Opinion
CV146048223S
04-21-2016
Deana Mallory v. City of New Haven
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robin L. Wilson, J.
I
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Deana Mallory (plaintiff) commenced this action against the defendant, City of New Haven (defendant) by way of writ, summons and complaint on June 11, 2014. The plaintiff filed a one-count complaint in which she alleges that on July 7, 2012, at approximately 7:00 p.m., she was exiting a vehicle on the passenger side on the southerly side of Glenview Terrace in New Haven, Connecticut, at a point six feet east of UI pole #9719 and approximately 240 feet west of Whalley Avenue. On said date and time, the roadway upon which the plaintiff stepped was defective in that a one-foot-wide, twenty-one-inch-deep hole was adjacent to a storm drain and was in a very poor state of maintenance, due to the very weathered, cracked, poorly patched and worn condition of the pavement adjacent to the storm drain.
The plaintiff alleges that on said date and time she fell when her foot stepped down onto said hole, and she was caused to fall to the ground with considerable force and violence. The plaintiff alleges that she was exercising due care at the time of the incident and that her fall was due to a breach of the statutory duty of the defendant City pursuant to General Statutes § 13a-149, in that the area around the storm drain was in a state of disrepair so that it rendered pedestrian traffic hazardous; in that the conditions had existed for an unreasonable period of time, yet no measures had been taken to remedy and correct the hazardous condition; in that the street was not reasonably safe for the uses and purposes intended; and in that the defendant in the exercise of reasonable care and inspection should have known of these conditions and should have remedied the same, yet failed to do so.
The defendant denies that it was negligent, claims that it had no actual or constructive notice of the alleged defective condition, and that the plaintiff's own negligence was the cause of her fall. The case was tried to the court on March 24, 2016, and the court heard testimony from both the plaintiff, and the City's investigator, Dominic Tommaro. The court ordered the parties to submit proposed findings of fact and briefs on or before April 7, 2016. For the following reasons, the court enters judgment in favor of the plaintiff.
II
STANDARD OF REVIEW
" It is well established that in a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of [the witnesses'] testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [she] reasonably believes to be credible . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any [witness's] testimony . . . The trier may accept or reject, in whole or in part, the testimony of [a witness] offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also In re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011).
" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
III
BURDEN OF PROOF/STANDARD OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of her complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
IV
DISCUSSION
A
Liability Under § 13a-149
" Section 13a-149 legislatively abrogated the common-law immunity afforded to municipalities for injuries caused by defective highways. Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). Under § 13a-149, [a]ny 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 . . . We have construed [General Statutes] § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy . . . [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001)." (Internal quotation makes omitted.) Himmelstein v. Town of Windsor, 116 Conn.App. 28, 37, 974 A.2d 820 (2009); aff'd, 304 Conn. 298, 39 A.3d 1065 (2012).
" To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence . . ." (Citations omitted; internal quotation marks omitted.) Id., 48. The plaintiff bears the burden of proving the absence of her negligence, or that of a third party, because pursuant to the doctrine of sole proximate cause in Connecticut, any showing of negligence on the part of the plaintiff will defeat a municipality's liability. Id., 49.
" Our Supreme Court first identified the sole proximate cause standard for determining municipal liability under the predecessor to § 13a-149 in Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899). This doctrine of sole proximate cause has 'embraced the notion that a municipality's liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party.' Smith v. New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001). In 1920, our Supreme Court applied the sole proximate cause standard to the state highway defect statute and has done so consistently since that time. See White v. Burns, 213 Conn. 307, 317-18, 567 A.2d 1195 (1990); see also Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 (1920)." Id., 48-49.
" 'If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another's carelessness and the defect, and the two combined give no cause of action under the statute.' (Emphasis added.) Id. at 690, 43 A. 143 . . . See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 197, 592 A.2d 912 (1991) ('[§ ]13a-149 does not permit recovery unless the defect was the sole proximate cause of the injury, even if the concurring cause was a third party's negligence'); Roth v. MacDonald, 124 Conn. 461, 463, 200 A. 725 (1938) (driver's negligence was contributing factor to accident, relieving municipality of liability for passengers' injuries); Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934) ('when an injury results from a defect combined with the culpable negligence of a third party it cannot be said to have been caused by the defect, and cannot be made the subject of recovery under the statute giving a right of action against a municipality for injuries resulting from such defect') . . .
