Opinion
HHBCV176039435S
05-21-2019
Rena M. Natale v. Wal-Mart Stores East, LP et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Moore, John D., J.
MEMORANDUM OF DECISION
Hon. John D. Moore, Judge
I. Introduction
The plaintiff, Rena Natale, sued the defendants, Wal-Mart Stores East, LP (Wal-Mart) and Daniella Kunicki, claiming that she was injured by a motorized shopping cart operated by Kunicki in a Wal-Mart store in Cromwell. The operative complaint is the amended complaint of March 21, 2019. Wal-Mart denied all of the material allegations of the operative complaint. Kunicki admitted that she struck the plaintiff from behind while the plaintiff was standing in a check-out line. Kunicki further admitted that she was negligent in failing to keep her motorized cart under proper and reasonable control. However, Kunicki did not admit the nature and extent of the plaintiff’s damages and did not admit proximate causation of any damages.
This court presided over a trial to the court on April 2, 3, 10 and 11. For the reasons set forth below, the court finds in favor of the plaintiff against Kunicki and in favor of Wal-Mart against the plaintiff. The following memorandum of decision shall constitute the court’s findings of fact and conclusions of law.
II. Pleadings
An issue arose during the trial as to how the plaintiff’s allegations against Wal-Mart should be construed. The "interpretation of pleadings is always a question of law for the court ..." (Internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002). Bearing that in mind, the court construes the operative pleading as follows.
As against Wal-Mart, the plaintiff alleged traditional premises liability, mode of operation and negligent entrustment of the motorized cart. To the extent that the plaintiff sought to allege general negligence against Wal-Mart based upon some claim of inherently foreseeable risk of allowing motorized carts to operate near pedestrians in the same store, the court construes this and similar allegations as claims that Wal-Mart actively created an allegedly dangerous condition itself, and, as a result, had actual knowledge of it. There are no allegations of product liability concerning the motorized cart.
The allegations against Kunicki sound in negligence. As Kunicki has admitted negligence, the trial constituted a hearing in damages insofar as Kunicki was concerned.
III. Credibility
As previously mentioned, this case was tried to the court. "It is well established that [i]n 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." (Internal quotation marks omitted.) Blasco v. Commercial Linens, LLC, 133 Conn.App. 706, 709, 36 A.3d 737 (2012). The role of the trier of fact is to assess the credibility of the witnesses on the basis of its firsthand observation of the witnesses’ conduct, demeanor and attitude. Cohen v. Roll-A-Cover, LLC, 131 Conn.App. 443, 450, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011). Moreover, the court "is entitled to draw all fair and reasonable inferences from the facts and circumstances [that] it finds established by the evidence, which consist both of what was said, and what naturally would have been [said]." (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 636, 847 A.2d 883 (2004). The court may consider whether the witness has any interest in the outcome of the trial, as well as a witness’s opportunity and ability to observe facts correctly and to remember them truly and accurately. Benjamin v. Norwalk, 170 Conn.App. 1, 26, 153 A.3d 669 (2016). The court may also test the evidence each witness gives it by the court’s own knowledge of human nature and the motives that influence and control human actions. State v. Cooper, 182 Conn. 207, 214, 438 A.2d 418 (1980). The court may further consider the consistency or inconsistency of a witness’s testimony and apply the same considerations and use the same sound judgment and common sense that it uses for questions of truth and veracity in the court’s daily life. Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 78, 154 A.3d 55 (2017).
IV. Consideration of the Evidence
Like the jury, the court, when acting as the finder of fact, may draw from the admitted facts such reasonable inferences as seem justified in the light of the court’s experience. Lyme Land Conservation Trust, Inc. v. Platner, 325 Conn. 737, 756, 159 A.3d 666 (2017).
V. Findings of Fact
A. The Accident Itself
On April 3, 2017, the plaintiff was a business invitee in the Cromwell Wal-Mart store, located on Berlin Road. At that time, Wal-Mart provided motorized carts for its shoppers at this store. The plaintiff’s husband accompanied her on this shopping trip.
Between 7:30 to 7:45 p.m., the plaintiff was waiting in the checkout line for some period of time behind at least two parties. She was facing forward. Her husband was over to the side near a magazine rack. After the plaintiff arrived in the checkout line, Kunicki, operating a motorized cart, pulled up behind the plaintiff and stopped approximately one foot behind her. After having been completely stopped for at least 15 minutes, Kunicki noticed that an item was beginning to tumble out of her cart. When she reached to catch it, her right hand slipped, causing her, accidentally, to hit the forward button. This made the motorized cart go forward.
At the time of the accident, Kunicki was not distracted by shopping and her view of the plaintiff was not obstructed. Kunicki had had no difficulty operating the motorized cart prior to this accident. Kunicki had operated a motorized cart at this Wal-Mart store and at a different grocery store for about five years prior to this accident with no problems. Moreover, a video admitted at trial evidenced Kunicki operating the motorized cart skillfully prior to the accident. At no time before the accident did Kunicki seek assistance from a Wal-Mart employee concerning the operation of the motorized cart. During trial, Kunicki testified credibly as to how a person would operate such a motorized cart.
When the motorized cart moved forward, it made contact with the plaintiff on both sides of her lower back and near one hip area. The plaintiff was knocked forward and caught herself first on her shopping cart and then on her husband. She was not knocked to the ground, but was unable to stand up straight at any time before leaving the store.
There is a great deal of controverted testimony as to how hard the motorized cart hit the plaintiff. Kunicki, at one point, said she tapped the plaintiff on her buttock; but, in her statement to Wal-Mart, Kunicki said that the cart "shot forward." Credible testimony established that the motorized carts can only move as fast as a person can walk behind a pushed grocery cart. Although the plaintiff’s counsel argued strenuously that the 300-pound weight of Kunicki added to the force with which the plaintiff was hit, the court finds that the opposite is true under the facts presented in this case. This was not a case where Kunicki was rolling downhill and her weight added to the cart’s momentum. Rather, Kunicki had been completely stopped for at least 15 minutes when she negligently made the cart move forward. Moving from a stopped position with a 300-pound weight in tow would have prevented a weakly-powered motorized cart such as this one from accelerating to any great degree. Additionally, the distance between the cart’s original stopping point and the plaintiff was only approximately one foot.
Given the controverted testimony of the interested parties as to the force of the impact, the court turns to an objective source to decide this issue. The Cromwell Fire Department ambulance EMT noted, just after 8 p.m., "possible, but very slight bruising just lateral to [the plaintiff’s] lumbar spine at about L5 bilaterally." The EMT did not observe any other bruising, swelling, deformity or crepitus. The records of the Newington Rapid Recovery Rehab Center (Rapid Recovery) reinforce this finding. The plaintiff was admitted to that facility on April 7, 2017, after a four-day stay at St. Francis Hospital. On April 8, 2017, Rapid Recovery conducted an evaluation of the plaintiff’s skin condition. Using a stick figure diagram, Rapid Recovery noted bruising on several areas on the front of her body, as well as on the backs of both of her elbows. However, there was no evidence of bruising on any portion of her buttocks or on her lumbar, thoracic or cervical spine. The impact, therefore, was moderate at best. The motorized cart hit the plaintiff in the L5 area on both sides of her back.
There was also controverted evidence about whether the plaintiff’s left knee and foot were pinned by the motorized cart. The court finds that the plaintiff sustained some kind of injury, to be discussed in greater detail below, to her left knee and foot in the accident regardless of whether her left knee and foot were pinned.
