Opinion
CV146053324S
12-01-2015
Margarita Rodriguez v. City of Hartford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PRACTICE BOOK § 15-8 MOTION
Jane S. Scholl, J.
This case involves a claim by the plaintiff, Margarita Rodriguez, for damages for injuries she suffered when she tripped and fell on a sidewalk in Hartford. The plaintiff brings her claim pursuant to General Statutes § 13a-149.
Trial on this matter was begun before the court on November 24, 2015. At that time the plaintiff presented her own testimony as well as several exhibits. At the end of the plaintiff's case, the defendant moved for dismissal pursuant to the provisions of Practice Book § 15-8. That section states: " If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made." " A prima facie case . . . is one sufficient to raise an issue to go to the trier of fact . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . In evaluating [the trial court's decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary." (Citation omitted; internal quotation marks omitted.) Chen v. Hopkins School, Inc., 148 Conn.App. 543, 548, 86 A.3d 482 (2014).
Recently, in Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 157-58, 7 A.3d 414 (2010), the Appellate Court had occasion to discuss the parameters of General Statutes § 13a-149. The Court stated: " Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control . . . The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed . . . The statutory provisions of § 13a-149 have two components that must be met in order to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge, and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair . . . Ownership of the property does not establish the applicability of § 13a-149 . . . Whether a highway is defective may involve issues of fact, but whether the facts alleged would if true, amount to a highway defect according to the statute is a question of law . . . [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . ." (Citations omitted; internal quotation marks omitted.) " The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." (Citations omitted; internal quotation marks omitted.) Id., at 160-1.
" 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." Nicefaro v. City of New Haven, 116 Conn.App. 610, 613, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009).
The City of Hartford, in its pretrial memorandum of law, indicated that it was " willing to stipulate that the sidewalk in question was one which the City had a duty to maintain and/or repair, with the exception of hazardous conditions created by the accumulation of snow or ice." Memorandum of Law--Statements of Law and Legal Theories in the Case, p. 3.
The plaintiff testified that on February 4, 2014, she was walking to the bus stop near 451 Barbour Street when she suddenly tripped and fell. Pictures of the area where the plaintiff fell taken some time thereafter indicate a rise or lip between two slabs of the concrete in the sidewalk. The evidence did not establish how long this condition had existed prior to the plaintiff's fall. According to its responses to discovery, admitted as an exhibit, the City had no notice of the defect or condition of the sidewalk that the plaintiff claimed caused her injury. The plaintiff did not see the condition of the sidewalk which caused her fall prior to the fall.
The City argues that the plaintiff did not submit sufficient evidence to establish a prima facie case because she submitted no evidence that would establish that the City had actual or constructive notice of the defect. The court agrees. There was no evidence that the City had actual notice of the sidewalk's condition. In addition, the evidence did not establish how long the sidewalk had been in this condition. " [T]o 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." (Citation omitted; internal quotation marks omitted.) Nicefaro v. City of New Haven, 116 Conn.App. 610, 614, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009).
Therefore the Motion to Dismiss is granted.