MARJORIE BEEMAN v. TOWN OF STRATFORD
AC 36265
Appellate Court of Connecticut
June 2, 2015
Beach, Sheldon and Dupont, Js.
Argued January 22
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(Appeal from Superior Court, judicial district of Fairfield, Levin, J. [motion to dismiss, motion to reargue]; Radcliffe, J. [motion to set aside
James Donohue, with whom, on the brief, was Christopher G. Ciancanelli, for the appellant (defendant).
Jeremy C. Virgil, with whom was Gregory Bennici, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, the town of Stratford, appeals from the judgment of the trial court rendered after a jury verdict in favor of the plaintiff, Marjorie Beeman. The defendant claims that the court erred in: (1) deciding the sufficiency of notice provided
The following facts and procedural history are relevant to our resolution of this appeal. In her amended complaint,1 the plaintiff alleged that she sustained injuries on April 17, 2009, when she tripped and fell while walking along an uneven stretch of sidewalk in Stratford. The plaintiff alleged that the defendant breached its duty to keep the sidewalk in repair pursuant to
In an attempt to comply with the statutory requirement of
The defendant filed a motion to dismiss the first count of the plaintiff‘s complaint in May, 2011, arguing that the court lacked subject matter jurisdiction because the notice of the plaintiff‘s injuries was insufficient under
The case went to trial before a jury. The plaintiff issued a subpoena to the defendant‘s town clerk to testify regarding the notice, but she was unavailable. The court then, outside the presence of the jury, ordered the defendant to call a town attorney as a witness to present evidence on the question of whether the defendant was misled by the plaintiff‘s notice. John Florek, a town attorney, testified about the defendant‘s procedure for investigation following receipt of statutory notice pursuant to
The defendant moved for a directed verdict after the close of all the evidence, arguing that “the plaintiff had failed to prove that the defendant‘s failure to remedy the alleged defect was the sole proximate cause of her injury.” The court denied the defendant‘s motion, and the case was submitted to the jury. The jury returned a verdict in favor of the plaintiff and awarded her damages in the amount of $63,468.07. The defendant filed a motion to set aside the verdict and for a new trial, which the court denied after oral argument. This appeal followed. Additional facts will be discussed as necessary.
I
The defendant claims that the court erred in failing to present to the jury the question of whether the notice to the defendant was sufficient under
We first discuss our standard of review. Whether the court correctly decided the issue of statutory notice as a matter of law, rather than submitting it to a jury, is a legal question, of which our review is plenary. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) MSO, LLC v. DeSimone, 313 Conn. 54, 62, 94 A.3d 1189 (2014).
“Under the common law, municipalities enjoyed immunity for injuries caused by defective highways. . . . This immunity has been legislatively abrogated by
“The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests. . . . More specifically . . . the statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims.” (Citations omitted; internal quotation marks omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993).
The savings clause of
The following additional facts are necessary to the resolution of this claim. When it was reported to the court that the town clerk was unavailable to testify at trial, the court asked that the defendant present a town attorney to testify on the question of whether the defendant had any evidence that the plaintiff had intended to mislead it with her notice or whether the defendant had in fact been misled by the plaintiff‘s notice. Florek, a town attorney, testified: “The town attorney‘s office has not been misled by the description of the injuries. As an operating procedure in our office when we receive these notices we perform an investigation. But in the initial instance, that investigation is pretty much limited to the inspection of the area of the fall, photographs identifying a defect, et cetera, et cetera. Really any description of the injuries suffered—those descriptions don‘t normally mislead us at that point in time because we normally wait until suit is actually brought and the discovery process is—takes place in order to gather all the medical data.” Counsel for the defendant informed the court that it did not intend to offer any additional evidence that would negate the savings clause. The court decided that the sufficiency of the notice was, therefore, not in dispute, and because there was no question of fact to present to the jury, the court decided as a matter of law that, in light of the savings clause, the notice was sufficient.
We conclude that the court did not err in deciding the question as a matter of law rather than submitting it to a jury as a question of fact. The court interpreted the savings clause to excuse any vagueness or inaccuracy in the plaintiff‘s notice, so long as there was some level of description and the plaintiff neither intended to mislead nor actually misled the defendant. The court held that, in light of Florek‘s testimony and the absence of any other testimony, there was no question of fact to be resolved. We agree.
