DocketNumber: No. CV94 0364343S
Citation Numbers: 1996 Conn. Super. Ct. 9883
Judges: CORRADINO, J.
Filed Date: 11/14/1996
Status: Non-Precedential
Modified Date: 4/17/2021
Under §
The statute requires that that written notice be given of the injury and a general description of the same, the cause of the injury and the time and the place of its occurrence. The notice of April 2 gives notice of the time and place of the injury. The location of the incident is somewhat ambiguous — it says the injury occurred to the plaintiff while she was walking on the sidewalk "known as Boylston Street and West Spring Street, in West Haven." This cannot be considered to be adequate notice of the place of injury and there is no information as to the cause CT Page 9884 of the injury in this letter of April 2. The purpose of notification of place and cause of the injury is to enable the town to make an adequate investigation and this notice does not allow the town to do so, cf. Schmidt v. Manchester,
The description of the injury is not as detailed as it could be. The letter indicates the plaintiff fell and injured her left leg and that she received treatment from a certain doctor at a hospital subsequent to the fall. In Goerdel v. Meriden,
The court considers that the notice as to injury was adequate here. The usual rubric is that statutes such as §
In any event, after the letter to the town clerk of April 2, 1993, the deputy corporation counsel for the City wrote counsel for the plaintiff on April 12, 1993. He said, in reference to the claim made, "I am requesting further information as to the exact location of said falldowns. Please provide me with this information as I will need to forward same to our insurance carrier and our sidewalk inspector so that he may locate the alleged defects." On April 15, 1993 counsel for the plaintiff CT Page 9885 wrote back to the deputy corporation counsel; he enclosed the police report saying it should provide the exact location of the fall. He goes on to say that the plaintiff fell due to the icy condition of the sidewalk and the accident took place at the intersection of Boylston Street and West Spring Street; the attached police report gave the location as 40 Boylston Street.
The defendant City's main contention is that the additional items and information sent to the corporation counsel's office do not cure the inadequacy of the original notice because they were not sent to the clerk as required by statute. As the court remembers, counsel for the City conceded at oral argument that if notice to the corporation counsel was proper notice then there would be not deficiency with the notice given. Since the court has already held that notice of injury was adequate in the April 2 notice, for purposes of this discussion at least, that is assumed, i.e., that the issue of description of the injury is no longer in this case. In any event, it is clear that the April 15 letter to the City's lawyer is well within the 90 day limit and describes the cause of the fall and the location, the date and time already having been given in the April 2 letter. On the question now before the court the defendant places great reliance on Zotta v. Burns,
There are two difficulties with the defendant City's position presented by the facts of this case. The Zotta case involved a suit against the Commissioner of Transportation so that §
"Even if we were to assume that such an ambiguous notice was sufficient to meet the threshold requirements of General Statutes § 13a-1-14 so as to permit the question of validity to go to the jury, it is clear that CT Page 9886 this notice was not sent `to the commissioner' as the statute requires. Construing the statutory requirements strictly as we must, we conclude that the plaintiff's correspondence, which was forwarded to the defendant's insurance company, failed to meet the requirement of notice `to the commissioner.'"
Here too, the deficiency of the original notice of April 2nd was supplemented by the added information given the defendant's corporation counsel on April 15, 1993 but that information was not given to the "clerk" of the Town as required in §
Obviously, there was no intention to mislead here — the necessary information was sent to the corporation counsel almost immediately after it was requested less than a month after the accident and well within the ninety day notice period. Also, if the legislature has determined that notice within the ninety day period is adequate, it is difficult to understand how a good faith claim could be made that the city was mislead here if the necessary information was given to the lawyers representing the City and its interests within that ninety day period.
Although the statutorily described "notice" has to be given to the "clerk" of the town, absent such "notice to the "clerk", the savings clause itself doesn't require that the criteria by which a court determiners if there was an intention to mislead or whether the town was misled must be confined to examining what information was later sent to or otherwise made available to the "clerk" apart from the original "notice" which was inadequate. If a court determines the city was not misled and there was no intention to mislead since the necessary information in fact got to the city's lawyers, it would completely defeat the ameliorative intent of the savings clause to require that that added information, which would allow the city to defend itself because it was not, in fact, misled, had to be sent to the clerk CT Page 9887 before a finding could be made that the city was not misled. Such an interpretation would violate the plain language of the statute.
The fact that actions such as these are in derogation of the common law and enabling statutes must be read strictly does not mean a court can ignore the obvious attempts of the legislature to relax harsh applications of statutory language. Leaving aside the savings clause, there is another aspect of this case that the court believes argues against the city prevailing on its motion.Zotta v. Burns, supra, involved a situation where an employee of the commissioner had told the plaintiff to send the necessary information, not included in the original notice, to the defendant's insurance company. The court rejected an estoppel argument. Saying at pages 175-176 that: "Estoppel against a governmental agency may be invoked only in limited instances and with great caution." Ordinarily, the party who claims estoppel must show the party against whom estoppel is claimed induced another to believe certain facts exist and to act on that belief and the other party must change its position in reliance on those facts.
Zotta goes on to say to invoke an estoppel claim against a government agency the claimant must also show the government agent who induced the detrimental reliance had authority to act in such matters and "that special circumstances exist which make it highly inequitable or oppressive to enforce the applicable law." The party trying to rely on estoppel must show it exercised due diligence in ascertaining the legality of its conduct and not only lacked the knowledge of the true state of things but had no way to conveniently acquire that knowledge. In Zotta the court refused to apply the estoppel doctrine against the defendant commissioner because there was no evidence that the plaintiff lacked knowledge of the true state of things or a convenient way to correct it; "To the contrary, it is clear that had the plaintiff `exercised due diligence in ascertaining the legality' of his conduct . . . he would have known that the statute specifically required notice to the defendant rather than to the defendant's insurance carrier."
It seems to the court that different considerations are raised when a lawyer for the defendant City and not some undefined employee with no ascertainable right or assigned responsibility to protect the City's interests writes a letter to the plaintiff or his or her lawyer saying that in reference to CT Page 9888 your claim, I request further information as to the location of the falldown and so that our carrier and a city official can inspect the alleged defect. This defines the notice which the individual charged with representing the City's interests deems necessary to accomplish that goal which was the whole purpose of requiring adequate notice in the first place — the right of the city to fairly defend itself. Query whether a lawyer for the plaintiff would even be acting appropriately if after receiving a letter like this from opposing counsel he or she communicates directly wit the clerk by giving the clerk the information requested by the town's lawyer? True, as in Zotta the plaintiff's lawyer could easily ascertain that the further information requiring adequate notice in the first place — the right of the city to fairly defend itself. Query whether a lawyer for the plaintiff would even be acting appropriately if after receiving letter like this from opposing counsel he or she communicates directly wit the clerk by giving the clerk the information requested by the town's lawyer? True, as in Zotta the plaintiff' lawyer could easily ascertain that the further information requested was not originally provided and ought to have been given to the clerk but where the request for the same information comes not as in Zotta from some unidentified employee but from the town's lawyer, why would plaintiff's counsel think he'd have to go through the redundant task of forwarding the same information to the lawyer and the clerk. If the clerk got the information he or she would have forwarded it to the lawyer for the City in any event?
For the foregoing reasons, the motion for summary judgment is denied.
CORRADINO, J.