Opinion
CV156057462S
12-21-2016
Rosalie Figueroa v. Miguel Quinones
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge
This case involves a claim for damages which are alleged to have been sustained in a slip and fall down a three-step common stairway to an apartment building. The claim lies in negligence and is brought against the landlord owner of the building. The plaintiff had visited her mother who rented a first floor apartment. After the visit she walked to the steps, which led to a parking area, and while descending the steps the plaintiff claims according to paragraph 10 of her complaint . . ." due to the accumulation of dog feces and urine, the plaintiff was caused to slip and fall down the rear steps causing serious personal injuries and losses . . ." The building has three rental apartments and the stairway in question serves all three apartments.
The complaint alleges that on the date of the fall the defendant was in control of the premises where the fall occurred and he " had the duty to care, manage, and maintain (the premises) and " to exercise care to maintain the premises in a reasonably safe condition for those lawfully upon the premises", par. 6 and 7 of complaint. In paragraph 13 of the complaint the plaintiff alleges that her losses and injuries were caused by the negligence of the defendant " in one or more of the following ways:"
a. in that he failed to remedy, or adequately remedy, the slippery and dangerous condition then and there existing; and/or
b. in that he failed to provide, or adequately provide, the Plaintiff, with any warning of the slippery and dangerous condition then and there existing; and/or
c. in that he failed to remedy, or adequately remedy, the slippery condition when he knew, or should have known, that failure to do so created a high likelihood of accident or injury to persons upon the Premises, including the Plaintiff; and/or
d. in that he failed to exercise reasonable care in order to keep said Premises in a reasonably safe condition for persons lawfully using same; and/or
e. in that the slippery and dangerous condition existed for an unreasonable period of time; and/or
f. in that he failed to take corrective measures by cleaning the accumulation of dog feces and urine; and/or
g. in that he failed to inspect said stairway for dog feces and urine or other slipping hazards to persons walking on said stairway for an unreasonable period of time; and/or
h. in that he failed to provide lighting for the rear steps of the Premises.
The answer denies the allegations of paragraph 13 of the complaint. In the special defenses the defendant alleges that the plaintiff " failed to keep a proper lookout as to where she was stepping", " failed to be watchful of her surroundings and particularly where she was stepping", and " failed to exercise due care for her own safety under the circumstances then and there existing."
The case was tried to the court. The court will first comment on what it perceives to be the applicable law and then try to apply that discussion to the facts of the case developed at trial.
A.
It has long been the general rule in our state that a landlord is required to exercise reasonable care to keep stairways used in common by tenants in an apartment building reasonably safe for use by tenants and their visitors, Gibson v. Hoppman, 108 Conn. 401, 408, 143 A. 635 (1928); see also Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705 (1925); Buttrick v. Wilson, 2012 WL 1624152 (Wilson, J., 2012); Brundrett v. Rosoff, 92 Conn. 698, 104 A. 67 (1918) (injury on stairway to cellar used by tenants in common); cf. Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968); Section 360 of Restatement (Second) Torts, Volume 2, Illustration 2, page 251.
It would seem obvious that this common law duty includes an obligation to provide adequate lighting to keep stairs reasonably safe for use. Thomas v. Katz, 171 Conn. 412, 414, 415, 370 A.2d 978 (1976); Rio v. Rio, 22 Conn.Supp. 181, 184, 164 A.2d 546 (1960). A statutory duty to provide adequate lighting for public halls has been in effect for decades, see § 47a-54d(b); the term " public halls" has been read as imposing a duty to provide lighting for stairways in common use. L'Heureux v. Hurley, 117 Conn. 347, 351, 168 A. 8 (1933); Maitz v. Lulewicz, 133 Conn. 355, 358, 51 A.2d 595 (1947). No allegation was made under the statute in this case but that does obviate the common law duty to keep commonly used stairways safely lit--this is a common sense deduction forced by the obvious observation that a component of providing for safe common areas would necessitate proper lighting.
