Opinion
No. CV00 037 65 93
July 2, 2004
MEMORANDUM OF DECISION
This is a personal injury action in which the plaintiff alleges that she stepped into a hole in a grassy strip of land and fell. This grassy area was located in front of 426 Summit Street, Bridgeport, CT, between the street and the sidewalk. It is the plaintiff's position that the defendant, City of Bridgeport, negligently inspected and maintained this area, which resulted in her fall and injuries.
The plaintiff also brought suit against John Njoroge, who "owned, controlled and/or maintained" the property in front of which the plaintiff fell. While Mr. Njoroge appears to have been served via Registered Mail in Ruiria, Kenya, East Africa, an appearance was never filed on his behalf. Mr. Njoroge did not present for trial, nor, was a military affidavit provided attesting to the fact that he is not a member of the Armed Forces. Trial proceeded only against the City of Bridgeport on May 5, 2005. Trial briefs were submitted by counsel.
Facts
On April 30, 1998, at approximately 9:30 at night, the plaintiff, Patricia Thompson exited her friend's car onto the grassy strip described above. She was moving toward the front of the car when her left foot stepped into a hole, about six inches deep and six to eight inches in diameter, which was covered with grass. Her ankle twisted and she fell to the ground suffering injuries to her ankle. She was seen initially at the emergency room where she was given a removable splint and advised to take Motrin. She received no further medical care and moved to Maine six weeks later.
The grassy strip at issue in this matter is part of a "public right of way" which is an area or space where the public can travel. This includes the street itself which is 32 feet wide and the nine feet on either side of the street, which encompasses the grassy strip and sidewalk. The City is responsible for some maintenance of the right of way and has the right to do work in that area with some exceptions. Normally, however, the property owner, who owns the property to the street, maintains the grassy strip between the sidewalk and street. Evidence was not submitted demonstrating that the City had knowledge of any defect in the area of the grassy strip prior to the plaintiff's fall.
Discussion
This action arises from injuries sustained when the plaintiff fell on a grassy strip of land located between the street and highway. This grassy area constitutes a "public right of way," for which the City of Bridgeport would have "some maintenance obligations." (Tr. Barry Skinner.) Accordingly, this matter is controlled by the defective highway statute § 13a-149. See Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). "[T]o establish liability [under § 13a-149], the plaintiff ha[s] the burden of proving (1) the existence of a defect which resulted from the failure of the defendant to use reasonable care to keep the . . . [highways] within its control in a reasonably safe condition for public travel; (2) notice, either actual or constructive, to the defendant of the defect; and (3) the exercise by him of due care." (Internal quotation marks omitted.) Steele v. Stonington, 225 Conn. 217, 220-21, 622 A.2d 551 (1993). Moreover, "[T]he statutory provisions of § 13a-149 have two components that must be met 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." Novicki v. City of New Haven, 47 Conn. App. 734, 738-39, 709 A.2d 2 (1998). The court will discuss these issues in turn.
The defendant first maintains that the statutory notice was vague; therefore, deficient, depriving this court of subject matter jurisdiction over the controversy. While the notice states "on or about July 30, 1998," the court finds that it is sufficient under the requirements of C.G.S. § 13a-149; because this is the correct date based on the evidence presented. Accordingly, this court does have jurisdiction to decide this matter, and must determine whether the plaintiff has met her burden of proof under the statute. For the following reasons this court finds that the plaintiff has failed to do so.
First, there was no evidence to suggest that the City had ownership, control or the duty to maintain the area in question. While the City has "some maintenance obligations" for the grassy area at issue, the plaintiff failed to demonstrate, by a preponderance of the evidence, what the nature and extent of those responsibilities are. The testimony did not demonstrate that the City had a duty to inspect each grassy area which adjoins a public street or sidewalk for potential hazards to travel, or that the City was responsible for mowing these areas. In fact, the property owner has the responsibility for the lawn care of this strip of grass. The plaintiff argues that generally in Connecticut, an abutting landowner has no liability for injuries resulting from the effects of natural causes on his/her property, even if a statute or ordinance imposes on the landowner the duty to maintain the property. See Jankowski v. Bridgeport, 34 Conn. Sup. 1, 3-4 (1977). While case law supports this position, the issue in this case is whether the City of Bridgeport had the duty to maintain and keep in repair all the grassy strips which abut the city streets and sidewalks, even when privately owned. The evidence demonstrates that the city did not generally have a duty to maintain these pieces of land Accordingly, the plaintiff has not met her burden under the statute of proving that the City was the "party bound to keep [the location where the injury was sustained] in repair." See Novicki v. City of New Haven, supra at 738-39.
The next issue is whether the City had notice of the alleged defect. The six-inch hole into which the plaintiff stepped was covered by grass. Assuming, arguendo, that this depression constitutes a "defect," under these circumstances the court cannot find that the City would, or should have had constructive notice of this six-inch hole. The plaintiff cites to Ferreira v. Pringle, 255 Conn. 330, supra, in which involved a severed steel signpost embedded in a grassy area next to the highway, where individuals disembarked from the bus. The Supreme Court found that the alleged defect was in the town right of way line which is the "threshold inquiry" in deciding whether the action fell within the highway defect statute. Once an action falls within the statute, however, the elements constituting the cause of action under the statute still must be proven.
The Court upheld the lower court's dismissal of the action due to a lack of statutory notice.
In this case, these elements have not been proven. The alleged defect was hidden by overgrown grass. Also, there is no evidence of complaints or actual notice of this hole to the City. As stated above, this court cannot find that the City knew or should have known of this depression which was covered by vegetation, approximately 6 inches deep and 6-8 inches in diameter, and located on one of perhaps hundreds of grassy strips abutting the City's streets. The plaintiff failed to meet her burden of proof on the element of notice, either actual or constructive. Because the plaintiff has failed to meet her burden of proof under C.G.S. § 13a-149, the court finds in favor of the defendant.
Judgment may enter for the City of Bridgeport.
CAROL A. WOLVEN, J.