A short time after contact with the motorized cart, the plaintiff began loudly crying and moaning in pain. She complained of pain in her hip and back to Wal-Mart employees who came to see her. Wal-Mart employees eventually brought the plaintiff a chair and she sat on it until an ambulance arrived. Although she initially was unsure about whether to take the ambulance, she decided to do so. Although the ambulance arrived at the Wal-Mart store with lights and sirens, anticipating an emergency situation, the ambulance drove to St. Francis Hospital with no lights or sirens. On the trip to the hospital, the ambulance did not treat the situation as a life-threatening one.
The ambulance attendants noted that the plaintiff had severe pain to the upper aspect of the back side of the pelvic girdle and low in the lumbar area. Although she told them that she had a headache, she also said that she always had a headache since the stroke she suffered at her birth. The plaintiff also noted severe pain to her pelvis radiating up her back and into her chest. On the way to the hospital, she complained of increasing pain due to road bumps. When the plaintiff arrived at the hospital and was placed into a cubicle, she grabbed her chest and said the pain there was significant. However, she stated that she did not think that the chest pain was related to this injury. The plaintiff had been to the hospital approximately twice in the last week before this accident for similar chest pain.
B. The Plaintiff’s Prior Medical Conditions and Treatments
The court must chronicle the plaintiff’s lengthy and unique medical history prior to this accident to help explain both the nature and extent of injuries that she sustained in this accident, and also what reasonable medical treatment would result from the injuries sustained therein. The plaintiff has lived with the effects of cerebral palsy her whole life. Specifically, she suffered a stroke during or just after her own birth. The stroke left the plaintiff with lifelong spastic hemiplegia on the entire left side of her body. This condition raised her muscle tone on her left side to uncomfortable levels. For her entire life, the plaintiff has suffered from this condition and has never been able to fully control the left side of her body. Her left hand is molded into a permanent contracture. At birth, her left foot was pointed to the side. The plaintiff had to employ a brace that ran the length of her leg up to her hip to assist her in walking. The plaintiff had an operation when she was approximately seven or eight years old to attempt to fix this condition. She also has had, for decades, severe scoliosis and had, before this accident, severe kyphosis. Many years before this accident, the plaintiff underwent a left ankle fusion and a left toe surgery.
Beginning in her twenties, the plaintiff began to experience slipped and ruptured discs. Over her life, she had seven disc surgeries to her lower back, including the placement of rods and screws. She also had a bone stimulator implanted in her lumbar spine approximately twenty-three to twenty-four years before this accident. In the mid-1970s, the plaintiff had a nerve decompression procedure performed in her back. She has also had three disc surgeries to her cervical and thoracic spine, with the placement of rods and screws there as well. In visits dating at least as far back as 2000, the plaintiff complained of intense neck and shoulder pain.
The plaintiff had a right rotator cuff repair, and two surgeries to her left shoulder, as well as a right carpal tunnel repair and a De Quervain’s release surgery. She has suffered from shoulder bursitis and arthritis. The plaintiff had two surgeries to mend a broken left patella, the second one ensuing when a screw from the first surgery came out of place. Eventually, the plaintiff had a total knee replacement of her left knee.
Around 2007 and 2008, the plaintiff was prescribed medication for nerve pain and fentanyl, a potent narcotic for severe pain. In 2008, she received injections to help her manage her pain.
On May 23, 2012, the plaintiff sustained injuries in a slip and fall and subsequently commenced an action. In that action, she alleged that she injured her arms, torso, neck, back, head and brain, including a concussion. The plaintiff further alleged that she had post-concussion syndrome and a permanent disability to her neck and to her low back according to Dr. Kruger, her testifying expert in that case. She complained of excruciating right buttocks pain, radiating down her right leg from the injury, although she denies having buttocks pain prior to the present action. After the 2012 fall, the plaintiff told treating physicians that she sustained right sided neck and severe shoulder pain, radiating into her mid-forearm, as well as back pain, a concussion and left knee pain. Dr. Joyce, the plaintiff’s knee doctor, noted soft tissue swelling in her left knee after the 2012 fall, as well as mild pain and effusion in her right knee after this fall. Dr. Joyce noted in later reports that the plaintiff aggravated her knee on August 18, 2013. The doctor treating the plaintiff’s head injuries from the 2012 fall noted chronic headaches, post-concussion syndrome and depression.
The plaintiff’s medical history revealed at least two- if not three- falls taking place after the 2012 fall. One of Dr. Joyce’s reports after the 2012 fall noted that the plaintiff experienced right foot swelling after heart bypass surgery and a sudden onset of diffuse left dorsal foot pain when getting out of bed. Dr. Joyce ascribed this to venous insufficiency. Dr. Joyce further noted that the plaintiff developed "insidious onset atraumatic left shoulder pain in early 2013." The pain from that incident was "significant even at rest."
Given her lifelong medical struggles, the plaintiff has had a long history of using narcotic painkillers and muscle relaxants. As early as 1996, her orthopedist, Dr. Kruger, expressed concern about the plaintiff’s desire to use Valium when she was already taking Vicodin. In 2002, Dr. Kruger expressed further concern about the plaintiff’s use of narcotics, and suggested that she utilize Lexapro instead. In 2007, Dr. Kruger noted- in what becomes a common theme throughout the plaintiff’s treatment history- that objective diagnostic tests did not reveal the source of the pain that the plaintiff complained about. As a result, Dr. Kruger stated he was "not certain why she [was] having her pain."
In March 2007, the plaintiff reported "absolutely incapacitating mid back pain" even though films of that area did not reveal a perceptible source of the pain. Later in March 2007, an EMG showed no evidence of radiculopathy in an area where the plaintiff complained of significant pain. In April 2007, Dr. Kruger stated that "I believe she has pain but there is no obvious organic cause." A quite significant number of the plaintiff’s medical records written before this accident recounted chronic severe pain and chronic narcotic use. During a doctor’s visit on November 28, 2016, the plaintiff’s treating physician described the plaintiff as having "chronic severe pain affecting neck, back and all extremities."
In the period from 2009 through the date of this accident, April 3, 2017, the plaintiff filled prescriptions for oxycontin and hydromorphone in the following amounts of pills per year: 2009: 1000 tablets; 2010: 900 tablets; 2011: 800 tablets; 2012: 1100 tablets; 2013: 1000 tablets; 2014: 900 tablets; 2015: 800 tablets; 2016: 1180 tablets, and in the first three months of 2017: 320 tablets. In 2016, the plaintiff filled prescriptions for narcotic painkillers at a rate higher than in any other year. Further, had the plaintiff continued at the same rate in 2017 as she had in the three months before this accident, she was on track for a rate even higher in 2017 than in 2016. Despite all of her prior medical conditions, the plaintiff was able to visit Key West in 2016.
Prior to this accident, the plaintiff suffered from the following systemic illnesses or long-term medical conditions: congestive heart failure; type-2 diabetes; hypertensive heart disease with heart failure and a heart attack in 1996, which necessitated first the implanting of a stent, and then a triple bypass. Prior to this accident, the plaintiff was also diagnosed with hypertensive, stage 3 chronic kidney disease, hypothyroidism, hyperlidimia, insomnia, ischemic cardiomyopathy, atherosclerotic heart disease with angina and intractable chronic migraine headaches. The plaintiff was also diagnosed with "memory changes" on September 1, 2015.
