Opinion
NNHCV166060857S
01-07-2019
Jennifer SHERARD v. CITY OF NEW HAVEN
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On March 8, 2016, the plaintiff, Jennifer Sherard, filed a one-count complaint, pursuant to General Statutes § 13a-149, against the defendant, the city of New Haven. The plaintiff in her complaint alleges a trip and fall that occurred on a sidewalk in front of 66 Norton Street in New Haven, Connecticut. The plaintiff alleges the following facts in her complaint. On September 10, 2014, at approximately 1:43 p.m., the plaintiff, while exercising due care, tripped and fell in front of 66 Norton Street "due to a cracked and broken sidewalk with an abrupt rise/[descent] and unevenness." See Compl., ¶ 6. The plaintiff sustained potentially permanent injuries. Moreover, at the time of the accident, the defendant was charged with the duty to properly care and maintain this sidewalk, and the defendant knew or should have noticed this unsafe condition. The plaintiff seeks monetary damages, and on November 13, 2014, pursuant to § 13a-149, the defendant’s city clerk received a written notice of the plaintiff’s intention to commence this action, a copy of which is attached to the complaint.
General Statutes § 13a-149 provides in relevant part: "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 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."
On July 23, 2018, the defendant filed a motion to dismiss the plaintiff’s action on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to comply with the statutory notice requirements of § 13a-149. The defendant asserts that the defective notice deprives the court of subject matter jurisdiction because the descriptions of the place of injury and cause of injury are deficient. The defendant filed a memorandum of law in support, as well as the signed and sworn affidavits of Jeff Pescosolido, the defendant’s director of operations for the Department of Public Works, and Michael B. Smart, the defendant’s city clerk. In response, on August 30, 2018, the plaintiff filed an objection to the defendant’s motion to dismiss and a memorandum of law in opposition. Oral argument on the motion was heard at short calendar on September 10, 2018.
DISCUSSION
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over subject matter ... Any defendant, wishing to contest the court’s jurisdiction, shall do so by filing a motion to dismiss ..." Practice Book § 10-30. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012). "[A] motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... Where, however ... the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ..." (Footnote omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
"[T]he highway defect statute, § 13a-149, is a plaintiff’s exclusive remedy against a municipality ... for damages resulting from injury ... by means of a defective road or bridge." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). In order to maintain an action under § 13a-149, "a plaintiff must provide a municipality with notice that meets the statutory requirements ... The statute 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." (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). "[W]hen the allegations of a complaint and other properly considered evidence bring a plaintiff’s cause of action within the purview of § 13a-149, the failure to provide the notice required by the statute deprives the court of subject matter jurisdiction over the action." Bagg v. Thompson, 114 Conn.App. 30, 41, 968 A.2d 468 (2009).
"The word ‘road’ as used in [§ 13a-149] has usually been construed to include a sidewalk." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 3 n.1, 950 A.2d 1247 (2008).
Although notice is a condition precedent for maintaining a cause of action under § 13a-149, "[t]he 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." (Internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003). Rather, the purpose of the notice requirement is "to permit the [defendant] to gather information to protect himself in the event of a lawsuit ... [And, ] furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." (Emphasis omitted; internal quotation marks omitted.) Martin v. Plainville, supra, 240 Conn. 112-13.
Section 13a-149 contains a savings clause that provides in relevant part: "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 ... city ... was not in fact misled thereby." The savings clause "demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff." Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d 1322 (1993); see also Salemme v. Seymour, supra, 262 Conn. 796 n.7 ("[w]e note that § 13a-149 is liberally construed, particularly when compared to General Statutes § 13a-144, the companion statute providing for liability as a result of defects on state highways"). "The savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent." (Emphasis in original.) Martin v. Plainville, supra, 240 Conn. 113. Our Supreme Court has emphasized that "entirely absent means exactly that; one of the five essential elements ... must be completely, totally and unmistakably omitted from the plaintiff’s notice." (Citation omitted; internal quotation marks omitted.) Salemme v. Seymour, supra, 794.
