Opinion
No. CV 05-5001507S
December 30, 2008
MEMORANDUM OF DECISION ON QUESTION OF LIABILITY
A court trial was held in this matter on the issue of liability only. The plaintiff is a licensed practical nurse. She claims to have slipped on a patch of ice not quite circular but approximately two feet by a little over two feet that was located in the parking lot of the Cedar Hill Apartments. She fell a short distance from her vehicle. Ms. Vidro arrived in the lot between 6:30 and 7 in the morning while it was still dark out. She was at the Cedar Hill Apartments to attend to the medical needs and condition of a tenant. She has sued Cedar Hill Apartments, LP which was in control of the premises.
The court will try to set forth what it perceives to be the law in this area generally and also discuss more specifically cases dealing with slip and falls on ice. The court will then try to apply these principles to the facts of this case.
i. The contending parties agree that the plaintiff was a business invitee.
What is the duty owed to an invitee? The court will quote from cases that have dealt with this issue. In Baptiste v. Better Val-U Supermarkets, Inc., 262 Conn. 135, 140 (2002) the court said: It is undisputed that the plaintiff in this case was a business invitee of the defendant and that, consequently, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition. Typically, "[for the plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even thought subsequently in fact producing it." (Citations omitted.) The defendant is held to the duty of protecting the business invitee from known foreseeable dangers.
As regards the concept of constructive notice it has been said that "the determative question is whether the defective condition existed for such a length of time that the defendant should have discovered and remedied it," Griguano v. Milford 106 Conn.App. 648, 652 (2008), Gulyez v. Stop Shop, 29 Conn.App. 519, 521 (1992), Phenning v. Silansky, 144 Conn. 223, 226 (1957). Quoting from earlier cases, the court in Sauro v. Arena, Co., 171 Conn. 168, 171 (1976) the court said on this length of time question: "What 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 the light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree, each case must be decided on its own circumstances."
But the length of time issue in these cases is directly related to the so-called duty to inspect. Thus in Warren v. Stancliff, 157 Conn. 216, 219 (1968) the court said:
Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant . . . Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is in the eyes of the law equivalent to actual knowledge . . .
Tying the concepts just discussed together is the common sense observation in Morris v. King Cole Stores, 132 Conn. 489, 494 (1946) as referred to in Long v. Savin Rock Amusement Co., 141 Conn. 150, 152-53 (1954) that: "The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition had existed for such a length of time that the defendant's employees should, in the exercise of due care have discovered in time to have remedied it." Given the nature of the constructive notice issue it goes without saying that circumstantial evidence can prove constructive notice, Sokolowski v. Medi Mart, 24 Conn.App. 276, 287 (1991), Morris v. King Cole Stores, supra 132 Conn. at 492-93. One conceptual difficulty, at least for the court, is the traditional rubric that the defendant occupier of the land must have constructive notice of the very defect that caused the injury. But juxtaposed against this is the other position expressed in the cases that one cannot feign ignorance of the dangerous condition by failing to conduct a reasonable inspection which would have disclosed the defect. The answer appears to be that lacking such inspection the defendant would be deemed to have constructive notice of the defect, that is the notice is imputed.
As is often the case Prosser sums up the law in this area and in effect the position our appellate courts have taken on the duty owed to invitees by one in control of premises. In Prosser on torts, 5th ed., § 61 at pp. 425-27 it says:
The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the occupier, but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property . . .
On the other hand, there is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated, or from those which the occupier neither knew about nor could have discovered with reasonable care. The mere existence of a defect or danger is generally insufficient to establish liability unless it is shown to be of such a character or of such duration that the (trier of fact) may reasonably conclude that due care would have discovered it.
Also see Restatement (2d) Torts § 343.
The court will try to apply the foregoing principles to the facts of this case and the issues raised by the motion.
CT Page 20574
2.
