Opinion
CV166067492S
12-13-2018
Cathy BROOKS v. COMMISSIONER OF TRANSPORTATION, City of Hartford et al.
UNPUBLISHED OPINION
Jane S. Scholl, J.
Introduction
This case involves a claim by the plaintiff, Cathy Brooks, for damages for injuries she suffered when she tripped and fell on a sidewalk in Hartford. The plaintiff brings her claim pursuant to General Statutes § 13a-149.
The statute provides: "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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. 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 town, city, corporation or borough was not in fact misled thereby."
Trial on this matter was held before the court on December 5, 2018. At that time the court heard testimony from Kiriakos Christoforakis, the owner of the business in front of which the plaintiff fell; the plaintiff; and Michael Deane, engineering inspection supervisor for the defendant city. The court also received several exhibits.
The plaintiff’s claim in Count One of the complaint against the Commissioner of Transportation was dismissed. At trial the plaintiff proceeded only as to her claim in Count Two as to the city of Hartford and not as to her claim in Count Three against the Parking Authority.
Findings of Fact
The parties stipulated that the notice provided to the city by the plaintiff was sufficient under the statute. They also stipulated that the city of Hartford is bound to maintain and inspect the area where the plaintiff fell.
From the evidence presented, the court makes the following additional findings of fact: Mr. Pizza is a business located at 671 Blue Hills Avenue in Hartford. In front of the business, on the sidewalk, was a parking sign. The sign was brought down anywhere from two years to five or six months before the plaintiff fell. After the sign was brought down, the base was still protruding from the sidewalk. The owner of Mr. Pizza did not call the city about the sign because his neighbor had advised him that he had. Prior to June of 2014 Deane had made several visits to the area and done an inspection. It would take less than an hour to take the sign post remnant out. The city does not have a sidewalk inspection program, only a complaint driven system.
On June 16, 2014, at about 7:20 p.m., the plaintiff ordered some food from Mr. Pizza. She drove there, parked in front, and picked up her food. As she walked back to her car, at about 7:257:35 p.m., she tripped over the protruding sign base and fell. She was walking normally at the time. There were no warning signs or barriers around the base. The sidewalk where the base was left was red and gray brick and the sign remnant was gray. Sunset that day was at 8:28 p.m.
The plaintiff went to the emergency room after the fall. Her knee was badly swollen and she had an abrasion on her nose. An x-ray of the knee revealed a patella (kneecap) fracture with mild displacement. The knee was bandaged and the plaintiff was given crutches. She was advised by the hospital to follow up with an orthopedist. On June 23, 2014, Brooks was seen by SFMG Surgery Office. She was placed in a hinged knee brace lock in extension, weight bearing as tolerated. On July 7, 2014 she returned to that office and was advised to remain in the hinged knee brace but to unlock the brace to forty degrees to begin gentle range of motion and prevent stiffness. On August 11, 2014, at another visit to that office, she was told to continue weight bearing as tolerated. At a subsequent visit on September 3, 2014 she was referred to physical therapy. She had six sessions of physical therapy between September 29, 2014 and October 29, 2014. On October 27, 2014 non-weight bearing x-rays of the left knee revealed a healed patella fracture and significant degenerative changes at the lateral compartment. On December 12, 2014 she was seen by UConn Health after being referred there by St. Francis Hospital to be evaluated by a knee surgeon because of knee buckling. A December 30, 2014 MRI of the left knee revealed a torn meniscus. On February 25, 2015 the plaintiff had surgery to repair the meniscus tear in her left knee. After the surgery she was on crutches for about three to four weeks. She did an additional twenty physical therapy sessions from March 12, 2015 to May 29, 2015.
On March 2, 2017, Dr. Jambor examined the plaintiff and opined that she has a seven percent disability rating of her left lower extremity secondary to the June 16, 2014 fall. He also opined that she "will require future treatment for her left knee including but not limited to physical therapy, cortisone injections, Visco supplementation and a total knee replacement if she continues to have significant left knee arthritic pain." The plaintiff, however, has no plan for surgery. At the time of trial the plaintiff still complained of experiencing pain in her knee. She can no longer ride a bike, jump rope, stand too long, or take long drives. Her knee aches especially in cold weather. She also has scars on her knee. The plaintiff is sixty-three years old and has a life expectancy of 22.9 more years.
The plaintiff incurred $32, 945.84 in medical expenses as a result of the injuries she sustained in the fall.
