Conn. Civ. Jury Instr. 3.9-31

Note: This statute applies to roads, bridges or sidewalks. This instruction uses a sidewalk

as an example.

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:

1. [<Insert if element is contested:> that the plaintiff gave the required statutory

notice of injury;]

2. 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;

3. that there was a defect in the sidewalk;

4. that the (city/town/borough) had notice of the defect;

5. that the (city/town/borough) failed to remedy the defect having had a reasonable

time, under all the circumstances, to do so; and

6. that the defect was the sole proximate cause of the plaintiff’s injuries; that is, no

other cause was a substantial factor in causing the plaintiff’s injuries.

In order to be entitled to compensation from the defendant, the plaintiff must prove each and

every one of these elements. If the plaintiff has failed to prove any one of them, then the

plaintiff has failed to prove the plaintiff’s claim.

Statutory notice of the injury

[<Insert if element is contested:> 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 and the cause thereof, as well as the time and the place of its

occurrence. This notice shall be given within ninety days of the occurrence 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 date], and (5) the place.

The purpose of the notice requirement is to allow the municipality to make a proper investigation

into the circumstances surrounding the claim. The plaintiff must give such notice as a

prerequisite of the plaintiff’s 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. However, if the notice fails

to provide information as to each of the five elements, the notice is deficient.]

Duty to maintain or repair

The next element the plaintiff must prove is that the sidewalk on which the plaintiff claims to

have been injured was one that the (city/town/borough) had a duty to maintain or repair. The

(city/town/borough) does not have a duty to repair areas of the sidewalk that are private. 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/town/borough) had a duty

to maintain or to keep in repair.

Defect in the sidewalk

The next element the plaintiff must prove is that there was a defect in the sidewalk. A defect is

“any 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.” Not every flaw constitutes a defect. To

find the existence of a defect, you must determine that the sidewalk was not reasonably safe for

public travel.

The (city/town/borough) does not guarantee the safety of travelers upon its sidewalks. The

obligation of the (city/town/borough) 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/town/borough) is to use reasonable care to keep its sidewalks in a

reasonably safe condition for public travel.

Notice of the defective condition

The next element that the plaintiff must prove is that the (city/town/borough) knew of the

particular defect or that in the exercise of its supervision of the sidewalk, it should have known

of that defect. The plaintiff must prove that the (city/town/borough) had actual notice or

constructive notice of the particular defect that caused the injury and not merely notice of the

conditions that in fact produced it.

Actual notice would be a report of the condition to the (city/town/borough) or observation of the

condition by (city/town/borough) employees responsible for maintenance of the sidewalk. The

other kind of notice is called constructive notice. Constructive notice exists if the condition was

present for a sufficient length of time and was of such a dangerous character that the

(city/town/borough) by the exercise of reasonable care could and should have discovered it. The

test is not whether a defect would have been disclosed by an examination of the particular street,

but rather whether it would have been disclosed by a reasonable supervision of the streets of the

(city/town/borough) as a whole. At the same time, a municipality is required to exercise a

greater degree of care over its sidewalks than other traveled ways. Thus, the

(city/town/borough)’s reasonable care is measured not by its supervision of the particular

sidewalk on which the plaintiff fell, but by the supervision of the (city/town/borough)’s

sidewalks as a whole.

Failure to exercise reasonable care to remedy defect

The next element that the plaintiff must prove is that after having notice, the (city/town/borough)

failed to remedy the defect having had a reasonable time, under all the circumstances, to do so.

Sole proximate cause

The plaintiff must finally prove that the defect in the sidewalk was not just one cause among

many causes of the plaintiff’s fall, but that it was the sole proximate cause; that is, the only

substantial factor causing the plaintiff’s fall. [See Notes - Proximate cause below.] The plaintiff

must prove that the injuries claimed were caused solely by a defect of the sidewalk.

Accordingly,

it must follow that the plaintiff must demonstrate freedom from contributory negligence. To do

so, a plaintiff must have suffered injury while using the defective sidewalk with due care and

skill, 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 the plaintiff’s vision and faculties to observe the 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

the pedestrian 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 an exercise of reasonable care for the plaintiff’s own

safety and that the plaintiff’s negligence was a substantial factor in causing the 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 (city/town/borough).