Eileen Marano v. Borough of Naugatuck et al. (2014)

MEMORANDUM OF DECISION

The plaintiff brings her claim based on a highway defect in a particular road in the Town of Middlebury which caused property damage to her 2001 Ford Windstar.   The plaintiff claims that she was driving in a westerly direction on Shattuck Road and encountered a depression ¹ in the said road, which caused property damage to her motor vehicle.

The plaintiff's counsel requested and was given ample time to address the issue of whether the statutory notice under Connecticut General Statutes § 13a–149 was legally insufficient or so defective as to make the legal notice void.   The defendant Town of Middlebury argues that the said notice did not accurately identify the place of the loss or injury, nor the actual cause.   There is saving language within the said statute which allows inaccuracies within the notice without defeating the legal sufficiency of the notice.   Sanzone v. Board of Police Commissioners, 219 Conn. 179, 197–200 (1991).   The Court finds that the legal notice served upon the defendant town was marginally defective, but not to the degree as to render it invalid.  Pratt v. Old Saybrook, 225 Conn. 177, 182 (1993);  Sizer v. Waterbury, 113 Conn. 145, 154 (1931).   This threshold issue is therefore found in favor of the plaintiff and the substantive issue is addressed hereafter.

Although the controlling statutory provision (Connecticut General Statutes § 13a–149) was not explicitly stated in the complaint but was referenced in the said legal notice attached to the complaint.   The plaintiff can only proceed against the municipality under such statutory provision.   The cases are numerous and detailed in defining the application of the said statutory provision and the role of the concept of “sole proximate cause” as relating to the said statute.

To recover under § 13a–149, 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 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.

Nicefaro v. New Haven, 116 Conn.App. 610, 613, 976 A.2d 75 (2009).

As a general principle that has long standing, it is clearly stated in the Bartram v. Sharon case at 71 Conn. 686, 43 A.143, 144 (1899).   There is no municipal liability under § 13a–149 if there are intervening factors that combine with the defect to cause the plaintiff's injuries.   More recent cases further refine the application of the sole proximate cause rule and in effect narrow the exposure that a municipality may have for any type of so-called “highway defect.”

As previously discussed, for example, negligence on the part of the plaintiff or an independent third party may serve as a defense to liability under the sole proximate cause requirement of § 13a–149 when such negligence combines with the defect to cause the plaintiff's injuries.

Such liability, however, also may be defeated by the concurrence of an existing defect and nonnegligent intervening factors ․ Thus, it is not the mere existence of third party negligence that defeats municipal liability under § 13a–149 but, rather, the existence of any intervening factors unrelated to the defect itself, whether negligent or not, that combine with the defect to cause the plaintiff's injuries.  (Citations omitted;  emphasis in original.)

Machado v. Hartford, 292 Conn. 364, 378–79, 972 A.2d 724.

[T]he presence of third party negligence necessarily results in a finding that the defect was not the sole proximate cause of the plaintiff's injuries.

Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).

Such cases make it difficult for a plaintiff to recover where there is any evidence that the plaintiff herself may have contributed to the claimed losses or that a third party's negligence may have been a causative factor in resulting losses to the plaintiff.

The focus with respect to the element of sole proximate cause is whether any factors other than the municipality's breach of its statutory duty caused the plaintiff's injuries.  (Emphasis in original.)

Bovat v. Waterbury, 258 Conn. 574, 587, 783 A.2d 1001 (2001).

This Court looks to those probative facts that were elicited at trial in which the plaintiff testified that an oncoming motor vehicle could have caused her to direct her vehicle towards the curbside of her lane, causing contact with a segment of displaced curbing.   It was the striking of such curbing as opposed to any depression in the road that resulted in damage to the tires, undercarriage and steering mechanism of the plaintiff's vehicle.

Not unlike this case, Segretario v. Town of Middlebury et al., 2009 SL 2506453 (Conn.Superior) (Brunetti, J.)

Proximate causation requires a reasonable connection between an act or omission, and harm suffered by the plaintiff.  Steward v. Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662 A.2d 753 (1995).   To be the sole proximate cause, no other factors than the municipality's breach of a statutory duty must have caused the plaintiff's injuries.  Bovat v. Waterbury, 258 Conn. 574, 587, 783 A.2d 1001 (2001).   That is, the plaintiff in order to recover, must be free of comparative negligence;  Prato v. New Haven, supra, 246 Conn. 642;  and no other purported tortfeasor may have contributed to the injury.

The issue of whether the town was given proper and timely notice of the displaced curb, which purportedly was in or adjacent to the vehicle travel portion of said road was not clearly resolved in favor of the plaintiff.   Assuming the curbing was displaced by snowplow operations, the time frame between the last snowstorm and the date of the incident on March 12, 2008 was not clearly delineated by the evidence.

Therefore, this Court is unable to conclude that the actions or inactions by the Town of Middlebury were sole proximate cause of the plaintiff's claimed losses.   The Court finds that the plaintiff has not met its burden of proof by a fair preponderance and therefore judgment enters for the defendant Town of Middlebury.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. The credible evidence was that the defect was a piece of pre-formed asphalt curbing dislodged on the side of the roadway which was determined to be located in the Town of Middlebury, not the Borough of Naugatuck..  FN1. The credible evidence was that the defect was a piece of pre-formed asphalt curbing dislodged on the side of the roadway which was determined to be located in the Town of Middlebury, not the Borough of Naugatuck.

Roche, Vincent E., J.