Opinion
No. CV 07 5012207 S
July 24, 2008
MEMORANDUM OF DECISION
In this case the plaintiff, who resided in Housing Authority property, allegedly fell and injured herself. She went to the office of the authority within days of the fall and communicated information to Ms. DeJesus, an authority employee, indicating the time and place of the fall and her injuries. She did not sign the document but there were indications in its contents that litigation was contemplated. The defendant authority has filed a motion for summary judgment maintaining that the notice provisions of § 8-67 were not complied with and that the matter should therefore be dismissed.
The plaintiff relies, in part, on an opinion of this court. In 1995 this court wrote an opinion, Martinez v. City of Meriden, 15 Conn. L. Rptr 403 (1995) which goes as far as one could go in taking what might be called a less demanding view of the reporting requirements of § 8-67 CGSA. That statute discusses the notice requirements where there is alleged to be an injury on Housing Authority property. The statute provides a person can bring suit within two years after a cause of action for injury on the authority's property "provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefore arose."
In Martinez, the plaintiff allegedly fell and on the day of her fall went to the Housing Authority office giving notice of the time, date, and location of her fall. At the request of a Housing Authority employee she filled out a document called: "General Liability Insurance Housing Authority Incident Report: State projects only." The employee told the plaintiff the form would be sent to the finance office. In the form the word "claimant" is used several times. Her lawyer wrote the authority within thirty days. The court reasoned that clearly there was notice of an intent to bring litigation.
In Martinez, the court went on to note, however, that "the more serious defect is the fact that (pursuant to § 8-67) notice must be filed with the chairman or secretary of the authority." The court went on to hold, however, that summary judgment should not be granted in the defendant's behalf because it was apparent that "notice of the claim got exactly to the people who would be entrusted with protection of the city's interests — the insurance carrier." The insurance company in fact contacted the plaintiff's lawyer for more information about her claim. In effect the court reasoned "actual notice" sufficed despite failure to notify the Housing Authority officials mentioned in the statute.
But then came Fields v. Housing Authority, 63 Conn.App. 617 (2001). In a decision interpreting the notice provision in § 13-149 this court in Torneo v. Old Colony Beach Club Association, 30 Conn. Law Rptr. 481 noted that Fields "directly analogized its interpretation of the notice requirements of § 8-67 to those of § 13a-149." And then noted: "But frankly what is implicit in Fields leads this court to believe its approach in Martinez was incorrect. That is, Fields, as a predicate to its whole discussion, assumed that written notice to the chairman or secretary of the Housing Authority was required for the action to continue to be viable — that is why in lieu of such notice having been given it had to analyze whether `actual notice' by way of oral notice to housing authority employees or waiver of the requirement by the defendant's insurance carrier could be a substitute for the written notice requirement of the statute. In its footnote 1 in Torneo, the court went on to say:
fn1 In Martinez, the court also was examining the adequacy of notice under § 8-67. In that case, notice was not given, as § 8-67 requires, to the chairman or secretary of the housing authority. The court agreed that notice to some housing authority employee could not be adequate notice under the statute since any particular employee "does not have the responsibility to handle claims or take the necessary steps to protect the government agency's position which is the purpose of notice in the first place." But the court examined all the correspondence, affidavits, etc. and did not dismiss the action for inadequate notice because "the notice of the claim got exactly to the people who would be entrusted with protection of the city's interests — the insurance carrier."
Upon reflection that argument misses the mark. It equates notice to the carrier with actual notice to the municipality — it had to take that tack since § 13a-149 requires written notice to city officials. But as noted, "actual notice" was rejected in Fields as a substitute for the statutorily defined notice and Martinez merely speculates that the city is protected because notice got to the carrier. That was probably true in Fields but it made no difference to the holding since it is for the legislature to determine the nature of the notice and determine what will or will not adequately protect the municipality.
Thus, Fields rejects an actual notice substitute for the legislatively mandated notice requirements of § 8-67. In this case the document filled out by Ms. DeJesus the Housing Authority employee, can be said to meet some requirements of the statute — it indicates legal action is in the offing, lists when and where the incident happened and was filled out well within the six-month notification period. The plaintiff did not sign it or submit it but it was completed with information she provided. But one § 8-67 requirement does not appear to be met. Ms. DeJesus checked authority files and in an affidavit says § 8-6 notice was not sent to the Housing Authority. Part of the § 8-67 requirement is that the notice be filed with the chairman or secretary of the authority. In effect Ms. DeJesus indicates this requirement was not met. This is supported by the fact that the document that was in the authority's files and is attached to the motions in this case is entitled "Report of Claim/Incident" and has a heading "Housing Authority Insurance Group." At the top of the document it states: "Please return the top copy of this form to the Housing Authority Insurance Group."
There is nothing in the record before the court to indicate the document at issue was submitted to the requisite § 8-67 officials, in fact that is contraindicated. Neither could the plaintiff even have supposed by reading the document, which she is presumed to have done, that it would be sent or filed with any entity other than the insurance company. Or to look at it from another perspective, a prima facie case has been made out to support the defendant's position and nothing has been submitted by the plaintiff by way of affidavits or deposition testimony to rebut it.
In any event the court is constrained to grant the defendant's motion for summary judgment.