In her last primary care visit before this accident, on February 2, 2017, the notes revealed two hospitalizations in January of that year. In the first hospitalization, the plaintiff fell and hit her head on a fireplace and hearth, harming her head, back and buttocks. The second hospitalization necessitated a cardiac workup for the plaintiff for bradycardia. The notes also revealed that the plaintiff, two months before the present accident, was "not able to sleep." Previous medical reports also documented insomnia. The February 2, 2017 notes further confirmed that the plaintiff did not check her blood sugar, despite having diabetes. The notes also stated that the plaintiff is "in pain all the time, all over," that she stopped taking oxycontin, but was using dilautin (also known as hydromorphone) regularly and had lost 17 pounds in just over two months "for no known reason." The physical exam of February 2, 2017 revealed that the plaintiff "ambulates with cane."
The court will use hydromorphone and dilautin interchangeably in this memorandum of decision.
The St. Francis Hospital treatment records revealed that, before this accident, the plaintiff used a cane to help her walk when she was outside of the house and that she had a rolling walker available to her. However, she was using neither at the time of this accident.
The plaintiff had to go to St. Francis Hospital for cardiac diagnostic testing on March 25, 2017 and on March 29-31, 2017. On March 25, 2017, the plaintiff arrived at the St. Francis Hospital emergency room, complaining of chest discomfort similar to that of a heart attack. The hospital performed an angiogram. On March 29, 2017, the plaintiff returned with similar symptoms. It appears that she was brought to St. Francis Hospital by ambulance after experiencing chest pain. During this time period, the hospital discovered several occlusions in various heart vessels, including "chronic total occlusion of all 3 coronary arteries." Many blood glucose levels taken during this hospital stay indicated blood glucose levels well in excess of the normal range.
In sum, the plaintiff faced significant and serious medical conditions in the years and months before the accident.
C. Treatment After the Accident
1. St. Francis Hospital
Following the accident, the plaintiff stayed at St. Francis Hospital from April 3 through April 7, 2017. When she arrived at the hospital after this accident, she complained of severe, nonradiating lower back pain. The plaintiff also complained of constant, nonradiating left-sided chest pain, which was not associated with exertion, palpitations or loss of breath. She stated that the chest pain was similar to what she experienced when she had recently visited the hospital. A cardiac doctor believed that the chest pain came from a musculoskeletal source instead of a cardiovascular one.
The plaintiff also had bilateral hip pain and pain to her left third toe and left knee. While she was an inpatient, the hospital took a number of diagnostic images of her chest, left foot and toes, lumbar spine, both hips and pelvis and left knee. The diagnostic testing revealed no fractures or dislocations and revealed that none of her lumbar hardware or parts of her left knee replacement prosthesis had been dislodged. Although one lumbar diagnostic test was inconclusive due to the preexisting hardware, the court cannot speculate as to what injury may have existed in that area at the time.
No diagnostic testing was performed of the plaintiff’s cervical spine. This is significant because the hospital engaged in diagnostic testing of all other body parts where the plaintiff had rods and screws (e.g., the lumbar spine) or a prosthesis (e.g., left knee). The plaintiff did not complain of cervical pain while at St. Francis Hospital.
When the plaintiff was in the emergency room, the medial provider noted "mild discomfort secondary to pain," as well as "normal range of motion" in her extremities and musculoskeletal area. The medical provider also found some edema, some bilateral hip tenderness and left knee tenderness. There was, however, no laxity in the left knee ligaments. The treating doctor also noted on April 3, 2017, that the plaintiff was in a "moderate amount of pain," was in "moderate stress," "secondary to lower back pain" and that the plaintiff had "difficulty ambulating 2ndary [sic] to pain." The hospital described the pain initially as an exacerbation of previous back pain. The hospital increased the plaintiff’s dosage of dilautin from 4 milligrams every 3 hours as needed to 6 milligrams every 4 hours as needed. Dr. Kruger saw the plaintiff on April 5, 2017. He noted "left middle toe, bilateral hip, left knee and lower back pain." Dr. Kruger found that the toe in question was tender but not swollen and that the plaintiff had no pain with hip rotation. Dr. Kruger diagnosed the plaintiff with "multiple contusions/sprains" or, in other words, soft tissue injuries. On April 4, 2017, the hospital record noted "no tenderness to palpation of the back." On April 5 and 6, 2017, the hospital record cited "no tenderness to palpation of the back or spine."
While at St. Francis Hospital, the plaintiff received treatment for the following general categories of medical issues: (1) musculoskeletal symptoms; (2) chest pain, and to rule out cardiovascular causes thereof; (3) pain management and (4) uncontrolled diabetes. It is noteworthy that, long prior to the accident, as well as during the treatment at St. Francis Hospital, and well after this accident, the plaintiff has been extremely inconsistent in taking the necessary steps to control her diabetes. Several doctors have documented that she did not, over time, both before and after this accident, (1) monitor her blood sugar, (2) take insulin, (3) take other, helpful medication or (4) eat properly to attempt to counteract her type-2 diabetes. Upon discharge, St. Francis Hospital advised her to see Dr. Kruger within two weeks.
2. Rapid Recovery Rehab Center
When the plaintiff left St. Francis Hospital, she was discharged to Rapid Recovery. She stayed there from April 7, 2017 through April 26, 2017. Rapid Recovery admitted her with acute bilateral low back pain with sciatica. On at least one admission sheet, the pain was described as "chronic" rather than "acute." A report, dated April 19, 2017, described the plaintiff’s treatment process as "chronic medical management" rather than "acute medical management."
On April 12, 2017, a physician asked a physical therapist to evaluate and treat the plaintiff’s left knee pain. This is the first note addressing an issue other than the lower back while at Rapid Recovery. The plaintiff received electrical stimulation for pain management while there. Around the midpoint of her stay at Rapid Recovery, the plaintiff developed cellulitis on her left forearm.
Although the staff at Rapid Recovery believed that the plaintiff exhibited depression while staying there, a treating psychiatrist found her to suffer from anxiety rather than depression. An Advanced Practice Registered Nurse (APRN) confirmed that diagnosis, finding the plaintiff to be "irritable, attentive, communicative and tense, and tense and tense."
Neither the physical therapy (PT) nor the occupational therapy (OT) records from Rapid Recovery reflect any treatment for neck pain. The Rapid Recovery records refer to, almost entirely, lumbago with sciatica into the leg or low back pain. There are passing references to thoracic pain in a couple of OT assessments, but there is never a stated diagnosis of thoracic pain. The plaintiff reported still being in pain when she was discharged. Her pain level during this time varied. After several days at Rapid Recovery, her pain went from 9/10 to 10/10. One PT report found the plaintiff’s pain to be 0/10 while she was at rest, but her more regular complaints of pain prevented her from achieving many life activity benchmarks while at Rapid Recovery.
The court will use the abbreviations PT and OT to stand for either "physical therapy" and "occupational therapy" or "physical therapist" and "occupational therapist," respectively, in this memorandum of decision. The context in which each abbreviation is used will govern its meaning.
3. Home PT and OT
After leaving Rapid Recovery, the plaintiff received home PT and OT visits. She had twenty-four home PT visits from April 24, 2017, through June 16, 2017. By June 8, 2017, the plaintiff could perform certain activities of daily living with optimal ability and she understood her activity tolerance level. By this date, the plaintiff also learned to use adaptive devices and better understood the use of pain management medications. By June 17, 2017, she was able to perform standing balance training techniques, safely walk in the community with the help of assistive devices, improve her range of motion to goals set forth for her and increase her strength so as to walk more than twenty minutes and to prepare a light meal.
