ROSADO v. TORRINGTON, No. CV10-6007830 (Sep. 1, 2011)

WILSON J. TROMBLEY, Judge.

This case arises out of a slip and fall which the plaintiff claims occurred on December 6, 2008, at 4:30 PM on a sidewalk abutting Maiden Lane in Torrington while she was on her way to the Warner Theater. On December 6, 2010, the plaintiff, Lisa L. Rosado, filed a two-count complaint against the defendants, the city of Torrington and Robert Lizotte, the superintendent of streets for the city of Torrington. In count one, which is brought against both defendants, the plaintiff alleges, inter alia, that on December 6, 2008, she was injured as a result of a defective sidewalk on Maiden Lane in Torrington, Connecticut. The plaintiff alleges that the defendants are the owners of the sidewalk and/or have a duty to maintain the sidewalk pursuant to General Statutes Section 13a-149. The plaintiff alleges that she sent a "notice of intention to commence civil action" to Torrington's city clerk on December 23, 2008, and a "supplement to [the] notice of intent to commence civil action" to the city clerk, via the city's insurer, on November 10, 2010. The plaintiff attaches both notices to the complaint as Exhibit A. Count two is brought against Lizotte and also sounds in negligence. The plaintiff alleges various injuries and seeks money damages and any other equitable relief available. The defendants filed an answer on February 14, 2011, in which they deny the material allegations of the complaint.

On March 25, 2011, the defendants filed a Motion To Dismiss (#108) the complaint for lack of subject matter jurisdiction, along with a supporting memorandum of law and the two aforementioned notices. On April 8, 2011, the plaintiff filed a memorandum in opposition to the motion to dismiss and, once again, submitted the two notices as exhibits in addition to a letter from the city's insurer to the plaintiff's attorney dated January 15, 2009. The court heard oral CT Page 18707 argument at the short calendar on May 31, 2011.

The court, after reviewing the pleadings, memoranda and exhibits presented by the parties and after considering the arguments of counsel, will grant the defendants' motion.

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14 (2009). It is appropriate to raise a claim of an adequate notice under Sec. 13a-149 via a motion to dismiss. Ferreira v. Pringle, 255 Conn. 330, 332 (2001).

In their motion to dismiss, the defendants argue that the plaintiff failed to provide adequate statutory notice under Sec. 13a-149. Specifically, the defendants argue that the notices, which are attached to the complaint, are "patently defective." The defendants argue that the first notice "fails [to] include the cause of the plaintiff's injuries," and the second, supplemental notice is "untimely and was given to an improper party." Additionally, the defendants assert that the savings clause in Sec. 13a-149 is inapplicable because it is only available when the information provided in the notice is inaccurate, not when the required information is completely absent.

In her memorandum in opposition to the motion to dismiss, the plaintiff does not argue with any specificity as to whether she sufficiently stated the cause of her injury in her first CT Page 18708 notice. Rather, she focuses on the supplemental notice and asserts that timeliness is not an issue because it "merely supplemented the original timely notice." The plaintiff also asserts that the supplemental notice was given to the proper party because the defendants' insurer contacted her and requested all future correspondence. See Plaintiff's Exhibit B. Finally, the plaintiff argues that even if the court concludes that her notice is insufficient, the savings clause is available because: (1) there was no intent to mislead the town; (2) the cause of injury described in the notice "[can] be characterized as vague or indefinite"; and (3) the legislature intended the notice requirements to be liberally construed.

General Statutes Sec. 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 sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any 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." General Statutes Sec. 52-557n provides that an action under the municipal defective highway statute, i.e., Sec 13a-149, is a plaintiff's exclusive remedy against the municipality or other political subdivision for damages resulting from injury to person or property by means of a defective road or bridge. That statute specifically bars any action for injury to person caused by a defective road unless it is brought in compliance with the provisions of 13a-149. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192 (1991). The municipal defective highway statute encompasses injuries that were allegedly caused by a defective municipal sidewalk. Rodriguez v. New Haven, 183 Conn. 473, 474 n. 1 (1981).

"As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident." Ferreira v. Pringle, supra, 255 Conn. 330. When a plaintiff fails "to comply with the notice requirements of Sec. 13a-149, the trial court lack[s] CT Page 18709 subject matter jurisdiction over the action." Id. "The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof." Martin v. Plainville, 240 Conn. 105, 109, (1997). Emphasis added. The "cause" of the injury "must be interpreted to mean the defect or defective condition of the highway which brought about the injury." Nicholaus v. Bridgeport, 117 Conn. 398 (1933). "Because a plaintiff seeking recovery under [Sec.] 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence." Nicefaro v. New Haven, 116 Conn.App. 610, cert. denied, 293 Conn. 937, (2009). "To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill." Id.