As a side note, relevant to this case, when Gibson v. Hoppman, supra, discussed the statutory duty of the landlord to keep public halls lit at night, applying it to a plaintiff who fell down an outside stairway leading to three apartments, it observed that " The evidence was undisputed that the only provision for lighting these halls was a fixture in each connected with the wiring of the adjourning apartment, controlled by the tenant thereof, and used, if at all, at his option and expense. This was not a compliance with the statute, which plainly contemplates that the occupants of such tenement houses and others having lawful occasion to traverse the public halls therein shall be safeguarded by light maintained by the landlord, instead of leaving such lighting dependent upon the will of the tenants of the respective floors." 108 Conn. at pages 404-05. This reasoning is particularly applicable to a common law claimant who was an invitee and injured as a result of a fall on an unlit stairway as was the case in Gibson, also see Rio v. Rio, 22 Conn.Supp. 181, 184, 185, 164 A.2d 546 (1960).
It is also true that without any reference to Gibson v. Perlstein the court in Jones v. Perlstein, 138 Conn. 381, 85 A.2d 254 (1951), where a tenant stumbled against a rise in the floor and fell down an adjacent flight of stairs, a plaintiff's verdict was upheld where the court concluded it was sustained by the finding of a defective structural condition but also held the absence of artificial lighting, standing alone, could not warrant a finding for the defendant if the landlord did not have actual or constructive notice of this absence. The court saying at page 384: " When a serviceable bulb, inserted in an electrical fixture to provide adequate light, has subsequently burned out, liability based on a failure to exercise reasonable care, whether required by statute or common law, can be imposed only if the landlord knew or in the exercise of a reasonable inspection should have ascertained that the light was out and thereafter failed within a reasonable time to remedy the situation. Ballou v. Jewett Savings Bank, 128 Conn. 527, 530, 24 A.2d 260." This issue will be discussed further when the court discusses situations where a person slips and falls on a foreign object or debris located on stairways and a claim is made that poor lighting led to the accident.
In any event the landlord's duty to keep common areas, approaches and stairways in a reasonably safe condition, whether that duty applies to lighting or the existence of other defects, which will be next discussed, extends to tenants but it also applies to social invitees such as guests of a tenant. As said in Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705 (1925): " The obligation of the landlord extends also to all those who have lawful occasion to visit the tenants for social or business purposes; a right to ingress and egress for all such persons is essential not merely for the enjoyment of the rented premises by the tenants but also to the renting of them by the landlord; it is part of that for the use of which he is paid, and it exists for the mutual benefit of landlord and tenants alike." see also Gibson v. Hoppman et al., supra, 108 Conn. at p. 409; Ziccardi v. Saunders, 2011 WL 3587347 (Young, J., 2011); Connecticut Law of Torts, Wright, Fitzgerald L. Ankerman, Section 49, pages 116 et seq.; The Law of Torts, Harper, James & Gray, § 27.17, Vol. 5, page 295.
For a general discussion as to a landlord's common law obligations to keep common areas under a landlord's control reasonably safe for use, and the extension of the obligation to a tenant's invitees and guests, see Prosser & Keeton on Torts, 5th Ed., Section 63, pp. 440-43.
The landlord's obligation to keep common areas, such as stairways, in a reasonably safe condition extends not only to the duty to provide adequate lighting.
The landlord's duty to keep common passageways and stairways in a reasonably safe condition goes beyond the provision of adequate lighting and extends to ensuring there are no defects presenting a danger to tenants and social invitees using common stairways, approaches or passageways in an apartment building. See LaFaive v. DiLoreto, 2 Conn.App. 58, 59-60, 476 A.2d 626 (1984) (tenant steps on raised mat on stairs while descending from her third floor apartment); Ziccardi v. Saunders, 2011 WL 3587347 (Young, J., 2011) (social invitee of tenant delivering gift to a tenant trips on alleged defect in sidewalk leading to driveway); Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968) (tenant falls down interior stairway); also see Gibson v. Hoppman, supra, 108 Conn. 401 (1928) (plaintiff visiting parents falls down stairway accessing three apartments claiming lack of handrail and failure to provide lighting).
But the landlord's duty to keep common passageways and stairways reasonably safe for tenants and social guests of tenants goes beyond structural deficiencies and such matters as providing handrails or adequate lighting.
McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057 (1976), first states: " It is a familiar rule that the landlord is under a duty to use reasonable care to keep those parts of his (her) building which are under his (her) control in a reasonably safe condition and that if he (she) fails in this duty and has actual or constructive notice of the defect in time to remedy it an injured plaintiff who is himself (or herself) in the exercise of due care can recover." McCrorey then extends the landlord's duty beyond lighting or structural concerns and applies to, for example, objects left on stairs or passageways which cause a tenant or guest of the tenant to trip and fall. Gibson v. Hoppman, supra, cites the New York case of Agatstein v. Stark, 156 N.Y.S. 393, 394 (1915), which held that a plaintiff, in the exercise of due care, could recover against a landlord for tripping on a pear on an insufficiently lighted stairway. Also see Wright v. Stech, 7 Ill.App.3d 1068, 288 N.E.2d 648 (1972) (court overturned directed verdict for defendant landlord; plaintiff tripped over debris and garbage on unlighted stairway). In Laflin v. Lomas & Nettleton Co., 127 Conn. 61, 13 A.2d 760 (1940), the plaintiff was injured " when she fell by reason of tripping over a toy automobile left on the step at the outer entrance of the building." The trial court set aside a verdict for the plaintiff which the Supreme Court upheld saying, " The decisive issue presented up on the appeal is whether the toy had been in a position to subject persons coming out of the entrance to danger for a sufficient length of time so that the defendant (landlord) should have had notice of it." Also see Buggs v. Memphis Housing Authority, 60 Tenn.App. 668, 450 S.W.2d. 596 (Tenn.), where verdict for landlord upheld in case where salesperson slipped on a banana peel on stairs--no proof of actual or constructive notice. In Goodman v. Silverman, 231 A.D. 84, 85, 246 N.Y.S. 319 (N.Y.App.Div., 1930), a jury verdict in favor of tenants who slipped on fecal material on house stoop leading from their apartment to street was reversed. The court said actual or constructive notice had not been shown.
A theme in all these slip and fall on stairway cases as a result of a foreign object being present is the rule which applies to structural defect cases: that the plaintiff injured tenant or invitee must " prove that the defendants (landlord) had actual or constructive notice of the presence of the specific unsafe condition which caused her fall. See Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 . . . Either type of notice must be of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." LaFaive v. DiLoreto, supra, at 2 Conn.App. page 60. As said in Connecticut Law of Torts, Wright, Fitzgerald & Ankerman at § 49, page 118: " But even an invitee must show that the defect has been present for a sufficient period of time so that the land possessor has had the opportunity to discover it. Consequently, where the plaintiff slipped in the defendant's store upon a frankfurter skin, the court held that there could be no liability without proof of how long the skin has been on the floor, " citing several cases.
An interesting complication is raised by this just mentioned statement of the law. What if a structural defect in the stairway or more aptly a foreign object on a stairway caused a tenant or invitee to fall but the landlord could not be found to have actual or constructive notice of the defect or foreign object--could there not be liability when, if there had been adequate lighting, the injured party would have been able to see the defect and especially the foreign object thereby avoiding injury. In the court's opinion at least, the answer must be that liability can be imposed given the purpose of tort law is to prevent injury.