" In two recent cases, Williamson v. Commissioner of Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988), and White v. Burns, supra, 213 Conn. at 315, 567 A.2d 1195 we confirmed that the presence of third-party negligence vitiates statutory governmental liability for the failure to maintain and repair highways, roadways and bridges. Although these cases dealt specifically with General Statutes § 13a-144, the state defective highway statute, they are nonetheless persuasive authority with respect to the construction of the municipal defective highway statute because § § 13a-144 and 13a-149 have always been regarded as in pari materia as far as the scope of the governmental entity's obligation is concerned . . .
General Statutes § 13a-144 provides: " Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice."
" At issue in Williamson v. Commissioner of Transportation, supra, 209 Conn. 310, 551 A.2d 704, was the propriety of certain jury instructions. In discussing the plaintiff's burden of proof, the trial court charged: 'If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless she shows that there is no negligence, carelessness or inattention by herself or a third person which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, she may not recover. Likewise, if a third person was careless, and that carelessness caused in any way the plaintiff's injuries, she is not entitled to recover, which likewise, if a third person were careless, negligent, and that caused in any way the plaintiff's injuries, she is not entitled to recover.' (Emphasis added; internal quotation marks omitted.) Id. at 321, 551 A.2d 704. We concluded that '[t]he court's charge on third party negligence [was] a correct statement of the law'; id.; and cited Bartram v. Sharon, supra, 71 Conn. at 690, 43 A. 143 for support.
" Even more recently, in White v. Burns, supra, 213 Conn. at 310-11, 567 A.2d 1195 we were asked to reexamine our construction of the state defective highway statute and to abandon sole proximate cause as the standard for governmental liability. In declining to do so, we discussed the history of § § 13a-144 and 13a-149, paying particular attention to Bartram and the origins of sole proximate cause. Id. at 313-16, 43 A. 143. We cited with approval that portion of Bartram in which the court had observed: '[A]n injury caused by the culpable negligence of a [plaintiff] . . . does not happen by means of or through a defect in the highway, even if such defect were a concurring cause. One reason why a person injured through his own carelessness cannot maintain an action against the town is, that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person.' (Emphasis in original; internal quotation marks omitted.) Id. at 315, 43 A. 143.
" Municipal liability under § 13a-149 may thus be defeated by more than just the fact that the plaintiff was contributorily negligent. As our cases illustrate, if the negligence of a third party is also responsible for the plaintiff's injuries, the municipality will be completely exonerated." Smith v. New Haven, supra, 258 Conn. 62-65.
Common-law negligence is the failure to use reasonable care under the circumstances. " Reasonable care is the care that a reasonably prudent person would use in the same circumstances." Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 501, (1976).
B
Findings of Fact
The court makes the following findings of fact by a fair preponderance of the evidence.
1. On July 7, 2012, the plaintiff, Deana Mallory, was invited by her friend Michelle Smith to a cookout located at Glenview Terrace in New Haven, Connecticut.
2. The plaintiff's friend, Malcolm Moore gave her a ride to Glenview Terrace.
3. It was approaching 7:00 p.m. when Moore picked the plaintiff up.
4. Moore was driving a Ford Explorer.
5. The plaintiff was seated in the front passenger seat in Moore's vehicle.
6. Moore drove down Glenview Terrace, New Haven, Connecticut, toward Whalley Avenue.
7. Moore temporarily pulled over on the opposite side of where the plaintiff's destination was located on Glenview Terrace in order to drop the plaintiff off.
8. Moore was not attending the cookout.
9. Moore's vehicle was stopped for the sole purpose of dropping the plaintiff off.
10. Moore's vehicle was not " parked" but was temporarily standing for the purpose of discharging his passenger, the plaintiff at her destination on Glenview Terrace.
11. There is no evidence that Moore's vehicle constituted a traffic hazard or was obstructing the free movement of traffic on Glenview Terrace.
12. It was plaintiff's intention to exit the vehicle, walk around the front of the vehicle to proceed to the other side of the street to Michelle's house on Glenview Terrace.
13. Moore's vehicle was more than twelve inches from the curb.
14. The hole that the plaintiff stepped into was adjacent to a storm drain.
15. The area of the plaintiff's fall was more than twelve inches from the curb.
16. The weather conditions on July 7, 2012, at the time of the incident, were warm, clear, sunny and dry and it was still daylight.
17. Moore came to a full stop before the plaintiff exited the vehicle.
18. Once Moore pulled over, the plaintiff grabbed her back pack to put on her shoulder; said good-bye; opened the door and stepped out of the car; placed her right foot down, and then, as her left foot was coming down it went into the hole. The plaintiff then had to brace herself with her right hand to break her fall, as she was falling down into the hole.
