Curry v. Burns, 9488

• Decision Date: 28 April 1992
• Docket Number: No. 9488,9488
• Citation: 606 A.2d 731,27 Conn.App. 439
• Court: Connecticut Court of Appeals
• Parties: Vicki S. CURRY v. J. William BURNS, Commissioner of Transportation.

Page 731

606 A.2d 731

27 Conn.App. 439

Vicki S. CURRY v. J. William BURNS, Commissioner of Transportation.

No. 9488.

Appellate Court of Connecticut.

Argued Feb. 11, 1992.

Decided April 28, 1992.

James H. Lee, Fairfield, for appellant (plaintiff).

Raymond J. Plouffe, Jr., Bridgeport, for appellee (defendant).

Before NORCOTT, FOTI and FREDERICK A. FREEDMAN, JJ.

FOTI, Judge.

This appeal concerns an action brought under General Statutes § 13a-144 ¹ by the plaintiff, Vicki S. Curry, against the defendant commissioner of transportation, J. William Burns, for injuries she sustained in a motor vehicle accident allegedly caused by a defective highway. The case was tried to a jury which returned a general verdict in favor of the defendant. The plaintiff filed a motion to set aside the verdict. The trial court denied the motion and rendered judgment for the defendant. The plaintiff alleges that the trial court acted improperly with regard to the issue of notice in that it (1) quashed two subpoenas, (2) redacted the statutory notice, and (3) failed to instruct the jury as requested. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 14, 1984, at about 5:30 a.m., the plaintiff was operating a tractor trailer eastbound in the center lane of Interstate 95 between exits four and five in Greenwich when her vehicle hit a pothole. The plaintiff's vehicle collided with an automobile attempting to pass her on the left and as a result of the collision, sustained personal injuries.

In her complaint, the plaintiff alleges that her injuries were caused by a breach of the defendant's statutory duty under General Statutes § 13a-144. The plaintiff further alleges that "written notice of the plaintiff's injury and a general description of the same and of the cause thereof and of the time and place of its occurrence was given to the defendant on May 23, 1984." A redacted version of the notice given to the defendant included the date, time and general location of the accident as well as the specific injuries sustained by the plaintiff. ² The defendant denied that he breached his statutory duty, and that written notice had been given.

The defendant asks this court to affirm the judgment of the trial court as rendered, or on the alternative ground that the trial court should have directed a verdict in its favor because the plaintiff's statutory notice was defective as a matter of law. Giving statutory written notice is a condition precedent to maintaining an action under General Statutes § 13a-144. Ozmun v. Burns, 18 Conn.App. 677, 680, 559 A.2d 1143 (1989). Because a general verdict was returned in this case, we need not address the plaintiff's claims because any error by the trial court would be considered harmless. ³

We note that no interrogatories were submitted to the jury, nor were any special defenses filed by the defendant. While the defendant's general denial to the allegations in the plaintiff's complaint that the defendant had breached his statutory duty does not alone trigger the general verdict rule; Hall v. Burns, 213 Conn. 446, 484-85 n. 9, 569 A.2d 10 (1990); his denial of the plaintiff's assertion that she gave written notice, and the submission of that issue to the jury, does implicate the general verdict rule. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987).

"The application of the general verdict rule ... does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial." Id., at 203, 520 A.2d 208. "[I]t is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). 'If the defenses are clearly distinct, the fact that one has not been specially pleaded ... will not prevent the application of the rule.' Royal Homes, Inc. v. Dalene Hardwood Flooring Co. [151 Conn. 463, 466, 199 A.2d 698 (1964) ]...." Id., 202 Conn. at 203-204, 520 A.2d 208.

The defendant's answer disavowed two obligatory claims raised by the plaintiff's complaint. The defendant's denials presented the jury with two distinct and severable defenses--one dealing with the defendant's breach of his statutory duty and one dealing with whether notice was given and, if so, whether the notice given was statutorily sufficient. The plaintiff concedes that it is the jury's responsibility to determine "as a matter of fact whether the notice was a sufficient guide, under the circumstances, to the defendant's inquiries," and that the jury was correctly allowed to determine this issue once the court determined "as a matter of law whether the written notice contains all the necessary elements prescribed by the statute."

"Ordinarily, the question of the adequacy of notice 'is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.' Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice 'patently meets or fails to meet'; id.; the statutory requirements." Zotta v. Burns, 8 Conn.App. 169, 173, 511 A.2d 373 ...