Opinion
CV156052882S
03-30-2016
Ramon Garcia v. Ronak Shah
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robin L. Wilson, J.
I
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Ramon Garcia (plaintiff) commenced this action against the defendant, Ronak Shah (defendant) by way of writ, summons and complaint on January 20, 2015. The complaint was returned to court on March 3, 2015. The plaintiff filed a one-count complaint alleging that on March 19, 2013, he was a passenger in a 2004 Dodge Durango that was struck from behind by a vehicle operated by the defendant. The plaintiff alleges that the defendant was negligent and as a result of the defendant's negligence, he suffered injuries and damages. The defendant denies that he was negligent. The case was tried to the court on January 15, 2016. The court ordered the parties to submit proposed findings of fact and briefs on or before January 29, 2016.
II
Standard of Review
" It is well established that in a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of [the witnesses'] testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any [witness'] testimony . . . The trier may accept or reject, in whole or in part, the testimony of [a witness] offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also In re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011).
" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
III
Burden of Proof/Standard of Proof
The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
IV
Negligence
" In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury. See, e.g., Winn v. Posades, 281 Conn. 50, 54-56, 913 A.2d 407 (2007). A defendant's duty and breach of duty is measured by a reasonable care standard, which is 'the care [that] a reasonably prudent person would use under the circumstances.' Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976). After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant's negligence caused the plaintiff's injuries. To do so, the plaintiff first must establish causation in fact, that is, that the injury would not have occurred but for the actor's conduct. See, e.g., Winn v. Posades, supra, at 56, 913 A.2d 407. The plaintiff then must show proximate cause. Id. Proximate cause requires that 'the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries' and that there was 'an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct].' (Internal quotation marks omitted.) Id. Proximate cause does not require the plaintiff to 'remove from the realm of possibility all other potential causes of the accident . . .' Hicks v. State, supra, 287 Conn. at 438, 948 A.2d 982. Instead, the plaintiff must 'establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident.' (Emphasis added.) Id. The more likely than not standard ensures that the 'causal connection . . . [is] based [on] more than conjecture and surmise.' (Internal quotation marks omitted.) Winn v. Posades, supra, at 57, 913 A.2d 407.
" A plaintiff can prove the elements of negligence using either direct or circumstantial evidence. See, e.g., State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984) (" [t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned"). Circumstantial evidence is 'evidence of facts from which the trier is asked to infer the existence of, and, so, to find proven, another fact or [set of] facts.' Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958). Circumstantial evidence 'need not be so conclusive as to exclude every other hypothesis.' Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964). Rather, circumstantial evidence must only '[produce] in the mind of the trier a reasonable belief in the probability of the existence of the material fact.' Id. " Rawls v. Progressive Northern Insurance Co., 310 Conn. 768, 776-78, 83 A.3d 576 (2014). Statutory negligence is the failure to conform one's conduct to a duty imposed by the legislature through the enactment of a statute. Common-law negligence is a violation of the duty to use reasonable care under the circumstances. A violation of either of these duties is negligence. Guglielmo v. Klausner Supply Co., 158 Conn. 308, 318, 259 A.2d 608 (1969).
" Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the [trier of fact] in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant [is] negligent as a matter of law." (Internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 376, 665 A.2d 1341 (1995).