When the plaintiff first received home PT, her diagnosis was the same as it had been: lumbago with sciatica on the left side and lumbago with sciatica on the right side. She, however, complained of pain in the neck, shoulder, ribs, hips, lower back and left knee. This is the first mention of any treatment directed to the plaintiff’s neck or shoulder after this accident.
When discharged from this round of home PT, the plaintiff reported constant pain in her right neck and shoulder, as well as in her thoracic and lumbar spine area. The PT found that the plaintiff’s ability to do therapy was limited by the pain she was experiencing. In what would become a litany for later therapists, this PT, not being able to pinpoint a source for the plaintiff’s pain, noted that the plaintiff "would benefit from further medical assessment at this time." The PT repeated this phrase on May 31, 2017. On June 14, 2017, the PT stated that the plaintiff "continues to have high subjective pain complaints with patient rating pain symptoms from a 79/10 on subjective" basis.
The plaintiff also had several OT visits from May 23, 2017 through June 9, 2017. In the discharge summary, the OT also repeated the mantra of the plaintiff being "limited by pain symptoms. Patient would benefit from further medical assessment at this time." The court reasonably infers that the plaintiff’s subjective complaints of pain were not matching up with any objective sources thereof during this time period. The plaintiff’s discharge note from OT, dated June 9, 2017, read "patient met goals and requested discharge from skilled OT services at this time."
4. Dr. Joyce’s Office and Treatment of the Left Knee
Before delving into the PT that began later on, in August 2017, the court will review the plaintiff’s next set of visits with the office of Dr. Joyce, concerning the plaintiff’s left knee.
The plaintiff visited Dr. Joyce on May 1, 2017. Dr. Joyce’s physician’s assistant, Eric Libby, saw the plaintiff. The plaintiff had "moderate to severe pain diffusely on the anterior aspect of her knee." Despite her current use of pain medication, she continued to "experience constant discomfort within her knee," even though she denied any mechanical symptoms of locking, catching or instability. The knee had not caused her to fall and she denied any significant swelling or effusion with the knee. During the physical examination, the plaintiff exhibited "modest guarding and apprehension throughout the exam." There was no discoloration around the knee, no soft tissue swelling and no effusion within the knee. There was diffuse pain to the touch throughout six specific regions of the knee. The knee was stable and the kneecap tracked well with "mild pain and stiffness." X rays taken showed no "interval change" when compared to 2013 films. Libby diagnosed "a contusion and sprain of [the plaintiff’s] left knee replacement."
Libby’s suggested treatment was home PT, protective bracing with a hinged neoprene sleeve and ice as needed. The PT prescription called for two to three visits per week for six to eight weeks. The prescription also described the plaintiff as having "subjective pain left total knee [replacement], contusion and generalized tendinitis." Elsewhere in this report, Libby characterized the lumbar spine issue as an "acute exacerbation of lower back pain secondary to minor trauma." Libby encouraged continued weight-bearing because the plaintiff could tolerate it, advised her to gradually resume her normal activities of daily living to the extent she could and told her to contact the office if there was any increase or change in symptoms.
The plaintiff visited Libby again on July 11, 2017. This time, Libby reported "decreased guarding and apprehension throughout the exam." The knee had a "normal appearance" with no discoloration, minimal soft tissue swelling and no effusion. The knee, however, had diffuse pain to the touch in six regions. The kneecap tracked well and the knee was "stable on exam." There was no evidence of a fracture or loosening of the total left knee replacement. The plaintiff’s symptoms were more soft tissue in nature primarily localized to two areas. Libby called the issue "likely a time limited problem resulting from the trauma that she sustained." Libby suggested PT or a home exercise program. Once again, he indicated that the plaintiff should contact their office if her symptoms worsened. She did not do so.
5. Treatment with Dr. Kruger Post-St. Francis Hospital
Although St. Francis Hospital advised the plaintiff to schedule an appointment with Dr. Kruger within two weeks of discharge, she did not see him for four months. Among Dr. Kruger’s past medical history was a new item, without a diagnosis date listed. That item was "memory loss." On August 11, 2017, the plaintiff saw both Dr. Kruger’s physician’s assistant and Dr. Kruger himself. The office found back and neck pain, but "no acute findings." The office prescribed physical therapy, and told the plaintiff to return in about four weeks or if the symptoms worsened or failed to improve. Dr. Kruger’s diagnosis was neck, thoracic and back pain "post pedestrian Walmart scooter accident."
The plaintiff did not return to Dr. Kruger until May 18, 2018, about nine months later. At that time, she had low back pain, left knee pain and neck pain. Dr. Kruger noted "extensive body pain" that seemed "to be worse than her usual body pain." Dr. Kruger opined that the back and lower extremity pain were worse since the accident.
Significantly, Dr. Kruger, who had treated the plaintiff for nearly thirty years, stated that the plaintiff had "a multitude of severe diseases and today [she appeared] angry [and] significantly more frustrated than usual." Normally cheerful despite chronic disease and frustration, the plaintiff "expressed bitterness about her birth injury." By that time, the plaintiff’s husband had been diagnosed with dementia, the plaintiff’s son lived out of state and the plaintiff was essentially a shut-in with "little social interaction and chronic daily and nightly severe pain." The two reasons for that, according to Dr. Kruger, were the plaintiff’s "various physical ailments and her husband’s dementia." The plaintiff also had difficulty processing even simple abstractions.
The physical exam revealed that the plaintiff had a single inflamed cervical-area lymph node. When Dr. Kruger tried to palpate the cervical area, the plaintiff could not tell him if the palpation reproduced the neck pain that she complained about or whether it was just painful because of the pressure. Dr. Kruger diagnosed degenerative cervical disc disease. He opined that there was little he could do for her spinal pain.
The plaintiff next saw Dr. Kruger on October 5, 2018. She had neck pain, right arm pain and right shoulder pain. Dr. Kruger called the right upper extremity pain "severe and worsening" and said it was consistent with cervical radiculopathy. He arranged for a cervical MRI. He also found tenderness in the plaintiff’s left knee.
Two weeks later, Dr. Kruger noted that the plaintiff’s cervical MRI was limited by her hardware, but, nonetheless, opined that it suggested "some stenosis."
6. Post-Accident Treatment by Dr. Mendelsohn
There are several notes of this accident from the plaintiff’s primary care physician, Dr. Mendelsohn. Dr. Mendelsohn saw the plaintiff on May 1, 2017. He found her chronic back pain to be severely exacerbated and found her to be in constant pain, moving very slowly and having difficulty sleeping. The plaintiff was miserable. Despite these claims, Dr. Mendelsohn found no swelling in the plaintiff’s musculoskeletal system. He diagnosed her as being anxious, with a depressed affect, frustrated with her pain and having "multiple contusions."
The plaintiff returned to Dr. Mendelsohn on June 13, 2017. She reported ongoing back pain as a result of this accident. Dr. Mendelsohn, however, found the plaintiff to be "less uncomfortable than on last visit." She employed a rolling walker during that visit.
