Opinion
No. 105029369
March 25, 2011
MEMORANDUM OF DECISION
Before the court is the plaintiff's application for a prejudgment remedy. Having heard the evidence, the court finds the following facts. The defendant, Michael Rainer, is the owner of a two-story apartment house in Fairfield. The house was built in 1910. The plaintiff, Abigail Wilson, has rented and occupied the second-floor apartment for about five years. The second-floor apartment is accessed by stairs from the first level to a second-floor balcony about four feet wide. The door to the second-floor apartment is located off the balcony. The balcony is secured by a wooden railing.
On June 29, 2010, the plaintiff went out on a date. During the evening, she consumed alcohol. She and her date arrived back at her apartment sometime after 1:00 a.m. At approximately 1:50 a.m., she and her date were on the balcony leaning against the railing, smoking cigarettes, when the railing gave way and separated from the side of the house, sending the plaintiff and her date to the ground below. At the time, the plaintiff, who is thirty-four years old, weighed about 102 pounds, and her date weighed about 135 pounds. Having been drinking throughout the evening, the plaintiff was under the influence of alcohol. The plaintiff was taken by ambulance to St. Vincent's Medical Center. After thirty-six hours of CT scans, x-rays and various other tests, she was released. She sustained two broken ribs, which healed, and various cuts and bruises. The broken ribs caused the plaintiff to sleep in an awkward position, which has caused her to experience neck pain. The plaintiff has also experienced headaches that have decreased in frequency since the fall. As a result of the fall, the plaintiff has sustained medical bills of approximately $19,000.
In her proposed complaint, the plaintiff alleges that her injuries were caused by the negligence of the defendant in the following ways: (1) "the balcony railing was not properly inspected and maintained by the Defendant"; (2) "the balcony railing was defective and unsafe for persons, such as the tenant Plaintiff, to lean upon"; (3) "in the exercise of reasonable care and inspection, the Defendant should have known of the aforementioned conditions and taken measures to remedy or correct same"; and (4) "in the exercise of reasonable care, it should have taken measures to prevent the Plaintiff from leaning on the defective railing."
The plaintiff has therefore alleged a common-law claim of negligence grounded in premises liability. "[U]nder the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control." Gore v. People's Savings Bank, 235 Conn. 360, 373, 665 A.2d 1341 (1995). In order to hold a landlord liable for a tenant's injuries on a premises liability theory, a plaintiff must prove that (1) the landlord retained control over the defective premises; see LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002); (2) the landlord received actual or constructive notice of the unsafe condition prior to the time of the plaintiff's injuries; Gore v. People's Savings Bank, supra, 373; and (3) the landlord failed to remedy the defective situation in a reasonable period of time after receipt of notice. Id. In other words, "[n]egligence is not presumed from the mere fact of injury. [A plaintiff must] offer legal evidence tending to establish beyond mere speculation or conjecture every essential element of negligence . . ." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992); accord Bonin v. Gralewicz, 378 Mich. 521, 537, 146 N.W.2d 647 (1966); Wolcott v. Drake, 162 Neb. 56, 61, 75 N.W.2d 107 (1956).
The plaintiff argues that this requirement is mitigated in an application for a prejudgment remedy because the plaintiff needs merely to show probable cause, and the hearing took place early in the life of the case before the plaintiff had the opportunity for discovery. "`[A] prejudgment attachment is a provisional remedy afforded to a claimant to secure satisfaction of a judgment in the future . . . The trial court may grant a prejudgment remedy upon a finding that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . .' General Statutes § 52-278d(a)(1)." (Citation omitted.) Caciopoli v. Howell, 124 Conn.App. 273, 277, 5 A.3d 509 (2010). "`The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . . Calfee v. Usman, 244 Conn. 29, 37, 616 A.2d 250 (1992). Probable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false. Goodwin v. Pratt, 10 Conn.App. 618, 621, CT Page 7997 524 A.2d 1168 (1987).' (Internal quotation marks omitted.) Fischel v. TKPK, Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994). `In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim . . . [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs' claim by weighing probabilities . . . Haxhi v. Moss, 25 Conn.App. 16, 18-19, 591 A.2d 1275 (1991); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975). Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action. One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn.App. 524, 525, 589 A.2d 892 (1991).' (Internal quotation marks omitted.) Tyler v. Schnabel, 34 Conn.App. 216, 219-20, 641 A.2d 388 (1994)." Dunleavey v. Paris Ceramics USA, Inc., 47 Conn.Sup. 565, 568-69, 819 A.2d 945 (2002). "With respect to the granting or denying of applications for prejudgment remedies, the court must determine, in light of its assessment of the legal issues and credibility of witnesses, whether a plaintiff has sustained his burden of showing probable cause." Shore v. Haverson Architecture Design, P.C., 92 Conn.App. 469, 480, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).
Even under the diminished standard for a prejudgment remedy, the plaintiff has not sustained her burden. Cf. Weeman v. Church, 11 Conn.App. 420, 424, 527 A.2d 1226 (1987); Santini v. Deeb, 2 Conn.App. 683, 685, 483 A.2d 615 (1984). Even assuming that the landing or balcony was under the landlord's control, and indulging in the assumption that the railing was defective because it separated from the house against the weight of the plaintiff and her date, there is no evidence from which the court may infer that the defendant even possibly had actual or constructive notice of any defect. "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, 278 A.2d 822 (1971). Moreover, "[t]he controlling question in deciding whether the [landlords] had constructive notice of the defective condition is whether the condition existed for such a length of time that the [landlords] should, in the exercise of reasonable care, have discovered it in time to remedy it." Cruz v. Drezek, 175 Conn. 230, 239, 397 A.2d 1335 (1978). There is no evidence of any specific defective condition, and, accordingly, there can be no evidence as to how long it existed. There is no evidence as to the condition of the wood as observed before or after the railing broke away. In fact, there is no evidence that there had ever been a problem with the railing. The plaintiff, who had lived in the apartment for years, had observed the railing daily and had leaned against it in the past, but had never perceived that the railing was defective. Under the circumstances, therefore, there does not exist probable cause that the defendant knew or should have known of a defective condition.
Based on the foregoing, the application for a prejudgment remedy is denied.