Beeman v. Town of Stratford

• Decision Date: 02 June 2015
• Docket Number: No. 36265.,36265.
• Citation: 116 A.3d 855,157 Conn. App. 528
• Court: Connecticut Court of Appeals
• Parties: Marjorie BEEMAN v. TOWN OF STRATFORD.

157 Conn.App. 528

116 A.3d 855

Marjorie BEEMAN

v.TOWN OF STRATFORD.

No. 36265.

Appellate Court of Connecticut.

Argued Jan. 22, 2015.

Decided June 2, 2015.

James Donohue, with whom, on the brief, was Christopher G. Ciancanelli, for the appellant (defendant).

Jeremy C. Virgil, Bridgeport, with whom was Gregory Bennici, for the appellee (plaintiff).

BEACH, SHELDON and DUPONT, Js.

Opinion

BEACH, J.

The defendant, the town of Stratford, appeals from the judgment of the trial court rendered after a jury verdict in favor of the plaintiff, Marjorie Beeman. The defendant claims that the court erred in: (1) deciding the sufficiency of notice provided pursuant to General Statutes § 13a–149 as a matter of law rather than presenting the issue to the jury; (2) granting the plaintiff's motion to reargue the defendant's motion to dismiss and vacating its prior ruling granting the motion to dismiss; and (3) denying the defendant's motion to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In her amended complaint,¹ the plaintiff alleged that she sustained injuries on April 17, 2009, when she tripped and fell while walking along an uneven stretch of sidewalk in Stratford. The plaintiff alleged that the defendant breached its duty to keep the sidewalk in repair pursuant to § 13a–149.²

In an attempt to comply with the statutory requirement of § 13a–149, the plaintiff notified the defendant of her fall and injuries by a letter sent on May 19, 2009. The letter, a copy of which was later attached to the plaintiff's complaint, stated: “Please be advised that this office represents the interests of [the plaintiff] relative to personal injuries she sustained on April 17, 2009 when she tripped on a raised piece of sidewalk located along Lordship Boulevard across the street from South Auto Sales in the Town of Stratford, Connecticut.As a result of the fall, [the plaintiff ] sustained injuries to her head, left wrist, left hand, left arm, ribs and both knees. In accordance with Connecticut General Statutes Section 13a–149 and on behalf of [the plaintiff], please be advised of our intention to commence a lawsuit arising from this incident against the Town of Stratford in a Connecticut court of competent jurisdiction within two years of its occurrence or by April 17, 2011.” (Emphasis added.)

The defendant filed a motion to dismiss the first count of the plaintiff's complaint in May, 2011, arguing that the court lacked subject matter jurisdiction because the notice of the plaintiff's injuries was insufficient under § 13a–149. After oral argument, the court, Levin, J., granted the May, 2011 motion to dismiss, holding that the general description of the plaintiff's injuries was legally insufficient under § 13a–149. The plaintiff filed a motion to reargue and reconsider the defendant's motion to dismiss pursuant to Practice Book § 11–12. The plaintiff also filed an amended complaint, which included the previously dismissed first count. The defendant filed a motion to dismiss the amended complaint in response (second motion to dismiss).

In January, 2012, the court granted the plaintiff's motion to reargue and reconsider and vacated its decision with regard to the first motion to dismiss.³ The court also denied the second motion to dismiss. The defendant filed two additional motions to reargue and reconsider, which were denied by the court, Radcliffe, J.

The case went to trial before a jury. The plaintiff issued a subpoena to the defendant's town clerk to testify regarding the notice, but she was unavailable. The court then, outside the presence of the jury, ordered the defendant to call a town attorney as a witness to present evidence on the question of whether the defendant was misled by the plaintiff's notice. John Florek, a town attorney, testified about the defendant's procedure for investigation following receipt of statutory notice pursuant to § 13a–149. He testified that the defendant had not been misled; it customarily investigated a claimant's injury only after an action was commenced. The defendant informed the court that it did not intend to present any witnesses who would testify that the it had been misled. The court then ruled that the notice provided by the plaintiff was sufficient as a matter of law to satisfy the statutory requirements of § 13a–149 and that the sufficiency of notice issue did not present a question of fact for the jury.⁴

The defendant moved for a directed verdict after the close of all the evidence, arguing that “the plaintiff had failed to prove that the defendant's failure to remedy the alleged defect was the sole proximate cause of her injury.” The court denied the defendant's motion, and the case was submitted to the jury. The jury returned a verdict in favor of the plaintiff and awarded her damages in the amount of $63,468.07. The defendant filed a motion to set aside the verdict and for a new trial, which the court denied after oral argument. This appeal followed. Additional facts will be discussed as necessary.

I

The defendant claims that the court erred in failing to present to the jury the question of whether the notice to the defendant was sufficient under § 13a–149. The defendant argues that even if the court, as a gatekeeper, had found that the notice met the requirements of § 13a–149, it still should have presented the question to the jury as the trier of fact. We disagree.

We first discuss our standard of review. Whether the court correctly decided the issue of statutory notice as a matter of law, rather than submitting it to a jury, is a legal question, of which our review is plenary. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) MSO, LLC v. DeSimone, 313 Conn. 54, 62, 94 A.3d 1189 (2014).

In a trial by jury, generally, questions of law are decided by the court while questions of fact are reserved for the jury. General Statutes § 52–216. “Litigants have a constitutional right to have factual issues as to which reasonable people may reach different conclusions resolved by the jury.... The trial court's role is to decide whether, viewing the evidence in the light most favorable to the plaintiff, the jury could have reasonably and legally reached only one conclusion.” (Citation omitted.) Phinney v. Casale, 40 Conn.App. 495, 499–500, 671 A.2d 851 (1996). Where facts essential to the determination of a material issue are not in dispute, a purely legal question is presented, which should be resolved by the court. See Morin v. Bell Court Condominium Assn., Inc., 25 Conn.App. 112, 115, 593 A.2d 147 (1991), aff'd, 223 Conn. 323, 612 A.2d 1197 (1992) ; Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 602, 677 A.2d 10 (1996) (“[w]here the question whether proper notice was given depends on the construction of a written instrument or the circumstances are such as lead to only one reasonable conclusion, it will be one of law.” [internal quotation marks omitted] ).

“Under the common law, municipalities enjoyed immunity for injuries caused by defective highways.... This immunity has been legislatively abrogated by § 13a–149, which allows a person to recover damages against a municipality for injuries caused by a defective highway.... Section 13a–149 provides the exclusive remedy for a person seeking redress against a municipality for such injuries.” (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). “The word ‘road’ as used in [§ 13a–149 ] has usually been construed to include a sidewalk.” Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949). “Under § 13a–149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action to lie for damages caused by a defective highway that the town must maintain. [T]he notice which the statute prescribes comprehends five essential elements: (a) written notice of the injury; (b) a general description of that injury; (c) the cause; (d) the time [and date], and (e) the place thereof....

“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, 621 A.2d 1322 (1993).

The savings clause of § 13a–149 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. ” (Emphasis added.) “This savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent .... Indeed, we emphasize that entirely absent means exactly that; one of the five essential elements ... must be completely, totally and...