Opinion
No. CV 03 0089569S
March 29, 2004
MEMORANDUM OF DECISION
The defendant, Torrington housing authority, moves for summary judgment on count two of the plaintiff's complaint, which alleges negligence, on the ground that the plaintiff failed to give notice to the defendant as required by Connecticut General Statutes § 8-67. The plaintiff argues that notice provided by the plaintiff's workers' compensation carrier is sufficient to satisfy the requirements of General Statutes § 8-67.
General Statutes § 8-67 sets forth the notice requirements for people who are injured on housing authority property. Section 8-67 requires that there be written notice of the intention to commence an action, including the time and place where the injury occurred, filed with the chairman or the secretary of the housing authority within six months after the action arises. "The proper vehicle to raise [noncompliance with § 8-67] is through a motion for summary judgment . . ." Leach v. Norwalk Housing Authority, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03403801 (January 23, 2004, Dewey, J.).
"In White v. Edmonds, 38 Conn. App. 175, 183, 659, A.2d 748 (1995), [the Appellate Court] held that compliance 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. Id., 183-84. 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. Id., 185. Section 8-67 did not create liability where none existed. Id. Rather, it provides procedural limitations on the ability to recover on a cause of action already available. Id. Indeed, [a] written notice is not a condition precedent to the bringing of the action but is a limitation creating a condition subsequent . . . Compliance with [§ 8-67] is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery . . . Thus, because the defendant specially pleaded that the plaintiff had not complied with the statute, the plaintiff is barred from recovering." (Citations omitted; internal quotation marks omitted.) Fields v. Housing Authority of Stamford, 63 Conn. App. 617, 621, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001).
Connecticut courts have held "that just as a municipal employee cannot waive notice on behalf of the municipality . . . neither can an employee of a housing authority or its insurance carrier waive the notification to the housing authority that is required by § 8-67;" (Citation omitted.) Id., 622; and "actual notice does not comply with the requirements of General Statutes § 8-67." Whitcomb v. Rural Homes. Ltd., Superior Court, judicial district of Windham at Putnam, Docket No. 064718 (December 4, 2001, Foley, J.) ( 31 Conn.L.Rptr. 10); see Fields v. Housing Authority of Stamford, supra, 624.
The facts in Fields are comparable to the facts of this case. The plaintiff in Fields slipped and fell on housing authority property and then verbally notified the housing authority of his injury. The housing authority's insurance carrier spoke with the plaintiff and his attorney about the incident. The plaintiff did not, however, file a written notice in accordance with § 8-67 and the Fields court granted the housing authority's motion for summary judgment after noncompliance with § 8-67 was specially pleaded. The court reasoned that the legislature was aware from prior judicial decisions that persons could be injured on housing authority property and be denied recovery for failing to provide the statutory notice required by § 8-67, and therefore the notice provision would be meaningless if the statute were not strictly construed. Id., 622-24.
Like the plaintiff in Fields, the plaintiff in the present case did not file written notice with the chairperson or the secretary of the housing authority as required by § 8-67. Although the plaintiff's employer's workers' compensation carrier sent a letter to the building manager of the housing authority complex where the plaintiff allegedly fell, this is the only notice that was given. The defendant housing authority in this case specially pleaded noncompliance with § 8-67 as a defense. The defendant's motion for summary judgment is granted because the plaintiff did not comply with the notice requirements set forth in § 8-67.
BY THE COURT
Brunetti, J.