V
Plaintiff's Allegations of Negligence
The plaintiff alleges that on March 19, 2013, he was a passenger in the rear seat of a 2004 Dodge Durango which vehicle was proceeding in a general northerly direction in the right northbound lane of Dixwell Avenue, Hamden, Connecticut. The vehicle in which the plaintiff was a passenger was forced to come to a stop due to the flow of traffic in front of it. The plaintiff alleges that the defendant was the owner and operator of a 2011 Chrysler and was likewise traveling in a general northerly direction in the right northbound lane of Dixwell Avenue to the rear of the plaintiff's vehicle. The plaintiff alleges that as both vehicles were proceeding, the defendant's vehicle struck the rear of the plaintiff's vehicle. The plaintiff has alleged both statutory and common-law negligence. The plaintiff has alleged that he sustained injuries and losses as a result of the accident which was due to the negligence and carelessness of the defendant in one or more of the following ways. In that the defendant followed the vehicle in front of him more closely than reasonable, having due regard to the width, traffic, use of said highway and weather conditions, and/or he operated his vehicle in violation of Connecticut General Statutes § 14-240(a); in that the defendant operated his vehicle at a speed greater than reasonable, having due regard to the width, traffic, use of said highway and weather conditions, and/or he operated his vehicle in violation of Connecticut General Statutes § 14-218a; in that he failed to keep a proper and reasonable lookout for other vehicles upon the highway; in that he failed to sound his horn or give other timely warning of the impending collision; in that he failed to turn or swerve his vehicle, so as to avoid a collision; in that he failed to keep his vehicle under proper and reasonable control; and in that he operated his vehicle with defective or inadequate brakes, and/or he operated his vehicle in violation of Connecticut General Statutes § 14-80a. The plaintiff alleged that as a result of the defendant's negligence he sustained injuries and losses, specifically, a cerebral concussion, post concussion syndrome, headaches, photophobia, dizziness, memory issues, nausea and vomiting and left shoulder pain. The plaintiff also alleged that as a further result of the accident he incurred medical expenses and may in the future incur expenses for medical care. The plaintiff alleged that as a result of the injuries he endured pain and suffering, shock, loss of sleep, and was and is in a nervous condition. The plaintiff alleged that his physical activities and leisure time pursuits were and are impaired, interrupted and/or permanently diminished.
In his answer the defendant denied that he was negligent and claims that the plaintiff has failed to present evidence establishing that he was negligent in causing the accident, or that he was following the vehicle in which the plaintiff was a passenger, too closely in violation of § 14-240(a).
IV
Findings of Fact
The court makes the following findings of fact by a fair preponderance of the evidence.
In the early afternoon on March 19, 2013, the plaintiff was a rear passenger in a 2004 Dodge Durango which vehicle was owned and operated by David Fernandez. On said date and time, the vehicle was proceeding in a general northerly direction in the designated right turn lane of Dixwell Avenue at or near its intersection with the entranceway to Route 15 North in Hamden, Connecticut. The vehicle operated by Fernandez, and in which the plaintiff was a passenger had come to a complete stop for the traffic control light which was red. The defendant was the owner and operator of a 2011 Chrysler Town and Country vehicle and was likewise proceeding in a general northerly direction in the right turn lane of Dixwell Avenue at or near its intersection with the entranceway to Route 15 North, Hamden, Connecticut directly behind the plaintiff's vehicle. The defendant also came to a stop behind the plaintiff's vehicle and was the second car behind the plaintiff's vehicle which was the first car. At some point after coming to a stop at the intersection, the light turned green, and both the plaintiff's vehicle and defendant's vehicle began to proceed. The defendant pressed the gas on his vehicle and accelerated his vehicle forward. At some point after accelerating forward, the defendant struck the rear of the plaintiff's vehicle, which the defendant admitted was at a stop when he hit it. There was nothing obstructing the defendant's view, defendant's brakes were working fine, the defendant's horn was working fine as well. The defendant did not swerve to try to avoid the collision.
The defendant testified that when the light turned green at the intersection, the plaintiff's vehicle proceeded forward and he proceeded forward. The defendant testified that a car turned left in front of the plaintiff's vehicle causing the plaintiff's vehicle to stop abruptly. The court finds that, when the light at the intersection of Dixwell Avenue and the entrance ramp onto Route 15 north, turned green, both the plaintiff's car and the defendant's car proceeded forward. The court further finds that the defendant was proceeding directly behind the plaintiff's car when a car cut in front of the plaintiff's car. The court further finds that the operator of the plaintiff's vehicle was able to stop to avoid colliding with the car that cut in front of it, however, although the defendant attempted to apply his brakes, he was unable to stop and struck the rear of the plaintiff's vehicle. The court further finds, based upon a preponderance of the evidence, that the weather was clear on the day in question and the road was straight. At the time of the accident there was nothing blocking the defendant's view of the plaintiff's vehicle, or the traffic in front of him. The court further finds that the operator the plaintiff's vehicle was able to see the car that turned left in front of him in order to avoid colliding with that car. The defendant testified, and this court finds, that there was nothing obstructing his view in front of him, and in fact he observed the vehicle turn left in front of the plaintiff. The court will make additional findings of fact as necessary.