19. Plaintiff did not fall completely to the ground because she used her right hand to brace herself from falling completely to the ground.
20. Plaintiff came back to the scene to take pictures of the hole.
21. Approximately a week after the incident, at the direction of plaintiff's counsel, the plaintiff was contacted by an investigator, Ben Forcino, at the direction of plaintiff's counsel, to take him to the location where she fell.
22. When the plaintiff was exiting the vehicle she was looking forward. She was not looking down, so she did not see the hole.
23. Plaintiff exited the Moore vehicle in the same manner she normally exits vehicles.
24. Once the plaintiff's leg was in the hole, and her right wrist was breaking her fall, Michelle came to the plaintiff's assistance.
25. Michelle assisted the plaintiff in getting up.
26. Plaintiff did not attend the cookout. She got back into Moore's car and went home.
27. The hole where the plaintiff fell, which is adjacent to the storm drain, as depicted in the photographs, appears to be twelve (12) inches wide and twenty-one (21) inches deep.
28. The area where the plaintiff fell, appears from the photographs submitted by the plaintiff, to be weathered, cracked, poorly patched with old leaves and debris.
29. The presence of the hole where the plaintiff fell had been on the road for a sufficient period of time for the defendant to have constructive notice of it.
30. The plaintiff immediately went home after the fall, cleaned her abrasions and bruises on her wrist and leg, took some aleve and laid down to rest. When the pain did not subside, the plaintiff sought medical treatment.
31. The plaintiff sought medical treatment on July 9, 2012, two days after the accident at the Hospital of Saint Raphael Emergency Room.
32. The plaintiff complained of pain on the ulnar side of her right wrist. There was an abrasion and bruise to the anterior aspect of the plaintiff's mid left leg. Plaintiff complained of mild pain.
33. The clinical impression noted in the ER report was a " Sprained right wrist."
34. X-rays of the plaintiff's right wrist were taken. No fractures or dislocations were noted.
35. The plaintiff was prescribed 600 mg Ibuprofen for pain and was told to follow-up with either the Hill Health Center Family Practice or Fair Haven Clinic, Internal Medicine, in two days even if well. Plaintiff was prescribed a long arm splint for her right wrist.
36. The plaintiff did not follow-up as instructed by ER, but next went to see a chiropractor, Dr. James Cianciolo on July 16, 2012.
37. The plaintiff presented to Dr. Cianciolo complaining of pain to the right wrist and left knee. Plaintiff at this time was still wearing her brace that she was prescribed at the ER.
38. Dr. Cianciolo's examination on July 16, 2012, revealed contusions and abrasions on the plaintiff's left leg anteriorly and posteriorly in the area of the calf as well as posterior thigh.
39. Examination of the left knee revealed pain and tenderness over the anterior aspect of the subpatellar region and range of motion elicited pain in the end range of flexion and extension.
40. Plaintiff complained of right wrist pain from the outstretched hand and upon removing the brace, Dr. Cianciolo's examination revealed moderately severe pain and tenderness over the carpometacarpal joints of the first finger as well as palpable swelling. Pain and tenderness was noted over the anterior and posterior aspect of the wrist itself. Range of motion elicited pain and restricted ranges in the end range of flexion and extension.
41. Dr. Cianciolo diagnosed a sprain to the right wrist, sprain to the carpometacarpal junction and contusion and sprain to the left knee and leg.
42. Dr. Cianciolo opined that the plaintiff's injuries " are causally related to the fall on 7/7/2012."
43. Dr. Cianciolo recommended chiropractic treatment three times per week for the next four weeks and then treatment would continue on a decreasing frequency as plaintiff's symptoms improved.
44. The plaintiff underwent a series of 10 chiropractic treatments from July 18, 2012 through September 12, 2012, consisting of electric muscle stimulation and hot packs.
45. On September 14, 2012, the plaintiff was seen for final evaluation by Dr. Sarah Levin who is in Dr. Cianciolo's office. At this time, Dr. Levin felt that the plaintiff had reached maximum medical improvement from chiropractic care. She advised the plaintiff that flare-ups may occur due to the amount of work activity and/or exercise plaintiff may perform in the future, and should flare-ups occur that are not managed with home care remedies such as heat or ice, plaintiff was advised to return to the office for a short course of restorative care. The plaintiff was discharged at this time.
