Notice on the 92nd Day

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July 25, 2009

Statutory Construction of 90 Day Notice Statute

The Municipal Defective Highway Statute, Conn. Gen. Stat. § 13a-149, provides that any person injured by means of a defective road or bridge must provide written notice of the injury, which must be given within ninety days to a selectman or the clerk of such town. In Brennan v. Town of Fairfield, 255 Conn. 693 (2001), the plaintiff sued the defendant town to recover damages for personal injuries suffered as a result of a fall on a defective sidewalk under the control of the town. The trial court granted the defendant's motion to dismiss because the plaintiff did not provide notice within 90 days of the occurrence, as required by Conn. Gen. Stat. § 13a-149. The issue on appeal was whether notice was timely when it was received by a town official on the 92 nd day, under a 90 day notice statute, when the municipal office that was authorized to receive the notice was closed on the 90 th and 91 st days, a Saturday and Sunday.

In addition, the plaintiff claimed that notice given to a town clerk pursuant to Conn. Gen. Stat. § 13a-149 was not invalid because of a misnomer of the name of the town clerk.

At common law, when the terminal day for filing legal papers fell on a holiday or Sunday, the plaintiff was able to make performance on the following day.[1] In 1944, in addressing the issue of filing notice under the precursor to Conn. Gen. Stat. § 13a-149, where the deadline was December 25, and the plaintiff filed notice on December 26, the court held that the fact that the deadline fell on a legal holiday, December 25, served to extend until the succeeding day the time within which the plaintiff had to file.[2]

The Brennan court also noted that permitting filings past certain deadlines is an accepted practice in Connecticut courts. For example, Practice Book § 7-17 provides in relevant part: "If the last day for filing any matter in the clerk's office falls on a day on which such office is not open, then the last day for filing shall be the next business day upon which such office is open." The court read Conn. Gen. Stat. § 13a-149 as providing a claimant to have a full 90 days to file notice, and did not believe the legislature intended for claimants to have fewer than the prescribed 90 days available to them simply because the terminal day coincided with a day when the municipal office was closed.[3]/p>

[1] See Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383, 385 (1917) (when the last day of the period to file an appeal falls upon a holiday, a notice filed on the following day is seasonably filed.); Sommers v. Adelman, 90 Conn. 713, 714 (1916) (where the last day of a period within which an act may be done, which may not be done Sunday, falls upon such day, performance may be made on the following day.)

[2] Lamberti v. Stamford, 131 Conn. 396, 400 (1944) (certainly when the legislature declares a day to be a holiday, it means at least to free public officers from the obligation of keeping open their offices or attending to their duties on that day)

[3] The state defective highway case of Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235 (1947) is distinguishable because there, the claimant mailed notice on the terminal day, which was not received by the Commissioner until the 61 st day. The statute required receipt on the terminal day.)