V
DISCUSSION
A
Liability
The defendant is correct that, " [our Supreme Court] consistently [has] recognized that a collision alone does not create a rebuttable presumption of negligence and causation. See Winn v. Posades, supra, 281 Conn. at 57, 913 A.2d 407 ('[a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part' [internal quotation marks omitted]). Thus, the plaintiff must provide at least 'some evidence' on which [the trier] reasonably could find that the defendant was negligent and his negligence was a proximate cause of the collision. (Internal quotation marks omitted.) Hicks v. State, supra, 287 Conn. at 432, 948 A.2d 982; see Winn v. Posades, supra, at 57, 913 A.2d 407. In addition, in accordance with general negligence principles, the plaintiff must prove that negligence and causation are 'more likely than not . . .' Hicks v. State, supra, at 438, 948 A.2d 982. The plaintiff therefore is under no obligation to show that negligence and causation are the only possibilities, as long as there is sufficient evidence making them more probable than not." Rawls v. Progressive Northern Insurance Co., supra, 310 Conn. 778-79.
As this court previously discussed, " [b]ecause direct and circumstantial evidence are equally probative; see, e.g., State v. Heinz, supra, 193 Conn. at 625, 480 A.2d 452; a plaintiff may prove the elements of negligence circumstantially. For example, a plaintiff may show negligence and causation in a vehicle collision case by presenting evidence of the type of collision, the road conditions, the weather, other features of the surrounding environment, the actions of the drivers of any other vehicles involved, and the extent to which the vehicles involved were damaged. In Ghent v. Stevens, 114 Conn. 415, 159 A. 94 (1932), for instance, the plaintiff successfully established negligence and causation by showing, inter alia, that '[i]t was broad daylight on a clear day [and that] [t]he road was straight, and [that] the driver of the . . . car . . . had a full view of the [other] car and of the traffic ahead . . . Id., at 419, 159 A. 94." Id.
The present case requires this court to apply the foregoing principles to a rear-end collision. This court's review of the totality of the evidence demonstrates that on the date of the accident, it was in the afternoon, the day was clear, the road was straight, and as testified to by the defendant, he had full view of the traffic in front of him. In fact, the defendant had a clear view of the driver who turned left in front of the plaintiff's vehicle. The defendant's brakes were working properly, his horn was working properly and there was nothing blocking or obstructing his view from the traffic in front of him. Indeed, the driver of the plaintiff's vehicle was able to avoid colliding with the driver who made a left turn in front of him. This evidence demonstrates that the defendant did not maintain a proper lookout, had abundant opportunity either to have stopped his car if under reasonable control or to have swerved his vehicle in order to avoid the accident. Accordingly, the defendant as alleged by the plaintiff failed to maintain a proper lookout and failed to maintain his vehicle under reasonable and proper control. Accordingly, the court concludes that the defendant was negligent when he struck the rear of the plaintiff's vehicle.
Relying on Wrinn v. State, 234 Conn. 401, 661 A.2d 1034, the defendant argues that the plaintiff failed to prove that he was following the plaintiff's vehicle too closely in violation of General Statutes § 14-240. In Wrinn, the Supreme Court held that the plaintiff was not entitled to an instruction under § 14-240 prohibiting vehicles from " following" too closely where the accident occurred when the plaintiff's vehicle was stopped at a traffic signal at the end of the highway off-ramp and there was no evidence that two vehicles were simultaneously in motion, one traveling behind the other in the same lane.