In the present case, the plaintiff’s notice provides in relevant part: "Jennifer Sherard, suffered a fall on a town sidewalk in front of 66 Norton Street on or about September 10, 2014. The cause of her fall was a defect in the sidewalk due to its state of disrepair . As a result of her fall, Ms. Sherard has required ongoing medical treatment for her neck, back, and shoulder." (Emphasis added.) See Compl., Ex. A. The defendant argues that the plaintiff’s notice fails to provide two of the five required elements of the requisite written notice, namely, the place of the injury and the cause of the injury and, therefore, fails to comply with the statutory notice requirement of § 13a-149. Further, the defendant argues that the savings clause is inapplicable because the defects in the notice are not mere inaccuracies, but are entirely absent. In response, the plaintiff counters that none of the five essential elements of notice are entirely absent, she did not intend to mislead the defendant, and the defendant has not claimed, to date, that it was misled. Thus, the plaintiff asserts that the savings clause prevents the dismissal of this action.
A
Place of Injury
In the present case, the defendant argues that the plaintiff fails to set forth in her notice, precise or adequate information about the location of the alleged fall. The plaintiff asserts in her notice that she fell "on a town sidewalk in front of 66 Norton Street." See Compl., Ex. A. The defendant asserts that the sparse detail provided about the location of the fall is insufficient to adequately assist the defendant in identifying the location of the defect. In support of the defendant’s claim, Pescosolido, who investigated the plaintiff’s claim, asserts in his affidavit that "[t]he information supplied in the plaintiff’s notice of claim as to the nature and location of what caused the plaintiff to fall was so uninformative as to preclude a proper investigation into the matter." See Def.’s Mot. Dismiss, Ex. E, ¶ 6. Pescosolido avers that the plaintiff’s notice did not "[specify] as to whether [the fall] occurred somewhere along the sidewalk on Norton Street in front of the property of 66 Norton Street, or along the sidewalk on Stanley Street in front of the property of 66 Norton Street." See Def.’s Mot. Dismiss, Ex. E, ¶ 7(b). Further, Pescosolido claims that "66 Norton Street is a large apartment complex on the corner of Norton Street and Stanley Street, spanning approximately 100 feet on the Norton Street side, and spanning approximately 100 feet on the Stanley Street side," and that he found no defects on the sidewalk area. See Def.’s Mot. Dismiss, Ex. E, ¶¶ 7(b), 8. In response, the plaintiff claims that the description of the location in her notice is sufficient as it is no more indefinite than that deemed to be sufficient in Greenberg v. Waterbury, 117 Conn. 67, 167 A. 83 (1933).
In Greenberg, the plaintiff brought an action pursuant to General Statutes (1930 Rev.) § 1420, the statutory antecedent of § 13a-149. Id., 68-69. The court held that a description of "upon a sidewalk of a highway known as North Elm Street" was insufficient to provide statutory notice of the place of injury, but that the savings clause applied. (Internal quotation marks omitted.) Id., 70. Similarly, in Salemme v. Seymour, supra, 262 Conn. 795-96, our Supreme Court, relying substantially on Greenberg, held that the description of "Silvermine Road, Seymour, Connecticut" was sufficient for purposes of the savings clause. (Internal quotation marks omitted.) The court concluded that although the notice lacked "useful identifying information such as cross streets, address numbers or geographical landmarks," the provision of a street name was enough to trigger the savings clause, as the location element was not "entirely absent." Id., 795. More recently, the savings clause was utilized by this court, and other trial courts, to save a cause of action where the description given was "[c]orner of Stanley St. and Norton St., New Haven, CT." (Internal quotation marks omitted.) Davis v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-10-6008253-S (February 7, 2011, Wilson, J.); see Brancato v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-09-5032968-S (July 22, 2014, Wilson, J.) (58 Conn.L.Rptr. 599, 600) (applying savings clause where description given was "sidewalk, north side George Street between Orange and State" [internal quotation marks omitted]); see also Bennett v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-14-6047249-S (July 9, 2015, Nazzaro, J.) (applying savings clause where description given was "Oakridge Drive" [internal quotation marks omitted]); Spivey v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV-13-6038915-S (June 18, 2015, Wiese, J.) (60 Conn.L.Rptr. 540, 540) (applying savings clause where description given was "Merrill Street, East Hartford" [internal quotation marks omitted]); Ceccarelli v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-12-6033740-S (July 24, 2014, Fischer, J.) (58 Conn.L.Rptr. 645, 647) (applying savings clause where description given was "Crown and Church Street" [internal quotation marks omitted]).
