Artese v. Stratford ( 2015 )

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JOANN ARTESE v. TOWN OF STRATFORD
(AC 36965)
Lavine, Mullins and Borden, Js.
Argued March 16—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J.)
Michael S. Casey, for the appellant (defendant).
Jerome A. Lacobelle, Jr., for the appellee (plaintiff).
Opinion
MULLINS, J. In this trip and fall action, the defendant
town of Stratford appeals from the judgment of the
trial court, rendered after a court trial, in favor of the
plaintiff, Joann Artese. The defendant challenges the
court’s finding that the plaintiff was not contributorily
negligent as clearly erroneous. We affirm the judgment
of the trial court.
The court reasonably could have found the following
facts. On the evening of October 20, 2012, at approxi-
mately 7 p.m., the plaintiff went for walk with her friend,
Robert Denhup, on Lordship Road in Stratford. The
plaintiff and Denhup walked in the street because there
was no adjacent sidewalk. As the two walked side by
side, at approximately 7:30 p.m., the plaintiff’s left foot
went into a pothole and she fell to the ground, sustaining
a physical injury.
The plaintiff subsequently commenced this civil
action pursuant to General Statutes § 13a-149, com-
monly referred to as the municipal highway defect stat-
ute. See McIntosh v. Sullivan, 274 Conn. 262, 266 n.4,
875 A.2d 459 (2005). In her complaint, the plaintiff
alleged that a pothole in the roadway, which constituted
a dangerous and defective condition, caused her to trip,
and that the defendant knew or should have known
about the defect but failed to remedy it. The plaintiff
alleged further that she exercised due care at the time
of the fall, and that she ‘‘was injured as a result of the
sole and proximate cause of said defect . . . .’’ The
defendant filed an answer in which it alleged, as a spe-
cial defense, that the plaintiff’s injuries were proxi-
mately caused by her negligence. A court trial followed,
at the conclusion of which the court, through an oral
decision, found in favor of the plaintiff and rendered
judgment accordingly.1 From that judgment, the defen-
dant appeals.
We begin by setting forth the applicable law and
standard of review. ‘‘In enacting § 13a-149, our legisla-
ture imposed a penalty upon the municipality, measured
by the actual injury caused by its disobedience of the
statute, and enforceable by the person injured through
an action on the statute . . . . 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 supervi-
sion 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 circum-
stances, 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 free-
dom from contributory negligence.’’ (Internal quotation
marks omitted.) Lombardi v. East Haven, 126 Conn.
App. 563, 573–74, 12 A.3d 1032 (2011).
‘‘Whether the plaintiff was contributorily negligent
is a question of fact subject to the clearly erroneous
standard of review.2 . . . Because a plaintiff seeking
recovery under § 13a-149 must prove that the defect
was the sole proximate cause of her injuries, it follows
that the plaintiff must demonstrate freedom from con-
tributory negligence.3 . . . To do so, a plaintiff must
have suffered injury while using the defective highway
with due care and skill.’’ (Citations omitted; footnotes
added; internal quotation marks omitted.) Id., 577–78.
In the present case, the court concluded that the
plaintiff had demonstrated all four elements of § 13a-
149 and, accordingly, rendered judgment in her favor.
The only determination that the defendant challenges
in this appeal is that the defect in the road was the sole
proximate cause of the plaintiff’s injury. More specifi-
cally, the defendant argues that the court improperly
concluded that the plaintiff was not contributorily neg-
ligent.
The defendant claims that the court should have
determined that the plaintiff was not free from contribu-
tory negligence because she did not comply with Gen-
eral Statutes § 14-300c (a). Specifically, he contends
that pursuant to § 14-300c (a), the plaintiff was required,
but failed, to ‘‘walk as near as practicable to an outside
edge of such roadway’’ where, as here, there was no
adjacent sidewalk or shoulder.4 See Nikiel v. Turner,
119 Conn. App. 724, 729, 989 A.2d 1088 (2010) (court
correctly instructed jury that finding pedestrian’s non-
compliance with § 14-300c [a] precluded recovery under
§ 13a-149 where pedestrian elected to walk in middle
of roadway and tripped despite existence of adjacent
sidewalk, which statute required be used in such situa-
tion).5 We are not persuaded.
