2006 Ct. Sup. 16053
No. CV06-5001525 SConnecticut Superior Court Judicial District of New Haven at New Haven
September 1, 2006
MEMORANDUM OF DECISION
WILLIAM L. HADDEN, JUDGE TRIAL REFEREE.
This is a suit brought against the City of New Haven seeking money damages for personal injuries allegedly received by the plaintiff when she fell on a public street in New Haven on December 30, 2003. The claim against the city is that the city failed to properly maintain the street in front of 25 Saltonstall Avenue, as required by General Statutes § 13a-149. The case was tried before this court on August 30, 2006.
The specific allegations in the complaint are that an area of the road, which was adjacent to the curb in front of 25 Saltonstall Avenue in New Haven, was in a defective condition in that there was a hole consisting of cracked, broken and uneven pavement, that the plaintiff was walking on the road when she was caused to fall because of the hole, that she sustained severe personal injuries and incurred various expenses in connection with her injuries, that the defendant was in control of the road, that the defendant knew or should have known about the defective condition of the road but failed to remedy the condition, that the plaintiff was in the exercise of due care at all relevant times, that the fall and resulting personal injuries and damages were due to the defendant’s breach of its statutory duty to maintain the public road in a safe and reasonable condition, and that the plaintiff gave proper notice to the defendant of her claim. The defendant admits only that it is a public corporation charged with the care and maintenance of the roads within the city, that at all relevant times it was in control of the road in front of 25 Saltonstall Avenue, and that a notice of the claim was received within the time period set by statute.
The law is clear concerning what the plaintiff must prove in order to prevail in a case brought pursuant to § 13a-149. “The defendant’s liability may only arise from a breach of the duty imposed by this statute. Baker v. Ives, 162 Conn. 295, 298-99, CT Page 16054 294 A.2d 290 (1972); Burke v. West Hartford, 147 Conn. 149, 151, 157 A.2d 757 (1960). To establish liability, the plaintiff had the burden of proving (1) the existence of a defect which resulted from the failure of the defendant to use reasonable care to keep the sidewalks within its control in a reasonably safe condition for public travel; (2) notice, either actual or constructive, to the defendant of the defect; and (3) the exercise by him of due care. Unless the trial court was satisfied that the plaintiff’s own contributory negligence was not a proximate cause of his injuries, liability does not attach to the defendant. Id., 151-52, and citations therein; Jacen v. East Hartford, 133 Conn. 243, 247, 50 A.2d 61 (1946); Frechette v. New Haven, 104 Conn. 83, 132 A. 467 (1926).” Anibal Rodriguez v. New Haven, 183 Conn. 473 (1981).
The plaintiff had resided at 25 Saltonstall Avenue for several months before she fell, and had crossed the road in that area on more than one occasion. She had never noticed the hole. On December 30, 2003, at about 8:00 A.M., she walked down the sidewalk from the front of her building to the curb. She was intending to walk to a car that was parked directly across the street. As she stepped off the curb and down to the street she was looking ahead at the car across the street and did not look where she was stepping. She stepped into a hole next to the curb which caused her to fall.
There was no evidence as to how long the hole next to the curb had existed, what caused it to occur, or that the defendant had actual notice of its existence. The plaintiff claimed in argument that the hole was a “pothole,” and that the court should infer that it was caused by the freezing, melting, and re-freezing during the winter, that since the fall occurred on December 30, 2003 it was too early in the winter season for the hole to have recently appeared, that it must have appeared during the winter of 2002-2003, and that therefore it had been there for such a length of time so as to constitute constructive notice to the defendant of its existence in that the defendant should have discovered and repaired it. The court declines to draw such inferences based on the limited evidence offered. What the plaintiff refers to as reasonable inferences is total speculation. The plaintiff has failed to prove either actual or constructive notice of the defect to the defendant.
In order to prevail in this type of case, the plaintiff also must prove that her own negligence did not contribute to her fall CT Page 16055 and injuries. When the plaintiff stepped down from the curb to the street without looking where she was stepping, she did not exercise due care, and this lack of due care contributed to her fall.
For the foregoing reasons, the court finds that the plaintiff has failed to prove that the defendant either had notice of the existence of the alleged defect, or tat she exercised due care, and therefore she has failed to prove that the City is liable, pursuant to § 13a-149, for her injuries and losses.
Judgment may enter in favor of the defendant City of New Haven. CT Page 16056