The court finds the following facts: the plaintiff entered the defendant's parking lot between 6:30 and 7:30 a.m. when it was still dark. She parked her car, exited and did slip on a patch of ice that was roughly circular and uneven, about two feet by a little more than two feet. The date of the fall was December 26th. No testimony was offered as to the thickness of the ice. It was not chopped and no salt or sand was placed upon it. The court finds that the patch of ice in question was located in a spot on the way to the entrance to the apartment. After falling she entered the apartment. She is a licensed practical nurse and in fulfillment of her responsibilities, went to see her patient and exited the apartment building after about twenty minutes when it was light. On the way to her car she noticed the patch of ice she fell on, her keys were located on the edge of this patch. She could not testfy as to the presence of other ice patches or snow in the lot and there was no snow piled around the perimeters of the lot. The plaintiff could not remember any snowstorms that had occurred in the week prior to December 26th; there were no storms December 24th or 25th. On December 26th "it was clear and cold" according to the plaintiff. No measurements of the parking area were offered into evidence. It is longer than it is wide and from exhibits 2 and 3 appears to have 3 parking bays on each side. Each of the bays appears capable of holding four cars side by side for about twenty-four vehicles. Some cars appear in the photos. If each of them ranges between 15 and 18 feet the lot appears to be between 60 and 70 feet wide and perhaps twice as long.A Mrs. Robinson testified. She was the coordinator of social services at the apartment complex. On December 26, 2003 there were twenty-five units and thirteen were set aside for people diagnosed with a substance abuse problem or mental health problems and the twelve other units were occupied by people who are homeless or close to being homeless because of their low income status. Mrs. Robinson said that nurses would visit the facility to visit their patients and "some would come as early as 6:30" in the morning. The parking lot where the plaintiff parked her car was available to the nurses to park their vehicles. Mrs. Robinson testified that two tenants are employed by Home, Inc. that manages the complex. They work about ten hours a week but the time varies. They spread sand and salt on a sidewalk area and there was one area in the parking lot they made sure was cleared off because a handicapped tenant parked his vehicle there; it was in front of the building. These two tenants would not actually remove any ice or snow. These two tenants would also spread sand and salt in the parking lot if they saw it was needed. The building superintendent, Mr. Cortez, would also do this. Mrs. Robinson also testified that other tenants would also spread sand and salt in the lot. They clear a path to the trash compactor for a handicapped tenant who used a wheelchair. Mrs. Robinson said the tenants were proactive in making sure the parking lot was safe. Mrs. Robinson did not come into work until "between eight, eight-thirty, quarter of" and no one else from management arrived on-site before her. She could not testify any one of the tenants hired by Home, Inc. inspected the lot on the early morning of December 26th.
Mr. Klompus testified for the defendant; he was the real estate manager for this and other properties. The superintendent Cortez, according to Klompus, had the responsibility to ensure that the on-site program operated by the two tenant employees "was always in operation." He did not know if Cortez was on the premises the day of the fall. The defendant also hired a snow removal company which would come to the property when an inch or more of snow had fallen. This company would also spread sand and salt if they saw ice. Klompus also testified that he kept no log or record as to when sand or salt was put on the parking lot. There was no written maintenance program.
3.
For the court at least this is a difficult case to decide so it will try to give as complete a statement of its reasons for the decision reached so that if there is error it will be more easily ascertained upon appellate review.
Part of the problem lies in the fact that this is a case involving ice whose formation and presence depend on factors peculiar to it. The court has tried to review several cases where people brought suit claiming they were injured when they slipped on ice.
It is true that the defendant through its employees knew nurses would visit their patients at the apartment complex as early as 6:30 a.m., and therefore they knew the portion of the premises these visitors would have to traverse, cf. Markee v. Turner, 140 Conn. 701, 704 (1954), Adams v. Mohican Hotel, 124 Conn. 449, 554 (1938).
This would seem to place upon the defendant some type of duty to have a reasonable inspection of their premises, here the parking lot which they knew these nurses would utilize. It will not suffice for the defendant to deny this duty especially considering the nature of the facility involved and the medical needs of the tenants which might not be met if on a particular occasion a nurse was so injured by a condition that could have been remedied by an inspection that she could not attend to a patient tenant. It is also true that although the defendant made much of its "onsite" efforts to inspect the lot and make sure it was safe both by tenant-employees and other tenants, there was no evidence presented that such inspections took place at 6:30 a.m. or other early times when nurses would appear on the property.
