Opinion
No. CV03-0348805S
January 7, 2005
MEMORANDUM OF DECISION
This matter comes before the court by way of two separate cases involving the same parties, which were consolidated for purposes of trial only. The first matter, State of Connecticut, Department of Transportation v. Pamela Smith (DN CV03-0350456 S) was resolved by the parties at the time of trial, by means of an oral Stipulation. The complaint sought unpaid rent arising out of a written lease of the premises located at 307 Old Branchville Road, Ridgefield, Connecticut. In that case, the parties agreed that use and occupancy was owed to the plaintiff in the amount of $11,000, to be repaid by the defendant at the rate of $1,000 per month, commencing ninety days after the resolution of the present case, with the further proviso, that the State of Connecticut (the plaintiff therein) could offset this amount against any sums awarded in the companion case to Pamela Smith, the plaintiff herein. The plaintiff proceeded on the basis of a Revised Complaint (#107) dated August 15, 2003, having two counts, one sounding in negligence, and the second in private nuisance. The defendant filed an Amended Answer (#139) dated July 28, 2004, containing two Special Defenses. The first, is waiver and release, directed to both counts, and the second is comparative negligence only as to Count One. The case was tried to the court over the course of one day.
In brief, the parties entered into a written lease (Exhibit #1) dated July 10, 1992, and executed by the plaintiff, Pamela M. Smith ("Smith"), on July 31, 1992. The leased premises consisted of a two-story Cape Cod style home at 307 Old Branchville Road, in a residential neighborhood in Ridgefield, Connecticut, on a small, partially wooded lot consisting of .136 acres. Entry to the home is gained either through the front or rear doors, as well as the basement garage. There is a flag or fieldstone walkway across part of the front lawn to the front stoop, and what would appear to the court from the photographic evidence, a substantial elevation that must be climbed from the driveway in order to reach that entry. In order to access the walkway from the driveway, one must traverse a small patch of lawn, and then climb a flight of five or six fieldstone steps of various heights and depths. The steps and walkway appear to have been in place at least at the time of the execution of the lease in 1992. There was some testimony by Smith that she occupied the premises with her mother prior to 1992, and that she later occupied same with her teenaged daughter pursuant to the current lease. Smith vacated the premises at some point after September 1996, and she and her daughter currently live elsewhere in Ridgefield.
Under the terms of the lease, Smith occupied the premises on a month to month basis, for which she paid a base rent of $510 per month, together with one-twelfth of the annual real property taxes to the Town of Ridgefield, for an initial total monthly rental of $845. At the time Smith vacated the premises, the base rent had increased to $600 per month.
Furthermore, under the terms of the lease, the premises were, "rented on a month to month basis in its `as is' condition, "without any warranties or representations of any kind by the State." The tenant was to be responsible "for all maintenance and repair to the Premises," which included "routine plumbing and heating repairs, lawn care, snow removal, waste removal, replacement of broken windows," as well as, "all other obligations deemed necessary by the State to keep the Premises clean and safe to the satisfaction of the State." For its part, the State was responsible for all "Major Repairs," including, "any maintenance and repairs required to maintain the habitability of the Premises including roof and furnace replacement, repairs or replacement of the primary sewer or water systems, and foundation repairs." Such work was to be performed by the State, at the expense of the State, on the schedule of the State, to the satisfaction of the State. Moreover, the lease specifically provided that the State would be " the sole judge of the habitability of the premises." Finally, the lease provided that Smith was to indemnify and hold the State harmless for any claims arising out of her use and occupancy of the premises.