The letter that the plaintiff sent to the town clerk provided a general, although quite vague, description of the plaintiff‘s injuries: “injuries to her head, left wrist, left hand, left arm, ribs and both knees.” This is not a case where even a general description was entirely absent.5 There are cases, to be sure, in which notices stating only that the plaintiff has been injured have been held to be insufficient. See Martin v. Plainville, supra, 240 Conn. 107 (“‘injuries
The court then correctly decided that the savings clause was satisfied, and thus, that the notice was sufficient as a matter of law. There was no evidence to support any inference other than that the savings clause had been satisfied: Florek‘s testimony dispelled any doubt as to whether the defendant had, in fact, been misled by any lack of detail in the plaintiff‘s notice, and the defendant had no other evidence to show that the plaintiff intended to mislead or that the defendant was actually misled by her description of her injuries. Any inaccuracy or vagueness in the general description of the injuries was therefore vitiated by the savings clause, and, as no facts were in dispute, the court decided the issue as a matter of law. See Morin v. Bell Court Condominium Assn., Inc., supra, 25 Conn. App. 115. Accordingly, we conclude that the court did not err in deciding as a matter of law that there was sufficient notice of the plaintiff‘s injuries under the savings clause of
II
The defendant claims that the court erred in granting the plaintiff‘s motion to reargue the first motion to dismiss and vacating its decision granting the defendant‘s motion. In granting the first motion to dismiss, the court, Levin, J., found that the description of the injuries in the plaintiff‘s notice was insufficient to meet the standard set forth in Martin v. Plainville, 240 Conn. 107, 111-12, 689 A.2d. 1125 (1997):7 “As a matter of fundamental fairness, a municipality should be sufficiently apprised of a general description of a plaintiff‘s alleged injuries so that it can assess its exposure and allocate resources, which may be scarce in smaller towns, to facilitate an appropriate investigation and the hastening of a possible settlement. . . . Indeed, the entire strategy of a town‘s legal defense might well be predicated on the nature of the injuries alleged. For example, a town might handle a claim alleging a hairline fracture of the small toe quite differently than one alleging a serious injury to the brain. The requirement that the plaintiff give a general description of the injury is a reasonable compromise between the giving of no description and the giving of a very specific one.” (Citations omitted.)
Our standard of review regarding challenges to a trial court‘s ruling on a motion to reargue is abuse of discretion. See Barzetti v. Marucci, 66 Conn. App. 802, 808, 786 A.2d 432 (2001). “When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. . . . As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Roe # 1 v. Boy Scouts of America Corp., 147 Conn. App. 622, 647, 84 A.3d 443 (2014).
“[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. . . . It also may be used to address alleged inconsistencies in the trial court‘s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court. . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Citation omitted; Internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).
The defendant argues that no law was overlooked at the oral argument on the first motion to dismiss, nor was there any misapprehension of the facts. In her motion to reargue, the plaintiff asserted that in its memorandum of decision granting the first motion to dismiss, the court did not address the savings clause of
The defendant argues that the court improperly relied on language from Salemme that referred to the location of the accident, rather than the general description of the injuries. We disagree. In Salemme, our Supreme Court referred generally to all of the elements in
We conclude that it was not an abuse of discretion for the court to grant the plaintiff‘s motion to reargue and reconsider.
III
The defendant finally claims that the verdict was improper and therefore should have been set aside and a new trial granted, because the plaintiff was contributorily negligent. Specifically, it claims that the plaintiff was “power walking” and looking straight ahead rather than down when she fell, and it was unreasonable for the jury to have found that a sidewalk defect was the sole proximate cause of her injuries. We disagree.
We begin by setting forth our standard of review. “The standard of review governing our review of a trial court‘s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court‘s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 625-26, 972 A.2d 239 (2009), cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).
The following additional facts are necessary to the resolution of this claim. The plaintiff testified that she was walking on the sidewalk when her foot hit something, causing her to fall. The plaintiff presented six color photographs of the claimed defect in the sidewalk, as well as a printout from Google Earth that displayed the defect. The defendant‘s engineer, John Casey, estimated that the difference in elevation between the two pieces of concrete in the sidewalk where the plaintiff tripped was about one inch. Casey testified that town sidewalks would be inspected by a construction inspector only if there was an ongoing project or a complaint by a resident. Records of sidewalk inspections were kept only for those that followed complaints. Casey also testified that his employees were not trained to report defects that they came across on their own. Neither Casey nor Maurice McCarthy, the defendant‘s director of public works, found any record of construction, inspection, or repair of the sidewalk in the area of 555 Lordship Boulevard, the location of the plaintiff‘s fall, prior to her accident.
We conclude, based on our review of the record, that the jury had ample evidence before it that the defendant failed to maintain the sidewalk and that such failure was the sole proximate cause11 of the plaintiff‘s injuries. The evidence showed that the plaintiff tripped on a raised portion of the sidewalk, that the defendant had a duty to inspect and to maintain the sidewalk, and that there was no procedure in place for the defendant to inspect its sidewalks independent of resident complaints. The finder of fact was not obligated to find that the plaintiff had failed to exercise reasonable care, and it did not so find. The court, therefore, did not abuse its discretion in denying the defendant‘s motion to set aside the verdict and for a new trial.
The judgment is affirmed.
In this opinion the other judges concurred.