Gaffney v. Cutler Realty Co. ( 1942 )

Memorandum of decision in action agáinst owner and lessee of premises for injury sustained in fall.

MUNGER, J.

The complaint a’lleges that the Cutler Realty Company was the owner of record of the premises described and the other defendant, The Lerner Shops, was the lessee. The defendants say that no evidence of any kind has been offered to show who had control or possession of the premises where the plaintiff fell. I think this position is sound and it would follow that no judgment can be rendered against either defendant.

Quite aside from that, however, it is impossible to'find that there existed any notice of the defective condition. No actual notice is claimed but constructive notice merely. The plaintiff finished work at 9 p.m. on the night of the injury and says she fell about 9:45. There were many hours of sunshine on the day of the injury. The day was cloudy. A light precipitation of snow began at 8:12 p.m. It is conceded that the store of the defendant The Lerner Shop closed that evening at 6 o’clock. It cannot be held that the defendants or either of them had any notice of any defective condition of the area where the plaintiff fell.

In Jainchill vs. Schwartz, 116 Conn. 522, 525, it is said with respect to notice a municipality of a defect: “The notice which a municipality must receive as a condition precedent of liability for injuries received by reason of a defective highway, must be 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.” This case has been followed by several other later .cases. The principle involved is quite the same as far as notice must be established as a condition of liability in the instant case. The court is obliged to find that the plaintiff has been unable to prevail. Judgment for the defendants.