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Merola v. Burns

Court of Appeals of Connecticut

May 4, 1990

Pasqualina MEROLA et al.
v.
J. William BURNS, Commissioner of Transportation, et al.

Argued Feb. 7, 1990.

Page 1026

John T. Grillo, with whom, on the brief, was Albert R. Annunziata, New Haven, for appellants (plaintiffs).

Raymond J. Plouffe, Jr., Bridgeport, for appellee (named defendant).

Patricia A. Cofrancesco, Asst. Corp. Counsel, New Haven, for appellee (defendant city of New Haven).

Before BORDEN, DALY and LAVERY, JJ.

[21 Conn.App. 634] BORDEN, Judge.

The plaintiffs [1] appeal from the judgment of the trial court following the court's granting of motions for directed verdict filed by the defendants. [2] The plaintiffs claim that the court erred in directing the verdict and in making two evidentiary rulings. We find no error.

On July 18, 1983, the plaintiff fell at the intersection of Oakly Street and Frontage Road in New Haven. Oakly Street, a town road, runs in a generally north-south direction. Frontage Road, a state highway, runs generally east and west. Oakly Street, east of its intersection with Frontage Road, leads to an eastbound ramp connecting to I-95. The Oakly Street-Frontage Road intersection is north of the intersection of Oakly Street and Main Street.

The plaintiff gave timely notice of her fall to both the city of New Haven and the state commissioner of transportation. The notice described the place of the accident as follows: "On Oakley [sic] Street, at a location north of Main Street, and approximately 4 feet 6 inches east of U.I. Company pole # 6516, approximately [21 Conn.App. 635] 18 feet west of the westerly curb of the median on Oakley [sic] Street and approximately 56 feet south of the northerly curb of the I-95 highway ramp." The notice further described the defect giving rise to the accident as follows: "A depression-hole in said street measuring approximately 2 feet long, five inches wide and two and one-quarter inches deep, causing a hazardous condition for pedestrians walking without benefit of a sidewalk at said location."

Page 1027

Thereafter, the plaintiff sued both the commissioner and the city of New Haven, pursuant to General Statutes §§ 13a-144 and 13a-149, respectively. As against each defendant, the plaintiff alleged that she fell while walking on the west shoulder area of Oakly Street, north of its intersection with Main Street, that there were no sidewalks on Oakly Street, and that the sole proximate cause of her injuries was the breach of the particular defendant's statutory duty to maintain the roadway. At the end of the plaintiff's case, the court directed verdict for the defendants on two grounds. First, the plaintiff had not introduced sufficient evidence to prove that the location of the defect that had caused her to fall was the same as that described in her notice, and, second, because the plaintiff had sued the two defendants in the alternative and because she had the burden of proving that the liability of either was the sole proximate cause of her injuries, she had not introduced sufficient evidence to prove which governmental defendant had the duty to maintain the highway where she had fallen. After the court denied the plaintiff's motion to set aside the verdict, this appeal followed.

The plaintiff's two evidentiary claims of error involve evidence tending to show that the city was responsible for maintaining the area where she fell. At oral argument in this court, the plaintiff conceded that, even [21 Conn.App. 636] if she were to prevail on those two claims, the directed verdict in favor of the city of New Haven was proper. This concession renders it unnecessary for us to consider the plaintiff's appeal regarding that defendant, including the evidentiary claims. We turn, therefore, to the plaintiff's claims of error regarding the directed verdict in favor of the commissioner.

The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Golembeski v. Metichewan Grange No. 190, 20 Conn.App. 699, 701, 569 A.2d 1157 (1990). On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Morales v. Trinity Ambulance Service, 9 Conn.App. 386, 387-88, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987). While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529, 562 A.2d 1100 (1989); it may not resort to mere conjecture and speculation. Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960). If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn.App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).

The plaintiff claims that the court erred because sufficient evidence was introduced to prove that the location of the highway defect in question comported with that described in her statutory notice, and that the commissioner had the statutory duty to maintain that portion[21 Conn.App. 637] of the highway where the defect existed. We conclude that, although the plaintiff sufficiently proved the location of the highway defect in question to be in accordance with her statutory notice, she failed to introduce sufficient evidence to prove that the commissioner was responsible for maintaining that portion of the highway where the defect existed.

With respect to location of the defect, there was sufficient evidence from which the jury could infer that the plaintiff fell because of the defect at the location described in her notice. There was evidence that as the plaintiff was rounding the bend from Frontage Road onto Oakly Street, she fell because of a crack in the pavement that was approximately two feet long and five inches wide. There were also photographs of the intersection, showing a utility pole located in the grass abutting the cracked pavement, and a median at the intersection of Frontage Road and Oakly

Page 1028

Street east of the pole and the cracked pavement. The plaintiff testified that the place of her fall was approximately three or four feet into Oakly Street from the bend in the road, and she indicated that location by a mark on one of the photographs of the intersection. There also was evidence that most of the pavement was cracked in that area, that the particular crack in question was approximately two feet from the edge of the grass bordering the pavement, and that there was an electric utility pole located in the grass approximately two feet from the edge of the pavement. Further, there was evidence that the pole number near the defect matched the pole number stated in the notice.

This evidence was sufficient for the jury to infer that the place and cause of the plaintiff's fall were generally those specified in the notice, namely, on Oakly Street, north of Main Street, approximately four feet east of utility pole number 6516 and west of the west [21 Conn.App. 638] curb of the median located at the intersection of Oakly Street and Frontage Road. It is true that the plaintiff was required to prove that the defect alleged in her notice was the sole proximate cause of her injuries; see Krooner v. Waterbury, 105 Conn. 476, 481, 136 A. 93 (1927); and that General Statutes § 13a-144, as a statutory action, must be strictly construed. Ozmun v. Burns, 18 Conn.App. 677, 680, ...


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