Nikides v. Town of Wethersfield , 148 Conn. App. 186 ( 2014 )

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FRANCES NIKIDES v. TOWN OF
WETHERSFIELD ET AL.
(AC 35194)
Lavine, Robinson and Sheldon, Js.*
Argued November 12, 2013—officially released February 11, 2014
(Appeal from Superior Court, judicial district of
Hartford, Prescott, J. [motion to dismiss]; Woods, J.
[summary judgment motion]; Schuman, J. [judgment;
motion for directed verdict].)
Thomas R. Gerarde, with whom was Alan R. Dembic-
zak, for the appellant (named defendant).
D. Lincoln Woodard, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant town of Wethersfield1
appeals from the trial court’s denial of its motion for
a directed verdict, to set aside the verdict and for judg-
ment notwithstanding the verdict following a jury trial
resulting in a verdict in favor of the plaintiff, Frances
Nikides. The defendant claims that the court erred in
concluding that the jury reasonably could have found
that the plaintiff was exercising due care as a reasonably
prudent person at the time that she encountered the
defective condition of the sidewalk on which she fell
and suffered injuries. The defendant also claims that
the court erred in rendering judgment in favor of the
plaintiff and denying the motion for a directed verdict,
to set aside the verdict and for judgment notwithstand-
ing the verdict. We disagree with the defendant and
affirm the judgment of the trial court.
The following facts, as the jury reasonably could have
found them, are relevant to our resolution of the defen-
dant’s claim. On October 9, 2008, the plaintiff was walk-
ing her two dogs on a sidewalk along Wells Road in
Wethersfield. The plaintiff testified that her typical daily
route to walk her dogs did not involve walking on Wells
Road.2 As she approached a railroad crossing, she saw
ahead of her a crack in the last concrete slab of the
sidewalk before the railroad crossing. The crack, which
was shown to the jury in a photograph taken from
the perspective of a pedestrian walking in the same
direction as the plaintiff toward the railroad crossing,
spanned diagonally across the far right hand corner of
the sidewalk slab. There was a gravel ditch to the right
of the cracked portion of the slab that was littered with
broken glass and trash. The plaintiff made a ‘‘mental
note’’ of the crack, and as she approached it, she chose
to step over it, testifying that she ‘‘walk[s] over cracks
all the time. I had to step over it to avoid it.’’ At trial,
the plaintiff testified that although nothing prevented
her from walking around the crack, she had made the
conscious decision to step over it.
As the plaintiff was stepping over the crack, she
looked to her left and to her right to see if a train
was coming before crossing the railroad tracks. After
stepping over the crack, the plaintiff’s foot landed on
a broken piece of sidewalk that had sloped downward,
dropping off from the level portion of the sidewalk—
a defect that she did not perceive prior to initiating her
step over the crack. As a result, she fell and landed
in the gravel ditch, suffering serious and permanent
personal injuries to her shoulder, wrist, thumb and lit-
tle finger.
At trial, the plaintiff testified that if she had been
looking down while stepping over the crack, she would
have seen the sloped portion of the sidewalk. She also
testified that she could have stopped before what she
perceived to be just a crack to look left and right to make
sure a train was not approaching, and then watched as
she stepped over the crack.
The plaintiff brought this action against the defendant
under General Statutes § 13a-149.3 At trial, following
the close of the plaintiff’s evidence, the defendant
moved for a directed verdict, arguing that no reasonable
jury could conclude, on the basis of the evidence pre-
sented, that the alleged defect was the sole proximate
cause of the plaintiff’s fall and her resulting injuries.
The court denied the defendant’s motion, and the jury
returned a verdict in favor of the plaintiff. On October
18, 2012, the defendant filed a motion for a directed
verdict, to set aside the verdict and for judgment not-
withstanding the verdict. On November 12, 2012, the
court denied the motion, holding that ‘‘the jury could
reasonably have found that the plaintiff was exercising
due care but simply did not see or appreciate the large
drop and slant of the broken piece of sidewalk that
caused her to fall. Because this evidence supports the
jury’s verdict, the court must deny the defendant’s post-
verdict motions to set aside the verdict, for a directed
verdict, and for judgment notwithstanding the verdict.’’
This appeal followed. Additional facts will be set forth
as necessary.
‘‘The standard for reviewing the denial of motions to
set aside the verdict and for judgment notwithstanding
the verdict on evidentiary grounds is clear. Our review
of the trial court’s [decision to deny the motions]
requires us to consider the evidence in the light most
favorable to the prevailing party, according particular
weight to the congruence of the judgment of the trial
judge and the jury, who saw the witnesses and heard
their testimony. . . . The verdict will be set aside and
judgment directed only if we find that the jury could not
reasonably and legally have reached [its] conclusion.’’
