Opinion
No. CV 09 502 22 89 S
July 10, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION #105.00)
BACKGROUND
The matter presently before the court arises out of a June 24, 2008 motorcycle accident on Cross Hill Road in Monroe, Connecticut. In the complaint, returnable February 17, 2009, the plaintiff, Sean Oldroyd, alleges that he sustained injuries and damages as a result of the "breach of statutory duty" of the defendant, the Town of Monroe. Essentially, the plaintiff alleges that the defendant failed to keep Cross Hill Road safe for travel, due to an accumulation of sand and/or debris on the roadway.
On March 16, 2009, the defendant moved for summary judgment, on the basis that the plaintiff failed to comply with the mandatory notice requirements set forth in Connecticut General Statutes Section § 13a-149, known as the municipal defective highway statute. The plaintiff filed his memorandum in opposition, dated April 29, 2009, on May 8, 2009, the defendant filed a reply memorandum on May 6, 2009. The matter was heard at short calendar on May 11, 2009.
Although the statute is not specifically identified in the complaint, the plaintiff, in his argument in opposition to the defendant's motion for summary judgment, appears to concede that the action was brought pursuant to Connecticut General Statute § 13a-149, by virtue of his argument that he has complied with the notice requirements of the statute.
DISCUSSION
"Summary Judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
In its motion for summary judgment, the town argues that the notice given by the plaintiff is insufficient, as it fails to provide a general description of the injury, as required by the statute. The town takes the position that the plaintiff cannot avail himself of the statutory savings clause as according to the defendant, the plaintiff has "provide[d] no description whatsoever of the nature of the injury claimed." The plaintiff, on the other hand, posits that the adequacy of the notice is a question of fact for trial and that any deficiencies with the notice, which the plaintiff claims was sufficient, was cured by the plaintiff's subsequent notice to the State of Connecticut Department of Transportation, "which eventually informed the Town of Monroe upon the conclusion of its investigation." The plaintiff provided copies of a September 4, 2008 "Notice of Injury pursuant to C.G.S. Section 13a-144" addressed to the Commissioner of Transportation for the State of Connecticut, which identified the injuries as "fracture of the right shoulder requiring surgical repair; fracture of the right humerus head; closed head injury; contusions and abrasions," and an internal memo from the Department of Transportation dated September 30, 2008, indicating that the area where the alleged incident occurred was not a state-maintained roadway and suggesting that the claim be forwarded to the Monroe Public Works Department. Additionally, the plaintiff attached a copy of a transcribed statement of the plaintiff taken by one Thomas Krol on December 15, 2008; the plaintiff claims in his opposition that Mr. Krol is a claims specialist for the Town's insurer, although no affidavit is provided to substantiate that claim. The defendant, in response, argues that the sufficiency of the notice is a question of law for the court, and that actual or constructive notice of a claim brought pursuant to § 13a-149 does not substitute for the written notice required by statute.
The complaint alleges that the written notice of the injury was delivered to the defendant on August 5, 2008. Both parties are in agreement that notice, dated August 1, 2008, provides the following description: "Nature of Damages Claimed: Personal injury, including but not limited to medical bills, lost wages, with pain and suffering."
The plaintiff in his opposition, refers to a Thomas J. "Krol;" the statement itself repeatedly identifies him as Tom "Coe," which appears to be a phonetic spelling.
General Statute § 13a-149 provides in relevant part: "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 selectmen of the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation . . . No notice given under the provisions of this section shall be held invalid or insufficient by reason of 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." The final sentence of § 13a-149 quoted above is known as the "savings clause."
The giving of notice, pursuant to the statute, is a condition precedent to maintaining a suit thereunder. Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003). "The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991).
The statute requires (1) written notice of the injury; (2) a general description of the injury; (3) the cause thereof; (4) the time; and (5) the place of its occurrence. General Statutes § 13a-149; Salemme v. Seymour, supra 262 Conn. 793. "Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet [the statutory requirements], the question of its adequacy 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 of the particular case." (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). Nevertheless, before submitting this question to a fact finder "the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements." (Internal quotation marks omitted.) Bresnan v. Frankel, supra, 224 Conn. 28. The question of the legal sufficiency of statutory notice that is not patently defective is properly raised by a motion to strike or a motion for summary judgment. Winslow v. Bloomfield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0399302 (August 25, 1992, Burns, J.) ( 7 Conn. L. Rptr. 260, 261).
The adequacy of the notice required by § 13a-149 also depends on "the purpose of the statute . . . [T]he 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 . . . More specifically . . . the statutory notice assists a town in 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." (Citation omitted; internal quotation marks omitted.) Salemme v. Seymour, supra, 262 Conn. 793. The savings clause in § 13a-149 provides that a notice will not be held invalid or insufficient due to an inaccurate description of the injury, or of the time, place or cause of the accident if the plaintiff did not intend to mislead the defendant and the defendant was not, in fact, misled. Accordingly, "[u]nder § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim . . . This savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent . . . Indeed, we emphasize that `entirely absent' means exactly that; one of the five essential elements . . . must be completely, totally and unmistakable omitted from the plaintiff's notice. In the absence of such an omission, the savings clause of § 13a-149 could apply, depending on the facts adduced at trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 793.
