Opinion
No. CV 04-0834798
January 2, 2008
MEMORANDUM OF DECISION ACTION IN DAMAGES
I STATEMENT OF CASE
This is a premises liability case. The complaint alleges that the plaintiff fell while walking down the common stairways of the defendant's building. The fall was due to the negligence and carelessness of the defendant by failing to properly light and maintain the stairway. The defendant did not provide sufficient lighting and permitted the stairway to become wet and slushy and slippery for use by people using the stairs including the plaintiff. The pro se defendant denies that he was responsible for maintaining the stairway. The case was tried to the Court on December 11, 2007. The defendant failed to appear at trial.
This court is aware of the difficulties faced by pro se parties and is solicitous of their rights. "Although we have construed the rules of practice liberally for pro se litigants, as long as that does not interfere with the rights of other parties, we cannot ignore the statutes and rules of practice." (Citation omitted.) Bella Vista Condominium Ass'n., Inc. v. Byars, 102 Conn.App. 245, fn7, 925 A.2d 365 (2007).
On April 13, 2007, notice was sent to the parties that a court trial was scheduled for December 11, 2007 at 10:00 A.M., providing approximately eight months notice. The notice states in relevant part that: "FAILURE TO APPEAR READY WILL RESULT IN DISMISSAL OR DEFAULT. MOTIONS FOR CONTINUANCE SHALL BE MADE ON FORM JD-CV-21 NOT LESS THAN 3 COURT DAYS IN ADVANCE WILL NOT BE GRANTED ABSENT GOOD CAUSE ALL PARTIES' CONSENT TO A PROXIMAL CONTINUANCE DATE." The defendant filed a continuance request on December 4, 2007. The request was denied by Graham, P.J., and the defendant was so notified. Two days later the plaintiff's attorney filed a continuance request that was also denied by Graham, P.J.
On the morning of trial, the defendant failed to appear on time as he had done for the trial management conference scheduled on December 4, 2007. At the court's request, the plaintiff's attorney attempted to reach the defendant by phone, calling the phone number listed on the defendant's appearance form and a business phone number. The plaintiff was unsuccessful in reaching the defendant. The case was called, and the plaintiff asked the court to go forward with the trial and find the defendant in default. The court granted the plaintiff's request for a default and proceeded with the case.
Practice Book § 17-19, titled "Procedure where Party Fails to Comply with Order of Judicial Authority or to Appear for Trial," provides: " If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority." (Emphasis added.) "[T]he process is two-step for defaults: first, the default; second, the judgment rendered thereon." W. Horton K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (2007 Ed.) § 17-19, authors' comments, p. 794.
II FINDINGS OF FACT
The proven facts demonstrate that on December 27, 2002, the plaintiff slipped and fell while walking down the common inside stairway at 3474 Main Street, Hartford, Connecticut. As a result of the fall, she broke her right ankle.
The plaintiff is twenty-eight years old. At the time of the incident, she was working full-time at Wells Fargo Bank, making approximately $680 per week. She also made $250 per week working part-time at Zales Jewelry Store.
The defendant is the owner of the building located at 3474 Main Street, Hartford, Connecticut. In December 2002, a beauty salon, called Hair's Pumpkin, was renting space in the building. A florist shop also occupied space as well as one or more residential units. The plaintiff saw the defendant at the building on numerous occasions. She went to school with one of his daughters.
On December 27, 2002, in the early afternoon, the plaintiff went to Hair's Pumpkin to get her hair and nails done. The beauty salon was located at the top of a common stairway, which also led to apartments above. The plaintiff had been there on numerous occasions. Her niece came along for the appointment.
It was a cold, gloomy, rainy day. Snow covered the ground. When they arrived, the plaintiff saw the defendant clearing snow near the florist shop. Upon entering the building, the plaintiff noticed that the stairway light was not on. It was hard to see. The light in the stairway was almost always off because the defendant did not want the light left on. The stairway was wood with no mats, treads or carpet. The stairs were wet and slushy from people coming in and out. No one had cleaned the stairs for awhile. The plaintiff walked gingerly up the stairs and entered the beauty salon.