In Agatstein v. Stark, supra, cited by the Gibson case it says: " . . . since the law requires a landlord to keep lights in his hallways, it is at least partly upon the ground that, in the absence of light, a person using the halls is more apt to injure himself by falling upon or striking some defect or obstruction in the hallways, and where such defect or obstruction exists, and causes a person to fall, it does not break the causal connection between the landlord's negligence and the injury, it is merely a circumstance which the landlord might reasonably have foreseen, and which it was negligence on his part not to guard against." Id. at pp. 394-95. Earlier in the opinion the court said that " while the defendant could not reasonably foresee any particular act of negligence on the part of others, he could reasonably foresee that in the hallway of a tenement house people frequently drop vegetables and other articles that may be a cause of injury to others." (In Agatstein the plaintiff slipped on a pear that was on the stairs.) In Cricca v. Bosak, 153 Conn. 89, 214 A.2d 359 (1965), the plaintiff, while going down the exterior stairs of the tenement house in which she lived, slipped on a " round object" that was on the stairs. The action was brought under what is now § 47a-54d of the general statutes which in subsection (b) states " (b) the owner of each tenement house shall provide for the lighting of all public halls at night." The plaintiff fell at 10 p.m. on a night that " was dark and foggy. The stairway was in darkness." The only claims of law raised on appeal by the defendant was that a stairway is not a public hall which the Supreme Court said should have been raised in the trial court. The court said the mere presence of lighting fixtures is not compliance with the statute--" the landlord must also use reasonable care and diligence to keep the lights in operation." Id. p. 92. More to the point on the issue being presently discussed--it would be an odd state of affairs if when a claim is brought under the statute that there was no adequate lighting the only issue is whether the plaintiff in fact slipped because the resulting darkness caused her to step on a foreign object but when a common law claim is brought and inadequate lighting is claimed which caused a plaintiff to be unable to see and therefore slip on a foreign object somehow a separate inquiry may be conducted as to whether the defendant had actual or constructive notice of the foreign object. The Cricca court noted that the statutory duty to provide lighting at night " is mandatory not permissive." Common sense and concern with protecting occupants from injury would dictate the same observation in the context of a common law claim.
B
From a review of the cases the court concludes the following represents the applicable law: (1) when a tenant or social guest of the tenant falls on a common stairway due to a structural defect in the stairway, a defect consisting of a foreign object on the stairway which caused the fall, or the absence of adequate lighting, the landlord must have had actual or constructive notice of each of these specific defects before they can be relied upon to establish a negligence claim; (2) but when the specific defect is the presence of a foreign object on the stairs coupled with a claim of inadequate lighting which prevented the user of the stairs from being able to see the foreign object, the injured user of the stairs is not required to show actual or constructive knowledge of the defect (foreign object) by the landlord. He or she must only show the absence of adequate lighting, the absence of adequate lighting prevented the injured party from seeing the foreign object and the injured party in fact slipped or fell as a result of coming in contact with the foreign object.
The complaint in certain respects is confusing as to the theory being advanced.
The court has previously set forth the allegations of negligence of the defendant landlord in subparagraphs (a) through (h) of paragraph 13 of the complaint. The main thrust of (a) through (g) are allegations that the landlord failed to deal with the dangerous and slippery condition caused by the presence of dog feces and urine on the steps leading to the apartment of plaintiff's mother. Subparagraph (h) does refer to the landlord's failure to provide lighting. But that claim must be read in the context of the whole complaint which in paragraphs 9, 10, and 11 asserts the plaintiff slipped " due to the accumulation of dog feces and urine." These paragraphs read as follows:
9. At the same time and place, and for an unreasonable about of time beforehand, there existed an accumulation of dog feces and urine on the rear-steps of the premises.
10. At the same time and place, due to the accumulation of dog feces and urine, the Plaintiff was caused to slip and fall down the rear-steps, causing serious personal injuries and losses hereinafter set forth.
11. The Defendant and his agents, servants and/or employees had notice and knowledge or with reasonable diligence should have had notice and knowledge of the dangerous, unsafe and defective slipping, sliding and falling condition due to the accumulation of dog feces and urine, but yet neglected to remedy said condition.
The failure to provide lighting as alleged in paragraph 13 which set out the negligence claims was not a standalone proposition but especially as the trial progressed was only presented in the context of an inability to see and thus avoid slipping on the alleged foreign substance on the stairs.
When the plaintiff was examined on direct, this was underlined. The plaintiff's initial testimony involved the issue of whether there were dogs on the premises. She was then asked " Q What were you able to see when you exited the apartment (her mother's apartment)." She answered " A Um I barely could see anything cause um, there wasn't any light back there . . ." The plaintiff was then asked how she fell. There were three steps involved and she said she put her right leg on the first step then she put her left leg on the second step and that is when her left leg " flipped from under me" which caused her to fall. She was then asked whether she could see where she was stepping and responded she could see nothing. The following then occurred:
Q Rosalie, what caused your left foot to slip out from underneath you?
