Opinion
No. HHB CV 05-5000208 S
October 21, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The court heard argument at short calendar on October 11, 2005 concerning the defendant, Bristol Housing Authority's (Authority) motion for summary judgment (#105) (motion), based on its special defense in which it alleges that the plaintiff, Marino Fabrizio (Fabrizio), failed to comply with General Statute § 8-67s notice requirement. After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is denied.
I Background
By complaint dated April 13, 2005, Fabrizio brought this personal injury action against the Authority, which he alleges was a duly established and authorized housing authority for the City of Bristol. In his complaint, he alleges that, on or about February 9, 2004, as he was walking from his car through his parking space to his residence, he was caused to slip and fall, as a result of an accumulation of ice and snow. He claims to have suffered personal injuries, including injuries to his head, back, and right shoulder, as a result of the Authority's negligence. See Complaint, ¶¶ 3-5.
In paragraph 6 of his complaint, he alleges that "[a] copy of the notice re: 8-67 to the Town of Bristol dated June 8, 2004 is attached to this Complaint." The attached notice, dated June 8, 2004, likewise specifies the date of injury as being February 9, 2004. The notice states "[s]aid spot and parking lot had not been plowed, and said fall was caused by the failure of removal of the snow and ice which had accumulated in the parking lot area, and had not been sanded or remedied in any way."
In response to the complaint, the Authority filed its answer (#101). CT Page 13938-fz Therein the Authority denies that it was negligent and pleads, by special defense, that, "[t]he Plaintiff has failed to comply with the notice requirement of Connecticut General Statute § 8-67."
In its submission, the Authority contends that, contrary to Fabrizio's notice and complaint, the alleged accident occurred on February 19, 2004, not February 9, 2004. In support, the Authority provides exhibits, including copies of its request for admission and of plaintiff's medical records. The Authority argues that Fabrizio has failed to comply with § 8-67 which requires that a claimant provide the time when he sustained the alleged injuries.
In his objection to the motion (#109), Fabrizio contends that a typographical error in his notice filed pursuant to General Statute § 8-67 does not constitute failure of the notice as a matter of law. In his memorandum of law, page 4, he states, "The plaintiff admits that February 19, 2004 is the correct date of the accident and the date listed on Plaintiff's notice was a typographical error." Attached to his memorandum as Exhibit A are a copy of the notice and copies of a certified mail receipt and a signed "Green Card" addressed to the Authority, both of which list Fabrizio's name and state "doi 2-19-04," which the court interprets to mean that the "date" of incident or injury was listed as February 19, 2004. These documents specify dates of receipt of June 9, 2004 and June 10, 2004, respectively, which correspond to the date of the notice, June 8, 2004. See Exhibit A to Fabrizio's memorandum of law.
A "Green Card" is a returned receipt. See Castro v. Viera, 207 Conn. 420, 421 n. 1, 541 A.2d 1216 (1988).
II Standard of Review
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact . . . the burden of proof is on the movant. The evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents CT Page 13938-fa establishing the existence of such an issue. Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted and citations omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.26 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
III Discussion
General Statute § 8-67 provides, "[a]ny person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable may bring an action within two years after the cause of action therefor arose to recover damages from such authority, 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 therefor arose."
"[C]ompliance with the notice provision of § 8-67 is not essential to a determination of liability, but concerns only whether the plaintiff has taken the proper steps to warrant recovery. As such, the notice provision of § 8-67 operates as a condition subsequent to liability rather than a condition precedent . . . A notice provision is a condition precedent when the statute containing the notice provision creates a new cause of action unrecognized by the common law . . . Section 8-67 did not create liability where none existed . . . Rather, it provides procedural limitations on the ability to recover on a cause of action already available . . . Indeed, [a] written notice is not a condition precedent CT Page 13938-fb to the bringing of the action but is a limitation creating a condition subsequent . . . Compliance with the statute is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery." (Citations omitted and internal quotation marks omitted.) Fields v. Housing Authority of Stamford, 63 Conn.App. 617, 621-22, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001).
