Bresnan v. Frankel

Berdon, J.,

dissenting. I respectfully disagree with the majority. I would hold that the written notice, together with the actual notice furnished to the defendant commissioner by the Plainfield police as recorded in the police log, was sufficient to make the issue of notice a jury question. The commissioner at oral argument conceded that if a copy of the Plainfield police log that described the location of the flooding as being Route “14A by South Camp” was included with the plaintiffs notice instead of having been communicated directly to him by the Plainfield police, it would patently satisfy the statute. Indeed, the commissioner does not allege that he was misled or that his investigation was hampered in any manner.

“Whether the notice fails to meet the requirements of the statute must be determined by examining the purpose of the notice.” Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). The majority’s inter*29pretation of the statute is not in accordance with the purposes of the notice requirement. “This requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose was merely to furnish the commissioner with such information as would enable him to make a timely investigation of the facts upon which a claim for damages was being made.” LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953). Surely, if that were the purpose, the statutory requirements should be satisfied whether the notice or a part thereof was furnished by the injured person or a third party as long as it was sufficient.

When a person is injured as a result of the commissioner’s negligent maintenance of a highway, the public purse should be available to compensate that person for his or her injuries. In this case the plaintiff alleges that he sustained substantial facial injuries resulting in damage to the supraorbital nerve distribution, causing loss of sensation, numbness, and pain in the forehead and in the area of the left eye and permanent and disfiguring scarring of the forehead and left eyelid. The plaintiff, however, will not have his day in court, not because the state was misled or hindered or prejudiced in any manner, but because of the majority’s anachronistic reading of the notice requirement in § 13a-144.