The instant matter arises out of a claim by Smith for damages which she sustained as a result of a fall on the aforementioned stone steps on September 24, 1996. According to the testimony of the plaintiff, her daughter had, in her words, "mouthed off" during a disagreement in the car after she had picked the daughter up from school. In the midst of the argument, the daughter left the car, which was parked in the driveway, and bolted up the front stairs, ran along the walk, and went into the house, leaving her backpack behind. Smith testified that she called to her daughter to stop, and when the child did not, she chased after her holding the backpack. According to the plaintiff, when she placed her foot on the tread of the second step from the bottom and attempted to take a step up, the lip or overhang from the step above caught her foot, which then became wedged in the second step due to the unevenness of the tread, and as a consequence she fell, twisting, and ultimately breaking her ankle. She lay on the ground for some time, before her daughter found her and called for assistance. Smith was taken by ambulance to Danbury Hospital, where she was diagnosed with a spiral fracture of the left fibula/tibia.
Smith initially brought her claim before a Claims Commissioner who ruled that she could not sue the State of Connecticut. However, subsequently a Substitute House Joint Resolution was passed on or about April 25, 2002, at the February 2002 Session of the General Assembly which did authorize her to institute such an action, provided that she do so within one year of final adoption. At trial, the State attempted to introduce the findings of the Claims Commissioner, and the court denied the request.
During the course of the trial, Smith testified as to her experience with the State as landlord. Specifically, she testified that, over the course of her occupancy, the State made certain repairs at her request. For instance, the state repaired the roof after she brought the problem to its attention. In addition, the well pump was replaced twice, once at her expense and once at the expense of the state. The steps, however, were a source of concern from early in the lease term. So much so, that she herself attempted to repair them by applying a cement patch. It failed. She even installed solar lighting; it also failed to help, and she removed it. She claims that she called the condition of the steps to the attention of one Jack Goggins, a state employee charged with maintenance responsibilities for the premises five or six times, starting in late 1993 or early 1994, the latest being in the spring of 1996. According to her, the State ignored her requests. She testified that during her occupancy, no one had been injured on the steps, however, she said that her daughter had slipped and fallen there once while going down the steps.
The plaintiff called an expert witness, Eugene Baron, an accident investigator with twenty years of experience, six of which was with the State of Connecticut. The court accepted the witness as an expert. He testified that based upon his experience and an examination of the premises, that the steps were "clearly defective." He based this opinion in part on the fact that the steps themselves were not uniform (e.g., tread depth, rise between steps, and tread surfaces) as well as the fact that there was no handrail, and that there was an overhang from the step above. He testified that a standard riser is 8.5 inches, and that two of the steps in question ranged from 3.5 inches to 6 inches. The witness's testimony was inconsistent with a learned treatise (Exhibit #15), a portion of which was introduced into evidence by the plaintiff through the expert himself. That publication indicates at page 235, that "normal construction is a 7-inch to 7.5-inch rise per step." The problem with inconsistencies, the witness testified, is that persons using the steps normally do not remember the variations in height, depth, and texture, even with repeated use. Aside from that one inconsistent statement, the court found the witness to be credible and his testimony compelling. The court found the defect to be inherent in the construction of the actual steps themselves for all of the reasons testified to.
Smith entered into evidence, by agreement a number of medical bills totaling $13,866.10, however, she offered no expert testimony regarding permanency. There are, however, reports (Exhibits #22 and #23) by Thomas M. Malloy, M.D., prepared by her primary physician, indicating that Smith suffered a "permanent residual physical impairment of her left ankle of 5 percent as a result of her fractures of the left tibia and fibula," and that she had reached "maximum medical improvement." The injury has left her with a permanent limp, since one leg is now shorter than the other. For a while she told the court that she had been in "excruciating pain," but that she now suffers from "aches" from time to time. She also testified that she normally used the back door or garage since the front door was usually locked, however, on the day of the incident, she said that she was "angry" and "focused on the child." Her testimony was sincere and also compelling. In addition, she testified that she is forty-five years old, but offered no evidence of life expectancy. At the time of the injury, she worked as a waitress at the Rusty Nail. Subsequently, she trained as a massage therapist. Through counsel, she indicated for the record that she had no claim for lost wages.
