DocketNumber: No. CV89 0262023S
Judges: BELINKIE, J.
Filed Date: 11/9/1993
Status: Non-Precedential
Modified Date: 4/18/2021
The fire in question in the plaintiff tenant's premises was caused by the actions of the plaintiff in overloading electrical wiring in her apartment.
The jury returned a verdict in favor of the defendant Anna Edmonds, and awarded the plaintiff $300,000.00, reduced to $165,000.00, based on 45% contributory negligence on the part of the plaintiff, against the Stamford Housing Authority.
The Housing Authority has moved to set aside the verdict and for judgment in its favor notwithstanding such verdict. The principal argument of the Housing Authority is that there was no proof that the plaintiff had given notice of the time and place where the plaintiff's damages were incurred, within six (6) months after the cause of action therefor arose, as alleged in paragraph ten of the second count, directed against the Housing Authority. It is undisputed that there was no evidence in proof of the allegation in paragraph ten of the second count.
The Stamford Housing Authority was created in accordance with Chapter 128, Connecticut General Statutes, Department of Housing: Municipal Housing Projects. Under Connecticut General Statutes
Section
Similarly, Harris v. Housing Authority of Waterbury,
Of interest, in this connection, is the recent case of Empronto-McKevitt v. Meridan Housing Authority, 15 C.L.T. 17, 308 (Gaffney, J.). In that case, the court seems to have extended the impact of
As heretofore mentioned, the plaintiff in paragraph ten of her second count alleged that notice of the time and place of the plaintiff's damages was given to the Stamford Housing Authority within six months of the occurrence. The Housing Authority has denied this allegation. Interestingly, during deliberations, the jury asked the following question:
"Answer and special defense, Stamford Housing,"
"don't understand paragraph 10."
The court, in response, read Connecticut General Statutes
Plaintiff's counsel argued strenuously that the notice requirement was a matter of defense and not his burden to prove. However, as indicated under Harris v. Housing Authority, supra, once having anticipated such defense by affirmatively pleading notice, Section
"It is basic law that a party who alleges the affirmative of any issue, albeit gratuitously, will be held to have assumed the burden of proof with respect to that issue." Pawlinski v. Allstate Ins. Co.,
The plaintiff has failed to sustain her burden of proof with respect to an essential allegation of her complaint. The motion to set aside is granted. The motion for judgment notwithstanding the verdict is denied and a new trial is ordered. Although "the plaintiff in this case could not recover because the evidence failed to establish an essential element in her case, she should not be deprived of an opportunity by a retrial to secure judgment either on the pleadings as they stood or as they might be amended." Gesualdi v. Connecticut Co.,
BELINKIE, J. JUDGE REFEREE CT Page 9677