3.9-31 Municipal Sidewalk (Road, Bridge) Defect
- § 13a-149
Revised to January 1, 2008 (modified to July 1, 2008)
Note: This statute applies to
roads, bridges or sidewalks. This instruction uses a sidewalk as an
There is a statute that provides
that a person who was injured by means of a defective sidewalk may recover
damages from the party bound to keep it in repair.
In making a claim under this
statute, the plaintiff must prove all of the following elements by a fair
preponderance of the evidence:
that (he/she) gave the required
statutory notice of injury;
that the sidewalk where the
injury occurred was one that the (city / town / borough) and not some other
person or entity had a duty to maintain or repair;
that there was a defect in the
that the city had notice of the
that the city failed to
exercise reasonable care to remedy said defect; and
that the defect was the sole
proximate cause of the plaintiff's injuries; that is, no other cause was a
substantial factor in causing (his/her) injuries.
In order to be entitled to
compensation from the defendant, the plaintiff must prove each and every one
of these elements.
If (he/she) has failed to prove any one of them, then (he/she) has failed to
prove (his/her) claim.
Statutory notice of the
Note: If there is no issue
over the statutory notice of injury, this portion may be deleted from the
First, the plaintiff must prove
that the applicable statutory notice was given.
The statute states that an action
can only be brought to recover damages caused by a defective sidewalk if the
plaintiff provides written notice of the injury, with a general description
of the injury, the cause, the time, and the place of its occurrence. This
notice shall be given within ninety days thereafter to a selectman or clerk
of the town, city or borough bound to keep the sidewalk in repair.
Whether the notice meets the
requirements of the statute and whether it was given within the time
prescribed in the statute are questions for you to determine. The notice
mandated by the statute includes five elements: 1) written notice of the
injury, 2) a general description of the injury, 3) the cause, 4) the time,
and 5) the place.
The purpose of the notice
requirement is so that officers of municipal corporations shall have precise
information that will enable them to investigate the circumstances of the
accident. The plaintiff must give such notice as a prerequisite of
(his/her) right to recover damages.
The statute provides that any
notice given shall not be held invalid or insufficient by reason of an
inaccuracy in describing the injury or in stating the time, place or cause,
if it appears that there was no intention to mislead or that the city was
not, in fact, misled.
Duty to maintain or repair
The next element the plaintiff
must prove is that the sidewalk on which (he/she) claims to have been
injured was one that the city had a duty to maintain or repair.
The city does not have a duty to repair areas of the sidewalk that are
You will have to determine whether the plaintiff has proven that the
location that has been identified as the area where the plaintiff was
injured was a sidewalk that the city had a duty to maintain or to keep in
Defect in the sidewalk
The next element the plaintiff
must prove is that there was a defect in the sidewalk. A defect is "[a]ny
object in, upon, or near the traveled path, which would necessarily obstruct
or hinder one in the use of the [sidewalk] for the purpose of traveling . .
It is not the law that any flaw constitutes a defect, but rather to find the
existence of the defect, you must determine that the sidewalk was not in a
reasonably safe condition.
The city does not guarantee the
safety of travelers upon its sidewalks. The obligation of the city is not
to keep its sidewalks in perfect condition. The task of making sidewalks
safe at all times and under all circumstances is not imposed upon our
cities. The duty of the city is to use reasonable care to keep its
sidewalks in a reasonably safe condition for public travel.
In making this determination, you
should consider such factors as <state factors that are applicable such
as the lighting, the location of the sidewalk, the grade of the street, and
the extent of the use of the area.>
Notice of the defective
The next element that the
plaintiff must prove is that the city knew or, in the exercise of due care
in inspecting the sidewalk, should have known that the sidewalk was in a
defective condition. The plaintiff must prove that the defendant had notice
of the particular defect itself which caused the injury and not merely
notice of the conditions that in fact produced it.
The plaintiff must prove that the
defendant had either actual or constructive notice of the condition that is
claimed to be the defect.
Actual notice would be a report of the condition to the city or observation
of the condition by city employees responsible for maintenance of the
The other kind of notice is called
constructive notice. If the condition that is claimed to be a defect was
present for a sufficient length of time so that the defendant should have
discovered it using reasonable care to inspect sidewalks, then the defendant
had constructive notice.
Failure to exercise
reasonable care to remedy defect
The next element that the
plaintiff must prove is that after having notice, and having had a
reasonable opportunity to do so, the city failed to take reasonable care to
remedy the claimed defect.
In determining the care that a reasonably prudent person would use in the
same circumstances, you should consider all of the circumstances which were
known or should have been known to the defendant at the time of the conduct
in question. Whether care is reasonable depends upon the dangers that a
reasonable person would perceive in those circumstances. It is common sense
that the more dangerous the circumstances, the greater the care that ought
to be exercised.
Sole proximate cause
The plaintiff must finally prove
that the defect in the sidewalk was not just one cause among many causes of
(his/her) fall, but that it was the sole proximate cause; that is, the only
substantial factor causing (his/her) fall. <See
Notes - Proximate cause below.> The plaintiff must prove that the
injuries claimed were caused solely by a defect of the sidewalk.
The plaintiff, however, was bound
to use reasonable care for (his/her) own safety; that is, the degree of care
that a reasonably prudent person would use in order to avoid injury. The
plaintiff cannot have been entirely heedless of the situation, but had a
duty to reasonably use (his/her) vision and (his/her) faculties to observe
(his/her) surroundings and to use reasonable care in view of any danger that
was presented by the condition of the sidewalk.
A pedestrian who knows of a
dangerous condition in the path of travel is not required to take an
alternate route or a detour, but is bound to take precautions that an
ordinarily prudent person would take to avoid the dangerous condition,
including moving to the portion of the sidewalk that is not defective. If
the pedestrian makes the decision to pass over a dangerous condition that
(he/she) knows about, then that pedestrian has a duty to use reasonable care
in doing so.
Knowledge of a dangerous condition generally requires greater care to meet
the standard of reasonable care.
If you find that the plaintiff
failed to prove that (he/she) was exercising reasonable care for (his/her)
own safety and that (his/her) negligence was a substantial factor in causing
(him/her) to fall, then any defect in the sidewalk would not be the sole
proximate cause of the plaintiff's injuries, and you must find for the
While sidewalks are generally located within the municipal right of way
and are therefore public and covered under General Statutes § 13a-149, this is
not always the case. “Pursuant to General Statutes § 7-163a . . . a municipality
may adopt an ordinance that shifts to the owner of land abutting a public
sidewalk both the duty of care and liability with respect to the presence of
snow and ice on the sidewalk.” Rivers v. New Britain, 288 Conn. 1, 3
(2008). To the extent the sidewalk is private, the sole proximate cause standard
does not apply. Nevertheless, “when . . . the state owns the land abutting a
public sidewalk, an ordinance adopted by a municipality under § 7-163a does not
relieve the municipality of liability for damages caused by the presence of ice
and snow on the sidewalk.” Id., 4. “Section 7-163a does not waive the state’s
sovereign immunity from liability or suit.” Id., 9. See also General Statutes §
7-148 (c) (6) (C) (v).