Opinion
No. CV 05-5000335 S
November 9, 2007
MEMORANDUM OF DECISION
The plaintiff has brought this civil action against the defendant seeking money damages for injuries she sustained and losses she incurred as the result of a fall on August 1, 2004 at about 7:00 p.m. when she was shopping at a supermarket possessed and controlled by the defendant in East Haven, Connecticut. The complaint alleges that the plaintiff was caused to fall and be injured when she stepped on a foreign liquified substance on the floor, that the fall and the resulting injuries and losses were caused by the negligence of the defendant and its employees in failing to remove the foreign substance when they knew or should have known of its presence, in failing to warn the plaintiff of its presence, and in failing to provide a safe environment in the store for customers such as the plaintiff. The defendant admits that it possessed and was in control of the store, denies that it was negligent in any way, and alleges by way of a special defense that the plaintiff's alleged fall and injuries were caused by her own contributory negligence.
The case was tried to the court on September 7, 2007. The witnesses who testified on behalf of the plaintiff were the plaintiff and her husband, John Parker. The defendant offered the testimony of Jean Rhone, a former employee of the defendant who was working in the store on August 1, 2004. Miscellaneous medical reports and bills were introduced in evidence by the plaintiff.
The defendant does not dispute the plaintiff's claim that she was shopping at the supermarket as a business invitee at the time of her fall. The law with respect to this kind of a case is clear. "The plaintiff is correct that as a business invitee the defendants owed her a duty to maintain their premises in a reasonably safe condition. Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). `To hold the defendant liable for her personal injuries [though], 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.) Id.; see Cruz v. Drezek, 175 Conn. 230, 238-39, 397 A.2d 1335 (1978). Furthermore, [i]t is within the province of the trier of fact to determine whether a defective condition existed.' Martin v. Stop Shop Supermarket Cos., supra 251." Palmieri v. Stop Shop, 103 Conn.App. 121, 123-24 (2007).
The court finds the following facts and reaches the following conclusions. On August 1, 2004, between 6:00 and 7:00 p.m. the plaintiff and her husband John Parker were shopping in a supermarket possessed and controlled by the defendant and located in East Haven, Connecticut. Two employees of the defendant, Ms. Rhone and a male employee, were moving a pallet with merchandise on it from the rear of the store to the bakery department, which was located in the front of the store. As they moved the pallet into the bakery area a five gallon tub of white frosting fell off the pallet and spilled on the floor. Because the frosting was liquid, it created a large puddle on the floor that was five or six feet around. The floor was a cream or off-white linoleum tile and the frosting was white which made the spill difficult to see. In front of the bakery counter was a large open area. In the middle of the open area there were two large display tables located parallel to the counter which had the effect of creating an aisle on either side of the tables where customers could walk. The spill occurred in the aisle between the display tables and the bakery counter and covered a substantial portion of the width of that aisle. Ms. Rhone claims that she immediately put out three cones, each about two and a half feet tall saying "Caution Wet Floor," to warn people about the spill. She could not remember precisely where she placed the cones but claimed they were near the spill. The manager of the store was called to the scene, directed Ms. Rhone to clean up the spill and then left. The spill was very difficult to clean up and Ms. Rhone was alone mopping it up. No one was posted at the scene to warn customers about the spill. The spill occurred five or ten minutes before the plaintiff fell.
The plaintiff and her husband had finished their shopping. Mr. Parker went to the check-out area with the cart of groceries and the plaintiff went back to get two additional items. She was walking towards the check out area when she stepped on the spill, both feet went out from under her and she landed on her buttocks and immediately felt pain. She testified that she did not see the spill before she fell and that she did not see any cones on the floor. Mr. Parker was told about his wife's fall, he came back to where she was sitting on the floor, and also testified that he saw no cones in the area. The manager was called and he returned to where the plaintiff was sitting on the floor. The floor was so slippery that Mr. Parker and the manager had difficulty in getting the plaintiff up because her feet kept slipping out from under her. They finally got her up by having her brace her feet against their feet so she would not continue to slip. The floor was as slippery as ice. The frosting soaked through her clothing to her underwear. She was wearing rubber soled shoes. Someone connected to the store gave her a t-shirt, which she wrapped around her waist, and a pair of thongs which she put on after taking off her shoes. The plaintiff then went with the manager to his office where the manager interviewed her about her fall. After ten or fifteen minutes her husband drove her home.
