Opinion
No. HHB CV040526141 S
January 30, 2006
MEMORANDUM OF DECISION
The plaintiff has brought a negligence action claiming the defendant struck her with his automobile while she was crossing as a pedestrian at an intersection and that she suffered injuries as a result of the accident. The defendant contests liability and has raised a special defense alleging the plaintiff's own actions were the proximate cause of her injuries. By agreement of the parties, on November 14, 2005 the matter was tried to the court sitting as an arbitrator with its decision to be binding upon the parties. The parties further stipulated to a waiver of their right to appeal any decision.
I. FACTS
On July 12, 2003, the plaintiff was "powerwalking" along South End Rd. near its intersection with Savage St. in Southington, Connecticut. Upon reaching the intersection, the plaintiff attempted to cross South End Rd. to reach the other side of the roadway. The intersection itself can best be described as a "T" intersection with Savage St. reaching its terminus at South End Rd. There is no traffic control device at the intersection except for a stop sign on Savage St. for traffic that intends to enter South End Rd. There are no crosswalk markings although there are sidewalk "curb cutouts" for pedestrians wishing to cross South End Rd. It was at this location that the plaintiff attempted to cross the roadway. At that time the defendant was positioned at the stop sign on Savage Rd. with the intention of turning left onto South End Rd. Because of the amount of traffic, both parties had to wait for a period of time before they could move forward.
Upon a break in the traffic, the plaintiff began to "powerwalk" across South End Road to go to the other side. Shortly thereafter, the defendant began his left turn into the intersection. At a point where the plaintiff had not yet reached the yellow center line of the roadway, she noticed the defendant's vehicle had begun turning into the intersection. Almost immediately, the plaintiff and defendant saw one another and both came to a complete stop. Having made eye contact with the defendant, the plaintiff then checked the traffic to her right to ensure her safety (looking away from the defendant) with the intention of continuing on across the roadway. She then began to walk again and almost immediately was struck by the defendant's vehicle. The plaintiff was pushed to the ground, fracturing her left tibia.
Plaintiff presented testimony and exhibits establishing her medical expenses to be $4,490.61. She had no lost wages as she was not employed at the time of the accident. She did suffer a permanent partial disability of the left lower extremity. Her treating physician assessed a 25% disability while an independent medical examination conducted by the defendant found a 12% disability. Following the accident the plaintiff was required to wear a knee immobilizer for approximately two months and had physical therapy treatments for approximately four months. There was a conflict of opinion as to whether the plaintiff would require knee replacement surgery in the future. Up until the accident, the plaintiff had been physically active often engaging in hikes, walks and other exercises.
II. STATEMENT OF LAW
For the plaintiff to prevail on her claim, she "has the burden of proving by a fair preponderance of the evidence that the defendant was in fact negligent." Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 294, 786 A.2d 1214 (2001). "To prove comparative negligence, the defendant must also prove by a fair preponderance of the evidence that the plaintiff was in fact negligent." Id. See also Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). "In order to satisfy the burden of proof on the essential element of negligence by a fair preponderance of the evidence, the credible evidence presented must induce `in the mind of the trier a reasonable belief that it was more probable than otherwise that the facts involved in that element were true.' Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968); C. Tait, Tait's Handbook of Connecticut Evidence (3d Ed. 2001), § 3.5.1, p. 140." Grinberg v. Wham, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0084038 (July 27, 2005, Lager, J.)
The defendant alleges as a special defense that the plaintiff's own negligence caused her injuries in that she failed to be watchful, keep a proper lookout, use reasonable care, make proper use of her faculties, and to take proper precautions. The defendant also alleges the plaintiff was negligent in that she violated General Statute § 14-300c(b) by suddenly leaving a curb or sidewalk and walking into the path of a vehicle which was so close to the plaintiff as to constitute an immediate hazard to herself.