The plaintiff returned again to Dr. Mendelsohn on August 7, 2017. The reasons for her visit were listed as angina, hypothyroidism, diabetes and high blood pressure. In the subjective history, Dr. Mendelsohn cited her hypothyroidism and diabetes as the two primary reasons for the visit, and then "acute on chronic pain (after her Walmart accident)." The plaintiff was positive for fatigue and reported an increased level of pain after her accident. Once again, there was no swelling in the musculoskeletal system.
The plaintiff next saw Dr. Mendelsohn on April 9, 2018. She came in for back pain, which was diagnosed as degenerative disc disease in both her lumbar and cervical areas. She expressed frustration about ongoing chronic pain that had increased after the Wal-Mart accident. However, as noted by Dr. Mendelsohn, the plaintiff’s orthopedic specialists, Drs. Joyce and Kruger, indicated that they could offer only pain relief through analgesic prescriptions. The plaintiff’s pain, and her husband’s recent health issues- e.g., the dementia- led the plaintiff to completely disregard her diabetic dieting and to engage in stress eating. She had gained more than 20 pounds over the past several months before the visit, resulting in her diabetes being out of control and her pain actually worsening.
The plaintiff returned to Dr. Mendelsohn on October 30, 2018. The primary reasons for the visit were diabetes, high blood pressure, hypothyroidism and high cholesterol. She also noted long-term spinal disease, with new pain involving her right shoulder. Despite the pain in her neck and back, she, once again, had no swelling anywhere in her musculoskeletal system.
The plaintiff returned to Dr. Mendelsohn on January 25, 2019. She had cervical radiculopathy as the second-listed diagnosis, along with a primary diagnosis of diabetes without long-term current use of insulin. Dr. Mendelsohn made the following additional diagnoses: chronic kidney disease; degenerative disc disease of the lumbar spine; hypothyroidism and high blood cholesterol. The plaintiff complained of miserable and worsening chronic pain in her neck and back. Despite seeing orthopedic doctors, Dr. Mendelsohn expected no further interventions. Despite taking large amounts of opiates, the plaintiff’s pain was poorly controlled, according to this report. She admitted to eating only one meal a day, and barely eating at all on some days. On the days when she did not eat, she would not take her anti-diabetes medicine. Her level was listed as "very inactive." Despite all of her pain, she had no swelling in her entire musculoskeletal system. The plaintiff’s high level of triglycerides made it impossible to calculate her LDL cholesterol, the so-called "bad cholesterol." Even though her diabetes was uncontrolled, she declined to consider insulin or an additional oral medicine to try to combat diabetes.
7. PT Beginning in August 2017
Hartford Healthcare physical therapists saw the plaintiff between August 24 and September 5, 2017, after Dr. Kruger prescribed such PT. On August 24, 2017, she complained of pain "from [the] neck down." The physical therapist noted atrophy in the lower left extremity, a chronic condition that developed over time and was likely caused by the plaintiff’s left-sided hemiplegia. The therapist also noted that the plaintiff had an abnormal gait, abnormal muscle firing and abnormal coordination, as well as abnormal muscle tone, all of which stemmed from the plaintiff’s perinatal injury. When seen on August 29, 2017 and September 1, 2017, the plaintiff complained that "everything hurts." On September 5, 2017, the plaintiff stated that she "had a lot of pain after last time." Although she asked the therapist why she was having pain with all activities, the therapist had no answers. Instead, the therapist referred her to Dr. Kruger.
8. Dr. Kruger’s Testimony
Dr. Kruger, who has treated the plaintiff since 1990, served as her expert witness at trial. The court could see that Dr. Kruger was empathetic toward the plaintiff’s plight, both in terms of her lifetime battles with a multiplicity of conditions and in regard to this accident. Dr. Kruger’s testimony was, nonetheless, in regard to the issues of causation and damages, a two-edged sword for the plaintiff.
In support of the plaintiff’s claims, Dr. Kruger testified that the plaintiff’s PT and OT, through the fall of 2017, were reasonable and medically necessary. Dr. Kruger also opined that the Wal-Mart accident decreased the plaintiff’s ability to walk, made her experience of life worse, made her mechanical pain increase, rendered her bitter and angry, harmed her social interaction and caused a marked deterioration in her condition. Dr. Kruger testified that the plaintiff was not back to her baseline condition prior to the accident and that she would probably not return to this baseline. Dr. Kruger further testified that this accident raised the probability of the plaintiff needing to receive ongoing care and more frequent medical intervention.
Dr. Kruger’s ability to give accurate opinions about the plaintiff was hamstrung by one major fact: the last time he saw her before the accident was in 2013. Moreover, Dr. Kruger’s testimony did not seem to take into account the impact of the accident on the plaintiff’s wellbeing and on her activities of everyday life of all of the plaintiff’s other systemic medical and personal issues. Further, Dr. Kruger noted that he found no objective findings to support pathology in the lumbar spine or the cervical spine. The only objective signs he found by pertain to the tenderness of the toe on the plaintiff’s left foot on April 5, 2017, and that she was bitter when he saw her in May 2018.
Dr. Kruger’s opinion of whether this accident caused the plaintiff’s bitterness was undermined, however, by his own records. His May 2018 notes revealed that the plaintiff was embittered not by this accident, but by her "birth injury." Significantly, in the same note, Dr. Kruger mentioned that the plaintiff’s husband had been diagnosed with dementia. The plaintiff’s husband’s dementia diagnosis also was found in Dr. Mendelsohn’s note of April 2018. Dr. Kruger further testified that the increase in the plaintiff’s pain medication after this accident was not necessarily caused by this accident.
On cross examination, Dr. Kruger explained the use of the phrase "mechanical pain," of which he claimed the plaintiff suffered from this accident. Dr. Kruger stated that "mechanical pain" meant a category of pain without one of the usual known pathologies, such as tumor, injury or inflammation. He further described "mechanical pain" as pain without a known cause, or as he succinctly put it: "We don’t know. It hurts." Dr. Kruger additionally testified that when he last saw the plaintiff before the accident, in 2013, she was already frail at that time.
9. Dr. Selden’s Testimony
Dr. Steven Selden provided expert testimony for each of the two defendants. His testimony, presented through a videotaped deposition, for the following reasons, shed virtually no new light on the case and provided virtually no benefit to the defendants.
Although Dr. Selden was qualified as an expert witness, he never physically examined the plaintiff. Rather, he performed a review of her records. Although his review was accurate, it was unhelpful. The court gleaned as much, and in some instances, a lot more, about the plaintiff’s prior medical conditions from cross examination and from the court’s own review of the records than it did from Dr. Selden’s testimony.
Moreover, Dr. Selden issued highly confident, but not always well-grounded, opinions as to exactly how much treatment the plaintiff should have needed from his survey of her medical records. The problem with these opinions was two-fold.
First, his opinions failed to take into regard the relationship between the plaintiff’s psyche and her soma, that is, between her mind and body. Having suffered numerous insults to her lower back and buttock areas over the course of her life, the plaintiff, doubtlessly, reacted differently when the motorized cart ran into her than someone who had never hurt her back would have reacted. The quite real emotional overlay caused by the plaintiff’s lifetime of bad experiences to her back reasonably caused not only, as discussed in greater detail below, more emotional distress for her, but also treatment above and beyond what would have been required for the average person who had no similar, prior injuries.
