Opinion
FSTCV136019793S
06-03-2016
Thomas Olsen v. The Norwalk Hospital Association
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Donna Nelson Heller, J.
The plaintiff Thomas Olsen (Mr. Olsen) commenced this premises liability action, returnable October 22, 2013, against the defendant The Norwalk Hospital Association (Norwalk Hospital) to recover for personal injuries he claimed to have sustained on the premises of Norwalk Hospital as a result of falling backward while he was seated in a chair in an interior atrium. Mr. Olsen filed a one-count revised complaint (#107.00) on March 26, 2014. On April 9, 2014, the Hospital filed an answer to the amended complaint and asserted a special defense of contributory negligence on the part of Mr. Olsen (#112.00). Mr. Olsen denied the special defense on April 15, 2014 (#114.00).
This action was tried to the court on December 1, 2015. Mr. Olsen was the only witness. The parties submitted post-trial memoranda on February 5, 2016 (#137.00; #138.00) and reply memoranda on February 18, 2016 (#140.00; #141.00).
I
After considering Mr. Olsen's testimony and the documentary evidence admitted, the court makes the following findings of fact. Mr. Olsen went to Norwalk Hospital on September 14, 2011 for a free prostate screening. He checked in at the cancer center desk, giving his name and the time of his appointment. The receptionist told him to have a seat and wait to be called.
Mr. Olsen testified that the receptionist gestured in the direction of the atrium when she told him to have a seat.
Mr. Olsen noticed that seating was available in a glass-enclosed atrium across from the cancer center desk. He went into the atrium to sit and wait until he was called for the screening. The atrium had wrought iron outdoor furniture, with a table in the center, a couch or double-style chair, and two single chairs with narrow legs. The floor of the atrium was flagstone, slate or a similar hard surface. There was a mulched flower bed around the perimeter of the atrium.
Mr. Olsen selected one of the single chairs and sat down. He did not move the chair, look at the chair legs, or notice whether the chair was entirely on the floor of the atrium before he sat in it. One of the chair legs sank into the flower bed, and the chair fell backwards immediately. Mr. Olsen lost his balance and went down with the chair, injuring his left knee, his left leg and his neck. He was unable to get out of the chair on his own, but two women (one of whom was a nurse), helped him up.
Mr. Olsen testified that he is known to sit down hard when he sits on furniture.
Once he was standing, Mr. Olsen took a step forward and felt pain. He was taken by wheelchair to the emergency room for x-rays and treatment. The x-rays did not show any fractures. Mr. Olsen was discharged with a neck brace and a crutch or crutches.
A few days later, Mr. Olsen began physical therapy for his neck and his left knee. He continued to have weakness in his left knee. Mr. Olsen's left knee gave out at one point, and he grabbed a railing on his right side to break his fall. Mr. Olsen sustained a right shoulder rotator cuff injury as a result.
Mr. Olsen had two surgeries to repair his torn rotator cuff. He has also had surgery on his left knee, which he described as unsuccessful.
Mr. Olsen is sixty-three years old. He had problems with his left knee and right shoulder prior to his fall on September 14, 2011. He was previously involved in five motor vehicle accidents and two other accidents. He has suffered from depression, anxiety, and alcohol and drug abuse in the past. Mr. Olsen has memory issues. He has not been employed for several years. He receives Social Security disability benefits.
II
Mr. Olsen asserts a claim for premises liability against Norwalk Hospital. In the revised complaint, he alleges that Norwalk Hospital was negligent in that it failed to use reasonable care to inspect and maintain the atrium and to make the atrium reasonably safe; it knew or should have known of the unsafe condition of the atrium in time to have taken steps to correct the condition or to take other suitable precautions; it failed to warn or guard third parties, including Mr. Olsen, from being injured by reason of any defect in the atrium that they could not reasonably be expected to discover; it failed to maintain the atrium in a safe and sound condition; it failed to keep the atrium free of any defects, including keeping the chairs on a firm surface; it failed to use ordinary care and diligence to design and/or build the atrium so that it would be reasonably safe for its intended use and free from all defects and conditions which would render it dangerous and unsafe; it failed to maintain a firm surface for the chairs in the atrium and to ensure that the chairs remained on a firm surface; and it failed to use and maintain an appropriate surface for the chairs in the atrium and to ensure that the chairs remained in the appropriate place. Specifically, Mr. Olsen contends that the atrium was unsafe because the chairs could be moved from the hard surface of the atrium floor to the soft surface of the surrounding flower bed, thus creating a foreseeable risk that a chair could sink into the soil and fall backwards when someone sat in it.
