Martin v. Town of Plainville

BERDON, J.,

dissenting. In order to put this case in its proper perspective, I start with the undisputed facts that the named defendant, the town of Plainville (town), neither before the trial court, the Appellate Court nor this court, has ever made the claim, explicitly or implicitly, that the failure of the named plaintiff (plaintiff) to describe her injuries in the notice with specificity was the result of her intention to mislead the town or that the town was prejudiced in any manner.

Furthermore, the issue before us must be decided in light of our recent jurisprudence pertaining to the notice statute, General Statutes § 13a-149, which we unanimously affirmed in Pratt v. Old Saybrook, 225 Conn. 177, 621 A.2d 1322 (1993). First, the purpose of the notice is not “to set a trap for the unwary,” but, rather, to put the town on notice that a claim will be made, which allows the municipality to make a proper investigation. Id., 182. Second, “the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff.” Id., 183. Third, even if the notice is defective, it will not be fatal to the plaintiffs cause of action under the statutory savings clause “if it appears that there was no intention to mislead or that such town . . . was not in fact misled thereby.” (Emphasis added.) General Statutes § 13a-149.1

*115The notice furnished by the plaintiff to the town in this case provided as follows: “Please be advised that this law firm represents [the plaintiff] as a result of injuries she sustained in a fall on March 21, 1991. At that point in time, [the plaintiff] was walking on the sidewalk on Timber Hill Road, directly in front of House #10. At that time, [the plaintiff] fell and was injured after she tripped over a defect in the sidewalk. . . .”

I concede that if we apply the 1935 case of Marino v. East Haven, 120 Conn. 577, 182 A. 225 (1935), the notice of the plaintiff that alleged that she “was injured” as a result of the fall would be insufficient, as a matter of law, and would preclude the invocation of the savings clause. Marino held that the savings clause was inapplicable because the notice in that case failed “to give any description whatever of the injury claimed to have been sustained.” Id., 580.

The Marino decision and the majority’s embracement of this anachronistic decision is not logical, does not comport with the liberal interpretation that we must give the statute in favor of the person injured, and is contrary to the trend of recent decisions of this court.

First, it is not logical because under Marino, if an injury was described, no matter how inaccurate that description was, the savings clause could be invoked, but it could not be invoked if a plaintiff simply alleged that she was injured. In terms of the example given by the majority, if the plaintiff here had alleged that she sustained a hairline fracture of the small toe, but she had actually sustained a serious injury to her brain, the savings clause, if the reasoning in Marino is followed, would be applicable. On the other hand, if the plaintiff *116alleged in the notice merely that she was injured, then the savings clause, according to Marino, could not be invoked. Such an interpretation of the statute runs contrary to the basic rule that we must apply common sense to statutory construction.2 “[CJommon sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996).

Furthermore, by continuing to follow the Marino3 precedent, the majority fails to recognize the liberal interpretation we are required to apply to the § 13a-149 savings clause. Pratt v. Old Saybrook, supra, 225 Conn. 183. Any reasonable interpretation of the savings clause, within the context of the legislative directive that it be liberally construed, could not possibly include that a totally inaccurate description of the injury — i.e., a hair*117line injury to the toe when the injury was in fact a serious one to the brain — would be sufficient to invoke the savings clause, but a statement that the plaintiff was injured, as a matter of law, would not.

Indeed, a recent decision construing General Statutes § 13a-144, the state highway liability statute, which requires a less liberal construction because it contains no savings clause; see Pratt v. Old Saybrook, supra, 225 Conn. 183; instructs us that we must abandon the Dickensian4 technical approach to requirements of notice and pleadings when in fact no harm results to the other party. In Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), a case which included on its panel four of the five justices who decide the present case,5 we held that the notice provided to the state was not patently defective where it failed to indicate with specificity the alleged icy road conditions and the exact location of those road conditions. Id., 356-58. We stated in Lussier that “[t]he notice require*118ment [contained in § 13a-144] is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. . . . The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection. . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” (Citations omitted; internal quotation marks omitted.) Id., 354. We stated that “[t]he notice need not be expressed with the fullness and exactness of a pleading.” (Internal quotation marks omitted.) Id., 356. In Lussier, we found the notice adequate even though the notice requirement under § 13a-144 must be strictly construed. Id.

