Opinion
CV116018454S.
11-20-2012
Cheryl TAUFIK v. CITY OF WEST HAVEN.
UNPUBLISHED OPINION
WILSON, J.
FACTS
On March 7, 2011, the plaintiff, Cheryl Taufik, filed a complaint against the defendant, the city of West Haven, pursuant to the municipal highway defect statute, General Statutes § 13a-149. In the complaint the plaintiff alleges the following facts. On August 20, 2010, the plaintiff was crossing from the south to north side of Captain Thomas Boulevard in West Haven when she was caused to fall as a result of a depression in the roadway. The plaintiff was exercising due care at the time of the injury. The defendant had a statutory duty to maintain the sidewalks and streets within city limits in a reasonably safe condition. The defendant caused the plaintiff's injuries in that it: (1) allowed the street to become defective; (2) allowed the street to be repaired in a defective manner; (3) allowed improper and unsafe repairs to be made upon the street; (4) failed to erect or maintain proper safeguards and warnings; (5) failed to remedy the defective conditions when repairs were reasonably necessary; (6) failed to warn the plaintiff of the conditions; (7) failed to make a reasonable inspection; and (8) maintained the street in the defective condition. As a result of the fall, the plaintiff incurred medical expenses and an impairment in her normal and professional activities. Notice of claim was served on the defendant through the city clerk on September 27, 2010.
On April 21, 2011, OLSL Larson Place, LLC filed a motion to intervene as co-plaintiff. OLSL is the employer of Taufik and has paid sums to Taufik under the Connecticut Workers' Compensation Act. Hereafter, any mention of " the plaintiff" is in reference to Taufik only.
Section 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 ..."
On November 23, 2011, the defendant filed its answer. The defendant admits it is a municipal corporation and that it received notice of the plaintiff's claim. The defendant claims insufficient knowledge as to the allegations about the plaintiff crossing the street on August 20, 2010, and to the alleged defect in the road. The defendant leaves the plaintiff to prove a statutory duty and denies any breach of a statutory duty and the damages resulting thereof.
The defendant filed a motion for summary judgment and memorandum in support thereof on July 10, 2012. Attached to the memorandum is the duly sworn affidavit of Beth Sabo, the commissioner of the department of public works for the city of West Haven, who attested that the location of the alleged fall is approximately eight feet away from an intersection, at which both traffic and pedestrian-control signals are located at a marked crosswalk. Sabo further attested that the location of the alleged fall is not in the crosswalk. The plaintiff filed an objection to the motion for summary judgment on July 24, 2012. Oral argument was heard on the motion on July 30, 2012.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ... It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). " Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
In its memorandum in support of its motion for summary judgment, the defendant argues that General Statutes § 13a-149 requires the plaintiff to demonstrate that she was not contributorily negligent in sustaining her injuries. The defendant further asserts that the plaintiff was contributorily negligent when she violated § 14-300b(b) by crossing the street outside of the crosswalk. In response, the plaintiff argues that pursuant to General Statutes § 14-300(g), the plaintiff's violation of § 14-300b(b) cannot constitute negligence per se, and, even if it could, it is not negligence per se in this context. The plaintiff additionally argues that there is a genuine issue of fact as to whether the traffic control signals were working at the time of injury, which is a material fact for finding a violation of § 14-300b(b).
I
" It is well established that, [t]o prove a breach of statutory duty under [§ 13a-149], 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. " (Emphasis in original; internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 364, 376, 972 A.2d 724 (2009). " [T]he burden rests with the plaintiff in an action brought under § 13a-149 to demonstrate freedom from contributory negligence." Nikiel v. Turner, supra, 119 Conn.App. 728. " To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill." (Internal quotation marks omitted.) Nicefaro v. New Haven, 116 Conn.App. 610, 621, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). " [N]egligence on the part of the plaintiff or an independent third party may serve as a defense to liability under the sole proximate cause requirement of § 13a-149 when such negligence combines with the defect to cause the plaintiff's injuries." Machado v. Hartford, supra, 292 Conn. 378-79; see also Smith v. New Haven, 258 Conn. 56, 61-65, 779 A.2d 104 (2001).
