Opinion
KNLCV186036826S
01-15-2020
Marie Fain v. Bethany Benak et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Knox, Kimberly Ann, J.
MEMORANDUM OF DECISION
Knox, J.
A court trial was held in this action in which the plaintiff, Marie Fain, claims injuries and damages arising as a result of a motor vehicle collision occurring on June 5, 2017. The defendant, State of Connecticut, owned and insured the motor vehicle which collided with the plaintiff’s vehicle. At the time and place, Bethany Benak was the operator of the state vehicle and was assigned the State vehicle.
In the operative complaint, the plaintiff alleges she was operating her motor vehicle on June 5, 2017 at 8:00 a.m., in Flanders, Connecticut in a southerly direction on a public road (Amended Compl. #117). She alleges that Bethany Benak, while in the course of her employment, was operating a vehicle owned by the defendant, State of Connecticut, and driving in a northerly direction approaching the plaintiff’s vehicle. The plaintiff claims that Benak suddenly and without warning swerved the vehicle she was operating into the southbound lane striking the plaintiff’s vehicle and causing it to spin into the northbound lane where it collided with another vehicle operated by a non-party. The plaintiff claims injuries and damages caused by the negligence of Benak in operating the vehicle owned and insured by the defendant State, as more fully set forth in the operative complaint. Further, she claims the State is liable pursuant to General Statutes § 52-556.
The defendant filed an answer (#110). The State admits that Bethany Benak was operating a vehicle owned and insured by the defendant State of Connecticut, and with its full permission and consent, while in the course of her employment, she was operating the vehicle in a northerly direction on the public highway.
The case was tried on December 12 and 13, 2019. During the trial, the plaintiff testified about the collision, her injuries, treatment and the impact of her injuries on her life. The plaintiff also called Bill Leffingwell, the plaintiff’s husband, who testified about the nature and extent of her injuries, her recovery and the impact of her injuries on her day-to-day life. Finally, the plaintiff introduced a number of exhibits, including medical records and bills for treatment of her injuries. The parties stipulated to the admission of a summary of medical expenses. The defendant offered the testimony of Bethany Benak, Officer Larry Watson, who responded to the motor vehicle accident, and introduced exhibits.
Discussion
The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of the cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop Cos., Inc., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties ..." (Internal quotation marks omitted). Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
I. Findings
On June 5, 2017, the plaintiff was operating her vehicle in a southerly direction on Flanders Road, in the town of East Lyme. Flanders Road is a two-lane public highway. The plaintiff was traveling in her lane of traffic and at the posted speed limit of 35 mph. She was traveling on a public highway that she was familiar with as it was part of her regular work commute for many years as a school teacher. The vehicle operated by Benak was approaching the plaintiff’s vehicle from the opposite travel lane when it suddenly and without warning struck the plaintiff’s vehicle. As a result of the impact, the plaintiff’s vehicle was caused to spin and enter the northbound lane where it collided with another (non-party) vehicle before coming to a stop at a stone wall. The court finds credible the plaintiff’s testimony that the State vehicle when it was approaching the plaintiff’s vehicle crossed the center line and failed to slow down.
The State offered the testimony of Benak who testified that she was operating an assigned State vehicle as part of her employment. She testified that she did not know her speed at the time of the impact. She testified that prior to the impact, she heard a pop-like sound and experienced the car pull to the right. She did not know her speed at the time, whether she applied her brakes, how far she was from the plaintiff’s vehicle. Officer Watson responded to the incident. He testified that he observed a tear in the front left tire side wall, and it "appeared to have blown out." The court finds that there was a tear in a tire on the State vehicle.
The defendant denies that Benak was negligent based on the "unavoidable accident" doctrine. In Shea v. Tousiangant, 172 Conn. 54 (1976), the Court held that liability cannot be imposed on the operator of a vehicle who has a sudden medical emergency resulting in the loss of control of the vehicle. See also, Smith v. Czescel, 112 Conn.App. 558 (1987). The court rejects the application of the "unavoidable accident" doctrine for the following reasons. First, there is no claim that Benak experienced a sudden medical emergency which prevented her to maintain control of the vehicle. This court will not by analogy extend the doctrine to a mechanical issue with the vehicle.
Second, and more significantly, the court finds that the plaintiff has sustained her burden of proof that the driver of the State vehicle negligently operated her vehicle and caused the collision with the plaintiff’s vehicle in one or more of the ways set forth in the operative complaint.