General Statutes (1930 Rev.) § 1420 contained identical notice and savings clause provisions to that of General Statutes § 13a-149. See Salemme v. Seymour, supra, 262 Conn. 795; see also Greenberg v. Waterbury, supra, 117 Conn. 68-69.
In the present case, similar to Davis, this court recognizes that the description of the place of injury was less than desirable and not sufficient to meet the standards necessary pursuant to § 13a-149. In fact, the plaintiff’s description here is less descriptive than in Davis . The plaintiff’s description, however, is analogous to the descriptions provided in Greenberg and Salemme, which were saved pursuant to the savings clause. In addition, unlike the descriptions in Salemme and Greenberg, which "lack[ed] useful identifying information such as ... address numbers," the plaintiff in the present case at least provided the address number of the alleged place of injury. Salemme v. Seymour, supra, 262 Conn. 795. Thus, even though the notice was far from completely accurate and precise, the information provided about the location of the accident was not entirely absent from the notice. See id., 794 ("we empathize that ‘entirely absent’ means exactly that; one of the ‘five essential elements’ ... must be completely, totally and unmistakably omitted from the plaintiff’s notice" [citation omitted]).
Moreover, the defendant’s argument that the plaintiff’s notice is statutorily deficient because Pescosolido averred that, on the basis of the plaintiff’s description in the notice, he was unable to locate the alleged defect, has been considered and rejected by our Appellate Court. See McCann v. New Haven, 33 Conn.App. 56, 60, 633 A.2d 313 (1993) ("[t]he fact that the investigator ... was unable to locate the defect is [not] in and of itself sufficient to render the notice inadequate as a matter of law"). Instead, under § 13a-149, the relevant inquiry is whether, pursuant to the savings clause, the plaintiff either intended to mislead the defendant or the defendant was in fact misled. The plaintiff in her memorandum of law in opposition to the defendant’s motion to dismiss asserts that she did not intend to mislead anyone. See Pl.’s Obj. Mot. Dismiss, p. 9. There is no indication on the record or in the arguments made in the briefs that the plaintiff intended to mislead the defendant, nor has the defendant argued it was misled. Therefore, the savings clause of § 13a-149 applies to the plaintiff’s description of the place of the injury.
B
Cause of the Injury
In the present case, with respect to the cause of the alleged fall, the defendant argues that because the plaintiff fails to allege the nature of the defect that caused the accident, notice of the cause of the injury is entirely absent under § 13a-149. The plaintiff asserts in her notice that "[t]he cause of her fall was a defect in the sidewalk due to its state of disrepair." See Compl., Ex. A. Other than simply quoting the language in the notice, the plaintiff fails to provide any legal arguments or support for the contention that notice of the cause of the injury is not entirely absent here.
Our Supreme Court has long held that "[t]he cause of the injury required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury." (Internal quotation marks omitted.) Christian v. Waterbury, 123 Conn. 152, 155, 193 A. 602 (1937). Therefore, simply stating that a sidewalk is defective or that a sidewalk has been negligently maintained or repaired, without any additional information, is insufficient to fulfill the statutory notice requirements. See Beisiegel v. Seymour, 58 Conn. 43, 51-53, 19 A. 372 (1889) (concerning General Statutes § 2673, a predecessor statute to § 13-149, which did not contain a "savings clause").