(Internal quotation marks omitted.) Stewart v. Cendant
Mobility Services Corp., 267 Conn. 96, 102, 837 A.2d
736 (2003). ‘‘We must consider the evidence, including
reasonable inferences which may be drawn therefrom,
in the light most favorable to the parties who were
successful at trial . . . [and] giving particular weight
to the concurrence of the judgments of the judge and
the jury, who saw the witnesses and heard the testimony
. . . .’’ (Internal quotation marks omitted.) Label Sys-
tems Corp. v. Aghamohammadi, 270 Conn. 291, 301,
852 A.2d 703 (2004). ‘‘A [jury’s] determination is clearly
erroneous only in cases in which the record contains
no evidence to support it, or in cases in which there is
evidence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made.’’
(Internal quotation marks omitted.) Lombardi v. East
Haven, 126 Conn. App. 563, 574, 12 A.3d 1032 (2011).
To succeed on a claim under § 13a-149, ‘‘the 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 it having had a reason-
able 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 con-
tributory negligence.’’ (Internal quotation marks omit-
ted.) DeMatteo v. New Haven, 90 Conn. App. 305, 308,
876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d
1242 (2005). Once a defect is established, our Supreme
Court has held that the standard for determining liability
under § 13a-149 is sole proximate cause. See Smith v.
New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001) (not-
ing ‘‘that a municipality’s liability under the defective
highway statute may be defeated by a showing of negli-
gence on the part of either the plaintiff or some third
party’’).
‘‘Whether the plaintiff was contributorily negligent
is a question of fact subject to the clearly erroneous
standard of review. . . . Because a plaintiff seeking
recovery under § 13a-149 must prove that the defect
was the sole proximate cause of her injuries, it follows
that the plaintiff must demonstrate freedom from con-
tributory negligence. . . . To do so, a plaintiff must
have suffered injury while using the defective highway
with due care and skill.’’ (Citations omitted; internal
quotation marks omitted.) Lombardi v. East Haven,
supra, 126 Conn. App. 577–78.
The defendant’s argument is that the defective condi-
tion of the sidewalk was so obvious that an ordinarily
prudent person would have seen it and tried to avoid
it, and that the plaintiff’s failure to do so contributed
to her injuries and constituted a failure to exercise
due care. The defendant emphasizes that the plaintiff
admitted at trial that if she had been looking down at
where her foot was going to land, she would have seen
the slope and drop in the sidewalk and that she could
have avoided that portion of the sidewalk by walking on
the safer, nondefective portion of the sidewalk, thereby
preventing her fall and resulting injuries. The defendant
also emphasizes that the plaintiff testified that she was
aware of the crack and admitted that nothing prevented
her from avoiding it. Thus, the defendant asserts, she
could have avoided the slope by walking around it to
the safer part of the sidewalk. The defendant fails to
take into account that there were two defects in the
sidewalk—the crack and the slope—only the former of
which the plaintiff actually perceived. The defendant
argues that because the plaintiff consciously chose to
walk over the crack instead of avoiding it, despite the
fact that she did not perceive the additional defect, she
is nonetheless contributorily negligent for her injuries.
We disagree.
The plaintiff testified as to the manner in which she
conducted herself when she walked on Wells Road the
day of her accident. Specifically, she testified that the
weather was ‘‘nice’’ and that the roads were dry; that
she was wearing walking sandals that had been recom-
mended to her by her doctor; that she was looking to
her left and right to watch for an oncoming train as she
approached the railroad tracks; that as she approached
the defective portion of the sidewalk, she was paying
attention and perceived the crack to be the only defect
in the sidewalk and made a ‘‘mental note’’ to step over
it; and that she did not perceive the additional defect
of the downward slope.
Whether the plaintiff was in the exercise of due care
is a question to be answered by the trier of fact. Parker
v. Hartford, 122 Conn. 500, 505, 190 A. 866 (1937). As
the sole arbiter of credibility, the jury was free to credit
the plaintiff’s testimony and to find that she exercised
due care. Because there was evidence in the record
from which the jury could have concluded that the
plaintiff was free of contributory negligence, the defen-
dant’s claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Also named as defendants were Joseph F. Marie, commissioner of the
Department of Transportation, and the Providence and Worcester Railroad
Company. Because the plaintiff’s claims against those defendants were
resolved prior to the trial of this matter, we refer in this opinion to the town
as the defendant.
2
The plaintiff testified that she diverged from her regular route to see a
scarecrow contest in Old Wethersfield, about one mile from her house.
3
General Statutes § 13a-149 provides in relevant part that ‘‘[a]ny 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. . . .’’