With respect to the issue of liability the defendant concedes, as it must, that there was a defective condition on the floor that it was aware of. The issues in the case on liability are whether the defendant's employees exercised reasonable care in what they did after the spill so as to make the premises reasonably safe, and whether the plaintiff herself was guilty of contributory negligence. The court finds that what the employees did after the spill was inadequate to make the premises reasonably safe. The court finds that three cones were put in the area of the spill but that this was an inadequate warning to customers of the existence of the spill. The spill was described as being up to six feet around, covered a substantial portion of the aisle, and was as slippery as ice. In addition, the frosting was white on a cream or off-white colored floor and would not be particularly noticeable. Reasonable care called for the immediate installation of some sort of barricade completely surrounding the spill, or blocking off the aisle, or the posting of employees on either side of the spill to prevent anyone from inadvertently stepping on the spill while it was being cleaned up. The court finds that the plaintiff has proven that the defective condition had existed for such a length of time that the defendant, in the exercise of reasonable care, should have taken steps to prevent customers from walking on the spill, and that the area where the plaintiff fell was not reasonably safe. The court also finds, based on all the evidence, that the defendant has failed to prove that the plaintiff was contributorily negligent.
As a result of her fall, the plaintiff sustained a chronic musculoligamentious sprain of the lumbosacral spine, and a severe shock to her nervous system. She suffered from back pain immediately following her fall. She was still in pain the following day and sought an appointment at Quinnipiac Medical to see Dr. Richard Kaufman, who had been her internist for about thirty years. She was unable to see Dr. Kaufman but did see Dr. Ryan O'Connell in the same office on the day after her fall. After a couple of weeks of conservative treatment, Dr. Kaufman recommended that she try some physical therapy which she did at Branford Rehabilitation for about three months. She also did exercises at home which were prescribed by the rehab center. She continued to have pain in her back and Dr. O'Connell recommended that she have an MRI of her lumbar spine, which was done on October 27, 2004, and which showed no evidence of bony injury and no significant degenerative changes. She continued with physical therapy in January and February 2005 in Florida at Premier Total Health Care as recommended by Dr. Kaufman.
After returning from Florida the plaintiff continued with her home exercise program but she continued to experience persistent lumbosacral pain. Because of her continuing pain Dr. Kaufman sent her for consultation at Connecticut Orthopaedic Specialists, P.C. where she was examined by Dr. Kenneth Kramer on May 17, 2006. Dr. Kramer diagnosed her condition as being a chronic lumbosacral sprain caused by her fall on August 1, 2004. Since she had undergone a full regimen of standard appropriate treatment measures without improvement, he recommended that she consider having lumbar injections which she declined to have done. He gave her a 5% permanent partial impairment based on the chronic lumbar sprain injury.
At the time of the fall the plaintiff was employed on a part-time basis as the head nurse at Surgical Associates, which was a group of doctors located in New Haven. She had worked at that office for twenty-four years, and in August 2004 she worked twenty to twenty-four hours a week. Following the accident, and until she retired in October 2005, she worked about five hours a week less because of her back pain. She retired earlier than she had planned because she felt that she could not do her job the way she should because of her back pain. No evidence was offered by the plaintiff as to her rate of pay, loss of earnings, or loss of earning capacity. However, on cross-examination of the plaintiff, the defendant brought out that in answers to discovery she said that she was paid $30.81 an hour and had total lost income of $123.41.
At the present time she continues to have back pain. When her back becomes too painful she puts on a soft back brace with an ice pack in it. She does stretching exercises in the morning and evening and takes over-the-counter medications for pain. She has found it necessary to hire a cleaning woman to assist in the heavy housework. She is a "Shubert volunteer" which entails passing out programs five or six times a year at the Shubert Theater in New Haven.
The plaintiff claims economic damages totaling $5,799.00 consisting of Quinnipiac Medical of $174.00, Branford Rehabilitation Center of $2,810.00, Premier Total Healthcare of $1,185.00, Connecticut Orthopaedic Specialists of $567.00, and Temple Radiology of $1,063.00. She has a permanent partial disability of 5% of the lumbar spine, and at her current age of 61, has a life expectancy of 22.3 years.
The court finds that the plaintiff has proven economic damages of $5,799.00 and non-economic damages of $20,000.00. There is no collateral source deduction.
A judgment may enter in favor of the plaintiff in the amount of $25,799.00.