Second, Dr. Selden’s testimony revealed a callousness that bordered on the cruel. This callousness reflected a bias against the plaintiff. This bias surfaced when, upon cross examination, he compared the plaintiff to Tiger Woods. Specifically, in disagreeing with plaintiff’s counsel about the plaintiff’s limitations, Dr. Selden testified that the plaintiff should have been able to do more after this accident because, after all, Tiger Woods can still play golf and both the plaintiff and Tiger Woods had undergone lower back fusions. Although it goes without saying, the ability of a world class athlete, much younger than the plaintiff, with unlimited money, treatment and therapy options available to him, to play golf, has no credible relationship to the limitations that the plaintiff experiences in her daily life activities. As reviewed in detail above, she suffered from seven lumbar disc surgeries and three cervical disc surgeries, with resulting hardware implants, as well as lifelong left-sided hemiplegia, severe scoliosis and kyphosis and a total left knee replacement.
Although, as mentioned below, the court may agree with some of Dr. Selden’s conclusions, this agreement stems from the court’s own review of the plaintiff’s files and from trial testimony. Dr. Selden’s opinions, in and of themselves, proved to have very limited utility, if any, to the court as the finder of fact in this case.
VI. Conclusions of Law
Having made its findings of fact, the court now makes its conclusions of law. The court may make additional factual findings, as necessary.
The plaintiff, of course, has the burden of proving the essential elements of her case by a fair preponderance of the evidence. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702, 651 A.2d 1286 (1995). Each of the conclusions of law articulated below has been made in accordance with that standard of proof.
A. Liability of Kunicki
Kunicki admitted that she was negligent in that she failed to keep the motorized cart under reasonable and proper control. Further, Kunicki’s lawyer entered into a stipulation to that effect at the prejudgment remedy hearing, and this court takes judicial notice of that stipulation. Moreover, in her answers to Wal-Mart’s requests for admission, of which the court took judicial notice, she admitted that: (1) the motorized cart she was operating struck the plaintiff when her "right hand slipped causing" her "to hit the forward button"; (2) this was done accidently; (3) the accident took place in a checkout line; (4) she was not distracted by shopping; (5) her view of the plaintiff was not obstructed; (6) she had no difficulty operating the motorized cart and (7) she asked for no assistance from any Wal-Mart employee as to the operation of the motorized cart. Kunicki’s trial testimony comported with these admissions. As the court mentioned earlier, she testified credibly that she understood how to operate these motorized carts, having done so at Wal-Mart and at least at one other store for about five years prior to the accident. Finally, the court viewed videotape footage that demonstrated Kunicki safely navigating the store with the motorized cart on the day of this accident.
Kunicki did not, however, admit the nature and extent of damages or that her breach of duty proximately caused the plaintiff’s claimed damages. This case, therefore, proceeded as a hearing in damages as to Kunicki. The court must decide the nature and extent of the plaintiff’s damages that were proximately caused by Kunicki’s breach of duty, which it will discuss later in this memorandum of decision.
B. Liability of Wal-Mart
As discussed above, the plaintiff essentially alleges three theories against Wal-Mart: (1) traditional premises liability; (2) mode of operation and (3) negligent entrustment of the motorized cart to Kunicki. Wal-Mart strenuously denied that it breached a duty owed to the plaintiff under any of these theories, and also denied both the nature and extent of the plaintiff’s damages and proximate causation. For the reasons set forth below, the court concludes that Wal-Mart is not liable to the plaintiff for this accident.
As threshold matters, the parties stipulated that Wal-Mart provides motorized carts for its shoppers, that the plaintiff was a business invitee at the time of the accident and that the plaintiff was struck by a motorized cart operated by Kunicki.
The court shall now examine each of the plaintiff’s three theories of liability against Wal-Mart seriatim.
1. Traditional Premises Liability
"The relevant principles of premises liability are well established. A business owner owes its invitees a duty to ‘keep its premises in a reasonably safe condition.’ " DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). "In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). Nevertheless, "business owners are not insurers of their customers’ safety." Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 636, 195 A.3d 707 (2018).
For a plaintiff to recover for the breach of a duty owed to a business invitee, the plaintiff must allege and prove that the defendant either had actual or constructive notice of the presence of the specific unsafe condition which caused the plaintiff’s injury. DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 116-17. The notice, whether actual or constructive, must be notice of the very defect that caused the injury and not merely of conditions naturally productive of that defect even though subsequently producing the defect. Id., 117. 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 business invitees from known, foreseeable dangers. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). Business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger. Dipietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 117.
In a constructive notice case, the "plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123-24, 927 A.2d 371 (2007). Although "[w]hat constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case"; (internal quotation marks omitted) Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 629; "a defect lasting under a minute has been held to be, as a matter of law, insufficient for a defendant to have discovered and remedied it, and thus fatal to a premises liability action." Id., 630; see also James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 183, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011).
In the present case, the "specific unsafe condition" that caused the plaintiff’s injury was a slight slip of Kunicki’s hand. Specifically, Kunicki, while reaching for an item about to fall from her cart, accidentally engaged the button that caused the motorized cart to move forward. Contact with the plaintiff occurred almost instantly. Under the circumstances, there was no way that Wal-Mart or any of its employees had actual knowledge of this specific unsafe condition. Similarly, the moment that elapsed between the slip of Kunicki’s hand and contact with the plaintiff is, as a matter of law, not enough time in which a court can find constructive notice.
Moreover, Wal-Mart did not create the specific unsafe condition. Wal-Mart did nothing to bring about Kunicki’s negligent operation of the motorized cart. The plaintiff’s allegations of potential liability for Wal-Mart constitute, at the very best, allegations of conditions that, if proven, may have, in some very attenuated manner, some vague causal relationship with the plaintiff’s injuries. Under Baptiste, even proof of conditions naturally productive of a defect are not sufficient to satisfy the plaintiff’s burden of proof as a business invitee in a premises liability case. Baptiste v. Better Val-U Supermarket, Inc., supra, 262 Conn. 140. "Essential to determining whether a legal duty exists, however, is the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong ... Thus, even when harm has been determined to be foreseeable, we have found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated." (Citations omitted; internal quotation marks omitted.) Id., 141-42 n.6.
The plaintiff adduces no persuasive proof that any of the alleged negligent acts of Wal-Mart either created the specific unsafe condition or armed Wal-Mart with the foreknowledge that this momentary blunder would occur. Kunicki knew how to operate such motorized carts and had operated such motorized carts for five years without incident. She was ably operating the motorized cart in question around the store that very day before the accident. Moreover, at the time of her metaphorical misstep, Kunicki was neither distracted by a display item nor had her vision of the plaintiff blocked or impaired in any way by the manner in which the store was set up. Further, the plaintiff produced no testimony that Wal-Mart had improperly maintained the cart in question. As mentioned above, the plaintiff made no product liability claims as to the cart.
Finally, under the garden variety facts of this case- namely, that a motorized cart was accidentally engaged by a third person so that it contacted the plaintiff’s back- the plaintiff presented no persuasive evidence that the court should apply an enhanced duty to Wal-Mart. See DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 117; Baptiste v. Better Val-U Supermarket, Inc., supra, 262 Conn. 140. Especially given the uncontroverted and found fact that the motorized cart could not move any faster than a person could push a manual cart, this case presents as markedly similar to a case where a person pushing a nonmotorized cart accidentally bumps it into another person’s back. No enhanced duty would apply under those facts either.
For all of these reasons, the plaintiff fails to prove liability against Wal-Mart for traditional premises liability.
