Opinion
No. LLI CV 07 5002375S
July 26, 2010
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The plaintiff, Patricia King, has filed a complaint against the defendant, the borough of Bantam (borough), seeking to recover damages pursuant to General Statutes § 13a-149 for injuries suffered in a fall outside the borough hall on the evening of December 19, 2005. The plaintiff alleges she slipped and fell due to an accumulation of ice and snow while walking from the borough hall toward her vehicle, which was located in a parking lot contiguous to the building's walkway. She contends the ice and snow constituted a dangerous and defective condition that the defendant allowed to exist in breach of its statutory duty. The defendant has admitted that it controlled, possessed, managed and/or maintained the area where the fall occurred and that it was bound to keep the parking area and sidewalk in a reasonably safe condition. At trial, the parties further stipulated that the area of the fall was within an area to which § 13a-149 is applicable.
The original complaint also named Richard J. Sheldon, the warden for the borough of Bantam, but the plaintiff later withdrew that complaint (#103) and now proceeds on the second amended complaint (#128).
The term "road" as used in the statute includes more than the traveled portion. It can also include areas related to travel such as the side of the road or a parking area. E.g., Ferreira v. Pringle, 255 Conn. 330, 344, 766 A.2d 400 (2001) ("[W]e repeatedly have determined that the purview of § 13a-149 is not limited solely to defects that are located in the road.") (Emphasis in original.)
The court heard evidence and testimony on the matter over three days and the parties filed their post-trial briefs on May 3 and May 5, 2010.
II FACTS
The court finds the following facts. On the evening of December 19, 2005, the plaintiff drove to the borough hall to attend a meeting of the "Bantam Quilters," a group that met regularly on Monday evenings. That night, several women attended and carried sewing machines into the building from the parking area that was adjacent to the rear of the building. Plaintiff's Exhibits 21a-i and 31; Defendant's Exhibit 3-1. The parking area extended to a walkway and stairs which lead to the entrance of the building. The plaintiff arrived around 6:15 p.m. Although she possessed a handicapped parking sticker, she did not park in the designated handicap parking spot as it was located further away from the walkway than where she parked her vehicle. Defendant's Exhibit 3-2; Plaintiff's Exhibit 31. Using a cane and carrying a tray of cookies, she exited her vehicle, walked around another vehicle, proceeded along the walkway and then went up the stairs into the building. At that time the handicap ramp was covered with ice and snow.
The evening was typically cold for that time of year in New England. The plaintiff's expert witness, Robert Cox, a forensic meteorologist, testified credibly that the high temperature for December 19, 2005, was 29 degrees Fahrenheit, and the low was 15 degrees Fahrenheit. There had been a trace of flurries in the afternoon but no real precipitation. In fact, there had been no precipitation from December 12, 2005, through the daylight hours of December 15, 2005. The last substantive precipitation had been on December 15 and December 16, 2005, when there had been some freezing rain in the evening and approximately one inch of rain the next morning. While there was no precipitation from the afternoon of December 16 through December 18, 2005, there still remained approximately four to five inches of snow on the ground from a December 9, 2005 snowstorm. Prior to December 19, 2005, there may have been some melting and refreezing, but the meteorologist could not conclude there was any melting or freezing that evening.
Prior to the plaintiff's arrival, Doug Thompson, the husband of one of the women who attended the quilters' meeting, had come to the borough hall between 3:30 p.m. and 4:00 p.m. as a volunteer to check on the condition of the walkway and steps. Though not a paid employee of the borough, he customarily came prior to the weekly meetings to set up chairs, tables, etc., and to treat the walkway if needed. On this particular day, Thompson found that there was some patchy snow and ice, and he applied ice melt on the walkway and steps where needed. He left and returned again between 4:45 p.m. and 5:00 p.m. to clean up some of the ice that had broken up since his prior visit. He then spread more ice melt and stayed for approximately twenty minutes treating the area. While there, he saw several of the women arrive (not including the plaintiff) and told them to be careful as conditions were slippery.
