Salemme v. Town of Seymour
Salemme v. Town of Seymour
Opinion of the Court
Opinion
The plaintiff, Matthew Salemme, appeals from the judgment of the trial court rendered on the pleadings in favor of the defendant, the town of Seymour (town). The plaintiff claims that the court improperly (1) determined that the statutorily prescribed notice that the plaintiff sent to the town was deficient as a matter of law, (2) concluded that the savings clause in General Statutes § 13a-149 did not apply to his claim, and (3) refused to allow him to amend his complaint. We affirm the judgment of the trial court.
By summons and complaint dated September 27, 1999, the plaintiff commenced this action against the
The plaintiff provided notice of the accident to the town, as required by § 13a-149, by letter dated November 25, 1997. The plaintiff referenced the notice in his complaint and attached it to the complaint as an exhibit. The plaintiff indicated in that notice that an accident occurred at “approximately 5:10 p.m., October 27, 1997.” The plaintiff indicated that the accident occurred on Silvermine Road, and that it was caused by “the extremely slippery conditions of the road caused by wet leaves and pine needles.”
On December 30, 1999, the town filed a motion to strike the complaint on the ground that the plaintiff had failed to give the town sufficient notice of the details of his claim. On July 7, 2000, the court, Sequino, J., granted the motion. On July 20,2000, the plaintiff filed a request to amend his complaint. He attached a proposed complaint that was identical to his original complaint.
As a preliminary matter, we address the town’s claim that the plaintiff waived his right to appeal by filing his amended pleading, which “effectively removed his original complaint and any right to appeal [from] the trial court’s decision to strike it.”
“As a general rule, [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading. . . . P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994); see also Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Good Humor Corp. v. Ricciuti, 160 Conn. 133, 135, 273 A.2d 886 (1970).” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997). Accordingly, the town argues, if the allegations in the plaintiffs amended complaint were not materially different from those in
The simple answer is that the court denied the plaintiffs request to file an amended complaint. Consequently, the plaintiff never actually filed the “proposed” amended complaint, and only one complaint remained in the case. Therefore, the plaintiff has not waived his right to appeal from the judgment rendered on the pleadings following the court’s granting of the motion to strike the plaintiffs complaint.
I
The plaintiff first claims that the court improperly concluded that the notice was deficient as a matter of law. He argues that the notice sufficiently described the location of the accident and that whether that description was insufficient was a question of fact for the jury to decide. We do not agree.
“As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets statutory requirements. . . . The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof. ... A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality.” (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
The sufficiency of the notice is tested with reference to the purpose for which it is required. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1994). The purpose of the notice requirement, § 13a-149, “is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise
II
The plaintiff next alleges that the court improperly declined to apply favorably to his case the savings clause in § 13a-149.
The municipal highway notice requirement should be liberally construed because it contains a savings clause.
Ill
The plaintiff further argues that the court improperly denied his request to amend the complaint. We agree, but conclude that the court’s action was harmless.
Practice Book § 10-44 allows a party whose pleading has been stricken to file a new pleading within fifteen days of such action. The court’s permission is not required. The plaintiff unnecessarily filed a request to amend his complaint along with his proposed amended complaint. He filed the request within fifteen days of the court’s granting of the town’s motion to strike.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except -within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”
Practice Book § 10-44 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”
We are not unaware that the defect complained of, “wet leaves and pine needles,” would, in all probability, not have remained at the location for 1he municipality’s viewing and inspection even if the plaintiff had given proper notice within the ninety day period provided in General Statutes § 13a-149. In applying the statute, however, we are bound to recognize its general purpose and to expect parties to comply with the statute accordingly.
General Statutes § 13a-149 provides in relevant part: “No notice given under the provisions of this section shall be held invalid or insufficient by reason 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 court granted the motion to strike on July 7, 2000, and the plaintiff filed his request to amend and the proposed amendment on July 20, 2000.
Reference
- Full Case Name
- MATTHEW SALEMME v. TOWN OF SEYMOUR
- Cited By
- 3 cases
- Status
- Published