Smith v. Bridgeport Housing Authority

Full title: ANTOINETTE SMITH ET AL. v. BRIDGEPORT HOUSING AUTHORITY

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Feb 6, 2009

2009 Ct. Sup. 2722 (Conn. Super. Ct. 2009)

47 CLR 157

Opinion

No. CV08 5015100 S

February 6, 2009

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

RICHARD E. ARNOLD, Judge.

The defendant, Bridgeport Housing Authority has filed a motion for summary judgment alleging that there is no genuine issue of material fact that the plaintiff did not comply with the statutory notice provisions of General Statute § 8-67. Section 8-67, regarding an injury on property of a housing authority states:

Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.

The minor plaintiff's complaint alleges that she fell on the defendant's property located at Marina Village Building 36, Apt. 617 Railroad Avenue, Bridgeport, Connecticut on April 20, 2006.¹ She claims her fall, resulting injuries and damages were due to the defective and dangerous condition of the sidewalk and concrete steps at said premises, that were owned, possessed, controlled and/or maintained by the defendant. The complaint alleges that the plaintiff gave notice to the defendant and has complied with all requests for information in a "timely manner." In response to the plaintiff's allegations, the defendant has filed an answer and several special defenses. The second special defense alleges the defendant failed to give timely notice pursuant to General Statutes § 8-67. The defendant now argues by way of summary judgment that it is entitled to judgment as a matter of law.

1 The action is brought in behalf of the minor plaintiff Antoinette Nichols, by her parent and natural guardian Antoinette Smith.

CT Page 2723

Standard of Law

The standard of law regarding a motion for summary judgment is well-settled. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).

"[C]ompliance 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 . . . 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 . . . Section 8-67 did not create liability where none existed . . . Rather, it provides procedural limitations on the ability to recover on a cause of action already available . . . 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 the statute is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery." (Citations omitted and internal quotation marks omitted.) Fields v. Housing Authority of Stamford, 63 Conn.App. 617, 621-22, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001). "The time limitations and notice provisions act to limit ability to recover, as do typical statutes of limitations, but do not become essential elements of a plaintiff's cause of action against a housing authority for negligence." White v. Edmonds, 38 Conn.App. 175, 184, 659 A.2d 748 (1995).

Discussion

The plaintiff argues that notice was provided within the six-month time period provided by General Statutes § 8-67. The fall occurred on April 20, 2006, and notice was provided to the defendant on May 26, 2006. In support of this position the plaintiff has provided a copy of the purported notice. An inspection of this copy reveals that by way of letter dated May 26, 2006, addressed to the Bridgeport Housing Authority, 150 Highland Avenue, Bridgeport, Connecticut, the plaintiff informed the defendant that the minor Antoinette Nichols had sustained personal injuries due to a fall outside her afore-described residence at the defendant's property, and that the cause of the fall was the uneven sidewalk.

Additionally, the plaintiff also filed a "Notice of Occurrence" claim form dated May 1, 2006, with the defendant. A copy of this notice form has also been submitted for the court's inspection. The plaintiff also completed and filed a Bridgeport Housing Authority "Liability Reporting Form" with the defendant. The plaintiff's claim was acknowledged by the defendant's liability insurance carrier on June 6, 2006, by way of a letter to the plaintiff's legal counsel, dated June 6, 2006. The plaintiff argues that it is undisputed that the defendant received actual notice of the plaintiff's claim within six months of the incident.

The defendant argues that none of these documents comply with the provisions of § 8-67 because none of them indicate that any notice was "filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose," as required by § 8-67. It is noted that the defendant's motion for summary judgment assails only the propriety of the parties with whom the plaintiff filed purported notices and makes no complaint as to the content of the notice.

The defendant acknowledges that the plaintiff has provided a copy of a letter sent to the "Bridgeport Housing Authority" dated May 26, 2006. The defendant argues that the Liability Reporting Form filed by the plaintiff was to be prepared for the defendant's Chief of Security and that the purpose of the form was for the form to be forward to the liability insurance carrier. However, none of the document copies supplied by the plaintiff establish that any of the purported notices were addressed, filed with or delivered to, the attention of the chairman or secretary of the defendant Housing Authority. The defendant argues that these submitted documents are insufficient pursuant to section 8-67, regardless of the fact that the defendant may have actual notice of the plaintiff's claim. See. Fields v. Housing Authority of Stamford, supra, 63 Conn.App. 617.

The defendant is correct when it argues that Fields, supra, rejects an actual notice substitute for the legislatively mandated notice requirements of § 8-67. In this case the "Notice of Occurrence" form and the "Liability Reporting Form" filed in the plaintiff's behalf would not meet the statutory requirement of § 8-67, according to Fields, supra. The fact that plaintiff's claim was acknowledged by the defendant's liability insurance carrier on June 6, 2006, by way of a letter to the plaintiff's legal counsel, and that the defendant had actual knowledge, does not meet the statutory requirement regarding notice contained in § 8-67. Id.

In Fields, supra, however, there was no claim that the plaintiff mailed a notice of claim directly to the Housing Authority within six months of the occurrence, as the plaintiff did in this matter, by way of a letter from plaintiff's legal counsel to the defendant, dated May 26, 2006. Id. at 620. Thus, the issue becomes whether a notice addressed and mailed to "Bridgeport Housing Authority" on May 26, 2006, is sufficient to meet the notice requirement of § 8-67 and to defeat summary judgment.

The court finds the notice provided by the plaintiff was insufficient. The notice was not given to any of the persons designated to receive notice by the clear and unambiguous language of § 8-67. "An insinuation that the proper individual most likely received the notice from another town employee is not sufficient to satisfy the statutory requirement." Bellman v. West Hartford, 96 Conn.App. 387, 398, 900 A.2d 82 (2006). The delivery of the notice letter of May 26, 2006 to the "Bridgeport Housing Authority" cannot cure the defect. Section 8-67 requires that the notice must be filed with the chairman or the secretary of the defendant housing authority. Information provided by third-party sources to chairman or secretary of the housing authority, cannot cure defects in the plaintiff's notice. Id. "[J]ust 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." (Citations omitted.) Fields v. Housing Authority of Stamford, supra, 63 Conn.App. 624. It was not the defendant's burden to demonstrate that it did not receive the plaintiffs' May 26, 2006 letter, which the plaintiff relies on to satisfy the statutory notice requirement. Id. at 399.

Although the outcome may appear harsh, under the circumstances of the present action, this court cannot ignore the holding of Fields v. Housing Authority of Stamford, supra. There is no factual dispute that the notice was not filed directly with the chairman or secretary of the housing authority as mandated by § 8-67. The defendant is entitled to summary judgment as a matter of law. The notice provision would be meaningless if the statute was not strictly construed. Id., 622-24.

Orders

The court concludes that none of the documents relied upon by the plaintiff meet the notice requirements set forth in § 8-67. The defendant housing authority in this case specially pleaded noncompliance with § 8-67 as a defense. There is no genuine issue of fact. These documents did not constitute statutory notice and are insufficient as a matter of law. The defendant's motion for summary judgment is hereby granted.