Opinion
No. CV01-0168155S
June 21, 2007
MEMORANDUM OF DECISION
FACTS
The plaintiff Eroilda Ramos, was visiting friends at 52 Madison Street in Waterbury, Connecticut at on October 17, 1999. As she exited the house, at approximately midnight, she slipped and fell on the sidewalk which was uneven and in a state of disrepair. She sustained injuries to her right ankle and torso. Her husband drove her back to Passaic, New Jersey that night.
Because her husband's health care provider required that she be seen at a New York City Clinic on East 95th Street in New York City, she was taken there on Monday, October 19, 1999. The plaintiff was examined at the clinic and diagnosed with a fractured right ankle and a cast was applied by an orthopedic doctor after he reviewed the x-rays. She was released with crutches. Approximately three weeks later the ankle was recast because the plaintiff was complaining of pain. After the recasting, she was sent home once again and prescribed Tylenol with Codeine.
The plaintiff has submitted to the court exhibits of medical reports dated October 18, 1999 through December 13, 1999 from New York Medical Group, P.C. The medical records are devoid of any further treatment, disability ratings or any other medical information necessary for the trier of fact to fully evaluate the plaintiff's non-economic damages.
There was testimony, however, from the plaintiff that she suffered pain both then and now, and in addition to the cast and recast she was required to use crutches and a splint between four and six weeks. She began physical therapy but only attended one session. She was out of commission entirely for about three months in duration.
The plaintiff testified further that at the time of the accident she was a certified dental assistant on a leave of absence. She stated that she planned to return to work in December of 1999. She could not return to work because she told the court that her commute was long and challenging (New Jersey to Manhattan) and required a lot of walking and use of stairs. Lastly, the plaintiff states that she was not able to pursue dancing and bike riding, and other physical activities were curtailed because of the fall.
Besides seeking economic damages in this lawsuit, the plaintiff is asking for compensation for a permanent partial disability of her ankle even though no doctor has opined on the subject. She is also seeking damages for diminution of life activities as well as lost earning capacity.
DISCUSSION NOTICE
Connecticut General Statutes § 13a-149 provides as follows: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and general description of the same, and of the cause there for and the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact mislead thereby." (Emphasis added.)
"In determining whether the notice is sufficient, [the court] must look to the purpose of the statute. . . The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests. . . More specifically. . . the statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against merit less claims." (Citations omitted; internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003).
"The savings clause. . . operates to protect plaintiffs from having their § 13a-149 claims barred by reason of a vague, indefinite or inaccurate notice of accident location." Id., 794. "[F]ailure to describe accurately the place of the accident [does] not operate in any substantial degree to prevent the city from protecting itself in [an] action." Id., 795 (citing Greenberg v. Waterbury, 117 Conn. 67, 70, 167 A. 83 (1933)). "[T]he savings clause [a]lthough. . . limited in terms of the types of defects covered. . . demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff." Id., 796.
In the present case, the plaintiff indicated in her notice to the city that she was injured in front of 52 Madison Avenue. The plaintiff's injury actually occurred in front of 52 Madison Street. This court finds that the plaintiff had no intent to mislead the city, nor was the city actually misled by this error. In light of the foregoing, the court finds that the notice was sufficient in this case.
NEGLIGENCE
"To prove a breach of statutory duty under § 13a-149, the plaintiff must prove, by a fair preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) Prato v. City of New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998).
The Supreme Court "previously has held that [t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient." (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 678, 768 A.2d 441 (2001).
Wes Laureno, the owner of 52-54 Madison Street, testified that he bought the premises in 1998. He noticed the curb was in disrepair in June or July of 1999. He also testified that on the night of October 17, 1999, he heard the plaintiff crying and he helped carry her to her car.
Based on the plaintiff's testimony and that of the landlord Wes Laureno, the court finds that the curb was defective, the City knew or should have known it was defective and failed to repair same. The defective curb was the sole proximate cause of the plaintiff's injuries as testified to by the plaintiff and the landlord.
DAMAGES
The plaintiff has requested that the court award damages for lost wages, pain and suffering, a diminution in her earning capacity, a claim for future disability, and loss of life's enjoyments.
Insofar as money can do it, the plaintiff is to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant's proven negligence.
"In Connecticut, the trier of fact in a personal injury action must break down an award of damages into two categories: Economic damages and noneconomic damages. Economic damages are defined as compensation determined by the trier of fact for pecuniary losses. . . Noneconomic damages are defined as compensation determined by the trier of fact for all nonpecuinary losses including, but not limited to, physical pain and suffering and mental and emotional suffering. . . [E]conomic damages are akin to special damages, and noneconomic damages are akin to general damages." (Internal quotation marks omitted.) Devito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001).
There are no economic damages in this case since the plaintiff did not provide any bills as insurance paid for everything.
The plaintiff first visited the clinic in New York City and the attending physician placed her right ankle in a cast for approximately two and one-half months. About three weeks after the fall, her right ankle was recast because she was still in pain. She was prescribed Tylenol with Codeine. The plaintiff was confined to her home and used crutches during the period her cast was on.
The plaintiff testified that her bedroom was on the second floor of the house and the only bathroom was on the first floor so that it was very difficult during her confinement at home.
By the end of December, the cast was taken off and she was given a splint (shoe) which she used for approximately six weeks. She began going to physical therapy but stopped after two visits and decided to perform the exercises at home. The trip from New Jersey to New York City was long and hectic for her.
The plaintiff was not able to perform household work until after the splint (shoe) was off and then only a little at a time. She testified that if she walks on her ankle for more than three hours, it starts throbbing and swelling.
She can no longer bike ride or dance the same way she used to and as of 2003, she has been on social security disability.
Lost Earning Capacity/Lost Wages
"Loss of earning capacity is an appropriate element of compensable damages for personal injuries. Where the plaintiff is engaged in a business, the loss of net profits affords some basis for measuring such loss. . . The evidence, however, must be of such nature as to remove the issue from the realm of speculation. . . It is not necessary that the amount of the loss be established with exactness so long as the evidence affords a basis for a reasonable estimate by the [trier of fact]." (Citations omitted; internal quotation marks omitted.) Delott v. Rorabeck, 179 Conn. 406, 411, 426 A.2d 791 (1980).
The court does not make any findings as to lost wages or since the lost wage claim was nebulous.
Pain and Suffering
"A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff's subjective complaints." Id., 409.
This court awards the plaintiff the sum of fifteen thousand dollars ($15,000) for pain and suffering for non-economic damages which were approximately caused by the negligence of the City of Waterbury with a defective curb at 52 Madison Street, Waterbury, Connecticut.
Permanency
"A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency." Parker v. Supermarkets General Corp., 36 Conn.App. 647, 650 652 A.2d 1047 (1995). "If a [trier of facts] has the opportunity to appraise the condition of a plaintiff and its probable future consequence, an award of damages for permanent injury and for future pain and suffering is proper." Id., 651. "[I]f a proper foundation has been laid concerning the plaintiff's condition before and after the injury and if some evidence of permanency has been introduced at trial" it is proper for the trier of fact to determine permanency. Id.
In the present case, however, the plaintiff failed to present any evidence of permanency. Not only did the plaintiff fail to present a medical opinion as to the percentage of permanency, but she failed to establish this fact through any other form of evidence. The plaintiff testified that she is presently in pain if she tries to stand for more than three or four hours, however, there is no evidence that this is permanent or will persist in the future.
Therefore, the court is unable to award any permanency damages in the present case.