Hartford Housing Authority et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff, Ozzeir Headley, brought this action through his mother and next best friend, Priscilla Johnson, against the defendants, Hartford Housing Authority and the City of Hartford, on January 20, 2012.   The operative complaint is an amended complaint filed on April 5, 2012.   Therein, the plaintiff alleges claims sounding in common-law negligence against the Hartford Housing Authority and the City of Hartford, respectively.   Specifically, the plaintiff alleges the following facts.   The defendants own the premises located at 21 Orange Street, Hartford, Connecticut, where the plaintiff was a resident.   On or about February 18, 2010, the plaintiff fell due to an icy and snowy condition on the exterior steps of 21 Orange Street.   The plaintiff suffered injury, which was caused by the negligence and carelessness of the defendants or their agents, servants and/or employees.   On April 25, 2012, the defendant, Hartford Housing Authority, filed an answer with special defenses alleging that the plaintiff failed to comply with the notice requirement of General Statutes § 8–67;  the plaintiff's injuries were caused by his own negligence;  and the plaintiff's damages are barred pursuant to General Statutes § 13a–149.

On August 8, 2012, the defendant, Hartford Housing Authority, moved for summary judgment ¹ on the ground that the plaintiff is barred from recovery based on General Statutes § 8–67.   Specifically, the defendant contends that the plaintiff's letter of notice addressed and sent to the “Hartford Housing Authority” was legally insufficient inasmuch as it was not filed with the chairman or secretary of the housing authority.   On January 31, 2013, the plaintiff filed an objection to the defendant's motion for summary judgment, arguing that its notice was legally sufficient under § 8–67.   The matter was heard on short calendar on February 4, 2013.

“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).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

In its motion for summary judgment and memorandum filed in support thereof, the defendant contends that the plaintiff failed to comply with the notice requirement in General Statutes § 8–67 because the plaintiff's written notice to the defendant was sent and addressed to the “Hartford Housing Authority,” and not to the chairman or secretary of the Hartford Housing Authority.  Section 8–67, which is entitled “Injury on housing authority property,” provides:  “Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose 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 the secretary of the authority within six months after the cause of action therefor arose.”  (Emphasis added.)

In Fields v. Housing Authority, 63 Conn.App. 617, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001), the Appellate Court addressed the notice requirement prescribed in § 8–67.   The court explained:  “[i]n White v. Edmonds, 38 Conn.App. 175, 183, 659 A.2d 748 (1995), this court held that compliance 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.  Id., 183–84.   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.  Id., 185.  Section 8–67 did not create liability where none existed.  Id. Rather, it provides procedural limitations on the ability to recover on a cause of action already available.   Id. Indeed, ‘[a] written notice is not a condition precedent to the bringing of the action but is a limitation creating a condition subsequent.’  Harris v. Housing Authority, 21 Conn.Sup. 132, 133, 146 A.2d 418 (1958).   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.’  White v. Edmonds, supra, 183.”  Fields v. Housing Authority, supra, 621–22.

The plaintiff in Fields v. Housing Authority, supra, 63 Conn.App. 617, was a pedestrian who had allegedly fallen on the icy steps of the defendant housing authority's property.   The plaintiff did not fill out an incident report or send notice to the defendant of his intention to commence an action pursuant to § 8–67.   Instead, the plaintiff and his attorney had been in contact with the defendant's insurance carrier, who acknowledged the plaintiff's claims and acknowledged receipt of a letter of representation from the plaintiff's attorney.  Id., 620.   Upon the plaintiff's commencement of suit against the defendant, the defendant housing authority filed a motion for summary judgment on the ground that the defendant housing authority had not received written notice of the plaintiff's claim pursuant to § 8–67.   The Appellate Court affirmed the trial court's grant of the defendant housing authority's motion for summary judgment because, despite having given actual notice to the defendant, the plaintiff had failed to give written notice to the defendant in accordance with § 8–67.   Looking to the plain language and the legislative history of the statute, the Fields court flatly rejected the plaintiff's argument that strict compliance with the statute was not necessary.   The court explained, “[t]he notice statute originally was enacted to bring notice obligations for housing authorities in line with those for municipalities generally.”   6 S.Proc., Pt. 4, 1955 Sess., pp. 1044–45.   The statute then was repealed in 1959, eliminating the need for any notice to be given and putting housing authorities on equal footing with private landlords.   8 H.R. Proc., Pt. 10, 1959 Sess., pp. 4080–81.   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.   26 H.R. Proc., Pt. 24, 1983 Sess., p. 8304.”  (Emphasis added.)   Fields v. Housing Authority, supra, 63 Conn.App. 622–23.   In concluding that the plaintiff's notice did not comport with § 8–67, the court noted that, “just as a municipal employee cannot waive notice on behalf of the municipality ․ neither can an employee of a housing authority ․ waive the notification to the housing authority that is required by § 8–67.”   (Citation omitted.)  Id., 624.

