Nicefaro v. City of New Haven

• Decision Date: 25 August 2009
• Docket Number: No. 29851.,29851.
• Citation: 976 A.2d 75,116 Conn.App. 610
• Parties: Julia NICEFARO v. CITY OF NEW HAVEN.
• Court: Connecticut Court of Appeals

976 A.2d 75

116 Conn.App. 610

Julia NICEFARO v. CITY OF NEW HAVEN.

No. 29851.

Appellate Court of Connecticut.

Argued April 23, 2009.

Decided August 25, 2009.

Audrey C. Kramer, assistant corporation counsel, with whom, on the brief, was Michael Fenton, certified legal intern, for the appellant (defendant).

Brenden P. Leydon, Stamford, with whom, on the brief, was Anthony S. Bonadies, Hamden, for the appellee (plaintiff).

DiPENTIMA, GRUENDEL and PELLEGRINO, Js.

GRUENDEL, J.

The defendant, the city of New Haven, appeals from the judgment of the trial court rendered in favor of the plaintiff, Julia Nicefaro, in this trip and fall action. The defendant challenges as clearly erroneous the court's findings that (1) the defendant had constructive notice of the defect at issue and (2) the plaintiff was not contributorily negligent. We affirm the judgment of the trial court.

On March 1, 2004, at approximately 11 a.m., the plaintiff was walking on the easterly side of Orange Street in New Haven when she tripped on a metal grate, causing her to fall to the ground and sustain physical injury. As the court found in its memorandum of decision: "At a point in [the] sidewalk near Orange Street's intersection with Chapel Street, the sidewalk narrows because of a tree planted within the sidewalk's boundary, which tree is surrounded by a metal grate, which, over time has risen, creating a tripping hazard to persons walking on [the] sidewalk. The plaintiff's exhibit three is the complaint form of the city of New Haven, department of public works, and, under `Description of Problem,' states [that] `on [March 1, 2004 at] 11:00 a.m. at the raised decorative metal tree grate ... [the plaintiff] fell on unevenness and raised metal grate in sidewalk.' The plaintiff, an elderly lady, testified that she was a cancer survivor and diabetic and was walking at the side of her husband toward the Giamo Building to obtain tax forms for the filing of their tax return; that she was in good health but experienced nearsightedness requiring that she wear glasses. She was walking on the side of her husband closest to the street. The plaintiff's exhibit four shows that the tree and grate installation occupies approximately 50 percent of the sidewalk's width, thereby significantly reducing the walking area for a pedestrian approaching."

The plaintiff subsequently commenced a civil action pursuant to General Statutes § 13a-149, commonly referred to as the municipal highway defect statute. See McIntosh v. Sullivan, 274 Conn. 262, 266 n. 4, 875 A.2d 459 (2005). A court trial followed, at the conclusion of which the court found in favor of the plaintiff and rendered judgment accordingly. From that judgment, the defendant appeals.

In enacting § 13a-149, our legislature "imposed a penalty upon the municipality, measured by the actual injury caused by its disobedience of the statute, and enforceable by the person injured through an action on the statute...." Frechette v. New Haven, 104 Conn. 83, 87, 132 A. 467 (1926). To recover under § 13a-149, a plaintiff "must prove, by a fair 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." Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981). The second and fourth requirements are at issue in this appeal. Significantly, the defendant does not challenge the court's determination that the grate was defective.

I

The defendant first contests the court's finding that it had constructive notice of the defective condition of the grate on which the plaintiff tripped.¹ The existence of constructive notice is a question of fact subject to the clearly erroneous standard of review. Id., at 207-208, 439 A.2d 949; see also Ormsby v. Frankel, 54 Conn. App. 98, 103, 734 A.2d 575 (1999) ("constructive notice is a question of fact"), aff'd, 255 Conn. 670, 768 A.2d 441, 1 G.D.R. 76 (2001). "A court's determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).

A municipality "is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose." Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981). That duty "is a reactive obligation, not an anticipatory obligation." Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441, 1 G.D.R. 76(2001). "The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient." (Internal quotation marks omitted.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919). Similarly, "the predictability of a future defect does not provide the requisite notice to establish municipal liability under § 13a-149." Prato v. New Haven, 246 Conn. 638, 644, 717 A.2d 1216 (1998). Rather, "to charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." (Internal quotation marks omitted.) Tirendi v. Waterbury, 128 Conn. 464, 468, 23 A.2d 919 (1942).

Although municipal liability under § 13a-149 arises from the breach of a statutory duty; Lukas v. New Haven, supra, 184 Conn. at 212, 439 A.2d 949; negligence principles are relevant to the municipal highway defect statute. Prato v. New Haven, supra, 246 Conn. at 645, 717 A.2d 1216. A prerequisite to the application of those principles is the existence of an actual defect. As our Supreme Court has explained "Before one can rely upon the principles of reasonableness and ordinary care to infer notice of a defect under § 13a-149, the claimed highway defect must actually exist. Municipalities are not liable under § 13a-149 for failure to inspect and discover a potential defect, or a defect that might arise at some future time.... [T]he reasonable duty to inspect and discover defects does not arise until there is an actual defect in the highway." (Citations omitted.) Id., at 646, 717 A.2d 1216. Because the defendant does not contest the court's finding that the grate on which the plaintiff tripped was defective, the court properly could rely on principles of negligence to infer notice of that defect.

Under principles of negligence, "municipalities must use reasonable care in discovering the existence of a defect, and negligent ignorance of a defect may support a finding that the municipality should have discovered the defect." Id., at 645, 717 A.2d 1216. What constitutes reasonable care in that context is a fact specific inquiry. As the Supreme Court has observed: "What the law requires of [municipalities], and all that it requires, is the exercise of such efforts and the employment of such measures—directed to the end that their streets and walks be maintained in a reasonably safe condition, all the circumstances of the situation considered —as, in view of the circumstances and conditions, are in themselves reasonable. The circumstances to be taken into account, and the considerations to be weighed, in determining what is reasonable to be done, and what is a reasonable condition to be sought after and attained, if reasonably attainable, are many.... [Our courts] have realized, and frequently expressed, the impossibility of framing one of universal application in other than general language which is elastic in that it embodies the qualification of reasonableness under all the circumstances at every turn of the definition. The accepted general rule looks constantly to the ever changing circumstances of situations, and its key-note throughout is reasonableness in view of the circumstances as they appear upon each occasion." Carl v. New Haven, supra, 93 Conn. at 625-26, 107 A. 502. For that reason, "the circumstances of each case must be examined." Prato v. New Haven, supra, 246 Conn. at 646, 717 A.2d 1216. On the particular circumstances presented in this case, we agree with the court that the defendant failed to exercise reasonable care over its sidewalks.

Although the defendant does not dispute that a defect existed, the mere existence of a defect does not establish liability under § 13a-149. Langton v. Westport, 38 Conn.App. 14, 19, 658 A.2d 602 (1995). It must also be demonstrated that the "defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it." (Internal quotation marks omitted.) Tirendi v. Waterbury, supra, 128 Conn. at 468, 23 A.2d 919. In its memorandum of decision, the court did not find that the grate's defective condition was a recent development. Rather, the court specifically found that the grate had risen "over time...." That finding is supported by the testimony of Christy Dlugolenski, the deputy director of parks and squares for the...