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3.9-32  Municipal Sidewalk (Road, Bridge) Snow and Ice - § 13a-149

Revised to January 1, 2008

Note:  This statute applies to roads, bridges or sidewalks.  This instruction uses a sidewalk as an example.

There is a statute that provides that a person who was injured by means of a defective sidewalk may recover damages from the party bound to keep it in repair.1

In making a claim under this statute, the plaintiff must prove all of the following elements by a fair preponderance of the evidence:

  1. that (he/she) gave the required statutory notice of injury;

  2. that the sidewalk where the injury occurred was one that the (city / town / borough), and not some other person or entity, had a duty to maintain or repair;2

  3. that there was a defect in the sidewalk;

  4. that the city had notice of the defect;

  5. that the city failed to exercise reasonable care to remedy the defect; and

  6. that the defect was the sole proximate cause of the plaintiff's injuries; that is, no other cause was a substantial factor in causing (his/her) injuries.

In order to be entitled to compensation from the defendant, the plaintiff must prove each and every one of these elements.3  If (he/she) has failed to prove any one of them, then (he/she) has failed to prove (his/her) claim.

Statutory notice of the injury

Note:  If there is no issue over the statutory notice of injury, this portion may be deleted from the charge.

First, the plaintiff must prove that the applicable statutory notice was given.

The statute states that an action can only be brought to recover damages caused by a defective sidewalk if the plaintiff provides written notice of the injury, with a general description of the injury, the cause, the time and the place of its occurrence.  This notice shall be given within ninety days thereafter to a selectman or clerk of the town, city or borough bound to keep the sidewalk in repair.4

Whether the notice meets the requirements of the statute and whether it was given within the time prescribed in the statute are questions for you to determine.  The notice mandated by the statute includes five elements: 1) written notice of the injury, 2) a general description of the injury, 3) the cause, 4) the time, and 5) the place.5

The purpose of the notice requirement is so that officers of municipal corporations shall have precise information that will enable them to investigate the circumstances of the accident.  The plaintiff must give such notice as a prerequisite of (his/her) right to recover damages.6

The statute provides that any notice given shall not be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause, if it appears that there was no intention to mislead or that the city was not, in fact, misled.7

Duty to maintain or repair
The next element is that the plaintiff must prove that the sidewalk on which (he/she) claims to have been injured was one that the city had a duty to maintain or repair.8  The city does not have a duty to repair areas of sidewalks that are private sidewalks.9  You will have to determine whether the plaintiff has proven that the location that has been identified as the area where the plaintiff was injured was a sidewalk the city had a duty to maintain or to keep in repair.10

Defect in the sidewalk
The next element the plaintiff must prove is that there was a defect in the sidewalk.  A defect is "[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the [sidewalk] for the purpose of traveling . . . ."11  The mere fact that there is ice and snow on the surface of the sidewalk does not mean that the sidewalk is defective. A sidewalk is defective as the result of ice and snow when it is not in a reasonably safe condition.12

The city does not guarantee the safety of travelers upon its sidewalks.  The obligation of the city is not to keep its sidewalks in perfect condition.  The task of making sidewalks safe at all times and under all such circumstances is not imposed upon our cities, especially in our climate, with respect to the accumulation of ice or snow.  The duty of the city is to use reasonable care to keep its sidewalks in a reasonably safe condition.13  The duty to use reasonable care takes into account the variety of conditions and circumstances that are created by the rigors of our winters.14  <The focus of this charge is defects caused by ice and snow.  It is obvious that the injury might be caused by a combination of defects and you would charge accordingly.>

Notice of the defective condition
The next element that the plaintiff must prove is that the city knew or, in the exercise of due care in inspecting the sidewalk, should have known that the sidewalk was in a defective condition.  The plaintiff must prove that the defendant had notice of the particular defect itself which caused the injury and not merely notice of the conditions that in fact produced it.15

The plaintiff must prove that the defendant had either actual or constructive notice of the condition that is claimed to be the defect.16  Actual notice would be a report of the condition to the city or observation of the condition by city employees responsible for maintenance of the sidewalk.