The plaintiff stayed at Hair's Pumpkin for nearly four hours getting her hair and nails done. She left the salon with her niece in tow. It was now late afternoon, and the stairway was even darker. The stairway light was still off. The plaintiff could not turn the light on because the light switch was at the bottom of the stairway. There was no other exit. She started walking down the stairs. After walking down a few stairs, she slipped and fell. She knew right away that she had injured her right ankle. The plaintiff was unable to get up on her own. Employees of the salon rushed to her assistance. The owner of Hair's Pumpkin complained that this was not the first time something like this had happened. She told the plaintiff that the defendant did not maintain the property.
The plaintiff was taken to St. Francis Hospital. After x-rays were taken, it was determined that she had multiple fractures of her ankle. A splint was put in place, rather than a cast, because it was still unclear whether she would need surgery. Over the next several months, the plaintiff followed up at Orthopedic Associates of Hartford, P.C. The doctor determined that surgery was unnecessary. The injury, however, took a long time to heal. It required several different casts and boots. The plaintiff had to use crutches for months. She was not able to walk without a cast or boot until May 2003. Her unreimbursed medical expenses totaled $1,613.94.
As a result of the injury, the plaintiff lost time at work. The injury was very painful, and it was very difficult for her to get around. Her lost wages at Wells Fargo totaled $2,720.00 (4 weeks x $680). The plaintiff lost more time at Zales Jewelry Store because she could not stand on her feet for long periods of time. She did not return to work at Zales Jewelry Store until May 2003. Her lost wages totaled approximately $5,250.00 (21 weeks x $250). Between the unreimbursed medical expenses and the lost wages, the plaintiff suffered total economic damages in the amount of $9,583.94.
The plaintiff's injuries caused her significant pain and suffering. The ankle was very swollen and sore for months. The severe pain persisted for over a year after the fall. Her activities were greatly restricted. She had difficulty getting around with crutches. Although the ankle has improved, it continues to cause her problems. There is still some swelling. She can only wear shoes without heels. Because of the continuing problems with the ankle, the plaintiff is unable to participate in many activities she previously enjoyed, including sports and shopping trips to New York City with her friends. The doctor told her that she may develop arthritis in her ankle as a result of the fall.
III DISCUSSION
The plaintiff claims that she was a business invitee. The standard for deciding premises liability cases involving business invitees was recently reiterated in Kelly v. Stop Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007). "Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers . . .
"If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof . . . When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that [t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it . . . What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case. The nature of the business and the location of the foreign substance would be factors in this determination . . ." (Citations omitted; internal quotation marks omitted.) Id., 776-77.
The threshold issue in this case is whether the defendant had control over the stairway where the injury occurred. If he was responsible for the stairway, then the court must determine whether the defendant breached his duty of reasonable case by failing to properly light and maintain the stairway.
In Perkel v. Grayson, 119 Conn. 465, 177 A. 534 (1935), the Supreme Court discussed the standard applied to premises liability claims to determine whether the owner maintained control over a common area. The trial court had concluded that the defendant landlord was negligent because of failure to provide adequate lighting in a common area. In affirming the trial court, the Supreme Court reasoned that: "When a person is invited to enter upon the premises of another he naturally assumes that they are in a reasonably safe condition for his use, and he enters them in the faith that this is so. This basically just reliance on his part upon the safe condition of the premises necessarily implies a duty upon the landowner or someone else acting in his stead to use reasonable care to keep the premises in a reasonably safe condition . . . If the landowner leases a part of the premises but retains control over the rest, he may be liable to one injured by the defective condition in that portion of them retained by him; and this is the basis of the rule that the owner of an apartment house is under a duty to use reasonable care to keep the common approaches, halls and stairways in such a building in a reasonably safe condition . . . The foundation of the duty which the owner owes is the fact that he has a right of entry and control of the premises . . . while on the other hand no tenant can claim exclusive control of them . . .
"Indeed, the imposition of the duty upon the landlord in such a case is necessary, if a person visiting the premises is to receive the protection to which he is entitled. Measures needed to secure such protection may involve changes in or additions to the premises, and if the making of these were left to the determination of the tenants of a building, they might not be able to agree as to the method which should be used . . . Primarily the duty rests upon the landowner to take the steps necessary to provide the protection to which a visitor to the premises is entitled; and this duty continues to rest upon him unless he has surrendered to another control and possession of the portion of the premises where the accident occurred . . . Unless he has done that, the fact that he has failed to take any steps to inspect the premises or make necessary repairs or alterations is no defense to him. Otherwise his very failure to perform his duty would be the basis for holding that the duty did not exist. Assumption of control of property by another may impose a duty upon him to deal with that property in such a way as not to cause injury to persons visiting it . . . but this principle would not release from liability the person actually having the right of control over the property merely because he failed to exercise it, and left it to another to do those things which should have been done." (Citations omitted.) Id., 468-70.
