Pamela Gamble v. City of Hartford (2014)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE

The plaintiff, (hereinafter also “Gamble”), in this action against the City of Hartford (“city”) alleges that she fell down on a depression on the sidewalk in front of 474 Hillside Avenue, Hartford, CT, on March 9, 2012, at approximately 7:30 p.m., sustaining injuries as a result of said fall.   She brought suit against the city under CGS Sec. 13a–149.   Mrs. Gamble resides at 490 Hillside Avenue and her sister, Cassandra Allen (“Allen”), resides at 516 Hillside Avenue, Hartford, so both are very familiar with Hillside Avenue.   Based upon the photographs as exhibits, it is clear that the plaintiff fell in a depression which from the photographs appears to be a missing piece of concrete in the sidewalk which makes up the depression.   It is located near a pole and also near the curb of Hillside Avenue.   Gamble and her sister, Allen, had gone together to a convenience store to buy some snacks and were returning and walking up the sidewalk on Hillside Avenue as described and they separated to allow another couple to pass them going in the opposite direction when Mrs. Gamble put her left foot into the depression and fell, sustaining injuries.   Her special damages (medical) amount to $6,509.07.   She received physical therapy after consulting with various doctors and underwent pain and suffering for approximately six months.   There is no medical provider giving her a rating of permanency of any part of her body.   She and her sister work as monitors on school buses.   Mrs. Gamble has lived at 490 Hillside Avenue for approximately fifteen years.   Allen has lived at 516 Hillside Avenue for six years and according to the testimony of Allen, the depression where her sister fell was in that condition for three to four years.

They both testified that they had frequently walked on Hillside Avenue in that area.   In fact, Mrs. Gamble testified that she walked Hillside Avenue back and forth every day, or every other day, on weekends, for fifteen years, often walking to and from a store on the corner of Hillside Avenue.

Trial was held before this Court on March 7, 2014.   The only two witnesses to testify were Gamble and Allen.

STANDARD OF REVIEW

Both attorneys have submitted legal pretrial memoranda and agree that in order to obtain judgment against a municipality certain criteria have to be met by the plaintiff.

They are:

1.  Plaintiff has to give the required statutory notice of the injury;

2.  The municipality had the duty to repair the defect in the sidewalk;

3.  There was a defect in the sidewalk;

4.  The city had notice of the defect;

5.  The city failed to exercise reasonable care to remedy the defect;

6.  The defect must be the sole proximate cause of the injuries.

ISSUES AND FINDINGS

1.  Credibility:  The Court finds that both witnesses were credible, candid, honest and forthright.

2. The first five criteria mentioned above were fulfilled.

3. Was the defect the sole proximate cause of the plaintiff's injuries?

The short answer is no.

Under CGS Sec. 13a–149, the Highway Defect Statute, the plaintiff may only recover if the defect was the sole proximate cause of the injuries sustained.   Jano v. Ansonia, 11 Conn.App. 1, 3–4 (1987).

The burden is on the plaintiff to prove that the defect was the sole proximate cause of his injuries and damages.   Smoltz v. City of New Haven, 258 Conn. 56, 64 (2001). “․ if there is any negligence by the plaintiff, even one percent, she may not recover.”   This Court finds that the plaintiff was contributorily negligent by not being watchful of her surroundings.   She failed to observe where she was walking.   The plaintiff, by her own testimony, was familiar with the area of the incident, having resided on Hillside Avenue for fifteen years and having walked back and forth on said avenue at the location of the defect which according to her sister had been in that condition for at least four years.   Mrs. Gamble further testified that she had looked straight ahead and did not look down to observe the defect as she was walking.

In sum, the plaintiff lived on Hillside Avenue for fifteen years, frequently walked back and forth on Hillside Avenue where she saw the depression with the missing concrete which had existed for at least four years.   She should have kept a proper lookout for the depression which she knew was there from her years of experience and taken steps to avoid stepping into that depression.   That was negligence on her part, and, accordingly, she has been unable to sustain her burden of proving that the depression was the sole, proximate cause of the injuries.   Her contributory negligence was part of the proximate cause of the injuries.

Although the Court may have sympathy for Mrs. Gamble for her injuries and obligations to pay medical bills, based upon the above the Court cannot find the City of Hartford liable to the plaintiff.

Accordingly, judgment is entered for the defendant.

Rittenband, JTR

Rittenband, Richard M., J.T.R.