In Wrinn, the plaintiff testified that he was stopped at a red traffic light when the car he was in was " hit very hard." The plaintiff commenced a negligence action to recover damages for personal injuries sustained as a result of the accident. " At trial, '[t]he plaintiff filed a written request to charge, in accordance with Practice Book § 318, which included a request as to the applicability of General Statutes § 14-240. The trial court refused to charge the jury on this statute stating, 'one of the considerations in application of the statute involves the speed of such vehicles and ruling, 'there is no evidence that [Tyson] saw the plaintiff's vehicle at any time while it was moving or other than in a stopped condition at the light.' . . ." The jury returned a verdict in favor of the defendant and the plaintiff appealed the trial court's ruling refusing to charge on § 14-240. The Appellate Court affirmed the trial court and the Supreme Court affirmed the Appellate Court. In affirming the Appellate Court, the Supreme Court concluded that . . . " resolution of the plaintiff's claim hinges on the meaning of § 14-240. Section 14-240(a) provides in relevant part: 'No driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent' . . . Neither our statutes nor our case law have defined the phrase 'follow another vehicle more closely than is reasonable and prudent.'" Wrinn v. State, supra, 234 Conn. at 404-05. The plaintiff argued that the phrase following too closely should be interpreted broadly to mean 'going or coming after.' The Supreme Court disagreed and interpreted the word " follow" in that language to mean " 'to move behind in the same path or direction.' Webster's New International Dictionary (2d Ed. 1941). More specifically, in the context of a motor vehicle statute, the term 'follow' implies movement of two vehicles: a leader and a follower. Thus, § 14-240, read in light of the plain meaning of the word 'follow, ' requires that in order to prove a violation, the plaintiff must show that: (1) the rear vehicle 'followed' the front vehicle; and (2) the distance between the vehicles was closer than is reasonable and prudent under the circumstances. Accordingly, we agree with the Appellate Court's conclusion that '§ 14-240 is applicable to situations in which one motor vehicle is [traveling] behind another in the same lane of traffic, and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicles, and that failure had a causal connection to a resulting collision.' (Emphasis added.) Wrinn v. State, supra, 35 Conn.App. at 473, 646 A.2d 869." Wrinn, supra, 234 Conn. 406.
Here, the evidence demonstrates that the defendant's car was in the same travel lane, traveling in a northerly direction, directly behind the plaintiff's vehicle which was also traveling in a northerly direction, and that both vehicles were stopped at the traffic light. The evidence further demonstrates that when the light turned green, both the defendant's vehicle and the plaintiff's vehicle proceeded, with the defendant traveling behind the plaintiff's vehicle in the same lane. Thus, this court finds that the defendant was following the plaintiff's vehicle just before the impact. It was when the car turned left in front of the plaintiff's vehicle that the plaintiff's vehicle stopped abruptly, and the defendant, who was proceeding behind the plaintiff, then struck the rear of the plaintiff's vehicle. Although there is no direct evidence of the distance between the two vehicles, this court can reasonably infer that because the road was straight, the weather was clear, and the defendant's view ahead of him was not obstructed, had the defendant been proceeding behind the plaintiff's vehicle within a reasonably prudent distance, he would have been able to avoid the accident. Accordingly, this court concludes that there is enough evidence to find that the defendant was traveling too closely in violation of § 14-240(a), and therefore negligent as a matter of law.
B
Damages
" 'It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.' (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). 'In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed.' (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).
" 'The amount of a damage award is a matter peculiarly within the province of the trier of fact . . .' (Internal quotation marks omitted.) Cheryl Terry Enters. v. City of Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). '[A trial] court's finding as to the amount of damages [will not be disturbed] unless it appears that the court unreasonably exercised the large discretion necessarily vested in it and awarded damages so excessive as to be unreasonable and to amount to an injustice.' (Internal quotation marks omitted.) Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 635, 548 A.2d 758 (1988)." Reyes v. Chetta, 143 Conn.App. 758, 766, 71 A.3d 1255 (2013).