In this matter, the defendant argues that the plaintiff was contributorily negligent as a matter of law because she violated a statutory duty. Specifically, the defendant argues that the plaintiff violated General Statutes § 14-300b(b), which provides: " No pedestrian shall cross a roadway between adjacent intersections at which traffic or pedestrian control signals are in operation except within a marked crosswalk." Section 14-300b(d) provides: " A violation of any provision of this section shall be an infraction." " [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." Gore v. People's Savings Bank, 235 Conn. 360, 375, 665 A.2d 1341 (1995). " Generally, in order to maintain a claim of negligence per se based on the defendant's violation of a statute, the plaintiff must show that he is among the class of individuals that the statute is designed to protect: In an action for neglect of duty it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but to entitle him to recover, he must further show that such duty was imposed for his benefit, or was one which the defendant owed to him for his protection and security, from the particular loss or injury of which he complains." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 550-51, 839 A.2d 1259 (2004). " [S]uch negligence affords a basis for recovery only if it is the proximate cause of damage ..." (Citations omitted.) D'Amato v. English, 122 Conn. 259, 262, 188 A. 663 (1936). " [T]he jury in a negligence per se case need not decide whether the [individual] acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the [individual] was negligent as a matter of law." Gore v. People's Savings Bank, supra, 376.
The plaintiff argues that the doctrine of negligence per se should not apply due to General Statutes § 14-300(g). Section 14-300(g) provides: " In any civil action arising under subsection (c) or (d) of this section or sections 14-300b to 14-300d, inclusive, the doctrine of negligence per se shall not apply." In opposition to this argument, the defendant claims that Nikiel v. Turner, 119 Conn.App. 724, 989 A.2d 1088 (2010), determined that § 14-300(g) does not apply to § 13a-149 claims. Before discussing that case, some background on Connecticut jurisprudence in this area as well as the statutory scheme at issue is necessary.
Generally, Connecticut has held travelers to an ordinary duty of care, which can be heightened depending on the path they are using: " Travelers who leave the way provided for them ... may not assume that [the path they travel] is free of obstructions as they may do in the use of the traveled portion of the highway. They must exercise due care to discover obstructions since they cannot assume that they do not exist." Corcoran v. New Haven, 108 Conn. 63, 67, 142 A. 569 (1928).
After the enactment of the pedestrian safety statutes, the Judges of the Superior Court took two general approaches when addressing claims that pedestrian plaintiffs contributed to their own injuries by violating those statutes. The first approach held that violation of a pedestrian safety statute by a plaintiff was negligence per se and barred the plaintiff's recovery under § 13a-149. Typical of this approach is Corprew v. Carpenter, Superior Court, judicial district of New Britain, Docket No. CV 075003838 (November 21, 2008, Trombley, J.), which stated: " [S]ince he admits that he violated a state statute by crossing the street without making use of the pedestrian crosswalk, an action which constitutes negligence per se, the plaintiff cannot establish that he was free from contributory negligence." The second approach applied the reasonable care standard discussed in Corcoran, rather than the negligence per se doctrine: " [A pedestrian] also ha[s] a duty to use reasonable care. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised." Culbreath v. Habib, Superior Court, judicial district of Hartford, Docket No. CV 075012762S (January 12, 2009, Aurigemma, J.). Under this approach, the violation of a pedestrian safety statute would not necessarily bar recovery under § 13a-149.
The pedestrian safety statutes, General Statutes §§ 14-300 through 14-300d, provide regulations for pedestrian traffic on or near public roadways.
In Nikiel v. Turner, supra, 119 Conn.App. 724, a highway defect case, the plaintiff appealed the trial court's jury instruction that if the jury found that the plaintiff had violated § 14-300c(a), which requires pedestrians to walk on available sidewalks, then the plaintiff was negligent per se and was unable to prove that the alleged defect in the road was the sole proximate cause of her injuries. The Appellate Court upheld the jury instructions: " A finding that the plaintiff failed to comply with the mandate of § 14-300c(a) cannot be reconciled with a determination that she is free from contributory negligence ... [W]here the court adopts the requirements of a legislative enactment as the standard of conduct of a reasonable person, a violation of the enactment may constitute negligence per se ... it suffices to say that failure to comply with § 14-300c(a) demonstrates negligence on the part of the plaintiff." Nikiel v. Turner, supra, 119 Conn.App. 728-29. When the plaintiff attempted to cite the same provision of § 14-300 which the plaintiff in this matter relies on, the court simply stated that " [the] argument misses the mark, as it overlooks the fact that the present litigation arises under § 13a-149. It further ignores the fact that our General Assembly has mandated that noncompliance with § 14-300c(a) ‘ shall be an infraction.’ " Id., at 727.