LAW
Under the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition areas of their premises over which they exercise control. Cruz v. Drezek, 175 Conn. 230, 234 (1978). Control is a question of fact. "The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54 (2004). Under normal circumstances, possession by the tenant is tantamount to control, however, a landlord may by his actions or by contract retain or assume control of the premises. White v. Edmonds, 38 Conn.App. 175, 179-80 (1995). However, liability of a landlord for damages due to a defective condition depends upon proof that the area was under the control of the landlord, that he had notice of the defect, and that he failed to remedy the defect within a reasonable time from the date of notice. Gore v. People's Savings Bank, 235 Conn. 360, 373 (1995). "The knowledge, whether actual or constructive, must be of the specific defective condition which caused the injury and not merely of conditions naturally productive of that defect, even though subsequently, in fact, producing it." Kirby v. Zlotnick, 160 Conn. 341, 344 (1971).
"In general, there is no implied warranty of habitability given to a tenant, but rather, he takes the premises as he finds them and bears the risk of any defective conditions which are within the area under his exclusive possession and control . . . This rule, however, does not apply to defects which are the result of faulty design or disrepair and which existed at the beginning of the tenancy, were not discoverable by the tenant on reasonable inspection, and were known, either actually or constructively, to the landlord." (Citations omitted; emphasis added.) Thomas v. Roper, 162 Conn. 343, 350 (1971); Johnson v. Fuller, 190 Conn. 552, 558 (1983). By law, it is the responsibility of the landlord to, inter alia, "make all repairs and do whatever is necessary to put and keep the premises in a fit or habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant." General Statutes § 47a-7(a)(2). In this case, there was no claim or evidence that the tenant rendered the premises uninhabitable. However, even if the landlord were to be found to have breached its duty to the tenant, in violation of General Statutes § 47a-7, this, in and of itself, does not give rise to strict liability. Gore v. People's Savings Bank, supra at 373-74.
In general, a property owner, "is not an insurer of the safety of persons using the common approach to the premises against the possibility of injury by reason of snow and ice thereon. The duty of the defendant [is] to use reasonable care to maintain the common approach to property under its control in a reasonably safe condition under all the circumstances." Drible v. Village Improvement Company, 123 Conn. 20, 23 (1937). The duty to keep the premises fit and habitable does not include such tasks as lawn and yard care. Ciavaglia v. Bolles, 38 Conn.Sup. 603, 606 (1982). However, a landlord has been held to have a duty to repair a defective railing which is part of a common approach to apartments if he has knowledge of the defect. Gaucsco v. Levy, 89 Conn. 169, 171 (1915). Likewise, it has been held that a common passageway is not appurtenant to the individual apartment, and it is the duty of the landlord/owner to use reasonable care, "to have the passageways and stairways reasonably fit and safe for the uses which he has invited others to make of them. Gibson v. Hoppman, 108 Conn. 401, 409 (1928). In another premises liability case, it was found that an outside porch, the entrance to which was through a common hallway and not the individual apartments, was within the control of the landlord. Kirby v. Zlotnick, supra at 344. This court believes that this principle applies with equal force to situations such as found in this case (i.e., outside steps and walkway which serve as the main entryway to a single-family tenancy), where the owner-landlord has, by contract, reserved the final decision as to habitability in the lease itself; and, moreover, in a document that was drafted by it.
In brief, negligence is the breach of a duty that one person owes to another, which breach results in an injury. In order for a party to recover on the basis of negligence, it is necessary to establish four elements: (1) there was a duty; (2) the defendant was, in fact, negligent (i.e., breached the duty; (3) there was an injury; and (4) that the negligence was the proximate cause of or a substantial factor in causing the injury to the plaintiff. Silano v. Cumberland Farms, Inc., supra at 453. In addition, it must be found that the negligence of the plaintiff was not greater than the negligence of the defendant. General Statutes § CT Page 210 52-572h(b). "[T]he test of proximate cause is whether the conduct is a substantial factor in bringing about the plaintiff's injuries." It is an issue of fact for the trier to determine the causal connection between the act and the injury. Mack v. LaValley, 55 Conn.App. 150, 162 (1999). The burden of proof is upon the plaintiff to prove the four basic elements by a fair preponderance of the evidence, and it is the burden of the defendant to prove by a fair preponderance of the evidence that the negligence of the plaintiff was greater.
