Opinion
No. NNH CV 08-5016831 S
February 17, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Essie Dawson, alleges that she was injured on October 24, 2006, when she tripped on a City of New Haven-owned sidewalk at the entrance walkway to property located at 640 Moreland Road which was owned by the co-defendant Community Baptist Church. The plaintiff has recently settled with the church as is proceeding solely against the City in a highway defect action pursuant to Gen. Stats. Sec. 13a-149. Trial is scheduled to commence in April.
"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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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 of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefore . . . 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."
On January 10, 2010, the City filed a Motion to Dismiss, alleging that this court lacks subject matter jurisdiction over the plaintiff's complaint in that she has failed to provide the City with the timely notice required under Gen. Stats. Sec. 13a-149. The plaintiff agrees, as she must, that because the motion implicates subject matter jurisdiction, it must be resolved before trial can commence. "The giving of statutory written notice of injury is a condition precedent to the cause of action, whether the action is against the state or against any subdivision thereof . . ." Wethersfield v. National Fire Insurance Co., 145, Conn. 368, 371 (1958). The failure to give the written notice of claim required by § 13a-149 deprives the court of subject matter jurisdiction. Ferreira v. Pringle, 225 Conn. 330, 334-35 (2001). Subject matter jurisdiction is never waived and can be raised at any time. Castro v. Viera, 201 Conn. 420, 429-30 (1988). A motion to dismiss is the proper pleading to contest subject matter jurisdiction. Practice Book § 10-31(a)(1).
The City acknowledges that on January 17, 2007, within the 90 days required by statute, the plaintiff caused the following notice to be served on the City Clerk:
To the City of New Haven,
I Michelle Dawson Ledbetter as power of attorney for my mother Essie Dawson, who is paralyzed from a fall on Oct. 24, 2006, on the city sidewalk perpendicular to Moreland Road, directly in front of the main entrance to 540 Winthrop Avenue. Nationwide placed the city on notice of her fall, to date we have not heard from them. The statute requires the city to be placed on formal notice of her fall within 90 days from the accident. The 90 days will be up on 1-24-2007.
The City alleges, however, that this notice is insufficient because it fails to indicate the cause of the plaintiff's injury with the requisite specificity. The plaintiff acknowledges that the specific allegations she made in her January 17, 2007 notice do not, in and of themselves, state the cause of her fall and injury with specificity, but she points out that her notice references another notice of the same incident filed by Paul Hacku, an adjuster for Nationwide Insurance Co., which insures the church. That notice, served on the Town Clerk on November 21, 2006 and thus also within the statutory 90-day window, states:
Our Insured: Community Baptist Church Inc.
Our Claim Number: 51 06 BO 182596 10242006 51
Date of Loss: 10-24-2006
We are the insurance carrier for Community Baptist Church and have been placed on notice of a trip and fall accident on the city sidewalk in front of their parsonage house located at 640 Winthrop Avenue, New Haven, CT. Pursuant to Conn. Gen. Stat. 13a-149 we are hereby formally providing your office with written notice of this incident.
Date of Loss: 10-24-06
Time: About 8:30 PM
Location: On the city sidewalk that runs perpendicular to Moreland Road, directly in front of the main entrance to 640 Winthrop Avenue (photo attached).
Injured party: Essie Dawson 81 Fountain Terrace, New Haven, CT 06515.
Description: Ms. Dawson tripped on a 2.25 inch step leading from Moreland Road to the city sidewalk in front of the Moreland Road side entrance to 640 Winthrop Avenue, New Haven, CT.
It is believed the location of the incident is City owned property and the maintenance and repair of any defect or hazard is the responsibility of the City of New Haven.
The City does not vigorously dispute the conclusion that the information contained in the Nationwide notice and the information contained in the plaintiff's notice, if both had been combined in the plaintiff's notice, would have satisfied the statute's notice requirement. It has even conceded, as it must, in this court's view, that if the plaintiff had specifically "incorporated by reference" the language of the Nationwide notice, it would probably have satisfied the notice requirements of Sec. 13a-149 because the Nationwide notice does state the alleged cause of the fall with the requisite specificity. Indeed, that notice recited a 2.25" rise between the level of the sidewalk and the Moreland Road entrance to the church property and also specifically stated both that it was the plaintiff who was injured and that it was the City who bore the responsibility for the maintenance of the location of the alleged defect. The notice even included a photograph of the alleged defect.
See Justice Berdon's dissent in Bresnan v. Frankel, 224 Conn. 23, 29 n. 3 (1992), to the effect that the defendant there also conceded that had the plaintiff specifically incorporated by reference police reports that accurately identified the defect, the statute's notice requirement would have been satisfied.
Instead, the City argues that 1) the obligation is solely on the plaintiff to provide notice; 2) that the notice she provided was incomplete; and 3) that she can not rely on another notice, independently provided by an individual who did not purport to represent her interests, to fill in the blanks in an otherwise deficient notice. The City acknowledges that the result it seeks in this case is harsh, given the catastrophic nature of the injury alleged by the plaintiff (quadriplegia), but it suggests that the remedy, if any, lies with the legislature, and not with the courts.
The plaintiff responds that the purpose of Sec. 13a-149 is to be certain that a municipality receives timely, accurate and reasonably detailed notice of an injury that is claimed to have resulted from a highway defect, and she further contends that her notice, by referring to the Nationwide notice and, by implication, the added detail contained within that notice, has accomplished the statutory purpose. To require that her notice use "magic words," such as "this notice hereby incorporates by reference the language contained in . . ." the Nationwide notice, would be a classic case of elevating form over substance.