Our common law addresses the duty placed upon both motor vehicle operators and the duty of pedestrians when at a crosswalk or upon a roadway. Generally, an operator of a motor vehicle is bound to exercise a higher degree of care to a pedestrian on a crosswalk than elsewhere, due to the fact that he should anticipate the pedestrian's presence there. And, conversely, if a pedestrian is crossing not at a regular crossing, she must exercise a higher degree of care than when crossing at a regular crossing. See Caschetto v. Silliman Godrey Co., Inc., 126 Conn. 22, 9 A.2d 286 (1939); Peterson v. Meehan, 116 Conn. 150, 163 A. 757 (1933). But in both situations, "[t]he same general rule applies to plaintiff and defendant alike at all times, that each must exercise reasonable care commensurate to the danger involved, each party anticipating the exercise by the other of his legal rights on the highway." (Internal quotation marks omitted.) Caschetto v. Sillman Godfrey Co., Inc., 126 Conn. 25 (1939).
While drivers are not held to as high a degree of care to anticipate the presence of pedestrians at other places as they are at regular crossings, because of the fact that people do not usually cross at those places, this does not mean that a driver has no duty to anticipate the presence of pedestrians at other than regular crosswalks. Schupp v. Grill, 27 Conn.App. 513 (1992). That the pedestrian is not at a regular crossing is one of the circumstances affecting the degree of care required of the driver, but it by no means absolves him of all duty to anticipate the possible presence of a pedestrian at such a place. Again, the same general rule applies to a pedestrian and driver alike at all times — that each must exercise reasonable care, which means care commensurate to the danger involved. Schupp v. Grill, 27 Conn.App. 513, 519.
Pedestrians do have a general duty to exercise reasonable care. CT Page 2069 Id., at 518. The duty of a person crossing a highway is in general to use reasonable care to guard herself from injury. That is, she should use the care which an ordinarily prudent person would use under the circumstances. She must use such care to watch out for oncoming traffic that is likely to endanger her. When one is already in the roadway and a motor vehicle approaches, a pedestrian must use reasonable care under the circumstances to avoid injury by in some way getting out of the path of the oncoming vehicle.
Under our law, a driver of an automobile is entitled to assume that other drivers and pedestrians will obey the law. Likewise, a pedestrian is entitled to assume that other drivers or pedestrians will obey the law. Thus, both a driver and pedestrian may assume that the other drivers and/or pedestrians will obey all statutes governing the use of highways and/or roadways and that they will use the care that a reasonably prudent person would use in the same circumstances. Turbert v. Mather Motors, Inc., 165 Conn. 422, 429 (1973).
III. DISCUSSION
After reviewing the testimony and exhibits of the parties, the court finds the plaintiff to have met her burden of proof relative to her claim. The defendant has failed to meet his burden of proof relative to his special defense. It is the opinion of the court that the plaintiff proceeded into the intersection with an amount of caution commensurate with that which an ordinarily prudent person would exercise given the circumstances then and there existing. She proceeded into the intersection, and then again, after both she and the defendant had come to a full stop in the middle of the roadway, with sufficient care and caution to meet the general duty of pedestrians when entering or being upon a roadway.
The court finds that the defendant was negligent in the operation of his motor vehicle and that such negligence was the proximate cause of the plaintiff's injuries.
As to damages, the court finds the plaintiff's medical expenses to be $4,490.61 which included, but were not limited to, emergency room care, medical transport costs, physician visits, x-rays and physical therapy treatments. There was no dispute that she suffered a permanent partial disability of the left lower extremity. The percentage of disability was between 12% and 25%. There was conflicting evidence as to whether knee replacement surgery would be required in the future. Prior to the accident, the plaintiff had been an energetic, physically active individual. The testimony proved the limitations upon her physical activities following the accident were significant. She suffered significant pain and discomfort at the time of the injury and during her period of physical rehabilitation. She continues to periodically have pain and discomfort. At trial, her life expectancy was established to be 43.5 years.
IV. CONCLUSION
The defendant having failed to carry the burden of proof on his special defense, judgment shall enter for the plaintiff on the complaint. Damages in the amount of $57,500.00 are awarded to the plaintiff.