In Ross v. New London, 3 Conn.Cir.Ct. 644, 645, 222 A.2d 816, cert. denied, 154 Conn. 717, 221 A.2d 272 (1966), the plaintiff’s notice stated "that the fall was caused by the neglect of the city in the maintenance and repair of the sidewalk at said site." (Internal quotation marks omitted.) The Appellate Division of the Circuit Court upheld the trial court’s judgment in favor of the defendant; id., 648; because it was "immediately apparent" that the notice "fail[ed] to specify the defect in the highway which resulted in injury to the plaintiff." Id., 646. The court in Ross focused on the plaintiff’s failure to provide the municipality with the relevant information to adequately investigate the place where the injury occurred and protect its interests: "What exactly was the neglect of the city in the maintenance and repair of the sidewalk ... which brought about the injuries claimed by the plaintiff? Was it a large, small or medium hole, a ditch, a gully, a rut, a depression, or the elevation of a portion of the sidewalk, or perhaps the failure of the city effectively to remove snow or ice accumulated thereon? What was the city to look for in the protection and preservation of its interests, and to enable it properly to prepare a defense, if any, against the claim of the plaintiff?" Id. The court, relying primarily on the principles espoused in Christian and Beisiegel, held that "the use of the words ‘neglect, ’ maintenance’ and ‘repair’ gives no clue whatsoever as to the direct cause of the fall in question, nor do the words give any indication of that which occasioned or produced the fall ... In practical effect, such words amount to nothing more than the use of unnecessary embellishment in a notice of injury." Id., 647.
In Platt v. Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV-10-6002897-S (January 17, 2012, Trombley, J.), the plaintiff alleged in the complaint that she slipped and fell on an accumulation of ice and snow. The plaintiff’s statutory notice, however, provided that she was caused to fall "by the [defendant’s] negligent maintenance of pedestrian sidewalks along Maple Street, Naugatuck, CT." (Emphasis omitted; internal quotation marks omitted.) Id. The court held that the plaintiff’s notice was insufficient as to the cause of the fall as it failed to specify "the precise nature of the claimed defect" and, similar to the notice provided in Ross, amounted to nothing more than an "unnecessary embellishment." (Internal quotation marks omitted.) Id. The court further observed that the specific defective condition that allegedly caused "the plaintiff’s fall, i.e., the accumulation of ice/snow on the sidewalk, per Salemme, is completely, totally, and unmistakably missing." (Internal quotation marks omitted.) Id.
Lastly, in Bencivengo v. Madison, Superior Court, judicial district of New Haven, Docket No. CV-12-6030857-S (May 1, 2013, Frechette, J.), the plaintiff alleged in the complaint that she tripped and fell on a step leading onto a bridge that was excessive in height, lacking a railing, provided no warning, and contained vegetation that partially obstructed the plaintiff’s view of the bridge. The plaintiff’s statutory notice, however, provided that "the plaintiff ... [d]id encounter a defective condition upon a walkway and/or bridge, causing her to trip and fall." (Internal quotation marks omitted.) Id., The court, relying primarily on Ross and Platt, held that "the specific defective conditions that allegedly caused the plaintiff’s injuries— e.g., the excessively tall step, the lack of a railing, the overgrown vegetation, the failure to install warnings or signs— are entirely absent from the plaintiff’s notice." Id. As a result, the court found the savings clause inapplicable because the description of the alleged defects were not merely inaccurate, but entirely absent from the notice. Id.
In light of the cases cited in the preceding paragraphs, the plaintiff’s notice is patently defective for failing to specify the defect that caused her to trip and fall, and the savings clause is inapplicable. As in Ross, Platt, and Bencivengo, the plaintiff alleges in her complaint that she tripped and fell on the sidewalk in front of 66 Norton Street "due to a cracked and broken sidewalk with an abrupt rise/[descent] and unevenness," but fails to make mention of these details in the notice. See Compl., ¶ 6, Ex. A. Since the plaintiff has completely omitted any mention of the "cracked and broken sidewalk with an abrupt rise/descent and unevenness" from her notice of claim, the notice is defective. The plaintiff’s use of the terms "defect" and "disrepair" are "unnecessary embellishments" that do not cure the failure to inform the defendant of the specific defect in the sidewalk that allegedly caused plaintiff’s injury. See Ross v. New London, supra, 3 Conn.Cir.Ct. 647; see also Platt v. Naugatuck, supra, Superior Court, Docket No. CV-10-6002897. Thus, pursuant to § 13a-149, the plaintiff has failed to provide the defendant with the relevant information to adequately investigate the place where the injury occurred and protect its interests. See Ross v. New London, supra, 646. Moreover, the savings clause is inapplicable, as the description of the alleged defect is entirely absent from the notice, and is not merely inaccurate. See Martin v. Plainville, supra, 240 Conn. 113.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is granted because notice of the cause of the injury was entirely absent from the plaintiff’s statutory notice, which deprives this court of subject matter jurisdiction.