A I believe it was the dog and pee poop. Like poop um, because when I got up, that's--was all over my back.
Q Were you able to see it as you stepped off the porch?
A No, if I were able to see, I would avoid it.
Q And why couldn't you see it?
A 'Cause there was no light.
Q Okay.
A So dark.
On cross-examination she admitted she herself did not observe dog feces on the step and in response to a question to the effect of whether she knew what caused her to fall she answered " No." She then qualified this by saying she did not know what she slipped on--still keeping her theory of the case that absence of light made it impossible to see what she might have slipped on so as to fall. On redirect she completely recovered in her assertion of the fact that she slipped on something and it was dog feces. She went on to say when she stepped on the first step it was " solid" but the next step did not feel solid and there was a slippery substance and she could not see the steps. She answered over an objection which was sustained, yes to a question that if she could have seen what she stepped on she would have avoided it.
Exhibit 3 was a photo of the shirt she was wearing when she fell which was outside her skirt. She took the photo after the fall and the plaintiff testified it smelled like dog feces. It is not clear to the court how a stain could have gotten on her shirt when she said she fell on her buttocks. Giving her testimony the best reading for her cause is it could be interpreted as saying although her buttocks fell on one of the stairs other parts of her body, including that part covered by her shirt could have come in contact with stairs, more specifically the second step on which it is claimed there was dog feces and urine.
The dog feces theme was further developed on the direct examination of the plaintiff's mother. She was shown a picture of a small dog on the second floor balcony of the building which is just above the apartment of the plaintiff's mother, Rosa Albino. She testified a small dog lived on the second floor of the building. On cross-examination Ms. Albino said she saw her daughter fall on the second step of the three step stairway leading to the parking lot. The following then occurred:
Q Did you walk down to help her up?
A Yes.
Q Okay; and were you able to observe what the condition of the stairs was?
A Yes.
Q And what did you observe?
A Poop.
Q Okay; and where was the poop? What stair was it on?
A The one she stepped on, the second one.
The court concludes that the plaintiff established that she fell on dog feces.
But paragraph 11 seems to assert a claim that the plaintiff's slipping on the dog feces and urine merely presented a claim of negligence based on the landlord's actual or constructive notice of the feces. It is in this context that the concept of actual or constructive notice, as a prerequisite to recovery against a landlord for injury incurred on his or her property must be examined. As said earlier the notice to the defendant landlord must be of the specific defect or unsafe condition the plaintiff claims caused the injury. It is not enough that the plaintiff prove the existence of certain conditions that could likely produce such a defect even if such conditions did in fact produce the defect. Our law requires that the notice, whether actual or constructive, be of the very defect that caused the plaintiff's injuries. Kelly v. Stop & Shop, 281 Conn. 768, 776, 918 A.2d 249 (2007); Cruz v. Drezek, 175 Conn. 230, 230-34, 397 A.2d 1335 (1978). A subsidiary question in deciding the issue of notice is whether the defect had existed for such a length of time that the defendant, in the exercise of due care, should have discovered it in time to remedy it prior to the plaintiff's fall. Kelly v. Stop & Shop, supra at 281 Conn. page 777.
The evidence in the record establishes there was no actual or constructive notice that could be attributed to the defendant landlord of the presence of dog feces or urine on the steps. There was a small dog in the second floor apartment above the apartment of the plaintiff's mother. In the Request for Admissions which the plaintiff confirmed at trial she responded she never saw such material on the back steps before; she did not see the dog create the urine or feces nor could she say that the defendant had observed this material. She had no idea as to the duration of this " defect" --i.e. dog feces and urine--on the steps.
The plaintiff's mother lived at this apartment over a year and one half after the fall. The landlord knew about the dog being on the second floor but she never complained to him about the dog. " One time" the dog who was on the second floor balcony peed and it seeped on her but she never told the landlord about this and there was no indication the balcony was over the stairs. She did see this small dog in the parking lot, she never saw anyone walk the dog.