The parking lot had been plowed in a timely manner following the December 9, 2005 snowstorm. On the evening of the meeting, the condition of the parking lot was such that any snow and ice remaining on it following that snowstorm had been packed down from plowing and usage. There was no need to plow again given the lack of additional snowfall between December 9 and December 19, 2005. The plaintiff acknowledged that there was traction on the packed snow and ice when she arrived and that, on prior occasions, she had elected not to attend the meetings if the conditions were icy. On this evening, the conditions did not appear to her to be such that it would prevent her from walking from the parking lot to the building. There were some areas of the parking lot where blacktop was visible. She had, on prior occasions seen the parking lot in worse condition yet had elected to attend the weekly meeting. On this particular evening, though she initially believed the parking lot to be slippery, she did not find it so along the path she took into the building. Leaving the building that night, the conditions of the lot "were not a surprise" to her.
Although he had already been there twice earlier in the day, Doug Thompson returned to the borough hall a third time at 7:45 p.m. He put down more ice melt and cleared both the walkway and a path that extended approximately four feet into the parking area. Defendant's Exhibit 3-2. He then went into the hall and told several of the women to be careful exiting and directed them to follow the path he had cleared to the parking area. He described the conditions then as a little bit slippery or "touchy," but not bad. Between 8:15 p.m. and 8:30 p.m., the meeting ended and the participants began to leave. Following two other women out of the building, the plaintiff proceeded down the stairway and over the cleared area along the sidewalk and to the parking area. The two women, Priscilla Mosimann and Kathy Worden, were approximately eight to ten feet ahead of the plaintiff. Because of her prior medical and physical conditions (which are detailed below), the plaintiff had to navigate the stairway by placing both feet on each step while holding the handrail with her right hand and her cane with her left. Reaching the end of the walkway and as she stepped off the curb onto the parking area with her left foot, she began to slide on the surface. Though she attempted to step with her right foot to regain her balance, she fell to the ground face first, struck her right shoulder and knees, and immediately felt pain. Though several individuals immediately came to her and offered to help her up, she refused their assistance and instead slid over to a car to use it as leverage to get up. At that point, Doug Thompson helped her get into her vehicle, and ultimately, she drove herself home.
Richard Sheldon, the borough warden, acknowledged that the borough had not hired or designated anyone to clear the walkway since it relied on volunteers to do so. Though there was no regular schedule for the inspection of the area around the building, sanding of the parking area was done whenever inspection determined the need to do so. Generally, because he lived next to the borough hall, Sheldon would take care of any necessary sanding or call in a contractor to do so. Sheldon testified that had he been aware of the conditions prior to the meeting as claimed in Plaintiff's Exhibits 22e, 22g and 22h, he would have sanded the area. However, as of the late afternoon of December 19, 2005, Sheldon had no reason to believe, or had any actual knowledge, that the conditions were bad. Moreover, Doug Thompson, Kathy Worden, Priscilla Mosimann and Wanda Thompson collectively testified credibly that Plaintiff's Exhibits 22b, 22c, 22d, 22e, 22g, and 22h (which were all photographs taken on December 20, 2005, the morning after the fall), did not accurately depict the condition of the walkway and the area where the plaintiff fell on the prior evening. The areas treated by Doug Thompson on that evening were in fact less slippery than what was depicted in the photographs.