2. Mode of Operation
Our Supreme Court first recognized the doctrine of mode of operation in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), and articulated this doctrine further in Fisher v. Big Y Foods, Inc., 298 Conn. 414, 3 A.3d 919 (2010). Connecticut adopted the mode of operation doctrine as a response to the unfairness that may devolve upon a business invitee trying to prove traditional premises liability in a situation where the store owner’s self-service mode of operation would render it difficult or impossible for the plaintiff to prove actual or constructive notice. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 779. Mode of operation, however, does not make a store owner strictly liable for a customer’s injuries. "[I]t must be emphasized that a store owner is not an insurer of its customers’ safety." (Internal quotation marks omitted.) Id., 790. Mode of operation, however, may, under certain circumstances, render a store owner liable without necessary proof of actual or constructive notice when its self-service mode of operation "gives rise to a foreseeable risk of injury to customers and [when] the plaintiff’s injury was proximately caused by an accident within the zone of risk." Id., 791. "[T]he mode of operation rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises." Fisher v. Big Y Foods, Inc., supra, 298 Conn. 423. A plaintiff must prove "that the mode of operation of the defendant’s business gives rise to a foreseeable risk of injury to customers and that the plaintiff’s injury was proximately caused by an accident within the zone of risk." (Internal quotation marks omitted.) Id., 424.
Fisher also emphasized that a plaintiff cannot invoke mode of operation simply because a store is self-service. "[A] rule that presumptively established a storekeeper’s negligence simply for having placed packaged items on shelves for customer selection and removal, without requiring any evidence that they were displayed in a particularly dangerous manner, would require us to ignore the modern day reality that all retail establishments operate in this manner ..." (Emphasis omitted; footnote omitted.) Fisher v. Big Y Foods, Inc., supra, 298 Conn. 438. Consequently, Fisher clarified the doctrine of mode of operation to require proof of a "particularly dangerous manner" of doing business and injury within a carefully circumscribed "zone of risk." Id., 424, 438.
The plaintiff’s mode of operation claim failed for several reasons. There is nothing "particularly dangerous" about furnishing customers with motorized carts to move around a store or to have customers with motorized carts in the same checkout line with customers with push carts or simply standing there holding packages. As mentioned above, the motorized carts in question can only move as fast as a person pushing a manual cart can go. Additionally, the court finds that the motorized carts in question were simple to operate. Further, there is nothing particularly dangerous about motorized carts being close to other patrons. When operated properly, that is, without negligence, the motorized carts present no danger at all. Moreover, when "a customer is injured by an independent act of negligence which the merchant cannot reasonably be expected to foresee or guard against, the merchant is not liable." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 790. In other words, mode of operation may apply when "ordinary and foreseeable activities of patrons, not amounting to independent acts of negligence" injure another customer. (Internal quotation marks omitted.) Id.
In this case, it was the independent act of Kunicki’s negligence, rather than anything Wal-Mart did or did not do that caused the plaintiff’s injuries. Kunicki’s independent act of negligence was not foreseeable to Wal-Mart. She had operated these motorized carts without incident for five years before the accident, and sought no assistance from Wal-Mart employees as to the operation of the motorized cart. It was not foreseeable to Wal-Mart that, on April 3, 2017, Kunicki would fail to operate her motorized cart properly any more than it would be for any family member to foresee that another family member, without notice, would drive a car negligently on his way to work.
For all of these reasons, the plaintiff did not satisfy her burden to prove negligence under the mode of operation doctrine.
3. Negligent Entrustment
The owner of an automobile may be liable "for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others." Greely v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933). In interpreting this holding, our trial courts articulate the following test: "Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is incompetent to operate the motor vehicle and (2) the injury resulted from that incompetence." Griffin v. Larson, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-02-0079364-S (August 18, 2004, Lager, J.). There is no liability unless the entrustor has knowledge or should have known of either dangerous propensities or incompetency of the entrustee. Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV-08-6002084-S (July 30, 2008, Bellis, J.) (46 Conn.L.Rptr. 82, 83).
Counsel for Wal-Mart pointed out that these negligent entrustment cases have applied only to automobiles. Assuming without deciding that the negligent entrustment doctrine may apply to motorized shopping carts, the court still finds that the plaintiff failed to prove that Wal-Mart negligently entrusted the motorized cart to Kunicki.
The plaintiff provided no facts from which the court could conclude that Kunicki either had dangerous propensities in regard to, or was incompetent in, operating motorized shopping carts. Further, the plaintiff supplied no facts from which the court could conclude that Wal-Mart knew or should have known of these alleged propensities or this alleged incompetence.
Therefore, even if the court were to have concluded that the negligent entrustment doctrine applies to motorized shopping carts, the plaintiff still would have failed to sustain her burden of proof as to this alleged theory of Wal-Mart’s liability.
4. Conclusion
For all of the above-stated reasons, Wal-Mart is not liable to the plaintiff.
C. Damages Proximately Caused by Kunicki
The court has already found that Kunicki was negligent. The court now finds that Kunicki’s negligence proximately caused the plaintiff damage in the following amounts.
1. Proximate Cause
"To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries ... The first component of legal cause is causation in fact. Causation in fact is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999).
"The second component of legal cause is proximate cause, which we have defined as [a]n actual cause that is a substantial factor in the resulting harm ..." (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 250 Conn. 25. "[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries ... Further, it is the plaintiff who bears the burden to prove [proximate cause] ... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ... This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Id., 25-26.
As mentioned above, when determining credibility, the court, as trier of fact, shall apply the same considerations and use the same sound judgment and common sense that it uses for questions of truth and veracity in the court’s daily life. Rivera v. CR Summer Hill, Ltd. Partnership, supra, 170 Conn.App. 78. Similarly, the court, when acting as the finder of fact, may draw from admitted facts such reasonable inferences as seem justified in the light of the court’s experience. Lyme Land Conservation Trust, Inc. v. Platner, supra, 325 Conn. 756. It is through the lens of these legal principles that the court views the plaintiff’s claimed damages and the proximate causation thereof.
2. Damages
The plaintiff has the burden of proving her entitlement to recover damages by a fair preponderance of the evidence. Preston v. Keith, 217 Conn. 12, 20, 584 A.2d 439 (1991). To that end, the plaintiff must prove both the nature and extent of each particular loss or injury for which she seeks to recover damages and that the loss or injury in question was proximately caused by the defendant’s negligence. Id. The court may not guess or speculate as to the nature or extent of the plaintiff’s losses or injuries. Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35, 889 A.2d 785 (2006). The court’s decision must be based on reasonable probabilities in light of the evidence presented at trial. Id. The plaintiff may recover damages for injuries and losses including those she has suffered up to and including the present time and those she is reasonably likely to suffer in the future as a proximate result of the defendant’s negligence. Marchetti v. Ramirez, 240 Conn. 49, 56, 688 A.2d 1325 (1997).
The plaintiff may recover two general types of damages: economic and noneconomic damages. De Vito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001). Economic damages are monies awarded as compensation for monetary losses and expenses that the plaintiff has incurred, or is reasonably likely to incur in the future, due to the defendant’s negligence. Id. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Id. Noneconomic damages are monies awarded as compensation for nonmonetary losses and injuries that the plaintiff has suffered, or is reasonably likely to suffer in the future, due to the defendant’s negligence. Id. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering and loss or diminution of the ability to enjoy life’s pleasures. Id.