The landlord, Mr. Quinones, testified. He knew that a Chihuahua was on the second floor. He said he never observed or had any issues with dogs defecating on the stairs. He visited the building frequently living only two blocks away. A third floor tenant also had a dog but that was for a few months before the fall in this case. Mr. Quinones said the plaintiff's mother never informed him that there was a problem with feces on the stairs. He said further that the second floor occupant keeps the dog on the second floor and never goes downstairs with it. Assuming the plaintiff slipped on dog feces actual or a constructive notice of it by the landlord cannot be established but that in itself does not mean the plaintiff does not have a viable negligence claim in this case.
The appropriate issue raised by this case, as the court has discussed, is well defined in a statement by plaintiff's counsel during the trial: " The defect here is clearly a lack of lighting. She (the plaintiff) couldn't see where she was going. How could she definitively identify what she slipped on when she couldn't see . . . how are you supposed to identify it." For the purposes of this claim the adequacy of lighting issue is necessarily bound to the overall claim that she slipped on something which turned out to be dog feces which she could not see. If, as noted, the purpose of tort law is to prevent injury a claim should be able to be made that if there had been adequate lighting there would have been a reasonable chance that injury could have been avoided as a result of the dog feces on which the plaintiff claims she slipped, whether or not the landlord had actual or constructive notice of this material being on the steps.
The issue of lighting on the stairs is obviously of central importance in this case. Several factors present themselves. First it came out at trial that the light which uncontestedly would have provided adequate lighting to the stairs involved was located right outside the plaintiff mother's first floor apartment. It was furnished with a bulb which a tenant could obtain and install in the fixture if the landlord did not comply with his obligation to keep the fixture functioning. It was in fact controlled from inside the apartment by the tenant. On the day of the fall there was no bulb in the fixture. The mother of the plaintiff testified she had complained to the landlord defendant several times about the fact that the bulb was being removed, she had replaced the bulb several times herself and it was taken. The landlord's testimony was equivocal on this--he first said he never knew the bulb was being taken, and that he was never told the bulb was being taken. Later when he was asked about his deposition testimony and an answer he gave was repeated to the effect that " And sometimes they would take the light out and put it somewhere else." He said " they" --plural--was meant to be the plaintiff's mother. Why on earth would she do that and " sometimes" seems to refer to more than once. The court believes the testimony of the plaintiff's mother was more convincing. Thus the defendant did have actual notice that the lighting fixture was being tampered with and therefore not operating for much or all of several months time.
The missing bulb situation was not beyond the practical ability of the landlord to monitor. As the testimony indicated he lived only two blocks from the apartments he rented and visited the address " almost every day." A tamper proof system could have been installed or at least the possibility of installing such a system could have been explored, see Cricca v. Bosak, supra , Gibson v. Hoppman, 108 Conn. at page 404.
Furthermore, even if the tenant mother had the ability to furnish a bulb for the fixture and could turn it on from inside her first floor apartment, this would not absolve, for example, the defendant landlord of his responsibility to provide adequate lighting. See previously discussed cases of Gibson v. Hoppman, supra; Cricca v. Bosak . It certainly would not absolve a landlord of his duty to provide adequate lighting as to social guests of the first, second, and, third floor tenants, the second and third floor tenants and even to the first floor tenant anterior to a discussion of contributory negligence, the landlord's negligence being assumed--see Cricca v. Bosak, supra .
All of the foregoing is favorable to the plaintiff's case but the court has problems with the plaintiff's position, in several respects. Exhibit 2, introduced by the plaintiff shows the lighting fixture that was to illuminate the stairway from the mother's first floor apartment. It points straight down and there was no testimony to indicate that the bulb it held was anything more than an ordinary lighted bulb. However, inside the mother's apartment, on an eight foot high ceiling, what appears to be a very bright light is shining which appears to be only a few feet from the outside lighting fixture just discussed. Her door was only a short distance from the stairs. The testimony at trial was that the mother was standing in the doorway when the plaintiff left her apartment and was able to see her daughter's feet as she went down the stairway's three steps and saw her fall on the second step. How could this be if the stairways were shrouded in the darkness the plaintiff claims to have existed. On this issue the mother's testimony appeared equivocal and changed to possibly support her daughter's claim. On cross the following occurred:
Q How far were you from where the stairs are?
A A short distance.