The impact to the rear of the vehicle caused the plaintiff to be propelled forward causing his left forearm, wrist, and head to strike the rear of the seat in front of him. The plaintiff described the force of the impact as being " hit pretty hard" such that, even with his seatbelt fastened the force of the impact propelled him forward. While at the accident scene, the plaintiff began to feel nauseous and vomited. The plaintiff continued to feel nauseous and vomited a second time in the hours immediately after the accident. The plaintiff also began to experience a headache and neck and left wrist pain. According to the medical records, the plaintiff presented to Yale New Haven Hospital (YNHH) approximately five hours after the accident. At this time, the plaintiff complained of progressive neck pain. The plaintiff described the pain as moderate and constant.
Due to continued complaints of headaches, photophobia (sensitivity to light) and neck pain, the plaintiff presented and was evaluated by Mindi Steinhardt, M.D. Dr. Steinhardt initially evaluated the plaintiff on April 2, 2013, at which time the plaintiff presented with persistent and worsening left frontal-parietal headache, nausea, left eye tearing, and feelings of dizziness. The plaintiff also complained of persistent left sided neck/upper shoulder pain. Dr. Steinhardt diagnosed the plaintiff with a concussion, post traumatic headache and musculoligamentous sprain/strain injury to the cervical spine. Dr. Steinhardt opined that the " injuries sustained are directly and causally related to the March 19, 2013 motor vehicle accident." Pl. Ex. 10.
Dr. Steinhardt recommended a CT Scan of the head to rule out any intracranial pathology. She felt that the risk was small, but she was concerned in light of the worsening of the plaintiff's headaches. She also referred the plaintiff to Dr. James Sabshin, a neurosurgeon for a neurological consult. She recommended physical therapy once cleared by Sabshin. She also recommended that the plaintiff continue on ibuprofen as directed by YNHH ER.
Dr. Sabshin initially evaluated the plaintiff on May 29, 2013, at which time the plaintiff presented with continuing generalized headaches, some photophobia and some pain in the cervical region which was worse on the left than the right. Dr. Sabshin noted that the plaintiff had a CT scan of the brain on April 5, 2013, which was normal. He also had a CT scan of the cervical spine which showed some absence of the left-sided lamina of the C1 arch without evidence of compression and neurological issues. He noted that this was read as being a normal congenital variant versus prior surgery which he had not had. The plaintiff reported some mild photophobia and issues with short-term memory loss at times. Dr. Sabshin's diagnosis was " [m]otor vehicle accident on March 19, 2013 with a cerebral concussion and post-concussion syndrome, as well as cervical sprain or strain type syndrome with musculoligamentous injury." Pl. Ex. 13. Dr. Sabshin recommended continuing physical therapy. He also noted that he " had a long discussion with [the plaintiff] in terms of post-concussion syndrome which, [the plaintiff] suffers from." Id. He also noted that the plaintiff had some lightheadedness with straining to have a bowel movement. He cautioned the plaintiff not to strain and to try to drink plenty of liquids or use a stool softener and to talk to Dr. Steinhardt if it persists. Dr. Sabshin opined that this (lightheadedness) was most probably related to his head injury.
After his visit with Dr. Sabshin, the plaintiff returned to Dr. Steinhardt on July 11, 2013. The plaintiff was still complaining of headaches and lightheadedness. Upon examination of the cervical spine, Dr. Steinhardt noted a decrease range of motion, but there was improvement since the plaintiff's last visit. She noted that the plaintiff had no complaints of the left wrist. Dr. Steinhardt's diagnoses were the same: concussion, post traumatic headache and musculoligamentous sprain/strain cervical injury status post the March 19, 2013 car accident. She recommended physical therapy for the plaintiff's neck, which she thought would in turn also help his headaches.