46. There is no evidence of permanent disability to either the plaintiff's right wrist, left knee or leg.
47. The plaintiff continues to have pain in her wrist.
48. The plaintiff sustained injuries to her right wrist, left knee and leg as a result of the fall, which caused her to incur medical expenses in the amount of $5, 076.00.
49. Plaintiff for the first few months after the injury needed assistance with cleaning and bathing.
50. As a result of her injuries, the plaintiff can no longer perform her online classes because it involves typing. Plaintiff can no longer perform the part-time babysitting or childcare services that she performed prior to the fall, nor can she go walking as she had done prior to the fall.
51. Plaintiff's pain comes and goes and sometimes restricts her from unlocking her door.
52. Plaintiff's medical expenses incurred were reasonable and necessary and causally related to the plaintiff's fall on July 7, 2012.
53. The plaintiff exercised reasonable care when she exited Moore's vehicle.
54. Moore was not in violation of General Statutes § 14-251 when he temporarily stopped his vehicle on Glenview Terrace for the sole purpose of, and while engaged in, dropping the plaintiff off.
From the facts found, the court concludes that the physical condition of the hole and the location where the plaintiff fell suggests that the hole had been present for a sufficiently long period of time to provide the defendant with constructive notice of it. Therefore, the City had a duty to remedy the defect, by removing the hole by patching and/or paving it, which it failed to do. Accordingly, the court concludes that the defendant was negligent.
C
Sole Proximate Cause
The plaintiff bears the burden of proving that neither she, nor Moore were negligent. The defendant argues that the plaintiff did not exercise reasonable care when exiting the vehicle because she failed to look down at the ground while exiting, and if she had, she would have seen the hole. The court does not find that the plaintiff was negligent because she failed to look down. Given the circumstances, that it was a warm, sunny day and daylight, it was not unreasonable for the plaintiff to not look down. In order to determine whether conduct was reasonable, the trier of fact must consider all the circumstances. On a warm, clear and sunny day, without any precipitation, it was not unreasonable for the plaintiff to not look down. The plaintiff was exercising due care when she was looking ahead when exiting the vehicle and has therefore proven she was not negligent. See Wright v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-09-5030841 (November 9, 2011, Robinson, J.).
The court further finds that the plaintiff has proven that Moore was not in violation of § 14-251 when he temporarily stopped his vehicle to drop the plaintiff off, and was therefore not negligent. General Statutes § 14-251 provides in relevant part: " No vehicle shall be permitted to remain stationary within ten feet of any fire hydrant, or upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb . . ." The plaintiff contends that § 14-251 is limited to parking and, therefore, is inapplicable in the present case because Moore never parked his vehicle but instead stopped his vehicle momentarily in order to allow the plaintiff to exit. In support of this interpretation, the plaintiff emphasizes the legislature's repeated use of the phrases " remain stationary, " " remain parked, " and " keeping of a vehicle stationary" throughout § 14-251.
The defendant argues that § 14-251 is applicable in the present case, and because Moore's vehicle was more than twelve inches from the curb, he was in violation of the statute, and therefore negligent, which negligence contributed to the plaintiff's fall. The defendant contends that § 14-251 covers temporary stops like the one at issue here. The defendant acknowledges General Statutes § 14-297(4), which defines the term " parking" to mean " the standing of a vehicle, whether occupied or not, on a highway, except it shall not include the temporary standing of a vehicle for the purpose of and while engaged in receiving or discharging passengers . . . " (Emphasis added.) The defendant maintains, however, that on the basis of State v. Coscuna, 59 Conn.App. 434, 757 A.2d 659 (2000), in which our Appellate Court upheld a conviction under § 14-251 predicated on a temporary stop, the definition of " parking" set forth in § 14-297(4) does not apply to § 14-251.