Q Okay; and were you able--were you looking down at her feet?
A My daughter's?
Q Correct.
A Yes.
Q So, you're staring down at her feet?
A Yes.
Q And were you able to see her feet?
A Well, I was able to see my daughter's feet, but that doesn't mean that I was staring at her feet.
Q Okay. My question is, you were able to look at her feet and be able to see exactly what she slipped on.
Correct?
A Of course.
Q Was there enough light to be able to see her feet?
A Again, I wasn't able to see when she stepped on the second stair, but I was able to see her feet moving while she was going down the stairs. I was able to see her feet stepping on the other stairs.
Q Okay. So, there was enough light to see her feet stepping on stairs.
A I didn't see any.
Q You--
THE COURT: You--
ATTY. GUNNING:--didn't--
THE COURT:--didn't--
ATTY. GUNNING:--see--
THE COURT:--see--
ATTY. GUNNING:--'em.
THE WITNESS: I saw her walking down stairs, but I didn't see what was on the stair.
ATTY. GUNNING: Okay.
BY ATTY. GUNNING:
Q So, you weren't able to--you didn't see exactly what caused her to fall. Correct?
A Exactly.
Q But you were able to see enough where you able to see her feet walking as she walked down the stairs.
A Well, she went down stairs so fast that once she walked and stepped on the stair, she slipped.
Q Okay; but you were able to actually observe her slipping.
A I was there, yes.
Q Okay. There was enough light to see her slip.
ATTY. HAAS: Objection. Asked and answered.
THE COURT: Yes, I think he was.
ATTY. HAAS: Second and third time I'm hearing this question, your Honor.
THE COURT: Well, what I wanted to--she was walking fast when she went down the stairs. Is that what you said?
THE WITNESS: No.
THE COURT: No?
THE WITNESS: No, she wasn't walking fast when she was going downstairs, but it was--it happened fast when she slipped.
THE COURT: All right.
In L'Heureux v. Hurley, a plaintiff slipped on stairs. In refusing to reverse a verdict in favor of the plaintiff where there was not adequate light on the stairway the court noted that just before falling the plaintiff pushed open a door on the landing but " there was evidence that when the door was open the light in the hall leading to the plaintiff's apartment shed little illumination upon the landing and the east stairway" (where she fell). 117 Conn. at page 358. However, in Feeney v. Perelmutter, 128 Conn. 572, 573, 24 A.2d 487 (1942), a lady fell down stairs after exiting her kitchen that had a lighted electric bulb, the court said " there was sufficient light in the stairway to afford the plaintiff reasonable protection in coming down the stairs. If this was so any failure of the defendant himself to provide light for the stairway is not of consequence."
Here the evidence suggests that there may very well have been adequate lighting--at the very least the evidence presented suggests the plaintiff, who of course has the burden of proof did not adequately rebut this conjecture given the facts presented.
One of the more confusing aspects of the case related to the lighting issue arises from an examination of the Yale Urgent Care Report (Exhibit 7) from the facility where she went for emergency treatment the day after the accident. On the first page under the heading " Subjective" it states " Rosali Figueroa is a 30 year old female who had concerns including fall. States yesterday afternoon was going down back stairs outside her house, slipped on 'dog poop' and fell backwards onto back, then buttocks. Fell down three wooden stairs. (Emphasis by court.) Why would the person taking this information write " afternoon" if the plaintiff did not tell this person that she fell in the afternoon? In Webster's Third International Dictionary the first definition given is " (1) the part of the day between noon and sunset." Only the second definition states it is that part of the day between noon and midnight. Random House Dictionary first defines " afternoon" first as that " time from noon until evening." It is only in the third definition does it say " (3) pertaining to the latter part of the day." Approaching the question from the other end of the spectrum, in Gibson v. Hoppman, supra the court said " 'Night' has, however, another accepted meaning, and that is the period from sunset to sunrise the next morning. Century Dictionary, Webster's New International Dictionary, " 108 Conn. at page 406.