"The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . . More specifically . . . the statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." (Citations omitted; internal quotation marks omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 182 (1993).

"Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim. The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate. It provides: `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.' General Statutes § 13a-149." Salemme v. Seymour, 262 Conn. 787, 793-94 (2003). "The savings clause, therefore, operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice of accident location." Id. "The state highway notice requirement must be strictly construed CT Page 18710 since § 13a-144, unlike § 13a-149, does not contain a saving clause. A necessary corollary to this is that the municipal highway notice requirement should be liberally construed since it, unlike § 13a-144, does contain a saving clause." Id., at page 796 n. 7. (Internal citations and quotation marks omitted.)

"The savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent." (Emphasis in original.) Martin v. Plainville, supra, 240 Conn. 113. The Connecticut Supreme Court has, in at least one instance, "declined to afford [a] plaintiff the relief of the savings clause because the notice she provided failed to give any description of the injury whatsoever and, thus, did not comport with one of the five fundamental requirements for perfected notice . . . Indeed . . . entirely absent means exactly that; one of the five essential elements articulated in Martin . . . must be completely, totally and unmistakably omitted from the plaintiff's notice. In the absence of such an omission, the savings clause of § 13a-149 could apply, depending on the facts adduced at trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) Salemme v. Seymour, supra, 262 Conn. 794.

The recent case of Dawson v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 08 5016831 (February 17, 2010, Silbert, J.) ( 49 Conn. L. Rptr. 311), which also dealt with a motion to dismiss for an alleged failure to comply with the notice requirements of Sec. 13a-149, is instructive in the present matter because of its factual similarities. As in the present matter, Dawson dealt with two separate notices. The first notice was sent within the required ninety-day time period and stated: "To the City of New Haven, I Michelle Dawson Ledbetter as power of attorney for my mother Essie Dawson, who is paralyzed from a fall on Oct. 24, 2006, on the city sidewalk perpendicular to Moreland Road, directly in front of the main entrance to 540 Winthrop Avenue. Nationwide placed the city on notice of her fall, to date we have not heard from them. The statute requires the city to be placed on formal notice of her fall within 90 days from the accident. The 90 days will be up on 1-24-2007." Id. In its motion to dismiss, the city of New Haven argued that this notice was insufficient "because it fail[ed] to indicate the cause of the plaintiff's injury with the requisite specificity." Id.

Although Dawson acknowledged that her first notice failed to state CT Page 18711 the cause of her fall and injury with specificity, she "point[ed] out that her notice references another notice of the same incident filed by Paul Hacku, an adjuster for Nationwide Insurance Co., which insures the abutting church. That notice, served on the Town Clerk on November 21, 2006, and thus also within the statutory 90-day window, stat[ed]: Our Insured: Community Baptist Church Inc. Our Claim Number: 51 06 BO 182596 10242006 51 Date of Loss: 10-24-2006. We are the insurance carrier for Community Baptist Church and have been placed on notice of a trip and fall accident on the city sidewalk in front of their parsonage house located at 640 Winthrop Avenue, New Haven, CT. Pursuant to Conn. Gen. Stat. 13a-149 we are hereby formally providing your office with written notice of this incident. Date of Loss: 10-24-06. Time: About 8:30 PM. Location: On the city sidewalk that runs perpendicular to Moreland Road, directly in front of the main entrance to 640 Winthrop Avenue (photo attached). Injured party: Essie Dawson 81 Fountain Terrace, New Haven, CT 06515. Description: Ms. Dawson tripped on a 2.25 inch step leading from Moreland Road to the city sidewalk in front of the Moreland Road side entrance to 640 Winthrop Avenue, New Haven, CT." Id., 311-12.

In denying the motion to dismiss, the court stated: "The City does not vigorously dispute the conclusion that the information contained in the Nationwide notice and the information contained in the plaintiff's notice, if both had been combined in the plaintiff's notice, would have satisfied the statute's notice requirement. It has even conceded, as it must, in this court's view, that if the plaintiff had specifically `incorporated by reference' the language of the Nationwide notice, it would probably have satisfied the notice requirements of [§] 13a-149 because the Nationwide notice does state the alleged cause of the fall with the requisite specificity . . ."

"There is no claim here that the plaintiff intended to mislead the City, and the fact that the plaintiff only `referred' to the Nationwide notice instead of specifically `incorporating it by reference' did not in any way mislead the City with regard to the plaintiff's claim or the alleged cause of her injury. The City, indeed, acknowledges that it was not misled . . . The Nationwide notice was not merely a statement of a potential claim against the City by Nationwide or by the Church which it insures (although it may also have sought to accomplish that purpose), but was also a statement that had the effect of alerting the City to the location where the plaintiff was injured and describing the alleged defect with particularity. Added to the material in the plaintiff's own CT Page 18712 notice, it completed the process of notifying the City that the plaintiff claimed that she was injured as a result of the noticed defect." (Citations omitted.) Id., 312-13.