The defendant raises for the first time in its memorandum what appears to be a preemption argument in that § 14-251 is preempted by an applicable local ordinance that requires all stopped and standing vehicles to be " as near as possible and approximately parallel to the curb . . ." See New Haven Code of Ordinances, art. III, § 29-38. Section 14-251 provides in relevant part: " Nothing in this section shall be construed to . . . prohibit a vehicle from . . . stopping on a highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances." " The burden of proving that the [local] parking regulations supersede [§ 14-251] is on the proponent of that claim." State v. Coscuna, supra, 59 Conn.App. 440. Here, the defendant did not admit the local regulation into evidence at trial, nor did the defendant ask the court to take judicial notice of it. Accordingly, the defendant has not sustained its burden of proving preemption nor did the defendant adequately brief this issue, and thus, the court will not address the issue of whether the applicable provision of § 14-251 is inconsistent with the text of § 29-38. See Sauerwein v. Bell, 17 Conn.App. 697, 703, 556 A.2d 613 (plaintiff failed to meet burden of negating applicability of exception to § 14-251 because she failed to introduce evidence regarding whether defendant's improper parking was governed by local ordinance rather than § 14-251), cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989). In addition, the defendant during its closing argument claimed that the plaintiff was in violation of General Statutes § 14-300c(a) which provides in relevant part: " No pedestrian shall walk along and upon a roadway where a sidewalk adjacent to such roadway is provided and the use thereof is practicable . . ." Again, although the City argued the applicability of this statute, it is not mentioned in its brief. Thus, the court will consider this argument abandoned and therefore will not address its applicability to the present case. " It is well settled that [the court is] not required to review claims that are inadequately briefed . . . [The Appellate Court] consistently [has] held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . [F]or [a trial court] judiciously and efficiently to consider claims . . . raised . . . the parties must clearly and fully set forth their arguments in their briefs . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [Claims] which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by [the trial] court." (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603-04, 10 A.3d 59 (2010); see Cooke v. Cooke, 99 Conn.App. 347, 353, 913 A.2d 480 (2007)." Nowacki v. Nowacki, 129 Conn.App. 157, 163-64, 20 A.3d 702 (2011).
" When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 586-87, 119 A.3d 570 (2015).
It is important to begin by noting that § 14-251 is entitled " parking vehicles." (Emphasis added.) " The title of legislation when it is acted upon by the legislature is significant and often a valuable aid to construction . . ." (Internal quotation marks omitted.) State v. Wilchinski, 242 Conn. 211, 230, 700 A.2d 1 (1997); see also Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 368, 585 A.2d 1210 (1991) (relying on title of General Statutes § 49-33 to interpret its provisions). Nevertheless, " [w]hile the title of [a statute] may be considered . . . it is not conclusive, and it is of little importance compared with the text." (Internal quotation marks omitted.) State v. Coscuna, supra, 59 Conn.App. 443. Chapter 248 of the General Statutes, which contains § 14-251, does not define the term " parking." Chapter 249 of the General Statutes, however, defines the term " parking" as " the standing of a vehicle, whether occupied or not, on a highway, except it shall not include the temporary standing of a vehicle for the purpose of and while engaged in receiving or discharging passengers . . ." (Emphasis added.) General Statutes § 14-297(4). Because chapters 248 and 249 of the General Statutes relate to the same subject matter, there is no reason to believe that the legislature intended the term " parking" to be accorded a different meaning for purposes of § 14-251. See Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003) (in interpreting statutes, courts are " guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law, " which " requires us to read statutes together when they relate to the same subject matter" [internal quotation marks omitted]). Therefore, the legislature's use of the term " parking" in the title of § 14-251 suggests that the legislature did not intend the statute to cover temporary stoppages of vehicles for the purpose of discharging passengers.
Our appellate courts have consistently noted-albeit in passing-that § 14-251 applies to parking. See Allison v. Manetta, 284 Conn. 389, 404, 933 A.2d 1197 (2007) (" parking in violation of [what is now § 14-251] would constitute negligence" [internal quotation marks omitted]); Busko v. DeFilippo, 162 Conn. 462, 465, 294 A.2d 510 (1972) (" § 14-251 . . . regulat[es] the parking of motor vehicles on public highways"); Sauerwein v. Bell, 17 Conn.App. 697, 702, 556 A.2d 613 (" § 14-251 . . . establishes rules for parking on state highways"), cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989).
Turning to the statutory text, the specific provision of § 14-251 at issue in the present case provides: " No vehicle shall be permitted to remain stationary within ten feet of any fire hydrant, or upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb ." (Emphasis added.) Thus, the prohibitions set forth in this provision of § 14-251 apply to vehicles that " remain stationary." Although the statute does not specify any set period of time for which a vehicle must " remain stationary" in order to constitute a violation, the plain meaning of that phrase supports the interpretation that something more than a mere momentary stoppage is necessary to trigger the statute. The word " stationary" is defined in the dictionary as " [n]ot moving" and " [n]ot capable of being moved; fixed." American Heritage College Dictionary (2d Ed. 1985). Even in isolation, the word " stationary" contemplates the passage of at least some period of time. That it is attached to the word " remain" is especially telling. " Remain" means " [t]o continue without change of condition, quality, or place, " and " [t]o endure or persist." American Heritage College Dictionary, supra . Thus, considered as a whole, the phrase " remain stationary" suggests that the operator's vehicle must be in a stopped position for some appreciable period of time in order to implicate this provision of § 14-251. " [I]n interpreting a statute, we do not interpret some clauses of a statute in a manner that nullifies other clauses but, rather, read the statute as a whole in order to reconcile all of its parts . . . Every word and phrase is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage." (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 383, 54 A.3d 532 (2012). In order to give full effect to the phrase " remain stationary, " the court must conclude that this provision of § 14-251 does not apply to momentary stoppages. A contrary interpretation would render the phrase surplusage.