In Salemme v Town of Seymour, 262 Conn. 787, 793-96 (2003), The Supreme Court stated: "In determining whether the notice is sufficient, we must look to the purpose of the statute . . . The 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 interest . . . More specifically, as we recently stated in Sanzone v. Board of Police Commissioners, ( 219 Conn. 179, 198, 592 A.2d 912 (1991), 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 the meritless claims."(Citations omitted; internal quotations marks omitted.)
Gen. Statutes Sec. 13a-149 requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof. Pratt v. Old Saybrook, 225 Conn. 177, 180 (1993), Marino v. East Haven, 120 Conn. 577, 579 (1935), Sizer v. Waterbury, 113 Conn. 145, 156 (1931). A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality. Pratt v. Old Saybrook, 225 Conn. 177, at 180, 181, Marino v East Haven, 120 Conn. 577 at 579 (1935). Nicholaus v. Bridgeport, 117 Conn. 398, 402 (1933).
Although notice is an issue for the fact-finder at time of trial, Morico v. Cox, 134 Conn. 218, 233, 244 (1947), "[b]efore submitting the question to the jury," 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, CT Page 5008 224 Conn. 23, 28 (1992). Unless the City is correct in its contention that the plaintiff may not rely on its reference to the Nationwide notice, there can hardly be any dispute that this total package "patently meets" those requirements.
In addition, the plaintiff points to the "savings clause" of Sec. 13a-149, which states: "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 or borough was not in fact misled thereby." The plaintiff herself indisputably gave timely, albeit incomplete, notice of the circumstances of her injury. Nationwide's notice, if it may be attributed to the plaintiff, contains information that completes the plaintiff's notice requirements. Although Nationwide could not itself, since it was not the plaintiff's representative, file a notice on her behalf, there is nothing within the letter or spirit of Sec. 13a-149 that prevents her from specifically relying on the information contained within the Nationwide notice to complete the information needed to satisfy Sec. 13a-149's notice requirement.
There is no claim here that the plaintiff intended to mislead the City, and the fact that the plaintiff only "referred" to the Nationwide notice instead of specifically "incorporating it by reference" did not in any way mislead the City with regard to the plaintiff's claim or the alleged cause of her injury. The City, indeed, acknowledges that it was not misled. The savings clause of Sec. 13a-149, as distinguished from the lack of such a clause within the analogous Sec. 13a-144, which governs highway defect claims against the State of Connecticut, specifically permits an inaccurate notice to be supplemented, which the plaintiff here did by referring to the details of the Nationwide notice. The Nationwide notice was not merely a statement of a potential claim against the City by Nationwide or by the Church which it insures (although it may also have sought to accomplish that purpose), but was also a statement that had the effect of alerting the City to the location where the plaintiff was injured and describing the alleged defect with particularity. Added to the material in the plaintiff's own notice, it completed the process of notifying the City that the plaintiff claimed that she was injured as a result of the noticed defect.
To be sure, the Nationwide notice on its own, even though it included all the information necessary to put the City on notice of allegations of an injury and its cause, would not have sufficed because it did not come from the plaintiff herself or anyone purporting to represent her. Because the plaintiff filed her own timely notice, however, and because it included, by reference, the added information provided by Nationwide, the court concludes that the notice meets the requirements of Sec. 13a-149 and that the Motion to Dismiss should be denied.
The fact pattern presented by this motion appears to be unique in the annals of Connecticut law, and, as a result, the cases cited by both parties, while providing some guidance, do not provide ultimate answers. Warkinton v. Burton, 223 Conn. 14 (1992), for example, involved a situation in which the plaintiff, who had filed no timely notice of her own, sought to rely solely on a police report of the alleged defect and the letters of two state representatives and a third person. Bresnan v. Frankel, 224 Conn. 23 (1992) was a state highway defect case in which the plaintiff did file a very general notice, citing the name of the highway in question, but provided no more information. She tried to rely on information about flooding conditions, which allegedly caused the accident, that police had brought to the attention of the commissioner several hours before the accident. That information, of course, not only preceded the accident but was also non-specific with respect to the particular plaintiff. That case, in addition, involved Sec. 13a-144, which unlike the statute involved here, lacks a "savings clause." Diamond v. City of New Haven, 2005 Ct. Sup. 7110, 39 Conn. L. Rptr. 214, Superior Court, Judicial District of New Haven at New Haven (Levin, J., April 19, 2005) involved a claim that service of the notice on the City's Corporation Counsel, rather than the City Clerk, was sufficient under the statute. The court rejected that claim, but in the present case both notices were indisputably served on the New Haven City Clerk.
Pratt v. Old Saybrook, 225 Conn. 177 (1993) stands for the proposition that Sec. 13a-149, and particularly the provisions of its savings clause, should be construed liberally in favor of the plaintiff. In this case, however, there is no need for the plaintiff to rely on ambiguities being construed in her favor. Her notice, augmented by the Nationwide notice to which it referred, accomplished the statutory purpose. Notice under Sec. 13a-149 "is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred." Bassin v. Stamford, 26 Conn.App. 234, 537 (1992) (Internal citations omitted.). The notice given by the plaintiff, including its reference to the additional details which had already been supplied by Nationwide, enabled City officials to know that an injury occurred and when it occurred, as well as to ascertain where it occurred and the identity of the specific alleged defect was claimed to have caused the injury. The Motion to Dismiss is therefore denied.