Prior to her fall, the plaintiff was not assisted by anyone nor did she ask for assistance as she did not believe that she would have any trouble getting to her car. She acknowledged that Doug Thompson was present and that he likely would have assisted her had she asked him to do so. Though there was testimony from the plaintiff as to the location of her fall, the court finds credible the testimony of Doug Thompson, Wanda Thompson, Priscilla Mosimann and Kathy Worden, who collectively recounted that, as she approached the curb, the plaintiff moved several steps to the right off the cleared path and onto an area where there remained some snow and ice. Defendant's Exhibits 17, 18 and 19. The credibility of witnesses is left to the trier of fact. Keeney v. Buccino, 92 Conn.App. 496, 513, 885 A.2d 1239 (2005). A trial court is free to discredit even uncontroverted testimony. Stewart v. King, 121 Conn.App. 64, 74, 994 A.2d 308 (2010). Moving as she did to the location where she stood on the curb, the plaintiff prevented herself from stepping off onto any of the visible dry spots or into the area cleared by Doug Thompson. Moreover, although the plaintiff had worn boots on occasion in the past, she had found them difficult to get on and off given her physical condition, and so on this occasion wore clogs to walk in. Defendant's Exhibit 16.
Later in the evening of December 19, 2005, the plaintiff called a friend to drive her to the Danbury Hospital emergency room. There she was treated for severe bruising and swelling of her face, her right arm was placed in a sling as a result of the shoulder injury, and her knees and other body parts were examined and/or treated. Plaintiff's Exhibits 20a, 20b, 20c and 20e. She was released on that same evening.
Her subsequent medical treatment and history are detailed in reports and records submitted as Plaintiff's Exhibits 1-9 and Defendant's Exhibits 4-12. She incurred expenses of $38,001.69 primarily for right rotator cuff surgery and extensive physical therapy. Plaintiff's Exhibits 10-19. She was fifty-seven years old on the date of the fall with a life expectancy of 22.7 years. Plaintiff's Exhibit 24. Her prior medical history was significant for a 1987 car accident that left her hospitalized for approximately eight months, with severe injuries to her head and legs as well as other parts of her body. As a result of the accident, her legs were broken in twenty-eight places and she endured between thirty to thirty-five operations during the course of her recovery. She was required to use a walker and/or wheelchair for many periods following her various surgeries. Since the early 1990's she has had to walk with the assistance of a cane and has been receiving social security disability benefits related to those injuries.
Other facts will be recited as necessary.
III DISCUSSION
Under General Statutes § 13a-149, a person who was injured by means of a defective sidewalk may recover damages from the party bound to keep it in repair. A plaintiff asserting such a claim must prove all of the following elements by a fair preponderance of the evidence: 1) that the required statutory notice of injury was timely provided; 2) that the sidewalk where the injury occurred was one that the borough, and not some other person or entity, had a duty to maintain or repair; 3) that there was a defect in the sidewalk; 4) that the borough had notice of the specific defect claimed; 5) that the borough failed to exercise reasonable care to remedy the defect; and 6) that the defect was the sole proximate cause of the plaintiff's injuries; that is, no other cause was a substantial factor in causing her injuries.
Section 13a-149 provides: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
The parties have agreed that elements one and two have been established and that the other elements remain at issue. In reviewing the plaintiff's claim, the court notes that a defect is "[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the [sidewalk] for the purpose of traveling . . ." (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268-69, 875 A.2d 459 (2005); Ferreira v. Pringle, 255 Conn. 330, 342, 766 A.2d 400 (2001). The mere fact that there is ice and snow on the surface of the sidewalk does not mean that the sidewalk is defective. A sidewalk is defective as the result of ice and snow when it is not in a reasonably safe condition. Mausch v. Hartford, 184 Conn. 467, 469-70, 440 A.2d 157 (1981) (concluding that a jury could have found a crosswalk defect when it was covered, not by an "isolated icy patch," but almost entirely by three inch deep ice, and the crosswalk was neither salted nor sanded, and remained so for almost two days after a storm.). Moreover, a borough is not a guarantor of the safety of travelers upon its sidewalks. Its duty is to use reasonable care to keep its sidewalks in a reasonably safe condition. Hall v. Burns, 213 Conn. 446, 476-77, 569 A.2d 10 (1990); McIntosh v. Sullivan, supra, 274 Conn. 269 (noting that "the test is whether or not the [borough] has exercised reasonable care to make and keep such roads in reasonably safe condition for the reasonably prudent traveler"). The duty to use reasonable care takes into account the variety of conditions and circumstances that are created by the rigors of our winters. Baker v. Ives; 162 Conn. 295, 300, 294 A.2d 290 (1972); Wadlund v. Hartford, 139 Conn. 169, 176, 91 A.2d 10 (1952).
