DocketNumber: No. CV 95-0074570S
Citation Numbers: 1995 Conn. Super. Ct. 4938
Judges: AURIGEMMA, J.
Filed Date: 5/10/1995
Status: Non-Precedential
Modified Date: 4/18/2021
In Steele v. Stonington,
We agree with the trial court and the defendant that, pursuant to the Tort Reform Act of 1986, "an action under the highway defect statute,
13a-149 , is a plaintiff's exclusive remedy against a municipality or other political subdivision `for damages resulting from injury to any person or property by means of a defective road or bridge.'" Sanzone v. Board of Police Commissioners,219 Conn. 179 ,192 ,592 A.2d 912 (1991). We disagree, however, with the defendant's argument that the plaintiff's claim must be construed as a negligence claim rather than a claim pursuant to13a-149 . Indeed, although the cause of action under13a-149 is predicated upon a defective highway, we have long held that the municipality's liability under the statute resembles liability for negligence. See, e.g., Bacon v. Rocky Hill,126 Conn. 402 ,404 ,11 A.2d 399 (1940); Frechette v. New Haven,104 Conn. 83 ,87-90 ,132 A. 467 (1926). If a difference does exist between an action predicated on the municipal highway defect statute and negligence, that difference, except for the requirement that the plaintiff act with due care, is paper thin.
225 Conn. at.
The Court in Steele made it clear that it would not countenance a hypertechnical application of its holding in Sanzone
and analyzed the plaintiff's complaint, in conjunction with other pleadings, in light of the requirements for establishing liability under §
the plaintiff ha[s] the burden of proving (1) the existence of a defect which resulted from the failure of the defendant to use reasonable care to keep the . . . [highways] within its control in a reasonably safe condition for public travel; (2) notice, either actual or constructive, to the defendant of the defect; and (3) the CT Page 4940 exercise by him of due care."
The Court in Steele held that even though the complaint failed to allege that the action was brought pursuant to §
The complaint in this case does not make reference to §
The complaint does state a claim for violation of §
The second ground of the Motion to Strike is that the statutory notice sent by the plaintiff to the defendant is insufficient as a matter of law. Section
Any 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. . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk CT Page 4941 of such city or borough. . . . No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.
In Pratt v. Old Saybrook,
The accident occurred on February 14, 1993 at approximately 9:37 p.m. on said Country Club Road and near its intersection with Middle Street.
My client's motor vehicle accident and resulting injuries were caused by icy road conditions as result of faulty drainage which overflowed onto the road, causing her to skid out of control and hit a tree.
As a result of the accident, my client suffered injuries to her neck and back.
In Bassin v. Stamford,
The Appellate Court did not agree with the trial court's analysis and did not find that the notice was insufficient as a matter of law. The following is a portion of the Court's analysis in reversing the summary judgment granted by the trial court in favor of the city:
Our analysis of the notice reveals no basis for the trial court's conclusion that the notice was insufficient as a matter of law. Whether notice is sufficient is normally a question of fact for the jury. Morico v. Cox,
134 Conn. 218 ,223-24 ,56 A.2d 522 (1947). "The sufficiency of the notice is to be tested by the purpose of the statute, and not by the requirements of a pleading." Sizer v. Waterbury,113 Conn. 145 ,157-58 ,154 A. 639 (1931). "`The obvious purpose of [the statutory notice provision] is that the officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to enquire into the facts of the case intelligently.' Shaw v. Waterbury, [46 Conn. 263 ,266 (1878)]." Id., 156. Notice "is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred." (Emphasis in original.) Id., 158. The notice in this case stated that the plaintiff's injury occurred when he "tripped over a raised sewer hole at the Stamford Railroad Station on South State Street" as he "was exiting the Railroad Station on the Southbound side" and "going to the taxi stand. . . ." While the notice in this case could be more specific as to the precise location of the sewer hole over which the plaintiff tripped, it is not so indefinite that no reasonable jury could find that, under the circumstances, it was adequate to identify the alleged defect for the city.
The Motion to Strike the complaint based on the allegedly defective notice must be denied because the notice contains the five elements required under Pratt v. Old Saybrook, supra. The sufficiency of one or more of those elements is an issue of fact for the jury. Moreover, "No notice given under the provisions of CT Page 4943 this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby." §
For the reasons set forth above the Motion to Strike the, complaint is denied and it is hereby
ORDERED that the plaintiff amend her complaint forthwith to more properly allege a cause of action under §
By the Court,
Aurigemma, J.