It is undisputed that Mr. Olsen was a business invitee of Norwalk Hospital when he fell in the atrium; therefore, Norwalk Hospital owed him a duty to keep the atrium in a reasonably safe condition. See Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 408, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014). " A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted; internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). " In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
Counsel stipulated during the trial that Mr. Olsen was a business invitee.
" Typically, under traditional premises liability doctrine, [for [a] 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 though subsequently in fact producing it . . ." (Citations omitted; internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 418 n.9, 3 A.3d 919 (2010). " [B]usiness owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012).
With respect to actual notice, Mr. Olsen offered no evidence to prove that Norwalk Hospital had actual notice of the specific defect that he claims caused his injuries--that the chair in which he sat was placed partly on the atrium floor and partly in the flower bed. No one testified as to the location of the chair, the identity of the person who moved it there, or the length of time that it had been there before Mr. Olsen sat in it and fell. There was no evidence regarding prior similar incidents in the atrium or previous problems with Norwalk Hospital's patients, visitors or employees moving chairs from the atrium floor into the flower bed. The fact that a Norwalk Hospital employee could see into the atrium from the surrounding hallway is not sufficient to establish that Norwalk Hospital had actual notice of the chair's unsafe placement in the atrium.
As to constructive notice, " [t]he 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 defendants' employees should, in the exercise of due care, have, discovered it in time to have remedied it . . . 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 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." (Citations omitted; internal quotation marks omitted.) Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. at 408-09. " Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard." (Footnote omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. at 118.
Mr. Olsen offered no evidence to establish that Norwalk Hospital was on constructive notice of a dangerous condition in the atrium. He did not prove that the chair had been in a precarious position for such a length of time that Norwalk Hospital's employees, in the exercise of due care, should have discovered it and moved the chair back to a proper location squarely on the atrium floor. No one testified regarding a duty on the part of Norwalk Hospital to inspect the atrium. There was no evidence that the design of the atrium itself--with a solid floor, movable outdoor wrought iron furniture, and a flower bed around the perimeter--was inherently hazardous.
Mr. Olsen failed to sustain his burden of proving by a fair preponderance of the evidence that Norwalk Hospital had actual or constructive notice that the chair in which he fell was placed in a dangerous position or that an unsafe condition existed in the atrium. Accordingly, to the extent that his claims sound in premises liability, Mr. Olsen has not proven his case against Norwalk Hospital.
III
Mr. Olsen contends in the alternative that his claim arises from Norwalk Hospital's negligent activity and is, therefore, exempt from the usual premises liability notice requirements because Norwalk Hospital created a dangerous condition in the atrium that led to his fall. " Under an affirmative act theory of negligence, if the plaintiff alleges that the defendant's conduct created the unsafe condition [on the premises], proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that [the defendant] had knowledge thereof." (Citation omitted; internal quotation marks omitted.) Id. at 122. See Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 479, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002) (employer allowed unstable stacking of boxes of aluminum folding tables, resulting in plaintiff's injury); Tuite v. Stop & Shop Cos., 45 Conn.App. 305, 308, 696 A.2d 363 (1997) (employees permitted flower petals and water to accumulate on floor, thus creating dangerous condition leading to plaintiff's fall); Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 303, 661 A.2d 110 (1995) (supermarket caused plaintiff's fall by leaving pricing stickers on floor); Silvan v. Wauregan Café, LLC, Superior Court, judicial district of New London, Docket No. CV-10-6002424-S, (November 17, 2011, Cosgrove, J.) (52 Conn.L.Rptr. 863) (restaurant created condition that caused plaintiff's injuries where indoor chair that collapsed had been weakened by outdoor use).
" It is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant's employees created the condition." Tuite v. Stop & Shop Cos., supra, 45 Conn.App. at 308. " Analysis of the affirmative act rule as it has been applied shows that it permits the inference of actual notice only when the defendant or its employees created an obviously hazardous condition." DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. at 123.
Construing the allegations of the revised complaint most broadly, Mr. Olsen alleges certain affirmative acts of negligence on the part of Norwalk Hospital. No evidence was offered at trial, however, to prove that Norwalk Hospital or its employees created a dangerous condition that resulted in Mr. Olsen's injuries. As discussed above, there was no evidence that a Norwalk Hospital employee moved the chair in which Mr. Olsen fell so that it was in an unsafe location when he sat in it. No one testified that Norwalk Hospital negligently designed the atrium so that it was obviously or inherently hazardous. Accordingly, to the extent that he was proceeding on the alternative affirmative act of negligence theory, Mr. Olsen failed to sustain his burden of proving by a fair preponderance of the evidence that Norwalk Hospital was negligent in any respect.