Here, the plaintiff and Denhup both testified that, on
the evening of October 20, 2012, the two walked in the
roadway because there was no adjacent sidewalk. The
plaintiff testified further that she could not have avoided
stepping into the pothole and could not have been more
careful when she was walking that evening. After con-
sidering that testimony, and carefully reviewing photo-
graphs of the pothole and its position in the roadway,
the court determined that the pothole, in fact, was not
in the middle of the road. On the basis of that conclu-
sion, in conjunction with the testimony presented, the
court found that the plaintiff had complied with § 14-
300c (a) by walking as close as practicable to the side
of the road.6 In other words, the plaintiff was not con-
tributorily neglect and, therefore, the highway defect
was the sole proximate cause of her injury.
In sum, there was ample evidence in the record to
support the court’s conclusion that the plaintiff walked
as close as practicable to the side of the road and,
therefore, complied with § 14-300c (a). As the sole arbi-
ter of credibility, the court was free to credit that evi-
dence and to find that the plaintiff exercised due care.
See Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844
A.2d 836 (2004) (‘‘In a case tried before a court, the
trial judge is the sole arbiter of the credibility of the
witnesses and the weight to be given specific testimony.
. . . It is within the province of the trial court, as the
fact finder, to weigh the evidence presented and deter-
mine the credibility and effect to be given the evidence.’’
[Citation omitted; internal quotation marks omitted.]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Following the conclusion of the plaintiff’s case, the defendant moved
for a directed verdict. The court denied that motion.
2
‘‘[F]actual findings of a trial court . . . are reversible only if they are
clearly erroneous. . . . This court cannot retry the facts or pass upon the
credibility of the witnesses. . . . A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.
. . . We do not examine the record to determine whether the trier of fact
could have reached a conclusion other than the one reached. Rather, we
focus on the conclusion of the trial court, as well as the method by which
it arrived at that conclusion, to determine whether it is legally correct and
factually supported.’’ (Internal quotation marks omitted.) Brown v. State
Farm Fire & Casualty Co., 150 Conn. App. 405, 415–16, 90 A.3d 1054, cert.
denied, 315 Conn. 901, 104 A.3d 106 (2014).
3
As previously noted, the defendant had filed a special defense alleging
contributory negligence. It was not required to do so, however. In an action
brought under § 13a-149, ‘‘the town [is] not obligated to [file a special defense
alleging contributory negligence], since the town does not bear the burden
of proving contributory negligence. Rather, it is the plaintiff who bears the
burden of pleading and proving his [or her] lack of contributory negligence.’’
(Emphasis in original.) Szachon v. Windsor, 29 Conn. App. 791, 799, 618
A.2d 74 (1992).
4
Here, there is no dispute that no sidewalk or shoulder was adjacent to
the roadway. In such a case, § 14-300c (a) provides in relevant part: ‘‘Where
neither a sidewalk nor a shoulder adjacent to a roadway is provided each
pedestrian walking along and upon such roadway shall walk as near as
practicable to an outside edge of such roadway . . . .’’
5
We note that Nikiel pertained to a portion of § 14-300c (a) different from
the pertinent portion in the present case. In Nikiel, a plaintiff pedestrian
tripped after she elected to walk within a roadway despite the existence of
an adjacent sidewalk. Nikiel v. Turner, supra, 119 Conn. App. 725–26. In a
situation like that, § 14-300c (a) requires, in relevant part, that ‘‘[n]o pedes-
trian shall walk along and upon a roadway where a sidewalk adjacent to
such roadway is provided and the use thereof is practicable. . . .’’ In the
present case, however, there was no sidewalk adjacent to the roadway on
which the plaintiff could have walked. Thus, the only portion of § 14-300c
(a) at issue here is the portion that addresses a roadway with no sidewalk
or shoulder present. In that portion of the statute, § 14-300c (a) merely
required the plaintiff to walk ‘‘as near as practicable to an outside edge of’’
the road.
6
The defendant claims that the plaintiff failed to demonstrate that she
was not contributorily negligent because, in her testimony at trial, she
indicated that there was nothing preventing her from walking closer to the
grass and that she chose to walk in the middle of the street. According to
the defendant, this testimony amounted to admissions by the plaintiff that
she violated § 14-300c (a) and was contributorily negligent. We disagree.
The evidence in the record, including photographs that indicated that the
pothole was not in the middle of the roadway, supports the court’s conclusion
that the plaintiff was walking as close as practicable to the outside edge of
the roadway when she was injured. Moreover, as observed by the court,
the plaintiff never testified that she was not as close as practicable to the
side of the road. The court was free to credit the evidence that it found to
be persuasive.