The problem here is the appropriate ambit of any necessary inspection and whether it would or could have made any difference in avoiding the accident. There was no evidence offered as to the thickness of the ice patch, was it black ice? If it was it would be difficult to see even in lighted conditions and the plaintiff did not observe it before her fall. Would a reasonable inspection have disclosed the ice patch to employees of the defendant? This is especially true given the size of the lot it is certainly not huge but neither is it some thirty by thirty foot area. The intensity of any inspection to discover this ice patch would border on requiring the defendant to be an insurer.
In this regard the problem ice presents in the case law has been discussed in several cases. In Markee v. Turner, supra a cabdriver sued a homeowner after he slipped on ice on a step leading into the home. The court noted at pages 704-05:
If the presence of ice upon the porch were the sole ground of negligence alleged, proved and relied on, there might be a serious question whether the verdict could be supported. To hold the defendants liable on the ground that, as ordinarily prudent persons, they should have known of the unusual weather occurring during the night season and that it created a film of ice upon their front porch might be to impose upon them the status of insurer. Reasonable care would indeed place a heavy burden upon the owner of realty it to meet that burden, he was required to inspect his property for a sudden deposit of fog freeze during the winter season just before the milkman arrives, let us say, at 5 o'clock in the morning. But we need not reach any decision on the precise claim advanced by the defendants.
Interestingly the court, despite these observations went on to decide not to set aside the verdict in favor of the plaintiff for the following reasons 140 Conn. at page 705:
The reason (for not setting aside the verdict) is obvious. The complaint set forth specifications of negligence besides that of failing to remedy the defective condition caused by the ice. The complaint alleged a breach of duty in several particulars, notably that of failing to light the porch. The jury might well have concluded that, since the prospective passenger had arisen before Markee arrived and must have observed that it was still dark outside and realized that the darkness was a source of danger to one entering upon her premises, reasonable care required her to turn on the electric light in the porch ceiling. Her failure to do this might reasonably have been deemed an act of negligence which was a substantial factor in causing Markee to slip and fall upon unseen ice.
In this case artificial lighting was not even mentioned and query whether the only reason the plaintiff noticed the ice was the fact that her keys were in plain view and presumably had to reach down to get them. If she could not see the patch but for these circumstances could a reasonable inspection have revealed it at 6:30 a.m., when it was dark?
Perhaps more to the point is the observation made in Riccio v. Harbour Village Condominium Ass'n., 281 Conn. 160, 165 (2007):
It is a matter of common knowledge that whether snow melts and refreezes is entirely dependent on the ambient air temperature. In the present ease, the plaintiff failed to produce any evidence regarding the air temperature in Branford on the days and hours preceding her fall. The plaintiff therefore failed to produce any evidential basis from which a fact finder could determine that the black ice that caused the plaintiff's fall in fact had been caused by the melting and refreezing of snow and not by another intervening factor, such as, for example, an accidental spill of fluid on the ground near the garbage bin where the plaintiff fell. Consequently, even if we were to conclude that knowledge of general conditions is sufficient to establish notice in the present case, the plaintiff nevertheless would not prevail because of the evidentiary insufficiency in the record. We therefore decline the plaintiff's invitation to change the specific notice rule, and we conclude that the trial court property determined that the plaintiff had failed to present sufficient evidence of notice on the defendant's behalf to establish the defendant's liability.
In this case no evidence was offered as to temperature on the evening before the accident or in the early morning hours on the day of the accident. Evidence was produced to the effect that there were no snowstorms in the days before this incident — what about rainstorms or other factor that could have made the ground wet. If it was wet, how long would it have taken for ice to form? Wouldn't this depend on the temperature during the evening and early morning hours of December 26th?
This is a close case but the court is constrained to find for the defendant.