It is clear to me that to know with specificity the location and the nature of the defect is far more important in order for the town or state to protect its interests than to know the nature of the injury. The injury, if significant, is permanently documented through medical records. The knowledge of the exact location and cause of the injury, in certain circumstances, is not only necessary in order for the town or the state to take remedial steps, but also because the alleged defect may be transient in nature, the evidence of which may not be subsequently available.

In my view, the savings clause of § 13a-149, with respect to the requirement of furnishing notice of an *119injury, is invoked where, as here, the plaintiff merely alleges that an injury has occurred. It then becomes an issue for the jury to determine whether the plaintiff did not intend to mislead the town or that the town was not in fact misled; see Sizer v. Waterbury, 113 Conn. 145, 155, 154 A. 639 (1931); Shapiro v. Hartford, 4 Conn. App. 315, 317-18, 494 A.2d 590, cert. denied, 197 Conn. 810, 499 A.2d 61 (1985); either of which would excuse any defect in the notice. See General Statutes § 13a-149.

Accordingly, I dissent.

The savings clause portion of the notice requirement in General Statutes § 13a-149, the municipal highway defect statute, provides: “No notice given under the provisions of this section shall be held invalid or insufficient by *115reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

The incongruity of the court’s decision today to the basic rule of statutory construction is demonstrated in Flynn v. First National Bank & Trust Co., 131 Conn. 430, 40 A.2d 770 (1944). There, the court held that the notice allegation of “bruises on other parts of her legs and body” was sufficient to enable the plaintiff to take advantage of the savings clause with respect to a later amendment to the complaint alleging a “[c]ompressed fracture of the spine.” Id., 432.

We should not abide by a prior decision of this court merely for the sake of stare decisis. See White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990) (“there is a well recognized exception to stare decisis under which a court will examine and overrule a prior decision that is clearly wrong”). Furthermore, “the force of precedent will not hinder our rejection of a rule whose application no longer serves the ends of justice. . . . The arguments for adherence to precedent are least compelling . . . when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years.” (Citation omitted; internal quotation marks omitted.) O’Connor v. O’Connor, 201 Conn. 632, 644, 519 A.2d 13 (1986). Indeed, we have clearly signaled the abandonment of this court’s rigid approach regarding adherence to notice of injury with respect to defective highway statutes. See the remaining discussion in this dissent and the cases cited therein.

The majority’s reliance on Marino’s unbending requirement that some form of injury be described, no matter how inaccurate, “is reminiscent of Charles Dickens’ Bleak House in which, more than one hundred years ago, Dickens vividly portrayed the mischief done by abuse of the common law forms of civil procedure.” Rich v. Director, Office of Workers’ Compensation Programs, 798 F.2d 432, 434 (11th Cir. 1986); see also 1 C. Dickens, Bleak House (International Collectors Library) c. 1, p. 4 (describing members of bar as “tripping one another up on slippery precedents, [and] groping knee-deep in technicalities”).

In addition, “[w]e . . . have refused to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff’s cause of action if the pleadings were technically imperfect. As Professor Edward L. Stephenson points out, remedial statutes . . . were intended to soften the otherwise harsh consequences of strict construction under the common law: ‘Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection.’ 1 E. Stephenson, [Connecticut Civil Procedure (2d Ed. 1970)] § 35, p. 137.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 399-400, 655 A.2d 759 (1995). The savings clause embodied in § 13a-149 is just such a remedial statute.

Chief Justice Callahan and .histic.es Berdon, Palmer and Peters.