Opinion
CV156008872S
03-06-2019
Anabeth SOTO v. John ADU
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
The plaintiff, Anabeth Soto brings suit against defendant, John Adu by Writ, Summons and Complaint dated September 28, 2015 regarding an alleged slip and fall that occurred on about November 9, 2013 at 94 Sherman Avenue in Meriden, Connecticut.
Plaintiff claims that she was a tenant at 94 Sherman Avenue, pursuant to an oral month to month agreement with landlord, John Adu. Defendant Adu is alleged to be the owner and landlord at this location and he also resides at these premises. Plaintiff Soto alleges that he controlled, possessed, managed, owned and/or maintained the premises at 94 Sherman Avenue.
On November 9, 2013, the plaintiff claims that she fell down the back stairs as she was exiting the premises. She claims that her accident and resulting damages, injuries and losses were caused by the defendant.
In her Complaint, she claims the defendant was negligent and careless in the following ways: (1) in that they (sic) caused or allowed and permitted said stairs to be and to remain in an unsafe and dangerous condition; (2) in that they caused or allowed and permitted said stairs to be in an unsafe and dangerous condition, when the same were dangerous to the plaintiff and other patrons using said floor; (3) in that they maintained said stairs in the aforesaid conditions; (4) in that they failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances; (5) in that they failed to warn the plaintiff of the aforesaid conditions; (6) in that they failed to provide adequate lighting and/or any lighting for said stairs; and (7) in that they failed to make proper and reasonable inspection.
She also asserts that the defendant Adu knew, or had he exercised due care or proper diligence, should have known, of these conditions. She claims severe and serious personal injures as a result of the defendant’s negligence and carelessness. She asserts injuries to her cervical spine, left upper extremity radiculitis, left ankle sprain/strain, left foot sprain and left knee sprain. She seeks money damages for her past medical expenses, projected future medical expenses and damages for mental and physical pain and suffering.
By Answer and Special Defense dated May 25, 2016, the defendant admits owning, controlling and possessing the location, but he denies all allegations of negligence and denies the assertions about any defect in the premises at the time of her accident. By Special Defense dated May 25, 2016, he specifically denies any defect existed and asserts if a defect existed, he denies ever having notice of the defect. He further alleges that plaintiff’s injuries and losses were the direct result of her own actions or carelessness.
The matter was tried to the court on September 26 and 27, 2018. Both the plaintiff Soto and defendant Adu testified along with Dr. Ron Maringola, plaintiff’s treating chiropractic physician.
The plaintiff submitted the following evidence at trial— Exhibit 1— Advanced Spinal Care records; Exhibit 2— Advanced Spinal Care bills; Exhibit 3— Records of Dr. Paul Pezzino; Exhibit 4— Bills of Dr. Paul Pezzino; Exhibit 5— Midstate Medical Center records; Exhibit 6— Midstate Medical Center bill; Exhibit 7— Comprehensive Orthopaedic Records; Exhibit 8— Comprehensive Orthopaedic Bills; Exhibit 9— Midstate Radiology Associates records and Exhibit 10— Midstate Radiology Associates; and Exhibit 11— CV and records of Dr. Maringola. The defendant offered Exhibit A— five photographs of the accident area; and Exhibit B— Plaintiff’s Interrogatory responses dated May 20, 2016.
The parties also submitted post-trial briefs for the court’s consideration. See Defendant Trial Brief dated January 22, 2019 (# 124); and Plaintiff Post-Trial Brief dated January 21, 2019 (# 125) along with trial transcripts (# 126 and # 127).
STATEMENT OF THE LAW
In general, "the [fact finding] function is vested in the trial court with its unique opportunity to view the evidence presented in the totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties ..." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Internal quotations omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 847 (1981). "[N]othing in our law if more elementary than the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." (Internal quotations omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).
In all negligence claims, the party making a claim has the burden of proof with respect to that claim. Thus, the plaintiff Soto has the burden of proving each essential element of the cause of action upon which the plaintiff relies. Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 463-64, cert. denied, 271 Conn. 925 (2004); Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1992).
Plaintiff Soto must produce evidence to prove the basic elements of any negligence case including that: (1) the defendant owed a duty to the Plaintiff; (2) the Defendant breached that duty to the Plaintiff; (3) the breach of that duty was the proximate cause of her claimed damages; and (4) she suffered damages as a result of this accident.
