2006 Ct. Sup. 18072
No. CV 05-5000326 SConnecticut Superior Court Judicial District of New Haven at New Haven
October 5, 2006
MEMORANDUM OF DECISION
DAVID W. SKOLNICK, JUDGE TRIAL REFEREE.
The instant matter came on for trial before the court on August 22, 2006. The evidence disclosed that on July 20, 2004 at 7:05 a.m. plaintiff Peter Zelinsky was riding his bicycle from his home to Bailey Middle School located on Morgan Land in West Haven. Peter was attending a summer school session at the Bailey School.
As Peter was proceeding on the right side of the roadway he rounded a curve to the right and thereafter was caused to turn to the left due to the presence of a storm drain located on the right side of the road as well as uneven patches in the road surface. After passing the storm drain, he returned to the right side of the roadway, and as he proceeded was suddenly thrown from his bike as a result of his tires striking a sharp, raised edge of a depression in the roadway causing blowouts of the bike tires. As a result of said fall, Peter sustained an arterior-superior sternoclavicular joint dislocation, displaced left colles’ fractures of the left radius (wrist) as well as a coracoid fracture in the left shoulder area. These fractures required closed reductions performed at Milford Hospital. In addition, Peter sustained abrasions in the left shoulder and right knee areas.
Plaintiffs brought this action pursuant to C.G.S. § 13a-149
which provides “any person injured by means of any defective highway may bring an action to recover damages from the party bound to keep it in repair.” The court finds that the notice requirement contained in this statutory section has been satisfied by the notice appended to the complaint in this case.
Peter testified that his bike was a 2003 Arrow BMX, was in good repair, and had tires that were made for both on road and off road riding. He described his ride before the accident as CT Page 18073 follows: “I was focusing on the road straight ahead and the other traffic on the road . . . I went around the first patch and then I hit the pot hole and my tires blew out.” The plaintiff offered the testimony of Michael Miller, a consulting engineer, who testified that he received his bachelor of science degree in mechanical engineering from the University of New Haven in 1975 and has since been practicing as a licensed professional engineer. He is a Member of the American Society of Engineers, the American Society of Safety Engineers and Civil Engineers amongst other societies. Mr. Miller stated that he has reviewed cases for both plaintiffs and defendants on a ratio of two defendant’s cases for every one plaintiff’s case. Among his works for municipalities includes the evaluation of “collisions involving municipal vehicles, municipal roadway installations, and injuries occurring on municipal roadways.”
After receiving photos from plaintiff’s counsel, Mr. Miller visited the accident site, then met with Peter and his grandmother at the site where Peter pointed out where his fall had occurred and Miller took additional photographs.
The court finds that Michael Miller was most competent to testify and offer opinions as to the conditions of the roadway as of the date of the instant accident.
From Mr. Miller’s examination of the road surface, he opined as follows: “I can tell you, as to the specific depression in the roadway that Peter pointed out to me, located within a rectangular area, the pavement had been previously patched over and repaired on two occasions. The patch had been placed over the original patch not completely but it is of irregular shape over the original rectangular shape . . . When you excavate into a roadway, you must compact the soil in the base of the road before you repave the patch . . . if the original compaction is not done, then the pavement will have existing problems in the future. If you have a section of pavement . . . that exhibits such problems, the effect is not to just smear more asphalt on top and hope for the best. You have to investigate the underlying problem and correct that and then repave properly.”
Miller further testified that the base of the roadway had not been “adequately compacted when the original patch was put in, and what that lead to is that soil underneath the roadway, the excavated material that was backfilled into that hole began to compact all by itself . . . and the roadway will fall down, the CT Page 18074 asphalt.”
The court does not agree with defendant’s claim that the evidence “failed to show that West Haven had actual or constructive notice of the alleged defect. “Mr. Miller’s testimony clearly established that the condition of the road surface which caused the plaintiff’s accident was caused by improper patching on at least two occasions by West Haven resulting in the defendant thereby creating the condition, said depression in the roadway, of which plaintiffs complain. Therefore, in the absence of any countervailing evidence offered by the defendant City of West Haven, the court finds that the City of West Haven had both actual and constructive notice of the problem of a depressed area in said roadway which it created thereby placing bicycle riders at risk, including the plaintiff.”
The defendant, in its post-trial memorandum, accurately states the law requiring that before a municipality can be held liable, the municipality’s negligence must be the sole proximate cause of the plaintiff’s injuries and damages. From this legal truism the defendant argues that, as the plaintiff had ridden his bicycle on Morgan Lane a number of times previously, he must be found to have been “at least one percent negligent in failing to avoid the defect, which he could have done had he been keeping a proper lookout.” The only evidence before the court, however, is the plaintiff’s evidence that he kept his eyes on the road ahead and never saw the depressed area causing his fall from his bicycle before encountering it. Why he didn’t see the depression before encountering it may have resulted from several factors including the fact that the depression was the same color as the surrounding road surface. Attesting to this is the testimony of Mr. Miller referring to his examination of the area: “One thing that I noticed out there . . . is that as you are approaching from Peter’s direction of travel, you can’t see that there is a depression . . . It is not the kind of thing that you are going to see as you approach as a bicyclist. It is kind of masked by the surrounding area.”
Consequently, the court cannot attribute any contributory negligence to Peter merely because he failed to observe the depression before encountering it. Absent any evidence establishing such negligence, such a finding would be based on sheer speculation rather than on a preponderance of the evidence.
The court finds that plaintiffs have proven by a preponderance CT Page 18075 of the evidence the conduct of the City of West Haven in improperly patching the area without adequate compacting of the soil beneath the patches, was the sole proximate cause of the plaintiff Peter Zelinsky’s fall and resulting injuries and damages.
The evidence disclosed that following treatment at Milford Hospital Peter’s fracture required that he wear a cast and sling on his arm into the month of September. Further, he testified that he continues to experience stiffness in the morning in the areas of his fractures and experiences pain in damp weather and from prolonged physical activity. For this pain Peter takes advil. In the opinion of Dr. Ted Weisman, an orthopedic specialist, Peter sustained a permanent partial disability of 5% “causally related” to the accident of July 20, 2004.
Accordingly, judgment may enter in favor of the plaintiffs as follows:
Grace Zelinsky, grandmother and guardian, Economic Damages $ 9,657.42 Peter Zelinsky, Economic Damages 27.90 (tire tube replacement on bike) Non-Economic Damages $40,000.00 __________ Total Damages: $49,685.32
Together with costs of suit. CT Page 18076