At trial on cross-examination counsel said you told the technician at the emergency room you fell in the afternoon. The plaintiff's response was I said I fell at nighttime. Asked whether the report was wrong the plaintiff said " No, it was the afternoon at 6:30." Counsel asked if 6:30 is in the afternoon. The plaintiff's response was " I guess." When counsel noted there was no mention of lighting problems in the Yale Report, the plaintiff said she told the treator the light situation prevented her from seeing the dog feces on the stairs.
The mother was also cross-examined on this issue. She said (after her daughter testified) that her daughter visited her the day of the fall. At first, in response to a question as to when the plaintiff got to her house she said she did not remember " but I know it was in the afternoon." Then the following occurred:
Q Okay; and it was in the afternoon your daughter fell?
A Yes.
Q Do you know approximately what time?
A Around six.
She said her daughter visited her for about fifteen or twenty minutes.
Perhaps more to the point, issues of general credibility which are relevant in evaluating the plaintiff's testimony in all its aspects, is reflected in her medical treatment. When she went to Yale Urgent Care she did tell the treaters she had a slipped disc with pregnancy twelve years before her fall. Her testimony and response to questioning suggests this caused problems with her lower back " but it was twelve years ago." She told the Yale Urgent Care treater she has pain down the middle of her back to the buttocks. The back is divided into three areas--the neck, the mid back and the lower back which are formally described as the cervical region, the thoracic area, and the lumbar area. The Yale Urgent Care examination revealed no tenderness in the thoracic part of her back but her lumbar back exhibited tenderness and bony tenderness. The skin showed no abrasion, bruising or black and blue mark.
Webster's Third International Dictionary defined thoracic as " of, relating to, located within or involving the thorax." The thorax is defined as 'the part of the body situated between the neck and the abdomen." The term lumbar is defined as the group of the thoracic vertebrae and the sacram. The later is defined as that " part of the vertebral column that is directly connected with or forms part of the pelvis . . ."
The plaintiff was sent for an MRI to the Whitney Imaging Center on November 28, 2014 with the following " Indication" --" Low back pain for 1/2 weeks. Status post fall."
The chiropractic records were introduced and the first initial narrative says under the heading " chief symptoms" --" she has lower back pain rated at a 9/10 (0 no pain, 10 = worst possible pain). The plaintiff went for treatment sessions for a several month period and there is no mention of treatment for or complaints about anything else but the lower back, i.e., the lumbar region. The final April 15, 2015 letter gives an impairment rating as follows: " Impairment . Whole person impairment for lumbar spine = 8%."
The trial testimony is also instructive. It was brought to the plaintiff's attention that twelve years before the fall in this case she had a slipped disc with pregnancy. But she said any prior problems with her back did not involve her mid back just her lower back. She said Dr. Camacho, the chiropractor, treated her " whole back; she focused on her mid back" which, as indicated, is belied by the chiropractic records. When asked if she told Dr. Camacho of her slipped disc she said she did but there is no mention of this in the reports. She then was asked about the reference to disc degeneration in the MRI report and whether that is what's causing her problems with the low back. But she said " my lower back doesn't hurt as much as my mid back." She said the MRI was not confined to her low back but her whole back but the MRI report under the " Exam" section, as noted, says " MRI Lumbar Spine without Contrast" --which would make sense since in the " Indication" section it states " low back pain for 11/2weeks. Status post fall." --who would have told the technician that but the plaintiff.
All of the foregoing leads to the conclusion that there are real issues of credibility with the plaintiff associated with an attempt to direct attention away from the possible supposition that any lumbar back problems were the result of her previous slipped disc thus hurting her damage claim. It leads to the possibility that she suffered little or no injury as a result of any fall that might have occurred and leads the court to conclude her credibility on other issues in the case, i.e. concerning the fall and why it happened cannot be accepted--that is, under the facts of this case the claim that there was no adequate lighting--so dark I couldn't see.
The court finds a verdict for the defendant.
But adequate lighting does not become an issue in this case even if she slipped on dog feces and the relevance of that hypothesis is thrown into question by other factors: (1) where exactly was the feces located on the step, if towards the back even with very bright lighting could this 5' 2" woman have seen it, for height; see Yale Medical records; (2) given the color of feces this is especially so since the steps were not painted but had a natural color.