Martin v. Town of Plainville

• Decision Date: 23 January 1996
• Docket Number: No. 13797,13797
• Court: Connecticut Court of Appeals
• Parties: Barbara MARTIN et al. v. TOWN OF PLAINVILLE et al.

Page 1241

669 A.2d 1241

40 Conn.App. 179

Barbara MARTIN et al. v. TOWN OF PLAINVILLE et al.

No. 13797.

Appellate Court of Connecticut.

Argued Oct. 26, 1995.

Decided Jan. 23, 1996.

Steven Errante, New Haven, with whom, on the brief, was David J. Vegliante, for appellant (named plaintiff).

David J. Mathis, with whom, on the brief, was Joseph M. Musco, Hamden, for appellee (named defendant).

Before DUPONT, C.J., and LAVERY and SPEAR, JJ.

PER CURIAM.

The named plaintiff, Barbara Martin, ¹ appeals from the judgment of the trial court rendered in this personal injury action after the court granted the defendant town of Plainville's motion to strike counts one and two of the complaint alleging injury to the plaintiff and loss of consortium on behalf of the plaintiff's husband, respectively. The principal issue raised in this appeal is whether the trial court correctly dismissed the plaintiff's claim for damages for personal injuries resulting from an alleged defect in a sidewalk, located in the defendant town, on the ground that the description of the injuries contained in the notice filed pursuant to General Statutes § 13a-149 ² was insufficient to satisfy the "general description" notice requirements of that statute.

The plaintiff, through her attorney, filed notice of a fall with the office of the town clerk in the town of Plainville via certified mail. In her letter of notice, the plaintiff stated that she had retained legal representation in connection with "injuries she sustained in a fall." The letter of notice also stated that she "was injured after she tripped over a defect in the sidewalk." No other information was provided as to the nature of the injuries sustained by the plaintiff or as to the nature of the defect in the sidewalk.

The town moved to strike the two counts of the plaintiff's complaint that pertained to it ³ on the ground that the notice was defective in that (1) it failed to provide a "general description" of the plaintiff's injury, as required by § 13a-149, and (2) it failed to describe the nature of the defect alleged to have caused the plaintiff's fall.

In granting the town's motion to strike, the trial court found that the "notice fails entirely to provide a 'general description' of the injuries alleged to have been suffered." In light of that ruling, the trial court did not reach the issue of whether the failure to describe the alleged defect with greater particularity provided an alternative basis for granting the motion. Accordingly, the town has presented an alternate ground on which it asserts that the trial court's ruling may be affirmed, namely, whether an assertion of a "defective sidewalk" contained in a notice filed pursuant to § 13a-149 is sufficient to satisfy the general description requirements of the statute.

In its memorandum of decision, the trial court viewed its conclusion "as harsh but compelled by the cases and the statute given the facts presented in this case." Specifically, the trial court concluded that the decision rendered in Marino v. East Haven, 120 Conn. 577, 182 A. 225 (1935), was directly on point and dispositive. In Marino, notice indicating that the plaintiff "fell and was injured" was held to be insufficient as a matter of law because of its failure to give a general description of the plaintiff's injuries. Id. at 580, 182 A. 225. In that case, the plaintiff subsequently filed an amendment to his complaint alleging that he did not intend to mislead the defendant and that the defendant was not, in fact, misled. Upon sustaining the trial court's ruling on the defendant's second demurrer, the Supreme Court held that "this defect could not be remedied or its consequences avoided by proof of the allegations of the amended complaint setting up absence of intention to mislead or of actual misleading effect. Although these allegations if made material by opportunity for the operation of the facts alleged, as in case of inaccuracy as distinguished from total lack, would present questions of fact, no such opportunity is open here, the instance being one of entire absence of an essential element of the notice, fatal to its sufficiency as a matter of law." Id. at 580-81, 182 A. 225.

We agree with the trial court's assessment that Marino v. East Haven, supra, 120 Conn. 577, 182 A. 225, controls the outcome of the present case. We also conclude...