Where a term is not defined in the statute, " it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Groton v. Mardie Lane Homes, LLC, 286 Conn. 280, 288, 943 A.2d 449 (2008); see also General Statutes § 1-1(a) (" [i]n the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language").
Indeed, General Statutes § 14-1(65) defines the term " parked vehicle" in a manner that is consistent with this interpretation. It provides that " parked vehicle" means " a motor vehicle in a stationary position within the limits of a public highway . . ."
On the basis of the legislature's use of the phrase " remain stationary" in the text of § 14-251, as well as the appearance of the word " parking" in the title, the legislature did not intend this specific provision of § 14-251 to cover the momentary stoppage of a vehicle for the purpose of dropping off a passenger. Because this interpretation is based on the plain meaning of the statutory text, extratextual evidence of legislative intent may not be considered. See Joseph General Contracting, Inc. v. Couto, 317 Conn. 586-87.
This construction of § 14-251 is implicitly expressed by our Supreme Court in Knoll v. Kelly, 142 Conn. 592, 115 A.2d 678 (1955). In that case, the plaintiff stopped his vehicle at a traffic light and was rear-ended by a vehicle operated by the defendant. Id., 593. The sole issue on appeal was " whether the plaintiff's car was legally parked at the time of the collision." Id., 594. The plaintiff argued that his vehicle was legally parked on the basis of a statute that is now § 14-1(65), which defined the term " parked vehicle" as " a motor vehicle in a stationary position within the limits of the highway." Id., 594. The defendant countered that, on the basis of a statute that is now § 14-251, the plaintiff's vehicle could not have been legally parked because it was not placed within twelve inches of the curb. Id., 595 and n.3. The court agreed with the defendant, stating: " The act of parking a car on the highway is the voluntary act of leaving a car on the highway when not in use . . . The word 'park' means something more than a mere temporary or momentary stoppage on the road for a necessary purpose . . . It is clear, as maintained by the defendant, that a motor vehicle is parked upon a public highway within the contemplation of [what is now § 14-1(65)] only when it is placed upon the highway in the manner contemplated by the provisions of [what is now § 14-251]." (Citations omitted; internal quotation marks omitted.) Id., 596. Although Knoll does not squarely resolve the present issue, it is nevertheless instructive because the court determined that the twelve-inch requirement of § 14-251 applies to " parking" as that term is commonly understood. Moreover, the court interpreted that term in a manner that is consistent with the definition of " parking" set forth in § 14-297(4).
Finally, our Appellate Court's decision in State v. Coscuna, supra, 59 Conn.App. 434, does not dictate a different result. The defendant in Coscuna was found guilty of violating the provision of § 14-251 that provides: " No vehicle shall be permitted to remain stationary . . . in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic . . ." Id., 443. On appeal, the defendant argued there was insufficient evidence for the trial court to find that he violated § 14-251 because " he stopped his vehicle only to pick up a passenger and . . . did not shut off the motor or leave his vehicle at any time, " and because there was no evidence that he actually " parked" his vehicle as that term is defined in § 14-297(4). Id. In rejecting this argument, the Appellate Court first observed that the definition of the term " parking" set forth in § 14-297(4) was not dispositive because it did not entirely accord with the text of the specific provision of § 14-251 that was at issue. Id. The court concluded that, under the plain meaning of the relevant statutory text, the evidence was sufficient to support the guilty finding: " [T]he defendant's vehicle was stopped in the middle of the road, even though there was another vehicle directly behind him. Furthermore, the defendant's vehicle was in that position long enough to cause the vehicle immediately to its rear to go around the defendant's vehicle by crossing the double yellow lines. By obstructing the free flow of traffic, the defendant created a situation that could have caused an accident." Id. The court went on to suggest, however, that had the defendant not remained stationary for so long, § 14-297(4) may have been applicable. The court wrote: " In announcing its decision, the [trial] court . . . stated that because the defendant kept his vehicle stationary long enough to require the other vehicle to go around the defendant's vehicle, he could not avail himself of the protection that § 14-297(4) affords for picking up and discharging passengers. We conclude that it was reasonable for the court . . . to find that there was sufficient evidence to support the determination that the defendant violated § 14-251." Id., 443-44. Accordingly, Coscuna does not foreclose the possibility that § 14-297(4) may apply to other provisions of § 14-251, or to other sets of facts under which the operator's vehicle was not stopped for a lengthy period of time.
