Mallory v. City of New Haven

Deana Mallory v. City of New Haven

No. CV146048223S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

April 21, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robin L. Wilson, J.

I FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Deana Mallory (plaintiff) commenced this action against the defendant, City of New Haven (defendant) by way of writ, summons and complaint on June 11, 2014. The plaintiff filed a one-count complaint in which she alleges that on July 7, 2012, at approximately 7:00 p.m., she was exiting a vehicle on the passenger side on the southerly side of Glenview Terrace in New Haven, Connecticut, at a point six feet east of UI pole #9719 and approximately 240 feet west of Whalley Avenue. On said date and time, the roadway upon which the plaintiff stepped was defective in that a one-foot-wide twenty-one-inch-deep hole was adjacent to a storm drain and was in a very poor state of maintenance, due to the very weathered, cracked, poorly patched and worn condition of the pavement adjacent to the storm drain.

The plaintiff alleges that on said date and time she fell when her foot stepped down onto said hole, and she was caused to fall to the ground with considerable force and violence. The plaintiff alleges that she was exercising due care at the time of the incident and that her fall was due to a breach of the statutory duty of the defendant City pursuant to General Statutes § 13a-149, in that the area around the storm drain was in a state of disrepair so that it rendered pedestrian traffic hazardous; in that the conditions had existed for an unreasonable period of time, yet no measures had been taken to remedy and correct the hazardous condition in that the street was not reasonably safe for the uses and purposes intended; and in that the defendant in the exercise of reasonable care and inspection should have known of these conditions and should have remedied the same, yet failed to do so.

The defendant denies that it was negligent, claims that it had no actual or constructive notice of the alleged defective condition, and that the plaintiff's own negligence was the cause of her fall. The case was tried to the court on March 24, 2016, and the court heard testimony from both the plaintiff, and the City's investigator, Dominic Tommaro. The court ordered the parties to submit proposed findings of fact and briefs on or before April 7, 2016. For the following reasons, the court enters judgment in favor of the plaintiff.

II STANDARD OF REVIEW

" It is well established that in a case tried before a court the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony The credibility and the weight of [the witnesses'] testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [she] reasonably believes to be credible . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any [witness's] testimony . . . The trier may accept or reject, in whole or in part, the testimony of [a witness] offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also In re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011).

" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

III BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of her complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).

The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

IV DISCUSSION

A Liability Under § 13a-149

" Section 13a-149 legislatively abrogated the common-law immunity afforded to municipalities for injuries caused by defective highways. Martin v. Plainville, 240 Conn 105, 109, 689 A.2d 1125 (1997). Under § 13a-149, [a]ny 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 . . . We have construed [General Statutes] § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy . . . [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.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001)." (Internal quotation makes omitted.) Himmelstein v. Town of Windsor, 116 Conn.App. 28, 37, 974 A.2d 820 (2009); aff'd, 304 Conn. 298, 39 A.3d 1065 (2012).

" To prove a breach of statutory duty under this state's defective highway statutes, 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 . . ." (Citations omitted; internal quotation marks omitted.) Id., 48. The plaintiff bears the burden of proving the absence of her negligence, or that of a third party, because pursuant to the doctrine of sole proximate cause in Connecticut, any showing of negligence on the part of the plaintiff will defeat a municipality's liability. Id., 49.

" Our Supreme Court first identified the sole proximate cause standard for determining municipal liability under the predecessor to § 13a-149 in Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899). This doctrine of sole proximate cause has 'embraced the notion that a municipality's liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party.' Smith v. New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001). In 1920, our Supreme Court applied the sole proximate cause standard to the state highway defect statute and has done so consistently since that time. See White v. Burns, 213 Conn. 307, 317-18, 567 A.2d 1195 (1990); see also Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 (1920)." Id., 48-49.

" 'If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another's carelessness and the defect, and the two combined give no cause of action under the statute.' (Emphasis added.) Id. at 690, 43 A. 143 . . . See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 197, 592 A.2d 912 (1991) ('[§ ]13a-149 does not permit recovery unless the defect was the sole proximate cause of the injury, even if the concurring cause was a third party's negligence'); Roth v. MacDonald, 124 Conn. 461 463, 200 A. 725 (1938) (driver's negligence was contributing factor to accident, relieving municipality of liability for passengers' injuries); Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934) ('when an injury results from a defect combined with the culpable negligence of a third party it cannot be said to have been caused by the defect, and cannot be made the subject of recovery under the statute giving a right of action against a municipality for injuries resulting from such defect') . . .

" In two recent cases, Williamson v. Commissioner of Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988) and White v. Burns, supra, 213 Conn. at 315, 567 A.2d 1195 we confirmed that the presence of third-party negligence vitiates statutory governmental liability for the failure to maintain and repair highways, roadways and bridges. Although these cases dealt specifically with General Statutes § 13a-144, ^[1] the state defective highway statute, they are nonetheless persuasive authority with respect to the construction of the municipal defective highway statute because § § 13a-144 and 13a-149 have always been regarded as in pari materia as far as the...