In interpreting and applying the authority of Fields, the superior courts of this state have strictly construed the language of § 8–67.   For example, in Smith v. Bridgeport Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015100 (February 6, 2009, Arnold, J.) (47 Conn. L. Rptr. 157), the court was faced with a factual scenario seemingly identical to that in the present case.   In Smith, the plaintiff, who alleged injuries as a result of a slip and fall at the defendant housing authority's premises, attempted to comply with the notice requirement of § 8–67 by filing a notice of occurrence form and a liability reporting form with the defendant While the court acknowledged that the defendant may have received actual notice of the plaintiff's claim, the court found that a notice addressed and mailed to “Bridgeport Housing Authority” was insufficient to meet the notice requirement of § 8–67 because the notice “was not given to any of the persons designated to receive notice by the clear and unambiguous language of § 8–67 ․” and that “[i]nformation provided by third-party sources to chairman or secretary of the housing authority, cannot cure defects in the plaintiff's notice.”  Id. The court acknowledged the harsh result of a strictly construal of the statute, however, recognized that it could not ignore the Appellate Court's strict application of the language of § 8–67 in Fields.  Id.

In Blassingame v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 11 6020279 (November 22, 2011, Woods, J.) (52 Conn. L. Rptr. 919), the court came to the conclusion that, based upon the holding in Fields and on the plain language of § 8–67, the plaintiff's notice addressed to the “Hartford Housing Authority,” which contained the salutation of “Dear Madam/Sir,” was insufficient under § 8–67 because the notice was not addressed to the chairman or secretary of the Hartford Housing Authority.

In support of its motion for summary judgment, the defendant in the present case has provided a copy of a letter from the plaintiff dated March 9, 2010, which is addressed to the “Hartford Housing Authority, 180 Overlook Terrace, Hartford, CT 06106” and contains a salutation reading “Dear Madam/Sir.”   The March 9, 2010 letter purports to provide the defendant with notice of the plaintiff's claim against the defendant.   In further support of its motion, the defendant provides an affidavit signed by Roy Boling, the deputy executive director of the Hartford Housing Authority.   Therein, Boling affirms that the Hartford Housing Authority did not, between February 18, 2010 and August 18, 2010, receive notice of the plaintiff's intention to commence an action regarding the plaintiff's alleged injuries sustained on or about February 18, 2010 at the exterior of Orange Street, Hartford, Connecticut.   Boling also affirms that the March 9, 2010 letter sent by the plaintiff was not addressed to the chairman or the secretary of the Hartford Housing Authority.   As counter-evidence, the plaintiff provides a copy of the March 9, 2010 letter to the Hartford Housing Authority.   The plaintiff also provides evidence that the March 9, 2010 letter was sent certified mail and that it was received by the defendant on March 19, 2010.   Based on the evidence presented, it is clear that the plaintiff sent notice to the Hartford Housing Authority, but did not identify any specific individual in the salutation, such as the chairman or secretary of the Hartford Housing Authority.

The plain language of § 8–67 dictates that written notice must be filed with the chairman or secretary of the Hartford Housing Authority.   The Appellate Court's review of the legislative history of § 8–67 suggests that this was the intent of the General Assembly.  Fields v. Housing Authority, supra, 623 (“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”).   This court's independent review of the statute's legislative history of reveals that the proposed notice requirement in senate bill 894 ² was described as “highly technical” inasmuch as “it specifie[d] that the notice that the authority would be given has to mention the exact time and place that the damage was done, and also that the report would have to be filed with the Chairman or the Secretary.”  (Emphasis added.)   26 H.R. Proc., Pt. 24, 1983 Sess., p. 8308, remarks of Representative Garavel.   Based on the statute's language and its accompanying legislative history, the mood of strict construal conveyed in Fields, and the persuasive reasoning of Smith v. Bridgeport Housing Authority and Blassingame v. Hartford Housing Authority, the defendant's motion for summary judgment must be granted because there is no genuine issue of material fact as to whether the plaintiff addressed its notice to the chairman or secretary of the Hartford Housing Authority.