A plaintiff injured by the negligence of another is entitled to be compensated for all physical pain and suffering, mental and emotional suffering, loss of the ability to enjoy life’s pleasures, and permanent impairment or loss of function that she proves by a fair preponderance of the evidence to have been proximately caused by the defendant’s negligence. Leabo v. Leninski, 2 Conn.App. 715, 726, 484 A.2d 239 (1984). The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence even though those injuries and losses are more serious than they otherwise would have been because of a preexisting condition. Iazzetta v. Nevas, 105 Conn.App. 591, 593 n.4, 939 A.2d 617 (2008). The court may not compensate the plaintiff for the preexisting injury itself. Tuite v. Stop & Shop Cos., Inc., 45 Conn.App. 305, 310 n.2, 696 A.2d 363 (1997). However, the aggravation of such an injury, proximately caused by the defendant’s negligence, is a proper item of noneconomic damages. Id. The plaintiff is to receive fair, just and reasonable compensation for all injuries and losses, past and future, that are proximately caused by the defendant’s proven negligence. Id., 310-11.
3. The Nature and Extent of the Plaintiff’s Damages Proximately Caused by Kunicki
In deciding the nature and extent of damages proven by the plaintiff, the court cannot, in layman’s terms, check its common sense at the door. Rivera v. CR Summer Hill, Ltd. Partnership, supra, 170 Conn.App. 78. Rather, as set forth above, the court may not guess or speculate, but must base its decision upon reasonable probabilities in light of the evidence presented at trial. Leisure Resort Technology, Inc. v. Trading Cove Associates, supra, 277 Conn. 35. In that regard, the following facts are significant.
As chronicled in great detail above, the plaintiff had an incredibly extensive past history of medical issues, many arising from the areas of her body that the motorized scooter hit: her lower back and buttock regions. The impact itself was moderate at best. The motorized cart only travelled one foot and could not go faster than a person pushing a regular shopping cart. Rapid Recovery found no bruising in the area where contact occurred some four days after the accident. Although the plaintiff had appropriate concerns about whether any of her hardware in the cervical or lumbar region and her left knee prosthesis were disturbed by the accident, none of these areas were disturbed. The objective diagnoses from the plaintiff’s orthopedic providers, Drs. Kruger and Joyce, were of pain (in one toe) and contusions (around the left knee) only. The bitterness testified to by Dr. Kruger arose not from this accident, but from the plaintiff’s husband’s diagnosis with dementia and from the plaintiff, after a lifetime of suffering, becoming angered and frustrated by her birth defect.
The court finds that the plaintiff proves that her treatment through September 2017, was proximately caused by Kunicki’s negligence, with the exception of diabetes-related treatment at St. Francis Hospital. However, the court finds that this accident did not proximately cause the plaintiff to sustain permanent injury.
As set forth above, our legal definition of proximate causation is not "post hoc ergo propter hoc; after this, therefore, because of this," or, in other words, "if event y followed event x, event x must have caused event y." Our law on proximate causation, rather, requires the plaintiff to prove that the defendant’s conduct was a substantial factor in causing the injuries alleged. Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 250 Conn. 25-26.
Although the plaintiff was in worse physical shape after the accident than in 2016, the court does not find that she proved a causal relation between her present condition and this accident. Prior to the accident, the plaintiff experienced debilitating pain to various body parts that was both atraumatic and idiopathic. Moreover, prior to the accident, she lived with the following medical problems: (1) a lifetime of enduring entire left-sided hemiplegia, with accompanying increased spasticity and enhanced muscle tone on one-half of her body, as well as weakness and an uneven gait on that side; (2) seven lumbar disc surgeries with hardware, three cervical disc surgeries with hardware, a nerve decompression procedure in her back, the implanting of an electrical stimulation device in her back, severe scoliosis and kyphosis; (3) three procedures on her left knee, including a total knee replacement, as well as a procedure to straighten her left leg; (4) rotator cuff and carpel tunnel surgery and (5) longstanding congestive and sclerotic heart disease with a triple bypass, chronic renal disease, unchecked diabetes, very poor sleep, high blood pressure, low thyroid output and chronic headaches.
The court finds that the cumulative impact of this myriad of medical insults on a late middle-aged person was more likely than not- and certainly more likely than the moderate, at best, impact in this case- the proximate cause of the plaintiff’s medical conditions after September 2017. Moreover, many of the plaintiff’s continuing complaints after that time deal with areas of her body that were never raised as medical issues in the wake of this accident. It is especially significant in this regard that St. Francis Hospital, which subjected every area of the plaintiff’s body that had previously been treated, and of which she complained, to strict diagnostic testing, did not undertake diagnostic testing of the plaintiff’s cervical spine.
The plaintiff’s treating expert’s testimony, as well as her pre-accident and post-accident medical history of experiencing pain without an objective cause, undermined the causal relationship between this accident and any post-accident increase in painkiller intake. Moreover, her painkiller intake in 2016, the year before this accident, was significantly higher than that in previous years. Therefore, the court concludes that the plaintiff did not prove that any enhanced painkiller intake after this accident was proximately caused by this accident.
Just before this accident, the plaintiff needed two hospital visits for cardiac-related problems. Therefore, when she had chest pain after this accident, the chest pain needed to be examined. Testing and treatment for chest pain at St. Francis Hospital was, as a result, proximately caused by this accident.
Treatment related to diabetes, however, is another story. The plaintiff was inconsistent at best about monitoring and treating her long-time diabetes problem both before and after the accident, and, therefore, none of the diabetes-related treatment at St. Francis Hospital was proximately caused by this accident.
The plaintiff has proven, by a fair preponderance of the evidence, economic damages proximately caused by Kunicki in the following amounts:
(1) The ambulance bill: $959.65;
(2) The St. Francis Hospital bill, excluding treatment for diabetes: $25,299.49;
(3) The Rapid Recovery bill: $15,997.97;
(4) The in-home PT and OT bill: $3,520.01;
(5) The Hartford Healthcare PT bill: $922.19;
(6) The Greater Hartford Orthopedic bill dated August 11, 2017: $584;
(7) The Dr. Joyce visits of May 10, 2017 and July 11, 2017: $509; and
(8) The Dr. Mendelsohn visits of May 1, 2017, June 13, 2017 and August 7, 2017: $609.
The plaintiff’s economic damages total $48,401.31. Even though the court would not ordinarily grant such a high amount of economic damages for such a relatively minor trauma, the court finds that the facts of this case, particularly the plaintiff’s condition at the time of the accident, support such amount.
Moreover, in awarding noneconomic damages, the court finds significant the plaintiff’s incredibly extensive history of medical trauma, especially in the lower back and buttock region. Because of this background, the plaintiff sustained noneconomic damage after this accident in the form of mental pain and suffering and anxiety to a degree much greater than the average person would have sustained from this moderate impact and the soft tissue injuries that ensued from it. The Rapid Recovery notes reveal a diagnosis of anxiety running through May 2017. The court awards the plaintiff $25,000 for her noneconomic losses.
The court’s decision-making process concerning both economic and noneconomic damages takes into account that this impact caused a temporary exacerbation of the plaintiff’s musculoskeletal medical issues.
In sum, the court awards the plaintiff $73,401.31 as against Kunicki.
Judgment shall enter for the plaintiff in the amount of $73,401.31 against the defendant Kunicki on count two of the operative complaint. Judgment shall enter in favor of Wal-Mart and against the plaintiff on count one of the operative complaint.
SO ORDERED.