In the present matter, the plaintiff's notice, which was sent via certified mail to the city clerk on December 23, 2008, provides in relevant part: "Pursuant to Connecticut General Statutes Sections 7-465 and 52-557n, I am hereby giving you notice of injuries sustained by Lisa Rosado when she was injured on Maiden Lane in Torrington, Connecticut, the particulars of which are as follows: PERSONS INVOLVED: Lisa Rosado 64 Moorland Avenue Waterbury, CT 06708. DATE OF INJURY: December 6, 2008. PLACE: Sidewalk of Maiden Lane, Torrington, CT. TIME: At or about 4:30 p.m. CAUSE: Slip and fall. INJURIES: Lisa Rosado's injuries include, but are not limited to her right hand and wrist. These injuries may be supplemented as additional information becomes available."

On November 10, 2010, almost two years after the first notice was sent, the plaintiff sent a "supplement to notice of intent to commence civil action" to CIRMA, the city of Torrington's insurance carrier. In that letter, the plaintiff states the same claimant, date and time of injury. With regard to location and cause of the incident, however, the plaintiff states: "LOCATION OF INCIDENT: A portion of the sidewalk on Maiden Lane near Main Street, Torrington, CT near the Warner Theater. See photos attached hereto. CAUSE OF INCIDENT: There was a pot hole in the sidewalk/broken sidewalk near the Warner Theater, causing the claimant to slip and fall. See photos attached hereto."

As in Dawson, there are two notices at issue in the present matter. The first notice fails to state the cause of injury, while the second notice supplements the first in that it provides detailed information about the cause of the plaintiff's injury. Unlike Dawson, however, the first notice does not reference the second notice. Moreover, unlike the second notice in Dawson, the supplemental notice in the present matter was not timely. In fact, the supplemental notice was sent almost two years after the first notice, well beyond the statutory time limits.

Even if supplemental notice is permissible, it is unlikely that a plaintiff has an unlimited amount of time to supplement his or her initial notice under Sec. 13a-149, particularly given the purpose of the statutory notice requirements. As previously noted, the stated purpose of the notice requirements in the municipal defective highway/sidewalk statute is to allow a municipality to properly CT Page 18713 investigate the circumstances surrounding claims and to settle those claims promptly. If the court were to allow the second notice in the present matter to supplement the first for the purpose of meeting the statutory notice requirements, it would defeat the purpose of the statutory requirements. A supplemental notice sent nearly two years after the first notice neither allows the municipality to properly investigate the circumstances surrounding the claim, nor assists the town in settling the claim promptly. Thus, since the plaintiff's initial timely notice provides no information regarding the cause of her injury and the untimely supplemental notice may not be taken into account in the present matter, the plaintiff has failed to satisfy the statutory notice requirements of Sec. 13a-149. The next question is whether the savings clause applies.

Under Salemme, the determination of whether the savings clause applies to the present matter turns on an assessment of whether the causation element in the plaintiff's notice is inaccurate or whether it is completely absent. In Oldroyd v. Monroe, Superior Court, judicial district of Fairfield, Docket No. CV 09 5022289 (July 10, 2009, Bellis, J.), the court concluded that a description of the injury required under Sec. 13a-149 could "only fairly be described as entirely absent" when the injury was described as: "Personal injury, including but not limited to medical bills, lost wages, with pain and suffering." The court's determination in Oldroyd is helpful in the present matter, where the causation element is at issue. Just as the plaintiff in Oldroyd used the term "injury," the plaintiff in the present matter makes reference to a "cause" of her injury. As in Oldroyd, however, the plaintiff's cause of her injury, as stated in her December 23, 2008, notice, can only be fairly described as entirely absent because she states that the "cause" of her injury is a "slip and fall." Under applicable case law, the defect must be the sole cause of the plaintiff's injury, and the plaintiff's December 23, 2008, notice fails to provide any statement of what the defect in the city's sidewalk was or how that defect caused her injury. Thus, for purposes of Sec. 13a-149, the causation element of the requisite notice, per Salemme, is "completely, totally and unmistakably" absent from the plaintiff's notice despite her use of the term "cause." As a result, in this court's view, the savings clause is inapplicable.

For all of the foregoing reasons, the court finds that the plaintiff's notice fails to meet the statutory requirements of CT Page 18714 Sec. 13a-149 and the savings clause is inapplicable. The city's motion to dismiss (#108) is therefore granted.