The plaintiff nevertheless argues that, because § 8–67 is not a statute enacted in derogation of the common law;  Fields v. Housing Authority, supra, 63 Conn.App. 621 (“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”);  the statute should not be strictly construed, but rather should be liberally construed.   In support of this argument, the plaintiff has cited cases wherein courts strictly construe statutes that are deemed to be in derogation of the common law.³  Location Realty, Inc. v. Colaccino, 287 Conn. 706, 724, 949 A.2d 1189 (2008).   The plaintiff seems to assume that the converse of this basic tenet is true—that if a statute is deemed not to be in derogation of the common law, then the court must liberally construe that statute.   The plaintiff has not provided any authority that would mandate this conclusion.

Indeed, our state Supreme Court's articulation of the following principles of statutory construction suggests that adherence to a liberal construction is not always appropriate.   For example, our state Supreme Court has adopted the following method of analysis when faced with a question of statutory interpretation:  “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance 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 ․” Id., 723–24.   In Fields v. Housing Authority, supra, 63 Conn.App. 617, the Appellate Court implicitly engaged in such an analysis The Appellate Court looked to the plain language of § 8–67 and its legislative history to determine that the statute requires strict adherence to its specific language.   The court's analysis revealed that the apparent intent of the legislature was not to provide aspirational notice requirements.

The plaintiff relies heavily upon Salemme v. Seymour, 262 Conn. 787, 817 A.2d 636 (2003), for the proposition that the court should liberally construe a notice requirement provided for in a statute that is not in derogation of the common law.   The plaintiff's reliance on this case is misplaced, inasmuch as the Salemme case dealt with § 13a–149, a statute which contained a broadly worded, far-reaching savings clause.  Id., 793–97.   The savings clause of the statute reads:  “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.”   It can be gleaned that the Salemme court's liberal construction of the notice requirement in § 13a–149 was based on the statute's savings clause.  Id., 793–97.  Section 8–67, which is the subject of dispute in the present case, contains no comparable savings clause.   Accordingly, the plaintiff's argument that § 8–67 must be liberally construed is without merit.

CONCLUSION

Based on the plain language of § 8–67 and its legislative history, the Appellate Court's reasoning in Fields, and the persuasive authority of other superior courts that have addressed the same issue as confronted by this court, the defendant's motion for summary judgment is hereby granted inasmuch as there is no genuine issue of material fact regarding the plaintiff's noncompliance with § 8–67.

Peck, J.

FOOTNOTES

FN1. Because it is only the defendant Hartford Housing Authority that filed the motion for summary judgment presently before this court, the Hartford Housing Authority will be hereinafter referred to as “the defendant.”.  FN1. Because it is only the defendant Hartford Housing Authority that filed the motion for summary judgment presently before this court, the Hartford Housing Authority will be hereinafter referred to as “the defendant.”

FN2. Senate bill 894 was later enacted as number 83–483, § 1 of the 1983 Public Acts..  FN2. Senate bill 894 was later enacted as number 83–483, § 1 of the 1983 Public Acts.

FN3. It is worth noting that even this basic tenet of statutory construction is not absolute.   Our Supreme Court has noted that “the principle of narrowly construing statutes that purport to change the common law is not an absolute rule, but rather merely an important [guideline] to the determination of legislative meaning.   To permit [the construction of the statute] to displace the conclusions that careful interpretation yields ․ would be a disservice to the legislative process, as well as to the judicial exercise of interpreting legislative language based upon the premise that the legislature intends to enact reasonable public policies.”  (Internal quotation marks omitted.)  Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 797, 865 A.2d 1163 (2005)..  FN3. It is worth noting that even this basic tenet of statutory construction is not absolute.   Our Supreme Court has noted that “the principle of narrowly construing statutes that purport to change the common law is not an absolute rule, but rather merely an important [guideline] to the determination of legislative meaning.   To permit [the construction of the statute] to displace the conclusions that careful interpretation yields ․ would be a disservice to the legislative process, as well as to the judicial exercise of interpreting legislative language based upon the premise that the legislature intends to enact reasonable public policies.”  (Internal quotation marks omitted.)  Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 797, 865 A.2d 1163 (2005).

Peck, A. Susan, J.