Opinion
No. CV06 500 1968S.
November 29, 2006.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case involves a claim against the defendant City in which the plaintiff claims she fell on ice in a stairwell which the City had a responsibility to keep in a safe condition.
The motion for summary judgment raises two issues; (1) that the plaintiff's injuries are due to the presence of ice or snow on a public sidewalk that is owned and controlled by an abutting landowner.
At the time of the fall Ansonia had in effect a sidewalk ordinance adopting § 7-163a C.G.S. which shifted the liability and responsibility for claims such as this to the abutting landowner. The defendant claims that the plaintiff's deposition indicates she fell on a stairwell in front of a building not owned by the City; (2) the defendant also claims the notice given pursuant to § 13a-149 was defective as to location and time as a matter of law.
(1)
Even if the deposition testimony of the plaintiff could be said to indicate some confusion as to the place of the accident or even suggest that it occurred at a place regarding which the City had no liability, Gonzalez v Bridgeport, 2003 Conn.Super Lexis 2887, the affidavit submitted by the plaintiff in opposition to this motion removes the possibility of relying on that defense. In other words, the affidavit raises an issue of fact rendering summary judgment on this issue inappropriate, apart from whether anything in her deposition can be used to impeach the plaintiff at trial. The affidavit states the plaintiff fell in a stairwell which did not front on property owned by a landowner.
(2)
The claim is made that the notice to the City required within 90 days of an accident such as this under § 13a-149 is inadequate on two grounds. It does not give the location or correct time of the accident—the notice said it happened at 6:15 a.m. At the deposition of the plaintiff, she said it occurred at 6:15 p.m. It is argued that therefore sufficient notice cannot be found as a matter of law so that its adequacy is not a question for the jury.
As far as location of an accident is concerned, an old case is still good law. In Sizer v. Waterbury, 113 Conn. 145, 157-58 (1931), the court said, "The sufficiency of the notice is to be tested by the purpose of the statute and not by the requirements of a pleading. It is not a pleading and is not subject to the rules of pleading and though it lacks that fullness and clearness which we expect in a pleading, it is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred." The court cannot say that the notice here fails to meet that test to such a degree that it must find inadequate notice as a matter of law. The notice refers to the northerly stairwell on Railroad Avenue giving it a length of 92 inches and width of 42 inches with seven stairs. The court has not been informed of any difficulty the City would have had, given this description, in locating the stairwell.
The notice with its actual measurements could also be said to belie any notion that the deposition located the accident at a location fronting property owned by an abutting landowner and corroborates the plaintiff's affidavit. See page 6 of plaintiff's brief.
The savings clause of § 13a-149 says, "No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing an injury or in stating the time, place or cause of its occurrence, if appears that there was no intention to mislead or that such town, city, or corporation or borough was not in fact misled thereby."
The mistake as to time clearly falls under the savings clause of the statute. Why on earth would anyone intentionally commit an error like this to mislead the other party? How can it be said the City was misled in light of the purpose of the statute to allow defendant municipalities an opportunity to investigate these claims? This is a snow and ice claim. The fall happened February 2nd, notice was made March 16th; the plaintiff had until May to give notice. What possible investigation a month and a half after this transient wintry event, but still within the 90-day notice provision, could have been thwarted or rendered useless by what was clearly a scrivener's error?
The motion for summary judgment is denied.