"[T]ort law principles recognize that a landlord, having retained control of common areas, is responsible for their maintenance and repair because he has a right of entry and control of those areas, while no tenant can claim exclusive control of them." State v. Losacco, 12 Conn.App. 172, 177, 529 A.2d 1348 (1987). As in Perkel, there was no evidence as to the terms of the lease. See Perkel v. Grayson, supra, 119 Conn. 467. Nothing here suggests a lease of the common stairway. The defendant never surrendered control and possession of the common stairway to Hair's Pumpkin. Finally, just like in Perkel, "[t]he defendant had at all times the right to enter to inspect it and to make repairs or alterations necessary to protect those visiting the premises." Id., 470. Therefore, the defendant was legally responsible for maintaining the stairway in a reasonably safe condition.
Contrary to the defendant's claim, the beauty salon was not responsible for maintaining the stairway. "Where an owner leases a part or parts of a building, he ordinarily retains control of such portions as are not within or an integral part of the rented portions. The most usual instance of such a situation is a common approach to different tenements rented to various people . . . all tenants have an interest in the proper maintenance of this part of the building and it would be neither practical nor reasonable to place upon any one of them the responsibility for keeping it in reasonable condition and repair; and such approaches are not ordinarily intended to be appurtenant to any one tenement . . . An owner may also be found to have in fact retained control of parts of a building, apartments in or a portion of which he has rented." (Citations omitted.) Central Coat, Apron Linen v. Idemnity Ins. Co., 136 Conn. 234, 238, 70 A.2d 126 (1949).
Applying the law to the proven facts, the court finds that the defendant is liable to the plaintiff for her injuries. The defendant clearly owed a duty of reasonable care to properly light and maintain the common stairway. The defendant owned, possessed and controlled the premises where the plaintiff allegedly fell. He leased part of the premises to Hair's Pumpkin, but this did not include the common stairway. This stairway was plainly reserved for common use of the employees and invitees of Hair's Pumpkin as well as any residential tenants. It was the proper and only direct means of proceeding to and from the beauty salon. The stairs were being used by the invitees of Hair's Pumpkin with the knowledge and permission of the defendant. The plaintiff was legally on the premises as a business invitee of the defendant's tenant, Hair's Pumpkin. The defendant retained control of common stairway and was responsible for its maintenance and repair.
The defendant breached his duty of reasonable care by failing to keep the common stairway in a reasonably safe condition. He had notice, actual or constructive, of the presence of the specific defects which caused the plaintiff to fall. The inadequate lighting had existed for a sufficient length of time to have afforded the defendant, in the exercise of reasonable care, an opportunity to discover it and either to remedy it or to give warning of its presence. There was no light switch at the top of the stairs. Moreover, the lighting problem was caused, in part, by the defendant's own conduct. He did not want the light left on. The slippery condition of the steps had also existed for a sufficient length of time to have afforded the defendant, in the exercise of reasonable care, an opportunity to discover it and either to remedy it or to give warning of its presence. Although the defendant made efforts to clear the slush in front of the flower shop, he neglected to maintain the inside common stairway. The stairs were not cleared, and there were no mats, treads or carpet. This problem appears to have been commonplace in wintry weather.
The defendant's breach of duty was the proximate cause of the plaintiff's claimed injuries. The injuries would not have occurred were it not for the defendant's negligence. The inadequate lighting and slippery steps were substantial factors in bringing about the plaintiff's injuries.
As a result of the defendant's negligence, the plaintiff suffered injuries and losses. The plaintiff is entitled to an award of fair, just and reasonable damages.
IV CONCLUSION AND ORDER CT Page 85
Based on the evidence presented, the Court finds in favor of the plaintiff and awards fair, just and reasonable compensation as follows:Economic damages $9,583.94;
Non-economic damages $19,416.06.
Accordingly, judgment shall enter for plaintiff in the total amount of $29,000.00