The plaintiff next saw Dr. Sabshin on September 12, 2013. At this time the plaintiff was complaining about memory loss issues which was impacting his normal work activities, as well as normal home life, including sexual activity and emotions. Dr. Sabshin's diagnoses were the same: motor vehicle accident on March 19, 2013, with cerebral concussion, post concussion syndrome, as well as cervical sprain/strain type syndrome with musculoligamentous injury. Dr. Sabshin cautioned the plaintiff that head injuries such as the plaintiff's could take up to a year or so to show significant improvement, and that hopefully, given the plaintiff's age and health, he would show improvement over time. Dr. Sabshin recommended an MRI scan of the plaintiff's brain.
The plaintiff next saw Dr. Sabshin on October 28, 2013, at which time the plaintiff was continuing to have severe headaches which were affecting the left side of his face. Dr. Sabshin noted that the MRI was normal with no significant abnormalities. He was concerned with the plaintiff's continuing headaches and referred him back to Dr. Steinhardt since there was no need for further evaluation by him.
The plaintiff saw Dr. Steinhardt on January 31, 2014, at which time he presented with persistent headaches with episodes of feeling faint. Dr. Steinhardt noted that the plaintiff was engaged in physical therapy for a while but felt no improvement in his left sided posterior neck pain and stiffness. She also noted that the plaintiff felt that he did not obtain much benefit from physical therapy, but he also admitted that he did not attend as many sessions as he should have due to transportation issues. She referred the plaintiff for chiropractic treatment.
The plaintiff next saw Dr. Sabshin on February 26, 2014. He noted that the plaintiff finished physical therapy, however the plaintiff was still having considerable cervical pain at times, with limitation in terms of range of motion. He noted that the plaintiff's biggest problem was memory loss, and that he could not evaluate the plaintiff in terms of memory loss without neuropsychological testing. Dr. Sabshin's diagnoses at this time were " [m]otor vehicle accident of March 19, 2013, with brain concussion and post concussion syndrome, with continuing difficulty particularly with memory, as well as cervical sprain or strain-type syndrome with possible musculoligamentous injury and continuing limitations in terms of range of motion. Dr. Sabshin felt that, in terms of the cervical spine, the plaintiff had reached maximum medical improvement and has a 5% permanent partial disability of his cervical spine as a result of the accident. He noted at that time, the plaintiff continued to have limitation in terms of range of motion and continuing pain. In order to fully evaluate the plaintiff's memory loss, Dr. Sabshin felt that neuropsychological testing was required. It is clear from Dr. Sabshin's February 26, 2014 evaluation of the plaintiff, he diagnosed the plaintiff as having memory difficulty as a result of the accident, however he could not evaluate the extent of that memory difficulty without the necessary neuropsychological testing.
The plaintiff's life expectancy based on the life tables is 42.5 years. With respect to limitations, the plaintiff's neck continues to bother him and affects his ability to get comfortable, to get a good night sleep and to perform recreational activities such as going to the gym fitness club as he did prior to the March 13, 2013 accident. Although the plaintiff testified that he continues to experience short-term memory loss which affects his work and his ability to function in every day society, Dr. Sabshin could not fully address the memory loss without neuropsychological testing.
Accordingly, this court finds that, on March 19, 2013, the defendant, Ronak Shah was negligent when he struck the vehicle in which the plaintiff was a passenger. The court therefore finds in favor of the plaintiff as to liability. The court further finds that as result of the defendant's negligence, the plaintiff suffered injuries and losses.
The defendant argues that the plaintiff failed to mitigate his damages because the plaintiff did not go to the hospital for over five hours after the accident, he missed many physical therapy visits, and his physical therapy records noted that his missed appointments hindered his progress. The defendant argues that the plaintiff failed to follow up with Dr. Gottiparthy, his primary care physician, or Dr. Reich as instructed by Dr. Steinhardt and failed to follow up with an ophthalmologist as instructed. The defendant further argues that the plaintiff failed to mitigate his damages because he never underwent the neuropsychological testing recommended by Dr. Sabshin to evaluate the extent of his memory loss, and he failed to tell Dr. Sabshin and Dr. Steinhardt that he was involved in a prior motor vehicle accident with many of the same initial symptoms including neck pain and dizziness. The defendant therefore argues that the plaintiff's damages should be reduced for failure to mitigate.