The present case is distinguishable from Coscuna . First, this case involves a provision of § 14-251 that is materially different from the one at issue in Coscuna . Second, unlike the operator of the vehicle in Coscuna, Moore did not " remain stationary" --that is, he stopped his vehicle only momentarily in order to allow the plaintiff to exit. Moreover, there is no evidence that Moore obstructed the path of other vehicles or otherwise created a traffic hazard. Accordingly, there is insufficient evidence to establish that Moore violated § 14-251.
Even if this court were to conclude that the operator violated § 14-251, the violation would not provide a valid basis for negligence per se. " [U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent ." (Citations omitted; emphasis added; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 375-76, 665 A.2d 1341 (1995). There is no question that the plaintiff, an occupant of a motor vehicle that was being operated on a highway, is among the class of persons protected by § 14-251. Nevertheless, the plaintiff's injuries are not of the kind that § 14-251 was designed to prevent. A review of the text of § 14-251, as well as the statutory scheme of which it is a part, makes clear that § 14-251 is aimed at guarding against injuries resulting from motor vehicle accidents or other forms of traffic hazards. The plaintiff's injuries, by contrast, were sustained as a result of a defective condition in the roadway-she exited the vehicle and stepped into a pothole. While it may be true, as the defendant contends, that she would not have stepped into the pothole if the operator had pulled to within twelve inches of the curb as required by § 14-251, the plaintiff's injuries are simply not of the kind that § 14-251 was designed to prevent. Although there has been more than one decision in which our Supreme Court has stated, without analysis, that violators of § 14-251 are negligent per se; see, e.g., Allison v. Manetta, 284 Conn. 389, 404, 933 A.2d 1197 (2007); Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Madenford v. Interstate Lumber & Mill Corp. of Stamford, 153 Conn. 62, 64, 212 A.2d 588 (1965); the plaintiffs in those cases were injured in some form of motor vehicle collision. Nowhere in any of those opinions did the court suggest that a violation of § 14-251 provides a basis for negligence per se regardless of whether the plaintiff's injuries were of the kind § 14-251 is designed to prevent. In one case, Wright v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-09-5030841 (November 9, 2011, Robinson, J.), the court concluded, without discussing the second prong of the negligence per se inquiry, that the plaintiff was negligent as a matter of law because her violation of § 14-251 " contributed to her fall" on an ice patch.
For all of the foregoing reasons, the court concludes that the physical condition of the pot hole suggests that it had been present for a sufficiently long period of time to provide the defendant with constructive notice of it. The court therefore concludes that the City had a duty to remedy the defect by covering the pot hole, which it failed to do. The court further concludes that the plaintiff has proven freedom of contributory negligence by either herself or Moore, and therefore has proven that the defect, namely, the pothole into which plaintiff stepped, was the sole proximate cause of her injuries and damages. The court therefore finds in favor of the plaintiff as to liability.
D
Damages
" It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). " In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).
The plaintiff sustained a sprain to the right wrist, sprain to the carpometacarpal junction and contusion and sprain to the left knee and leg as a result of her stepping into the hole on July 7, 2012. The plaintiff endured pain as a result of her injuries and was required to undergo a series of 10 chiropractic treatments from July 18, 2012 through September 12, 2012, consisting of electric muscle stimulation and hot packs. On September 14, 2012, the plaintiff reached maximum medical improvement from chiropractic care. Dr. Levin advised the plaintiff that flare-ups may occur due to the amount of work activity and/or exercise plaintiff may perform in the future, and should flare-ups occur that are not managed with home care remedies such as heat or ice, plaintiff was advised to return to the office for a short course of restorative care. The plaintiff was discharged at this time. There is no evidence that plaintiff sustained a permanent disability as a result of her injuries. Initially after the accident, the plaintiff was limited in her daily activities which included bathing and cleaning. Plaintiff continues to have pain in her wrist. Although the plaintiff testified that she continues to have some pain, there is no evidence that the plaintiff sought further medical treatment for flare-ups after September 14, 2012, as advised by Dr. Levin. The plaintiff incurred reasonable and necessary medical expenses related to the fall, in the amount of $5, 076.29. The court finds that the plaintiff suffered injuries and damages as a result of her stepping into the hole.