The following standard jury charge is instructive with regard to the plaintiff's duty in a premises liability case: "It is the duty of the plaintiff to use reasonable care, that is, the care of an ordinarily prudent person, to avoid injury from the defective condition. She had the right to assume that the defendant had performed its duty to use reasonable care to keep the premises reasonably safe; and until the plaintiff knew or should have perceived by a reasonable use of her facilities that the premises were not safe for her use, she could proceed on that assumption. Even if she did know or should have perceived the defective condition, she would not necessarily be charged with contributory negligence. She was not necessarily obliged to cease to use the portions of the premises that were defective; although there was a course she might have taken to avoid them." Gibson v. Hoppman, supra at 404. Douglass B. Wright William L. Ankerman, Connecticut Jury Instructions (Civil), Fourth Edition, Vol. 1, 1993, § 184, 346-47. "Where an act is instinctive or due to momentary and excusable inattention, it does not have to constitute contributory negligence." Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 83-84 (1968).
"Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to the matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury considering the issues." State v. Pereira, 72 Conn.App. 107, 120 (2002). "[T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight given to specific testimony . . . The credibility and weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible." United Technologies Corp. v. East Windsor, 262 Conn. 11, 26 (2002).
The plaintiff also claims damages by way of nuisance. "It is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. If the use is unreasonable the law will hold him responsible." Nailor v. Blakeslee Sons, Inc., 117 Conn. 241, 245 (1933). Unreasonableness is determined by weighing the conflicting interests involved. O'Neill v. Carolina Freight Carriers Corporation, 156 Conn. 613, 617-18 (1968). In the case of a private nuisance, the issue is, "whether the defendant's conduct unreasonably interfered with the plaintiff's use and enjoyment of his or her land rather than whether the defendant's conduct was itself unreasonable." Pestey v. Cushman, 259 Conn. 345, 360 (2002). Applying the above test to the facts of the instant case, the court finds that, while there is sufficient evidence to support a claim of negligence, it falls far short of a claim for a private nuisance. In particular, the evidence shows that the plaintiff and her daughter had occupied the premises for more than four years prior to the plaintiff's injury, with no other such incident, other than the daughter's fall in which no injury occurred. In addition, the plaintiff testified that she seldom used the front entrance, primarily utilizing instead, either the garage or the back door. Accordingly, the court concludes that the conduct of the defendant did not unreasonably interfere with the plaintiff's use of the premises.
Finally, as to the defendant's Special Defense of waiver and release, the court finds that, under all of the facts and circumstances of this case, were it to enforce same, it would fly in the face of a clear statement of public policy as expressed by the Legislature in General Statutes § 47a-7(a)(2). Public policy is determined, not by the courts, but rather by the legislature. For a court to do so, it would be "exceeding [its] constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments." State v. Reynolds, 264 Conn. 1, 79 (2003).
FINDINGS
1. That the court has jurisdiction to hear the matter by virtue of Substitute House Joint Resolution No. 145 enacted at the February 2002 Session of the General Assembly (Exhibit #31); and that the plaintiff commenced that action within one year of final adoption thereof.