As to the description of the plaintiff's injuries, a notice stating that the plaintiff "was injured after she tripped over a defect in the sidewalk" and that she had "injuries she sustained in a fall" is insufficient as a matter of law in that it does not meet the statutory requirement of providing a general description of the plaintiff's injury. Martin v. Plainville, 240 Conn. 105, 107, 113, 689 A.2d 1125 (1997). Moreover, the savings clause did not apply because "the notice . . . failed to give any description of the injury whatsoever and, thus, did not comport with one of the five fundamental requirements for perfected notice." Id., 113. "The requirement that the plaintiff give a general description of the injury is a reasonable compromise between the giving of no description and the giving of a very specific one." Id., 112. The description, or lack thereof, of the injuries contained in the notice presently before the court is very similar to that confronted by the court is very similar to that confronted by the court in Martin. The trial court in Martin had granted the town's motion to strike, finding that the plaintiff's notice lacked any description of her injuries, and was defective as a matter of law pursuant to Marino v. East Haven, 120 Conn. 577 (1935), whereby the Connecticut Supreme Court held that the written notice stating that the plaintiff "fell and was injured" was insufficient as a matter of law. The Connecticut Supreme Court, in Martin, declined the invitation to overrule Marino, and held that the savings clause applies only where the information provided is inaccurate, not where the information is entirely absent. Id. at 109, 113.
Following Martin, numerous trial courts have been called upon to address the sufficiency of the written notice as it related to a description of the injuries. See e.g. Cyr v. Baltazar Contractors, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. 085003181 (November 6, 2009, Sferraza, J.) (granting motion to dismiss, where notice stated that plaintiff "sustained personal injuries," and where notice invited the town to "have a representative of [its] insurance carrier contact the [plaintiff's attorney] directly to discuss this claim"); Barry v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 05 5000380 (August 22, 2006, Tobin, J.) (granting motion to strike, where notice referred to "medical expenses for treatment which are continuing, and in addition, but not limited to, pain and suffering and potential permanent injury to her person" and "resulting personal injuries"); Righton v. Middletown, Superior Court, judicial district of Middlesex at Middletown, Docket No. 07 5003336 (November 4, 2008, Jones, J.) [ 46 Conn. L. Rptr. 576] (granting motion for summary judgment, where notice merely referred to "personal injuries;" rejecting the plaintiff's argument that any defects were cured by the police report, which was incorporated by reference into the notice but which also failed to provide any description of the injuries, or by the claim form which identified the plaintiff's injuries as a "right foot sprain and strain," because the claim form was submitted five days after the ninety-day notice deadline set forth in the statute); Scianna v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 184527 (December 28, 2001, Adams, J.) [ 31 Conn. L. Rptr. 153] (granting motion to dismiss, and rejecting the plaintiff's argument that the town had actual notice, where the only written notice within the ninety days merely referred to "serious injuries;" holding that actual notice is not a substitute which can fulfill the jurisdictional requirement of General Statutes § 13a-149); Torneo v. Old Colony Beach Club Association, Superior Court, judicial district of New London at New London, Docket No. 556367 (October 10, 2001, Corradino, J.) [ 30 Conn. L. Rptr. 481] (granting motion to dismiss, where notice failed to describe injury; rejecting the plaintiff's argument that the town had actual notice by virtue of the plaintiff's letter to the town's insurance carrier made within the ninety day period, and which did describe injuries, holding actual notice cannot substitute for the statutory required notice); Smigala v. Brookfield, Superior Court, judicial district of Danbury at Danbury, Docket No. 01 0341644 (August 1, 2001, Hiller, J.) (granting motion to dismiss, where the notice stated that the plaintiff "was caused to sustain serious injuries"); Thompson v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 0162314 (September 26, 2000, D'Andrea, J.) (granting motion to strike where notice referred to "personal injury, pain and sorrow, suffering, and related complications arising from a fall"). But see Sporko v. Wolcott, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 08 5010506 (April 30, 2009, Brunetti, J.) (denying motion for summary judgment, where notice stated that the plaintiff "lost consciousness and suffered significant injuries. She was transported to St. Mary's hospital and placed in the I.C.U.;" the court reasoned that "[a]nyone reading this notice would deduce that the plaintiff suffered a head injury and that it was a serious injury").
In the present case, as in Martin, the description of the claimed injuries can only fairly be described as entirely absent. As such, the plaintiff cannot be afforded the relief provided by the savings clause contained in § 13a-149, as it does not apply on these facts. The plaintiff simply cannot circumvent the requirements of the statute by the use of the all-encompassing term "personal injuries," which leaves one to speculate as the severity or lack of severity of the injury, which could run the spectrum from insignificant to catastrophic. "As a matter of fundamental fairness, a municipality should be sufficiently apprised of a general description of a plaintiff's alleged injuries so that it can assess its exposure and allocate resources, which may be scarce in smaller towns, to facilitate an appropriate investigation and the hastening of a possible settlement. Indeed, the entire strategy of a town's legal defense might well be predicated on the nature of the injuries alleged. For example, a town might handle a claim alleging a hairline fracture of the small toe quite differently than one alleging a serious injury to the brain. The requirement that the plaintiff give a general description of the injury is a reasonable compromise between the giving of no description and the giving of a very specific one." Martin, supra, at 111-12 (citations omitted). This court also rejects the argument advanced by the plaintiff that the notice to the DOT and/or the Town's insurance carrier can substitute for the written notice required by the statute.
The court would also note that both the internal memorandum and statement taken by Mr. Coe were well beyond the ninety-day deadline set forth in the statute.
For the foregoing reasons, the defendant's motion for summary judgment is granted.