The defendant claims that the plaintiff failed to mitigate her damages. More specifically, the defendant argues that the plaintiff did not follow the advice of the emergency room medical personnel, which was to follow up with one of the two recommended clinics, but instead waited nine days to see a chiropractor recommended by her lawyer. The defendant argues that it questions whether the plaintiff's chiropractic treatment was reasonable and necessary given her sporadic treatment and that she failed to follow up with medical treatment as recommended by the emergency room medical personnel. The defendant requests that if this court chooses to award damages for past medical treatment, that such award be limited to the plaintiff's first emergency room visit. It is true that the plaintiff did not follow up with medical treatment on July 11, 2012, as recommended by the HSR emergency room, but rather sought treatment with a chiropractor on July 16, 2012, nine days after her initial emergency room visit. Chiropractic treatment was recommended for three times per week for four weeks. The evidence demonstrates that the plaintiff substantially complied with the dates scheduled for chiropractic treatment after her initial visit of July 16, 2012, from July 20, 2012, through September 12, 2012, and thereafter for a final examination on September 14, 2012. The chiropractic records reflect objective findings of pain and limitations and do not indicate plaintiff was noncompliant with her recommended chiropractic care. Additionally, Dr. Cianciolo recommended an initial conservative course of chiropractic treatment for a period of four weeks. The evidence reflects that this course of treatment was beneficial to the plaintiff, since she was left with no permanent impairment.
" The burden of proving that the injured party could have avoided some or all of his or her damages universally rests on the party accused of the tortious act . . .
" The rationale for this rule is well established. A defendant claiming that the plaintiff has failed to mitigate damages seeks to be benefitted by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant.
" To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty.
" The defendant argues that placing the burden of persuasion on the issue of mitigation upon the defendant in a negligence action will result in a 'trial within a trial' by forcing the defendant to call expert witnesses in order to satisfy the burden of persuasion. Although it would certainly seem advisable for a defendant raising a claim that the plaintiff failed to mitigate damages to present his own witnesses on this issue; we do not believe that a defendant could never satisfy his burden of persuasion solely through the cross examination of the plaintiff and the plaintiff's witnesses. Furthermore, requiring the defendant to prove that a plaintiff has failed to mitigate damages places no greater a burden on the judicial system than does General Statutes § 52-114 which requires a defendant pleading contributory negligence to bear the burden of persuasion on this issue." Preston v. Keith, 217 Conn. 12, 21-23, 584 A.2d 439 (1991).
General Statutes § 52-114 provides in pertinent part: " If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants."
Although the plaintiff did not follow up with medical treatment as recommended by the emergency medical personnel, the plaintiff did act reasonably in seeking chiropractic care. In addition, the chiropractic care prescribed was a conservative course of treatment to which the plaintiff substantially complied, and which left the plaintiff with no permanent disability. The defendant failed to meet its burden of establishing that the plaintiff failed to mitigate her damages. The defendant failed to produce any evidence to show that the damages were in fact enhanced by such failure; and that the damages which could have been avoided could be measured with reasonable certainty. Accordingly, the court will not reduce its damages award for failure to mitigate.
(i)
Past Economic Damages
The plaintiff has proven by a fair preponderance of the evidence the following past economic damages for medical expenses incurred as a result of the accident:
Hospital of Saint Raphael: $2, 325.74
New Haven Radiology Associates, P.C.: $41.55
New Haven Chiropractic Group: $2, 709.00
(Dr. James Cianciolo; Dr. Sarah Levin)
In this case, the plaintiff has met her burden of proving total past economic damages for medical expenses incurred as a result of the injuries in the amount of $5, 076.29.
(ii)
Non-economic Damages
The plaintiff has proven total non-economic damages for pain and suffering related to the injuries at issue in the amount of $7, 500.
V
Findings of Liability and Damages
For the foregoing reasons, the court hereby finds the issues of liability and damages in favor of the plaintiff on the complaint with total damages awarded in the amount of $12, 576.29.
VII
CONCLUSION
WHEREFORE, a damage award shall enter in favor of the plaintiff on her complaint in the total amount of $12, 576.29 plus taxable costs as against the defendant City of New Haven.