In addition, a plaintiff who alleges that she suffered injuries resulting from a defective premises must prove two other items: first that the defendant was in control of the premises; and second, that the defendant had notice of the defect. The plaintiff must prove that the defendant had actual notice of the unsafe condition long enough before the plaintiff’s injury to have taken steps to correct the condition or to take other suitable precautions. Zarembski v. Three Lakes, Inc., 177 Conn. 603 (1979); Tuite v. Stop & Shop Cos., 45 Conn.App. 305, 308 (1997). The notice to the defendant must be of a specific defect or unsafe condition that the plaintiff claims caused her injury. It is not enough that the plaintiff prove the existence of certain conditions that would likely produce such a defect, even if such conditions did in fact produce the defect. Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776 (2007); Cruz v. Drezek, 175 Conn. 230, 234-35 (1978); White v. E & F Construction Co., 151 Conn. 110, 114 (1963). Established Connecticut case precedent places a heavy burden on a "slip and fall" plaintiff to demonstrate that a defendant had actual or constructive notice of the specific defect that led to the accident and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. Kelly, id.; citing LaFaive v. DiLoreto, 2 Conn.App. 58, 60 (1984).
In a premises liability case such as this one, the status of the plaintiff determines the standard of care the defendant owes to the plaintiff. Plaintiff Soto was a tenant at this residence, and thus she would be construed as an invitee under established Connecticut precedent. As an invitee, the defendant therefore owed her the following duties: (1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe; (2) the duty to warn from being injured by reason of any defects that the invitee could not reasonably be expected to discovery; and (3) the duty to conduct activities on the premises in such a way so as not to injure the plaintiff. See Fleming v. Garnett, 231 Conn. 77, 83-84 (1994); Warren v. Stancliff, 157 Conn. 216, 218 (1968); Morin v. Bell Court Condominium Ass’n, Inc., 223 Conn. 323, 327 (1992). Reasonable care is defined as the care which an ordinarily prudent or careful person would use in view of the surrounding circumstances. The duty of the landlord is the same for guests of tenants as for the tenants themselves, namely to use reasonable care to keep the common areas reasonably safe. Gibson v. Hoppman, 108 Conn. 401 (1929); Curran v. McCall, 4 Conn.App. 531, 534-35 (1985).
The defendant has raised a special defense asserting comparative negligence on the part of plaintiff Soto— and the burden is on him to prove it. CGS Section 52-114; Sitnit v. National Propane Corp., 151 Conn. 62, 65 (1963); Olshefski v. Stenner, 26 Conn.App. 220, 222-25 (1991).
APPLICATION OF THE LAW TO THE FACTS
Having considered the evidence presented at trial and having reviewed the Trial Briefs of both parties, trial transcript and the relevant Connecticut case law cited above, the court finds in favor of the defendant Adu.
The court finds that the plaintiff Soto has not met the requisite burden to prove her claims against the defendant Adu by a fair preponderance of the evidence. In order to meet that burden, plaintiff must demonstrate that her claims against the defendant Soto are more probable than not true. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702 (1995). She has clearly not met that burden.
Plaintiff has failed to identify and prove any specific defect that caused her to fall on November 9, 2013, and thus she is unable to prove any actual or constructive notice to defendant Adu in order to sustain this claim of premises liability. She testified generally that she fell going down the stairs, but she could not readily identify what caused her to fall. She makes general references to lack of lighting, or leaves on the stairs, or a loose step, or some other alleged vague defect in a step— but she has offered no proof of such by photograph or by any independent witness or any other corroborating evidence.
In weighing her testimony against the testimony of defendant Adu, the court is given wide discretion as to assessing the credibility of fact witnesses. In this case, the court finds defendant Adu’s testimony more credible.
In addition, even if plaintiff were able to prove a specific defect and actual or constructive notice of said defect to the defendant, the plaintiff’s degree of comparative negligence is so substantial that this would also have prevented the court from finding in her favor. She resided at these premises since 2009, and used these stairs daily and on multiple times prior to the date and time of the alleged fall. If the stairs were as defective as claimed, she had a duty to not put herself in danger by using the stairs, especially when she had alternative means to leave her home by use of the front stairs.
Having found for the defendant on the liability issues, the court need not address the damages issues.
The court therefore enters Judgment in favor of the defendant Adu.