The other kind of notice is called constructive notice.  If the condition that is claimed to be a defect was present for a sufficient length of time so that the defendant should have discovered it using reasonable care to inspect sidewalks, then the defendant had constructive notice.17

Failure to exercise reasonable care to remedy defect
The next element that the plaintiff must prove is that after having notice, and having had a reasonable opportunity to do so, the city failed to take reasonable care to remedy the claimed defect.18  In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the defendant at the time of the conduct in question.  Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances.  It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised.

Sole proximate cause
The plaintiff must finally prove that the defect in the sidewalk was not just one cause among many causes of (his/her) fall, but that it was the sole proximate cause, that is, the only substantial factor, causing (his/her) fall.19  <See Notes - Proximate cause below.>  The plaintiff must prove that the injuries claimed were caused solely by a defect of the sidewalk.20

The plaintiff, however, was bound to use reasonable care for (his/her) own safety; that is, the degree of care that a reasonably prudent person would use in order to avoid injury.  The plaintiff cannot have been entirely heedless of the situation, but had a duty to reasonably use (his/her) vision and (his/her) faculties to observe (his/her) surroundings and to use reasonable care in view of any danger that was presented by the condition of the sidewalk.21

A pedestrian who knows of a dangerous condition in the path of travel is not required to take an alternate route or a detour, but is bound to take precautions that an ordinarily prudent person would take to avoid the dangerous condition, including moving to the portion of the sidewalk that is not defective.  If the pedestrian makes the decision to pass over a dangerous condition that (he/she) knows about, then that pedestrian has a duty to use reasonable care in doing so.22  Knowledge of a dangerous condition generally requires greater care to meet the standard of reasonable care.23

If you find that the plaintiff failed to prove that (he/she) was exercising reasonable care for (his/her) own safety and that (his/her) negligence was a substantial factor in causing (him/her) to fall, then any defect in the sidewalk would not be the sole proximate cause of the plaintiff's injuries, and you would find for the defendant.24
_______________________________________________________

1 General Statutes § 13a-149; Ferreira v. Pringle, 255 Conn. 330, 341 (2001).

2 Serrano v. Burns, 248 Conn. 419, 428-29 (1999); Lukas v. New Haven, 184 Conn. 205, 207 (1981).

3 Bovat v. Waterbury, 258 Conn. 574, 583-84 (2001); Prato v. New Haven, 246 Conn. 638, 642 (1998); Martin v. Plainville, 240 Conn. 105, 109 (1997).

4 General Statutes § 13a-149; Salemme v. Seymour, 262 Conn. 787, 793 (2003); Martin v. Plainville, supra, 240 Conn. 109.

5 Salemme v. Seymour, supra, 262 Conn. 793; Pratt v. Old Saybrook, 225 Conn. 177, 180 (1993).

6 Salemme v. Seymour, supra, 262 Conn. 793; Martin v. Plainville, supra, 240 Conn. 111; Pratt v. Old Saybrook, supra, 225 Conn. 180-82.

7 General Statutes § 13a-149; Salemme v. Seymour, supra, 262 Conn. 793-94.

8 Serrano v. Burns, supra, 248 Conn. 428; Amore v. Frankel, 228 Conn. 358, 365-66 (1994).

9 Miller v. Grossman Shoes, Inc., 186 Conn. 229, 234 (1982).

10 Serrano v. Burns, supra, 248 Conn. 426; Birchard v. New Britain, 103 Conn. App. 79, 86-89 (2007); Novicki v. New Haven, 47 Conn. App. 734 (1998).