IV
Mr. Olsen also contends that his claim against Norwalk Hospital is based on the mode of operation rule because Norwalk Hospital operated the atrium and permitted use of the atrium by Norwalk Hospital's invitees in such a manner as to create an inherent and foreseeable risk of injury. " The mode of operation rule . . . allows a customer injured due to a condition inherent in the way [a] store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 777. " [A] plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant's business gives rise to a foreseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk." Id. at 791.
" The mode of operation rule is not a separate cause of action. Rather, it is a manner in which the notice requirement is addressed to determine liability in premises liability cases. The rule has limitations." (Citation omitted; internal quotation marks omitted.) Berry v. Staples Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV-08-5018858-S, (October 9, 2008, Aurigemma, J.) (46 Conn.L.Rptr. 505).
Our Appellate Court has cautioned that " [t]he mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law . . . [A] particular mode of operation only falls within the mode-of-operation rule when a business can reasonably anticipate that hazardous conditions will regularly arise . . . A plaintiff must demonstrate the foreseeability of third-party interference before [a court] will dispense with traditional notice requirements." (Citations omitted; internal quotation marks omitted.) Konesky v. Post Rd. Entm't, 144 Conn.App. 128, 135, 72 A.3d 1152, cert. denied, 310 Conn. 915, 76 A.3d 630 (2013). The court noted that " [t]he mode of operation rule aptly fills the narrow niche where the actual defect is caused by a third party in circumstances in which the defendant created a zone of danger with increased risk of frequently repeating hazardous conditions." Id. at 143 n.13.
Where a plaintiff alleges a dangerous condition that cannot be reasonably anticipated under the mode of operation, then " the plaintiff must proceed under [the] traditional premises liability doctrine . . . [and] show that the defendant had actual or constructive notice of the particular hazard at issue." Fisher v. Big Y Foods, Inc., supra, 298 Conn. at 439. See Dawson v. Alcohol & Drug Recovery Centers, Inc., Superior Court, judicial district of Hartford, Docket No. CV-11-6021743-S, (April 29, 2013, Wagner, J.T.R.) (56 Conn.L.Rptr. 29) (granting summary judgment in favor of defendant because there was no genuine issue of material fact that plaintiff's allegations of inadequate repair of rips in carpet, or failure to replace carpet, did not fit within mode of operation rule); Berry v. Staples Connecticut, Inc., supra, Superior Court, Docket No. CV-08-5018858-S (46 Conn.L.Rptr. 505) (granting motion to strike in favor of defendant where plaintiff's complaint failed to allege facts establishing that floor runner was foreseeable risk created by self-service mode, warranting application of mode of operation rule); Marini v. Wal-Mart Stores, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-07-6001487-S, (August 19, 2008, Frankel, J.) (granting motion to strike in favor of defendant where plaintiff's complaint failed to allege that other customers rendered display hazardous, warranting claim under " umbrella" of mode of operation rule).
The mode of operation rule is not applicable here. Mr. Olsen offered no evidence at trial regarding Norwalk Hospital's operation and maintenance of the atrium and the activities of its patients, visitors, and employees in the atrium, particularly with respect to their use of the atrium chairs. No one testified that chairs were regularly placed in the flower bed or left in precarious or dangerous positions in the atrium. Mr. Olsen failed to prove by a fair preponderance of the evidence that Norwalk Hospital's mode of operation of the atrium gave rise to an inherent and foreseeable risk of injury to its invitees.
V
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). In a civil action such as this, the general burden of proof is on the plaintiff, who must prove all the essential elements of his cause of action by a fair preponderance of the evidence. Failure to do so will result in judgment for the defendant. In this case, the court finds that Mr. Olsen has not met his burden of proof with respect to his claims. Accordingly, the court finds the issues for Norwalk Hospital.
Norwalk Hospital has asserted a special defense of contributory negligence, for which it has the burden of proof. Because the court finds the issues in favor of Norwalk Hospital and against Mr. Olsen, it does not need to reach this special defense.
VI
Judgment shall enter in favor of the defendant The Norwalk Hospital Association and against the plaintiff Thomas Olsen.