Assuming, arguendo, a defect is established, the plaintiff must also prove that the defect was not just a cause of her fall, but that it was the sole proximate cause, that is, the only substantial factor causing her fall. Bovat v. Waterbury, 258 Conn. 574, 583-84, 783 A.2d 1001 (2001). In other words, the plaintiff must prove that the injuries claimed were caused solely by a defect of the sidewalk. White v. Burns, 213 Conn. 307, 316, 333-34, 567 A.2d 1195 (1990). The law also requires that the plaintiff cannot be heedless of the situation as she has a duty to reasonably use her vision and faculties to observe her surroundings. She must use reasonable care in view of any danger presented by the condition of the sidewalk. Rodriguez v. New Haven, 183 Conn. 473, 478, 439 A.2d 421 (1981). A pedestrian who knows of a dangerous condition in the path of travel is not required to take an alternate route or a detour, but is bound to take precautions that an ordinarily prudent person would take to avoid the dangerous condition, to include for example, moving to the portion of the sidewalk that is not defective. If the pedestrian makes the decision to pass over a dangerous condition about which she knows, that pedestrian has a duty to use reasonable care in doing so. Id., 479.
The plaintiff, here, knowing not only of her own physical infirmities but also of the conditions in the parking area and walkways which she had observed and noted, failed to take precautions that a prudent person would have taken and thereby failed to exercise reasonable care for her own safety. Her election to step onto an area covered with untreated snow and ice when she knew of her limited mobility placed her at a greater risk of falling. This is particularly so when she acknowledged that it was likely that Doug Thompson would have assisted her into her vehicle had she simply asked him for help. As noted above, the conditions of the lot following the meeting "were not a surprise" to her.
Accordingly, the court cannot find that a defect in the sidewalk or parking lot, if any, was the sole proximate cause of the plaintiff's injuries. Since the plaintiff has failed to prove this necessary element of a claim under § 13a-149, the court need not address the other necessary elements. While the court recognizes that the plaintiff's injuries are severe, the law is clear that because those injuries were caused to a substantial degree by the plaintiff's own actions, recovery is barred under § 13a-149. Bovat v. Waterbury, supra, 258 Conn. 586-87.
In considering the issue of proximate cause in this setting, our Supreme Court in Bovat upheld the following jury instruction: "If you find that any act or omission other than the [defendant's] was a proximate cause of the plaintiff's injuries, you must return a verdict for the [defendant], because the [defendant's] breach of its duties cannot be the sole proximate cause if there were any additional cause . . . [It is] incumbent upon the plaintiff to prove that the alleged defect was the only cause of his accident. He must prove to you that he was in the exercise of due care at the time of the accident and that he — and his injuries . . . were not due to any negligence on his part or on the part of a third party or any other cause . . . If you find that the plaintiff or another failed to exercise due care at the time of the accident, then your deliberations should end here, and you should return a verdict in favor of the defendant, because the plaintiff would have failed to prove . . . that the accident and the damages were caused solely or exclusively by the claimed breach of the statutory duty of the defendant. If you attribute fault to any other person or any other causes other than the alleged defects, then you must find for the defendant." (Internal quotation marks omitted.) Bovat v. Waterbury, supra, 258 Conn. 574, 591 n. 12.
IV CONCLUSION
Judgment shall enter in favor of the defendant in that the plaintiff has failed to prove all of the necessary elements of a claim for injuries pursuant to General Statutes § 13a-149.