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Artese v. Town of Stratford

Appellate Court of Connecticut

September 15, 2015

JOANN ARTESE
v.
TOWN OF STRATFORD

Argued March 16, 2015

Action to recover damages for the defendant's alleged negligence, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Tyma, J.; judgment for the plaintiff, from which the defendant appealed to this court.

SYLLABUS

The plaintiff sought to recover damages from the defendant town of Stratford pursuant to the municipal highway defect statute (§ 13a-149) for personal injuries she allegedly sustained when she was walking in a roadway and her foot went into a pothole, causing her to fall to the ground. The case was tried to the court, which rendered judgment in favor of the plaintiff, from which the defendant appealed to this court. The defendant claimed that the trial court improperly found that the defect in the road was the sole proximate cause of the plaintiff's injury, and that the plaintiff was not contributorily negligent. Specifically, the defendant claimed that the plaintiff was not free from contributory negligence because she did not comply with the statute (§ 14-300c [a]) that requires a pedestrian to walk as near as practicable to an outside edge of a roadway where, as here, there was no adjacent sidewalk or shoulder. Held that the trial court's finding that the plaintiff was not contributorily negligent was not clearly erroneous, as there was ample evidence in the record to support that conclusion; the trial court, after carefully considering the plaintiff's testimony that she walked in the roadway because there was no adjacent sidewalk, that she could not have avoided stepping into the pothole, and that she could not have been more careful when she was walking that evening, and after carefully reviewing photographs of the pothole and its position in the roadway, determined that the pothole was not in the middle of the road and, thus, found that the plaintiff had complied with § 14-300c (a) by walking as close as practicable to the side of the road and that she was not contributorily negligent, and the court, as the sole arbiter of the credibility of the witnesses, was free to credit that evidence and to find that the plaintiff had exercised due care.

Michael S. Casey, for the appellant (defendant).

Jerome A. Lacobelle, Jr., for the appellee (plaintiff).

Lavine, Mullins and Borden, Js.

OPINION

Page 891

[159 Conn.App. 789] 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 approximately 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 [159 Conn.App. 790] 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, commonly referred to as the municipal highway defect statute. 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

Page 892

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 special defense, that the plaintiff's injuries were proximately caused by her negligence. A court trial followed, at the conclusion of which the court, through an oral ...


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