General Statutes § 14-300c(a) provides in relevant part: " No pedestrian shall walk along and upon a roadway where a sidewalk adjacent to a roadway is provided and the use thereof is practicable ..." Section 14-300c(e) provides: " A violation of any provision of this section shall be an infraction."
Subsequently, the reasoning in Nikiel has been applied to § 13a-149 claims that implicate § 14-300b(b) in two Superior Court cases. In Morales v. Regional Water Authority, Superior Court, judicial district of New Haven, Docket No. CV 065005010 (April 5, 2011, Woods, J.) [ 51 Conn. L. Rptr. 669], the plaintiff sued the defendants for injuries she sustained when she allegedly tripped in a hole while crossing a street near an accessible cross walk, which the court found was in violation of § 14-300b(b). The court applied Nikiel, stating that " [w]hile the precise pedestrian statute at issue in Nikiel was a different one than in the present case, both contain equivalent subsections in which the General Assembly has explicitly mandated that noncompliance with the statute ‘ shall be an infraction.’ " As a result, the court determined " that there is no factual dispute as to the plaintiff's noncompliance with § 14-300b(b), which is an infraction, and precludes recovery under the municipal highway defect statute, § 13a-149, as a matter of law."
In another case, the plaintiff sued the defendants for injuries she sustained when she tripped on a raised brick in a sidewalk as she was stepping up to that sidewalk from the roadway. Skoglund v.. Salvation Army, Inc., Superior Court, judicial district of, Docket No. CV 106002756S (July 10, 2012). She had crossed the street in violation of § 14-300b. The court, acknowledging Nikiel, held: " The plaintiff's alleged failure to cross the street at a marked intersection is not negligence per se where the plaintiff's injury occurs on a sidewalk as opposed to on the roadway. Whether the plaintiff made a reasonable use of her senses and whether the plaintiff's failure to cross the street at a marked intersection indicates a lack of due care, however, are questions for the trier of fact. Any alleged non-compliance with [§ 14-30b(b) ] does not foreclose the issue of sole proximate causation."
The plaintiff makes compelling arguments that the court in Nikiel misinterpreted the effect of § 14-300(g) in holding that the doctrine of negligence per se applies, or, alternatively, that the requirements of negligence per se are not met in a case like the present matter. As to the former, the plaintiff correctly identifies the illogical result that would occur if § 14-300(g) were strictly limited to claims " arising under" §§ 14-300b to 14-300d. Because none of those statutes contain a private right of action, neither expressly nor implicitly, under the Nikiel interpretation, § 14-300(g) would have no real effect because it would never be applied. From a practical perspective, it seems more likely that the language in § 14-300(g) is meant to apply to claims that implicate § 14-300(g), such as the present matter before us. This application would preclude a defendant from using a plaintiff's breach of a pedestrian safety statute as a categorical defense to the defendant's liability for his own negligence.
The legislative history supports the plaintiff's view that the Nikiel court's interpretation is misguided. Substantial portions of § 14-300 were first passed by the legislature in Public Acts 1977, No. 77-413. In that act, there was no provision analogous to what is now § 14-300(g). That act was subsequently vetoed by the governor, who reasoned: " The actions of motorists and pedestrians in situations of potential litigation are now dictated by common law and common sense. To replace a standard of reasonableness with a strict statutory standard may work to deprive a deserving party of recovery." Plaintiff Exhibit 3, Public Act Veto Messages, Public Act 77-413, 1977, Vol. 2, pp. 883-84.