11 McIntosh v. Sullivan, 274 Conn. 262, 268-69 (2005); Ferreira v. Pringle, supra, 255 Conn. 342.

12 Mausch v. Hartford, 184 Conn. 467, 469-70 (1981).

13 McIntosh v. Sullivan, supra, 274 Conn. 269; Hall v. Burns, 213 Conn. 446, 476-77 (1990).

14  Baker v. Ives, 162 Conn. 295, 300 (1972); Wadlund v. Hartford, 139 Conn. 169, 176 (1952).

15 McIntosh v. Sullivan, supra, 274 Conn. 268; Ormsby v. Frankel, 255 Conn. 670, 675-77 (2001); Prato v. New Haven, supra, 246 Conn. 642.

16 McIntosh v. Sullivan, supra, 274 Conn. 269-70; Ormsby v. Frankel, supra, 255 Conn. 676-77; Hall v. Burns, supra, 213 Conn. 462.

17 Baker v. Ives, 162 Conn. 295, 305 (1972); see also Prato v. New Haven, supra, 246 Conn. 644-46; Hall v. Burns, supra, 213 Conn. 462, 479.

18 McIntosh v. Sullivan, supra, 274 Conn. 270; Hall v. Burns, supra, 213 Conn. 461-63.

19 Bovat v. Waterbury, supra, 258 Conn. 586-87; Prato v. New Haven, supra, 246 Conn. 642 (maintaining 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"); White v. Burns, 213 Conn. 307, 316, 333-34 (1990); Carbone v. New Britain, 33 Conn. App. 754, 758, cert. denied, 230 Conn. 904 (1994).

20 White v. Burns, supra, 213 Conn. 316, 330-34; Carbone v. New Britain, supra, 33 Conn. App. 758.

21 See Rodriguez v. New Haven, supra, 183 Conn. 478.

22 Id., 479.

23 Id.

24 See id.

Notes

The cases that apply for state liability under General Statutes § 13a-144 can also be used to support an action for municipal liability under General Statutes § 13a- 149.  See Smith v. New Haven, 258 Conn. 56, 64 (2001) (stating that cases dealing with § 13a-144, the state defective highway statute, "are nonetheless persuasive authority with respect to the construction of the municipal defective highway statute because §§ 13a-144 and 13a-149 have always been regarded as in pari materia as far as the scope of the governmental entity's obligation is concerned"); Donnelly v. Ives, 159 Conn. 163, 167 (1970) (stating that "on many occasions [the court has] looked to and applied the rationale in cases involving statutory actions against municipalities under what is now General Statutes § 13a-149 since there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149").

Definition of "road"
For road/bridge cases, the term "road" can include more than just the traveled portion.  It includes those areas related to travel, such as the side of the road or, perhaps, even a parking area.  See, e.g., Ferreira v. Pringle, 255 Conn. 330, 347-51.

Proximate cause
While sidewalks are generally located within the municipal right of way and are therefore public and covered under General Statutes § 13a-149, this is not always the case.  To the extent the sidewalk is private, the sole proximate cause standard does not apply.  Moreover, General Statutes § 7-163a allows a city or town, by ordinance, to shift liability to the owner or possessor of land abutting a public sidewalk only for injuries due to the presence of ice and snow.  See Willoughby v. New Haven, 123 Conn. 446, 451 (1937); Dreher v. Joseph, 60 Conn. App. 257, 260-63 (2000); Gould v. Hartford, 44 Conn. Sup. 389, 396-97 (1997) (maintaining that § 7-163a does not authorize the municipality to reallocate the duty to remove ice and snow to the state where the department of transportation owns the land abutting the sidewalk); Hutchinson v. Danbury, Superior Court, judicial district of Danbury, Docket No. 331013 (February 8, 1999) (23 Conn. L. Rptr. 3); Mahoney v. Mobil Oil Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 568849 (December 4, 1997) (21 Conn. L. Rptr. 138); see also General Statutes § 7-148 (c) (6) (C) (v). The sole proximate cause rule does not apply in such a case.
 


 

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