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Connecticut Superior Court Judicial District of Hartford at HartfordJun 15, 2007
2007 Ct. Sup. 10622 (Conn. Super. Ct. 2007)

No. HHD-CV 05-5000519

June 15, 2007


NINA F. ELGO, Judge.

Before this court is the complaint of Judith Marrero against the defendant, the city of Hartford. The plaintiff alleges that she sustained injuries after tripping and falling over a pothole near 496 Park Street, in Hartford, Connecticut. She asserts her cause of action pursuant to General Statutes § 13a-149. The court accepted evidence in this case on April 10, 2007 and has reviewed the briefs filed by the plaintiff and defendant, including the plaintiff's reply brief filed on June 7, 2007.

To recover under General Statutes § 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, which means that the plaintiff must prove freedom from contributory negligence." Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Given its findings of facts, found by a preponderance of evidence, this court concludes that the plaintiff has failed to meet her burden of showing that the alleged defect was the sole proximate cause of her injuries and losses.

The plaintiff testified that on March 15, 2003 at around 2 p.m., she was a passenger in a car driven by her brother-in-law, who was dropping her off at her hair salon on Park Street. She testified that she has seen this same hair stylist every month for ten years and is typically given a ride to the salon. On this day, when she exited the car, she looked to her right and left for passing cars, and seeing none, set out to cross the street. She testified that she never looked down at the street, except to notice that the street was wet from melting snow, which had fallen the day before. As she crossed, her foot got caught in a pothole two feet by three feet wide, which she did not see because its edges, she claims, were covered with water.

The court has difficulty crediting her testimony that the pothole was covered with water for a number of reasons. She testified that her son took a picture of the pothole on the same day, sometime after she called him from the hospital. Judging from the photograph and her testimony about when she fell, the son arrived at the scene no earlier than 2:30 p.m. and probably not much later than 4 p.m. or so since the photographs indicate the existence of daylight with some shadowing, presumably from buildings on the street. The photograph, however, indicates that there is very little water in the pothole, which was not only two feet by three feet wide, but appears to be relatively deep as well. As such, this court is skeptical that there was as much water filling the pothole as the plaintiff claims was there when she actually fell.

Moreover, the plaintiff described the street as being wet, and that, but for noticing that the street was wet, she never looked down at her feet or where she was walking. Specifically, she testified that she "didn't look at it (the puddle)" and that she "just cross (sic) the street." Given the dimensions of the pothole and the photograph reviewed by the court, the court concludes that this pothole, had it been filled with water, would have appeared very different from a wet street and would have been just as obvious an obstacle as the pothole unobscured. This court concludes that the plaintiff's failure to have seen the pothole, or even a pothole filled with water which the court frankly does not credit, is evidence that she failed to exercise due care. As such, this court cannot find that the plaintiff has met her burden that this defect was the sole proximate cause of her injuries and that she, herself, was not contributorily negligent.

See, e.g., White v. Burns, 213 Conn. 307, 316, 567 A.2d 1195 (1990); Javier v. City of Hartford, Superior Court, Judicial District of Hartford, Docket No. CV 06 5002003 (February 21, 2007, Hale, J.T.R.).

Judgment is entered for the defendant.

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