In 1978, when the legislature passed Public Acts 1978, No. 78-309, which contained a provision like § 14-300(g), Senator Owens stated in relevant part: " Last time, if the bill had been signed and the bill passed and it had not been vetoed, many of the standards that we set forth in the bill requiring pedestrian safety and putting obligations on the pedestrians would militate against them in the event there was a personal injury action brought on their behalf and these various regulations or law with respect to pedestrian safety could have been set forth in defense. We have added that civil actions arising from the new requirements, the application of negligence per se would be prohibited." 215. Proc., Pt. 8, 1978 Sess., pp. 2873-74. The new provision was also summarized: " In civil actions arising from the new requirements, application of the doctrine of negligence per se is prohibited. Consequently, the fact that someone violated any of these requirements is not, in and of itself, conclusive proof that the violator acted negligently. The surrounding circumstances may be considered." Plaintiff's Exhibit 2, Summary of Public Act 78-309, p. 166.
The above legislative history strongly supports the plaintiff's contention that § 14-300(g) bars the application of the doctrine of negligence per se in cases where a party is alleging that a pedestrian was negligent solely by way of violating §§ 14-300b through 14-300d. The logical construction of § 14-300(g) implies that the bar to the application of the doctrine of negligence per se should extend to any time when §§ 14-300b through 14-300d are implicated. Furthermore, the legislative history of § 14-300 demonstrates, as the plaintiff states, that it was enacted " to prevent precisely what [the defendant] is attempting to do in the case at bar, use it as a defense against a pedestrian in her pending action."
Despite the plaintiff's persuasive arguments, this court must follow the decision in Nikiel, as it is binding precedent. " A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010). " [I]t is manifest to our hierarchical judicial system that [our Supreme Court] has the final say on matters of Connecticut Law and that the Appellate Court and Superior Court are bound by [its] precedent." Stuart v. Stuart, 297 Conn. 26, 45, 995 A.2d 259 (2010). " Although the concerns raised by [a] trial court might ultimately have merit ... revision of [appellate] precedent is not the trial court's function." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996). " Th[e] Superior Court has absolutely no right, privilege, or authority to declare any final decision of any appellate court, be it the Appellate or Supreme Court, to be in error." Christian v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV 05 4000297 (November 29, 2006, Fuger, J.).
Adherence to Nikiel brings with it two important implications. First, as the court did in Morales, this court must hold that the holding in Nikiel applies to § 14-300b(b). While the reasoning in Nikiel might be debatable, it is undeniable that it applies as much to § 14-300b as it did to § 14-300c. Both statutes have the same underlying policies and similar language, and both make a violation of their provisions " an infraction." There is no discernible basis to distinguish between the two. Second, the application of Nikiel forecloses any argument that the doctrine of negligence per se is not applicable. While the plaintiff again makes a compelling argument that even if the doctrine of negligence per se were applicable to § 14-300b its requirements would not be satisfied in the present context, the court in Nikiel foreclosed that issue when it held that violation of § 14-300c(a) constitutes contributory negligence under § 13a-149. As such, this court is required to hold that the plaintiff was contributorily negligent if she was in violation of § 14-300b(b) at the time of the injury.
The plaintiff argues that her alleged violation of § 14-300b does not satisfy requirements of negligence per se, namely, that the non breaching party be in the class of persons protected by the statute, and that the injury suffered is of the type that the statute is intended to prevent. First, the plaintiff points out that the present case is not a typical negligence per se case where a plaintiff is asserting that the defendant's violation of a statute is negligence per se. Rather, a defendant is trying to use the plaintiff's supposed negligence per se as a defense to the claims against it.
II
The above discussion does not resolve, however, all the issues in the present matter. While the doctrine of negligence per se applies to § 14-300b(b), the plaintiff argues that the defendant has not satisfied his burden in showing, undisputably, that the plaintiff violated § 14-300b(b). Specifically, the plaintiff argues that the defendant has failed to show that the pedestrian signals at the subject intersection were in operation at the time of the plaintiff's accident. This fact is material to the issues at hand because § 14-300b(b) states in relevant part: " No pedestrian shall cross a roadway between adjacent intersections at which traffic or pedestrian-control signals are in operation except within a marked crosswalk." (Emphasis added.)
