Opinion
No. CV-04-0830623-S
March 14, 2005
MEMORANDUM OF DECISION
Plaintiff, Elizabeth A. Wells, sues the defendant, State of Connecticut, in negligence arising from the plaintiff slipping on goose droppings on the University of Connecticut, West Hartford campus. The claims commissioner has granted her permission to sue the State. The defendant State denies the allegations of negligence and interposes, in essence, the special defense of plaintiff's own contributory negligence.
The facts are as follows: On October 17, 2001, at about 8:30 a.m., the plaintiff, a 62-year-old woman, parked her car in the Trout Brook area parking lot and proceeded on the sidewalks of the West Hartford University of Connecticut campus to the building on Asylum Street that formerly housed the UConn Law School to attend a real estate class. She was accompanied by her companion Grace Jacobs. The plaintiff noticed the sidewalk was well covered with goose droppings and she and her companion tried to pick their way through them. She slipped on these droppings at a point approximately midway between the School of Social Work building and the building housing the former law school. A pond nearby attracted geese which grazed on the campus lawns and regularly walked across the sidewalk, leaving their droppings.
The grounds and maintenance people of the University of Connecticut knew of this condition. They had a program to remediate the situation by brushing the sidewalks regularly on Monday and Wednesday and at other times as often as was needed. The State did not keep records of the sweeping, and on October 17, 2001, which was a Wednesday, defendant's maintenance people could not say the walks were swept.
Plaintiff's expert testified that goose droppings on sidewalks create a hazard to pedestrians. The Court believes that testimony and so finds.
The plaintiff, as a result of the fall, suffered a simple and compound fracture of bones in her left wrist. She underwent an operation resulting in a metal rod being inserted in her wrist. Her left arm was placed in a cast for six weeks. From the date of the accident until early January 2002 she was restricted in doing her housework, lifting heavy objects and even cutting her food. She has a light scar on her left wrist. She incurred medical bills as follows: hospitals bills from St. Francis Hospital in the amount of $3,646.19; Dr. Gabow, $2,999.00; and Health South (physical therapy), $4,130.00. for a total of $10,775.19. She claims to have lost wages of $18,677.00 from her work as a real estate agent. Her orthopedic doctor gave her a 5% permanent partial disability of her wrist. She has a life expectancy of 19.1 years.
To establish negligence in a case of this nature the plaintiff must prove a duty, breach of that duty, causation, and damages. R.K. Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The duty defendant owes to the plaintiff as a business invitee on the campus is "to reasonably inspect and maintain the premises to keep the premises reasonably safe." Morin v. Bell Court Condominium Assoc., Inc., 223 Conn. 323, 327 (1992).
The Court finds that the goose droppings on the sidewalk were a hazard to pedestrians. The defendant knew that 40 to 60 geese frequent the campus in the area near the pond and cause the droppings on the sidewalk where plaintiff fell. Plaintiff slipped on those droppings, and the Court finds that the droppings were a substantial factor in causing her to fall.
The most difficult question is whether or not the defendant breached the duty owed to the plaintiff to exercise reasonable care under all the circumstances. The defendant knew that the condition giving rise to the fall existed for some time. The defendant had a program to sweep the sidewalk regularly on Mondays and Wednesdays at 7:30 a.m. and at other times as needed. No records were kept of the sweepings and no member of the defendant's grounds crew could testify that the sidewalks were swept that morning of October 17, 2001 prior to 8:40 a.m.
There was evidence in the case to the effect that remedial measures can be taken to solve a geese problem. They include puffing a low fence along the sidewalk; frightening the geese with loud noises; frightening the geese with visual methods such as helium balloons or scarecrows; and chasing the geese with free ranging dogs. The defendant's expert testified that none of these were feasible on the West Hartford campus, although, none of them had been tried.
The court's research reveals three cases in which plaintiff fell on animal droppings and in all of them plaintiff did not prevail: Gallagher v. North Hempstead, 535 N.Y.Supp.2d 10 (2d Dept. 1988) (plaintiff playing softball on a public field slipped and fell due to wet conditions and geese droppings; summary judgment for town granted despite the fact that it was a negligence action because there was no duty breached when the plaintiff assumed the risk of playing on a wet field); Carroll v. New Jersey Transit Authority, 841 A.2d 465 (N.J., App. Div., 2004) (plaintiff slipped and fell on dog feces while going down the steps into the subway; because plaintiff could not show that the defendant had actual or constructive notice of the dangerous condition, summary judgment in favor of the defendant was affirmed); Cook v. Burke County, 157 S.E.2d 611 (N.C., 1967) (plaintiff slipped and fell on a misty sidewalk also covered in pigeon droppings; there was no proof that the defendant knew or should have known that the presence of the mixture of substances on the sidewalk would cause the plaintiff to fall and the judgment of nonsuit was properly entered).
In the instant case the court comes to a different conclusion. The court finds that the sidewalks were well covered with goose droppings at 8:40 on October 17, 2001, as testified to by both the plaintiff and her companion, Grace Jacobs. The Court further finds that the extent of the droppings at that time leads the Court to infer that the defendant did not sweep the sidewalk that Wednesday morning as it usually does. As a consequence this Court concludes that the defendant failed to exercise reasonable care to keep the sidewalks reasonably safe on the morning that the plaintiff fell.
The Court also finds, however, based upon the evidence, that the defendant was guilty of contributory negligence. She was aware of the droppings and failed to keep a proper look out and to exercise reasonable caution to avoid her fall. As a consequence, the Court finds her 33% contributorily negligent.
As for damages, the court finds that plaintiff incurred hospital and medical expenses totaling $10,720.19 that were proximately caused by the defendant's negligence. The evidence relating to plaintiff's loss of earnings, is not as clear. The plaintiff testified it took approximately 6 months to realize commissions on sales that she had initiated. As a consequence, her income in the year 2002 would measure her loss of earnings due to the approximately 2-1/2 months she was unable to work from October 2001 until January 2002. Her business income in 2002, determined from her income tax return for that year, was $27,785. One-fourth of that is $6,946. The Court finds that amount represents her lost wages.
Her injury was a serious one; she suffered considerable pain, had a metal rod inserted in her wrist and was unable to carry on life's functions for approximately 2-1/2 months. As indicated she has a life expectancy of 19.1 years.
Based on the foregoing evidence, the Court awards her damages as follows:
Economic Damages Medical Bills $10,720.19 Lost Wages 6,946.00 __________ $17,666.19 Noneconomic Damages $75,000.00 __________ $92,666.19 Less One-third for Contributory negligence ($30,888.73)
Total Damages Due the Plaintiff $61,777.46
This judgment may enter in favor of the plaintiff for $61,777.46, plus, as additional costs an allowance for the testimony of her expert of $462.50.
Robert Satter Judge Trial Referee