Discussion
In Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 157-58 (2010), cert. denied, 300 Conn. 913 (2011), the Appellate Court had occasion to discuss the parameters of General Statutes § 13a-149. The Court stated: "Historically ... municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control ... The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed ... The statutory provisions of § 13a-149 have two components that must be met in order to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair ... Ownership of the property does not establish the applicability of § 13a-149 ... Whether a highway is defective may involve issues of fact, but whether the facts alleged would if true, amount to a highway defect according to the statute is a question of law ... [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result ..." (Citations omitted; internal quotation marks omitted.) "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks ... The term sidewalk is meant to apply to those areas that the public uses for travel ... Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Citations omitted; internal quotation marks omitted.) Id., at 160-1.
"To recover under § 13a-149, a plaintiff must prove, by a fair 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, which means that the plaintiff must prove freedom from contributory negligence." Nicefaro v. City of New Haven, 116 Conn.App. 610, 613, cert. denied, 293 Conn. 937 (2009).
It is clear from the facts found by the court that the sidewalk was defective. The sign stub protruding from the sidewalk created a hazardous condition for pedestrians.
There was also sufficient facts to establish that the city, although not having actual notice of the defect, had constructive notice of it. "[T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." (Citation omitted; internal quotation marks omitted.) Nicefaro v. City of New Haven, 116 Conn.App. 610, 614, cert. denied, 293 Conn. 937 (2009). "A possessor of land is charged with constructive notice of a dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk ... Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant ... Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is, in the eyes of the law, equivalent to actual knowledge ... The defendant’s subduty to make a reasonable inspection, i.e., investigation or detection, of a dangerous condition on the highway is therefore a factor to be considered in determining whether the defendant received actual or constructive notice of the alleged defect and had a reasonable opportunity to remedy it. The extent of the duty to inspect varies with the particular circumstances of the case ... The duty to make a reasonable inspection, i.e., investigation or detection, absent actual notice, depends upon the nature of the defect and the length of time it existed. The circumstances of each case must be examined." (Citation omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479-80 (1990).
Here the sign remnant was on the sidewalk for anywhere from two years to five to six months. Deane indicated that he was in the same area a number of times before the plaintiff’s fall. If the city had exercised reasonable care to observe the condition of the sidewalk it was charged with a duty to keep safe, it should have discovered the defect and remedied it. It clearly had sufficient time to do so. The remedy, taking the stub out, would have taken little time. "Returning our attention to the question of reasonable care in discovering the defect, we note that [t]he test is not whether a defect would have been disclosed by an examination of the particular street, but rather whether it would have been disclosed by a reasonable supervision of the streets of the city as a whole ... At the same time, a municipality is required to exercise a greater degree of care over its sidewalks than other traveled ways ... Thus, the defendant’s reasonable care ... is measured not by its supervision of the particular sidewalk on which the plaintiff fell, but by the supervision of the defendant’s sidewalks as a whole." (Citation omitted; internal quotation marks omitted.) Lombardi v. Town of East Haven, 126 Conn.App. 563, 576 (2011). The city admitted it had no sidewalk inspection program but only reacted to complaints. Therefore, its supervision of the city’s sidewalks as a whole cannot be found to be reasonable care and the court finds that the city had constructive notice of the defect which caused the plaintiff to fall.
The city argues that the biggest hurdle for the plaintiff here is the issue of sole proximate care. "If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless she shows that there is no negligence, carelessness or inattention by herself ... which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, she may not recover." (Citation omitted; internal quotation marks omitted.) Smith v. City of New Haven, 258 Conn. 56, 64 (2001). Therefore, in establishing that the defect in the sidewalk was the sole proximate cause of her injuries and damage, the plaintiff must prove freedom from contributory negligence. "[T]he plaintiff in walking along a sidewalk was not bound to keep his eyes continually upon it, but only exercise such watchfulness as persons of ordinary prudence would observe. Neither Connecticut law, nor common sense, damns a plaintiff for not looking constantly at the ground while she walks forward. There are too many other possible dangers to a pedestrian to require such conduct. In fact, to require such conduct of pedestrians (head down, not paying attention to any other danger in the middle of the street) would represent negligence. There is no evidence that Ms. Brown was anything other than a reasonable, cautious pedestrian the morning of her injury. Nothing she did that morning constituted negligence." Brown v. City of Hartford, Superior Court, judicial; district of Hartford at Hartford, Docket No. CV045000126 (Hennessey J., May 4, 2006). Likewise here the plaintiff has met her burden to prove that she herself was not negligent. She was walking normally. The post stub was not easily visible since it blended into the colors of the sidewalk pavers. There was no evidence that the plaintiff was doing anything other than what a reasonably prudent person would have done in the same circumstances. Therefore, the court finds that the defect in the sidewalk was the sole proximate cause of the plaintiff’s injuries.
Conclusion
The court finds the issues for the plaintiff and against the defendant and awards the plaintiff $32, 945.84 in economic damages and $125, 000.00 in non-economic damages.