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" In cases involving the doctrine of negligence per se ... the [party violating the statute] ordinarily may avoid liability upon proof of a valid excuse or justification. 2 Restatement (Second), Torts § 288A (1965) ..." (Citation omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 376. Such valid excuses and justifications include where the party violating the statute neither knows nor should know the occasion for compliance or is unable after reasonable efforts to comply with the statute. See 2 Restatement (Second), Torts § 288A (1965). In the present matter, the absence of functioning pedestrian-control signals would relieve the plaintiff of any duty to comply with § 14-300b(b) because that statute imposes, as a condition precedent to compliance with its terms, the presence of functioning pedestrian-control signals. Therefore, the defendant must show without dispute that the pedestrian-control signals were " in operation" at the time of the plaintiff's injury.
In Morales, the trial court also had to determine whether the defendant had shown that the pedestrian-control signals were in operation. Morales v. Regional Water Authority, Superior Court, judicial district of New Haven, Docket No. CV 065005010 (April 5, 2011, Woods, J.) The court concluded that the defendant had satisfied its burden, largely due in part to the plaintiff's own testimony: " The plaintiff's own deposition testimony indicates she was aware of the crosswalk and pedestrian signals at nearby intersections ... The court can reasonably infer that these signals were still in operation at the time of the accident." Id . Specifically, " [t]he plaintiff testified in her deposition that she had seen the ‘ sign with a red hand’ prior to her accident, referring to the operation of the pedestrian-control signals." Id.
In contrast to Morales, the defendant here has not met its burden of demonstrating that the pedestrian-control signals were in operation at the time of the plaintiff's alleged violation of § 14-300b(b). The only evidence submitted in relation to the pedestrian-control signals is the affidavit of Sabo. Sabo attests to the presence of the signals, but says nothing about whether they were in operation at the time of the plaintiff's accident. The plaintiff has made no admissions as to the operation of the signals at that intersection, and therefore the court cannot infer that the signals were in operation at the time of the injury as the court in Morales did. The defendant, as the movant for summary judgment, has failed to meet its burden in showing that the pedestrian-control signals were in operation at the time of the plaintiff's injury. Because there remains a genuine issue as to a material fact, the plaintiff cannot be held to be contributorily negligent as a matter of law because she could not have violated § 14-300b(b) if the pedestrian-control signals were not in operation at that time.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.
Second, § 14-300b is " a pedestrian safety statute intended to protect pedestrians, not municipalities or tortfeasors." This argument ties directly into the legislative history of § 14-300 and the intended effect of § 14-300(g). Moreover, § 14-300b is intended to protect pedestrians from being hit by motor vehicles, not depressions in a roadway. Finally, the plaintiff argues that the defendant cannot argue that the plaintiff's failure to use a crosswalk was the proximate cause of her injuries. She analogizes such an argument to one that " had a motorist not been on a highway in the first place, she would not have been struck in the rear by a negligent driver." See also Montembault v. Waterbury & Milldale Tramway Co., 98 Conn. 584, 585, 589, 120 A. 145 (1923) (While changing trolley-cars at a place where the tracks for several hundred feet were undergoing repair, the plaintiff, having passed on foot the spot under repair, went between two other stationary cars standing about three feet apart, and while so doing the air-brake on the forward car was released and it backed into the other car, crushing the plaintiff between the two. There was evidence that the plaintiff, upon hearing the release of the airbrake, hurriedly jumped upon the draw-bar, or bumper to avoid the collision, and while there was injured. The defendant, on the other hand, claimed that the plaintiff was attempting to continue his journey on the bumper, and that his injuries were caused thereby. The trial court instructed the jury that if they found the defendant's version correct, there could be no doubt but that the plaintiff was guilty of contributing negligence which precluded his recovery. The Supreme Court held that " this instruction was erroneous, since the plaintiff's position on the bumper was a condition rather than the cause of his injury, which was the backward movement of the car and the resulting collision, a danger which the plaintiff was not warned against and one which he could not reasonably have been expected to anticipate." Id., at 585. The court went on to reason citing other precedent that " the violation of a statute or ordinance, in actions of negligence, is immaterial unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered." (Citations omitted; internal quotation marks omitted.) Id., at 590. Similarly, in the present case, the plaintiff's failure to use a crosswalk was a condition rather than the cause of her injury.