" The burden of proving that the injured party could have avoided some or all of his or her damages universally rests on the party accused of the tortious act . . .
" The rationale for this rule is well established. A defendant claiming that the plaintiff has failed to mitigate damages seeks to be benefitted by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant.
" To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty.
" The defendant argues that placing the burden of persuasion on the issue of mitigation upon the defendant in a negligence action will result in a 'trial within a trial' by forcing the defendant to call expert witnesses in order to satisfy the burden of persuasion. Although it would certainly seem advisable for a defendant raising a claim that the plaintiff failed to mitigate damages to present his own witnesses on this issue; we do not believe that a defendant could never satisfy his burden of persuasion solely through the cross examination of the plaintiff and the plaintiff's witnesses. Furthermore, requiring the defendant to prove that a plaintiff has failed to mitigate damages places no greater a burden on the judicial system than does General Statutes § 52-114 which requires a defendant pleading contributory negligence to bear the burden of persuasion on this issue." Preston v. Keith, 217 Conn. 12, 21-23, 584 A.2d 439 (1991).
General Statutes § 52-114 provides in pertinent part: " If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants."
The evidence does reveal that the plaintiff missed many of his physical therapy appointments. The evidence also reveals that the plaintiff did not seek medical treatment until approximately five hours after the accident. The plaintiff did not follow up with Dr. Gottiparthy, or Dr. Reich as instructed by Dr. Steinhardt. The plaintiff also failed to follow up with an ophthalmologist. The evidence also reveals that the plaintiff did not undergo the neuropsychological testing recommended to evaluate the extent of his head injury and memory loss, and he did not tell Dr. Sabshin and Dr. Steinhardt that he was involved in a prior motor vehicle accident. However, the defendant failed to meet his burden of establishing that the plaintiff failed to mitigate his damages. The defendant failed to produce any evidence to show that the damages were in fact enhanced by such failure; and that the damages which could have been avoided could be measured with reasonable certainty. It is clear from Drs. Steinhardt and Sabshin's reports, that as a result of the March 19, 2013 motor vehicle accident, the plaintiff sustained a concussion which resulted in post concussion headaches and some memory loss, as well as a cervical sprain that resulted in a 5% permanent impairment to the cervical spine. What remains unclear is the extent of the plaintiff's memory loss and as such, this court cannot conclude that the memory loss is permanent. As previously noted, the defendant has not produced any evidence that plaintiff's failure to follow up with certain medical treatment and appointments and his failure to disclose his prior accident to Drs. Steinhardt and Sabshin, resulted in enhanced damages. Accordingly, the court will not reduce its damages award for failure to mitigate.
A
Past Economic Damages
The plaintiff has proven by a fair preponderance of the evidence the following past economic damages for medical expenses incurred as a result of the accident:
Yale New Haven Hospital: $1,022.00
Yale Medical Group: $225.00
Omni Physical Aquatic Therapy Center: $3,765.00
(Dr. Steinhardt and Physical Therapy)
Omni Physical Aquatic Therapy Center: $1,250.00
(Dr. Sabshin)
Advance Radiology Consultants: $2,314.00
Branford Open MRI and Diagnostic Imaging Services: $1,500.00
In this case, the plaintiff has met his burden of proving total past economic damages for medical expenses incurred as a result of the injuries in the amount of $10,076.00.
B
Non-economic Damages
The plaintiff has proven total non-economic damages for pain and suffering, permanent disability, loss of the ability to enjoy life's activities related to the injuries at issue in the amount of $25,000.
VI
Findings of Liability and Damages
For the foregoing reasons, the court hereby finds the issues of liability and damages in favor of the plaintiff on the complaint with total damages awarded in the amount of $35,076.
VII
CONCLUSION
WHEREFORE, a damage award shall enter in favor of the plaintiff on his complaint in the total amount of $35,076 plus taxable costs as against the defendant Ronak Shah.