The plaintiff was transported by ambulance from the accident to the hospital, where she commenced treatment for injuries. The court finds the plaintiff suffered injuries caused by negligence of the driver of the State vehicle, including the following: a fractured right hip, contusions to the right knee, kidney bruising/renal contusion, and a fractured left arm.
The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the negligence of the driver of the State vehicle. The plaintiff’s medical bills are in the total sum of $59,669.05. The court finds these expenses to be reasonably necessary and proximately caused by the negligence of the driver of the State vehicle.
The plaintiff further lost time from her employment as a school teacher, summer tutoring, and scheduled summer curriculum work in the sum of $23,289.00. The plaintiff was employed as a teacher by the Niantic Board of Education since 1994, working primarily as an elementary school teacher. The court finds the loss of income to be proximately caused by the negligence of the driver of the State vehicle.
The plaintiff, who was wheelchair bound for a period of time as a direct result of her injuries incurred in the collision, incurred expenses for modification of her home to accommodate her wheelchair. The court finds the construction of a ramp for ingress and egress from her family home, which cost $1,909.28, was reasonably necessary and proximately caused by the negligence of the driver of the State vehicle. While the court finds that it is reasonably probable that the plaintiff will incur future economic damages for the removal of hardware from her left arm and will undergo future physical therapy, the court finds insufficient evidence upon which to determine future medical expenses.
As previously noted, the plaintiff suffered a fractured hip, kidney bruising/renal contusion, and a fractured left arm. The fracture of her hip required stabilization and no weight bearing for at least two months. The fractured arm required a surgical open reduction including internal fixation of screws and a plate and an external cast. In addition, the evidence clearly demonstrates that the plaintiff suffered multiple contusions, including to the knees and chest, and a lumbar sprain. Each of these injuries caused the plaintiff to suffer pain and discomfort for many months and some continue to this date.
The plaintiff was in the hospital for four days during which she underwent surgical intervention for the treatment of her fractured arm. After her hospitalization, she was released to a rehabilitative center where she treated for approximately two weeks. At this time, the plaintiff was unable to use the bathroom or perform personal hygiene unattended. After her release from rehabilitation during the summer of 2017, the plaintiff remained confined to a bed and wheelchair as a result of the hip fracture and the no weight-bearing recovery process. For nearly two months, the plaintiff was not able to perform basic tasks of personal grooming and use of the bathroom unattended due to the fact that her right hip, which required no weight bearing, and her left arm, which was in a cast, were both fractured. The plaintiff spent these months engaged in rehabilitation, occupational and physical therapy. She had a visiting nurse attending her at home. The left arm fracture required the use of a bone stimulator to address the delayed union of the fracture. During this time, she continued to suffer from right lateral knee pain from the injuries she sustained. The court finds that the plaintiff suffered significant pain and discomfort as a result of her injuries.
The plaintiff’s treating orthopedic doctor, Dr. Gaggione opined with reasonable medical certainty that the plaintiff sustained permanent partial injuries resulting from the accident, namely that the plaintiff has a 7% impairment of the lower extremity due to the hip fracture, and a 3% impairment of her upper extremity due to the left arm fracture. The plaintiff credibly testified that her arm has limited motion, and is painful moving upwards and downwards. In addition, she has a scar on her arm from the surgery. The plaintiff has a life expectancy of 37 years.
As a result of her injuries, the plaintiff was unable to engage in the many daily activities, including, but not limited to, summertime activities with her children, gardening, cooking meals for her family, daily regimen of walking, hiking, attending her youngest son’s sporting events, and her enjoyment of the general day-to-day activities of parenting and managing a family household. She also had to cancel her planned family trip. The plaintiff struggled to manage her own needs, and was unable to contribute to the family and household needs during her recovery.
The plaintiff credibly testified that she continues to suffer from her injuries such as experiencing regular pain, particularly with her arm and hip, and her discomfort affects her sleep. She is unable to carry or hold items with her left arm. She experiences pain and discomfort in her hip during long car rides and walking.
While the plaintiff returned to work in December 2017, she was limited in her activities and abilities and initially suffered fatigue. The plaintiff, however, maintained a positive attitude during the course of her treatment and recovery. She was eager to resume her life activities and work, which she did as soon as she was able to do so.
II. Award of Damages
Based upon the credible evidence presented at trial, the court awards economic damages in the amount of $84,867.33. The court awards noneconomic damages in the amount of $260,000 for a total award of $344,867.33.
Judgment
Wherefore the court enters judgment in favor of the plaintiff, Marie Fain, and against the defendant, State of Connecticut, in the amount of $344,867.33.