2. That the parties entered into a written lease of the premises at 307 Old Branchville Road, Ridgefield, Connecticut, dated July 10, 1992, and executed by the plaintiff herein on July 31, 1992; that under the terms of said lease, the defendant agreed to perform major repairs; that under the terms of the lease major repairs include, but are not limited thereby, any maintenance and repairs required to maintain the habitability of the premises including roof and furnace replacement, repairs or replacement of the primary sewer or water systems, and foundation repairs; that by the terms of the lease, such work had to be performed by the defendant, on the schedule of the defendant, and to the satisfaction of the defendant; that by the terms of the lease the defendant was the sole judge of habitability; that under all the facts and circumstances of this case these provisions amounted to control of the premises as to its habitability; and that the means of safe ingress to and egress from the leased premises, which includes the stone steps, are essential elements of the habitability thereof.
3. That the court found the plaintiff's expert, Eugene Baron, to be credible, and that the steps were defective in more than one respect; that the defect existed at the time the lease was entered into; that the defendant was made aware of the specific defect prior to the accident through a communication by the plaintiff, on "five or six" occasions, the most recent being in the spring of 1996; that by the terms of the written lease, the defendant retained control over that portion of the premises; that the plaintiff's attempt to repair the steps did not create or exacerbate the unsafe condition; that the defendant failed to exercise reasonable care under all the circumstances, in that it failed to correct the defect within a reasonable time after notice thereof; and that the defendant's negligence was the proximate cause of the injuries sustained by the plaintiff on September 24, 1996.
4. That the plaintiff made the following admissions as a result of a Request for Admission dated October 27, 2003, which the court finds to be relevant. Practice Book § 13-24:
a. The plaintiff knew of the defective condition of the walkway prior to September 24, 1996, but subsequent to the execution of the lease (July 31, 1992);
b. The plaintiff did not send the defendant written notice of the defect prior to September 24, 1996; CT Page 213
c. The exterior light over the garage was off at the time of the accident;
d. It was drizzling rain at the time of the accident;
e. The walkway was wet from drizzle at the time of the accident; and
f. Prior to the accident, the plaintiff had an argument with her daughter, following which, the plaintiff ran "full tilt" after the daughter and fell on the steps.
5. That the plaintiff knew of the unsafe condition; that the plaintiff failed to exercise reasonable care under all the circumstances; that in taking into consideration all of the circumstances surrounding the accident, that in part her failure to exercise reasonable care was due to excusable inattention, which fact the court may take into consideration in determining the degree of comparative negligence, if any; that her negligence contributed to her injury; and that the degree of plaintiff's negligence is 35 percent.
6. That the evidence discloses that the plaintiff has suffered economic damages in the amount of $13,866.10.
7. That the evidence supports a finding that the plaintiff will continue to suffer some physical limitations in the future as a result of her injury, including pain and discomfort, as well as some limitation upon her capacity to engage in and enjoy life's leisure activities; that in addition to economic damages, the court finds that the plaintiff is entitled to non-economic damages; and that under all the circumstances, the plaintiff is entitled to non-economic damages in the amount of $37,000. Mather v. Griffin Hospital, 207 Conn. 125, 138 (1988).
8. That the fair, just, and reasonable damages are $50,866.10, less 35 percent ($17,803.14) for a total award of $33,062.96.
9. That the parties have stipulated and agreed, that in the companion case, State of Connecticut, Department of Transportation v. Pamela Smith (DN CV03-0350456 S), the defendant therein is indebted to the plaintiff in the amount of $11,000; and that the defendant is entitled, by way of offset against said damages, the sum of $11,000, less any moneys paid by the plaintiff toward that sum.
10. That the plaintiff failed to offer any credible evidence to sustain a claim of a private nuisance, in that there was no evidence that the conduct of the defendant was so unreasonable as to interfere with the plaintiff's enjoyment of her possessory interest in the property.
ORDER
Judgment may enter for the plaintiff on Count One of the Revised Complaint in the amount of $22,062.96 (together with the total of any sums paid by the plaintiff to the defendant for use and occupancy since September 23, 2004, per stipulation of the parties, if any); and for the defendant on Count Two thereof. Costs are taxed to neither party.
THE COURT
Shay, J.