Opinion
No. CV 08 5021243S
November 30, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE PLAINTIFF'S JURY CLAIM
The Plaintiff, Denise Boxley, claims that she was injured when, while walking across Howard Avenue in New Haven, she "was caused to fall due to a pot hole in the highway." Her initial complaint, dated June 10, 2008, alleged, in paragraph two, that Gen. Stats. Secs. "§ 7-148, 7-163a and 13a-149 impose upon the Defendant the duty to keep and maintain the sidewalks and streets within its territorial limits in a reasonably safe condition." In accordance with Gen. Stats. § 13a-149, the Plaintiff has served a timely notice of its claim upon the City.
The Defendant filed an answer in which, while not denying that it had a duty to keep and maintain sidewalks and/or roadways within its territorial limits in a reasonably safe condition, it did deny that Gen. Stats. § 7-148, 7-153a and 13a-149 were the statutes that imposed that liability upon the City. It is of particular note that in a March 17, 2009 response to the Plaintiff's Request for Admissions, the City admitted that it "had a duty to build and repair the subject roadway" pursuant to Gen. Stats. § 13a-99. Thus, although it had denied that its duty to maintain the roadway in question was based on any of the statutes alleged in the second paragraph of the original complaint, it had, by March of 2009, acknowledged that it did have a statutory duty to maintain the roadway pursuant to Gen. Stats. § 13a-99.
On June 30, 2009, the Plaintiff filed a "Claim for Jury" along with the required fee and a certificate of closed pleadings claiming a trial by jury. The City then filed a motion to strike the case from the jury trial list on the ground that the Plaintiff's claim for jury was untimely filed. Gen. Stats. § 51-239b provides; "In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of Sec. 52-215." That section states that cases may be entered on the jury docket either "upon the written request of either party made to the clerk within 30 days after the return date" or when "an issue of fact is joined, the case may, within 10 days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk." In a decision dated July 27, 2009, this Court agreed that because issue had been joined by the filing of the answer to the complaint more than ten months before the Plaintiff filed her jury claim, the jury claim was untimely. The undersigned thereupon granted the motion to strike the jury claim.
On August 4, 2009, a week after this court struck the original jury claim, the Plaintiff filed a request for Leave to Amend Complaint. The amended complaint changed only the second paragraph and alleged, in place of the three statutes cited in the original complaint, that "§ 13-99 imposes upon the defendant the duty to build and repair the sidewalks and streets within its territorial limits." The City filed its answer, and the Plaintiff thereupon filed a new Claim for Jury, accompanied by a check for the appropriate fee and a new certificate of closed pleadings. The Defendant has again moved to strike the jury claim, contending that the amended complaint did not raise any new issues of fact sufficient to trigger a new ten-day period within which to claim the case for a trial by jury under Gen. Stats. § 52-215.
The Plaintiff has acknowledged that § 13-99 is an incorrect citation; she meant to cite section § 13a-99 and has subsequently filed a second amended complaint correcting that error.
The Plaintiff concedes that the only change from the original complaint is the allegation in paragraph two of the applicability of § 13a-99, an issue which had already been conceded by the Defendant eight months ago in its response to the Plaintiff's Request for Admissions and which therefore did not create a new issue that needed to be joined. The City suggests, in fact, that the only reason that the Plaintiff even bothered to file the amended complaint was to try to get a second bite at the jury apple.
Without joining in the speculation about the Plaintiff's motive in filing the amended complaint, the Court agrees with the City that the amended complaint did not introduce any new issue that would retrigger the ten-day time period for the filing of a jury claim. Where a jury claim has not been made at the original close of the pleadings, the mere filing of amended or substituted pleadings which raise no new issue of fact does not give rise to a further opportunity to claim a case for the jury." Hartford National Bank and Trust Co. v. DiFazio, 6 Conn.App. 576, 587 (1986) (Internal quotations omitted). When new pleadings either merely restate the factual claims already made and or do not enlarge the issues or raise new ones, such minor changes will not be found sufficient to give a party the right to claim a jury trial. See Carwin v. St. Vincent's Special Needs Center, Inc., 1999 WL 171409 at *2 (Conn.Super 199). The essence of paragraph two of the Plaintiff's initial complaint was that the defendant had a statutory duty to maintain the roadway in question. The Defendant never denied the existence of such a duty but did deny that the three statutes cited by the Plaintiff were the ones that conferred such a duty upon it. The City subsequently acknowledged, through its response to the Plaintiff's Request for Admissions, that it was Gen. Stats. § 13a-99 that conferred on the City the duty to maintain the roadway. The filing of the amended complaint, after its first jury claim had been stricken, in no way enlarged the issues that were already put into play by the original complaint and answer.
It goes without saying that the November 23, 2009 filing of the second amended complaint correcting the product of a scrivener's error by amending the allegations of the second paragraph so as to read § 13a-99, instead of § 13-99, likewise does not create a new issue of fact. See, Antonellis v. Miller, 2007 WL 241, 227 (Conn.Super 2007).
The only issue of fact at play in paragraph two of the Complaint is the City's duty to maintain the highway in question. The City's answer to paragraph two, combined with its March 17, 2009 response to the Plaintiff's Request for Admissions, confirmed the existence of that duty and provided the correct statutory citation. Thus, no new issue of fact was raised by the Plaintiff's amended complaint, and no new issue of fact was joined by the Defendant's answer to that amended complaint. Under those circumstances, this Court's original ruling striking the Plaintiff's first claim for jury trial is equally applicable to her second such effort, and the present motion to strike the case from the jury list is also granted.