"The time limitations and notice provisions act to limit ability to recover, as do typical statutes of limitations, but do not become essential elements of a plaintiff's cause of action against a housing authority for negligence." White v. Edmonds, 38 Conn.App. 175, 184, 659 A.2d 748 (1995).
"Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts or the particular case . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet the statutory requirements." (Citation omitted; internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 27-28, 615 A.2d 1040 (1992). "In the context of this case, the court's role then is not to decide whether the plaintiff . . . complied with General Statutes 8-67, but whether an issue of material fact regarding compliance with the statute exists." Noney v. Waterbury Housing Authority, Superior Court, judicial district of Waterbury, Docket No. 135885 (June 27, 1997, Leheny, J.); Weiss v. Greenwich Housing Authority, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0131151 (April 7, 1994, Lewis, J.) ( 9 CSCR 433) ( 11 Conn. L. Rptr. 301) (same).
"The sufficiency of the notice is tested with reference to the purpose for which it is required." Bresnan v. Frankel, supra, 224 Conn. 26. "[T]he purpose of [§ 8-67] was to require that a housing authority be promptly notified of claims against it and to provide housing authorities with the same rights to notice as municipalities themselves." White v. Edmonds, supra, 38 Conn.App. 184.
With regard to the purpose of notice to municipalities, our Supreme Court has stated that "[t]he purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . . [T]he statutory notice assists a town in CT Page 13938-fc settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." (Citations omitted and internal quotation marks omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993).
"A reading of § 8-67 reveals that there are six elements to the notice requirement. Specifically, the notice must: (1) be in writing; (2) convey an intention to commence an action; (3) provide the time that the accident occurred; (4) provide the place where the damages were incurred; (5) be filed with the chairman or secretary of the authority; and (6) be filed within 6 months after the cause of action arose." Noney v. Waterbury Housing Authority, supra. Here, the only claimed deficiency relates to the time of the accident.
In considering the parties' submissions, the court notes that each has presented uncertified documents. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) ("[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1). For example, the Authority attached uncertified copies of medical records; similarly, the above-referenced copies of the certified mail receipt and Green Card, attached as part of Exhibit A to Fabrizio's memorandum, are uncertified. Neither party presented an affidavit.
Practice Book § 17-45 provides, in pertinent part, "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
However, our Supreme Court has stated that parties may "knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side.
In reviewing the parties' presentations, the court has disregarded certain of the documents presented by Fabrizio, as follows. See Exhibit B to Fabrizio's memorandum. Among these are an unsigned letter on his attorney's stationery, dated March 23, 2004, which refers to the date of CT Page 13938-fd the incident as being February 19, 2004. This must be disregarded since there is no evidence showing that it was sent and received.
The court also must disregard the letter from Pioneer Adjustment Service, Inc. (Pioneer), dated April 2, 2004, which lists the date of loss as being February 19, 2004 since actual notice is insufficient to satisfy § 8-67's requirements. See Fields v. Housing Authority of Stamford, supra, 63 Conn.App. 622-24. Other letters from Pioneer, dated in November 2004 and January 2005, also must be disregarded for that reason, and because they are dated beyond the six months notice period prescribed by § 8-67.
Having reviewed the certified mail receipt and Green Card attached to the notice (see Exhibit A to Fabrizio's memorandum), the court cannot conclude, as a matter of law, that the notice patently failed to meet the statutory requirements. Although the text of the notice refers to the date of the injury as being "02/09/04," and that the fall occurred "on February 9, 2004," both the attached certified mail receipt and the Green Card list the date as being the correct date, February 19, 2004, not February 9, 2004. On the record provided to the court it is unclear whether Fabrizio provided February 19, 2004, the correct date, to the Authority. This creates an issue of fact as to the sufficiency of the notice. The court may not resolve such an issue on a motion for summary judgment.
In view of this determination, the court need not address whether strict compliance with § 8-67's notice requirements is mandatory.
CONCLUSION
There is a genuine issue of material fact as to the sufficiency of the notice. The Authority has not shown that it is entitled to judgment as a matter of law. Accordingly, its motion is denied. It is so ordered.