Opinion
No. HHB CV 9-5011585-S
August 14, 2009
RULING ON PLAINTIFFS' APPLICATION FOR REJUDGMENT REMEDY AND DEFENDANT'S MOTION TO DISMISS
This case is an action by the plaintiff, Adriana Ruiz, by her mother, Olga Rivera, and by Olga Rivera individually, for injuries and medical expenses sustained in a tragic accident at their apartment in New Britain, CT on May 14, 2008. In that accident, Adriana, then age 7, was struck on the head by an 18-pound concrete block dropped by another child playing on a third-floor balcony above her. The defendant, Victory Properties, LLC, is the landlord accused of negligence in allowing the premises to be in disrepair with loose concrete blocks lying around for children to misuse. Plaintiffs seek to attach property of the defendant up to $1 million. Defendant has filed a motion to dismiss on procedural grounds, and opposes the application on the merits as well. For the following reasons, the Motion to Dismiss is denied, and the application is granted, but only up to the amount of $100,000.00.
I
Under General Statutes § 52-278d(a), the court must make four determinations on an application for prejudgment remedy: (1) whether there is probable cause that a judgment will be rendered for the plaintiff in an amount equal to or greater than the amount of the prejudgment remedy requested, taking into account all defenses, counterclaims or set-offs; (2) whether the defendant has adequate insurance to pay any judgment that may be rendered; (3) whether the property is exempt from execution; and (4) whether to require a bond. On the probable cause issue, probable cause means a bona fide belief in facts essential under the law for the action, and such as would lead a reasonably prudent person to entertain such a belief. See, Dufrain v. Commission on Human Rights and Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996). "It is firmly established that the trial court's hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff's claim. 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 . . ." (Citations omitted; internal quotation marks omitted.) Fischel v. TKPK Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994).
II
The court heard this matter on July 1 and 15, 2009. Testifying for the plaintiffs were Delis Cabrera, then a tenant at the apartment building where Adriana lived at the time in question; Luis Cruz, the 10-year-old boy who dropped the concrete block; Sarabella Cruz, Luis's mother; Joannie Rivera, Adriana's aunt and babysitter at the time in question, and Olga Rivera, Adriana's mother. Officer Kevin Artuc of the New Britain Police Department, who responded to the accident, also testified. Several of the plaintiffs' witnesses testified through a Spanish interpreter. No witnesses were called by the defendant, but plaintiffs' witnesses were vigorously cross-examined. The court also accepted into evidence numerous medical records documenting Adriana's injuries and numerous photographs of the area where she was injured. The court also received briefs filed by the parties in favor of their respective positions.
III
The plaintiffs are seeking a prejudgment remedy to attach and garnish assets of the defendant in advance of trial, particularly six apartment buildings owned by the defendant in New Britain. The complaint is in two counts. Count One is for negligence brought by Adriana for her catastrophic injuries. Count Two is for negligence brought by Olga for Adriana's medical expenses for which Olga is responsible as the parent. The defendant has filed an Answer with Special Defenses, denying liability and alleging that plaintiffs' injuries were completely caused by the negligent and/or willful and malicious misconduct of others.
The first point that must be addressed is the defendant's Motion to Dismiss. That motion, filed on the morning of the day when the prejudgment remedy hearing was scheduled to start, asserts that the application must be denied because the plaintiffs' application for prejudgment remedy did not include an affidavit made by a witness with personal knowledge of the facts. Defendant argues that such an affidavit is required by General Statutes § 52-278c(d), and that the defect is fatal because it affects the subject matter jurisdiction of the court. Indeed, our Appellate Court has held that the affidavit requirement is a subject matter jurisdiction issue, and that failure to attach an affidavit deprives the court of subject matter jurisdiction to hear the matter, thus requiring dismissal of the application. See Lauf v. James, CT Page 14324 33 Conn.App. 223, 228, 635 A.2d 300 (1993). In that case, the plaintiff filed a statement with an application but the acknowledgement was improperly taken. The parties in that case conceded that the court should treat the situation as if no affidavit had been filed. The statute provides, in pertinent part, as follows:
When a subject matter jurisdiction issue is raised, it must be addressed before proceeding. "Whenever the absence of jurisdiction is brought to the notice of the Court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citations omitted; internal quotation marks omitted.) Baldwin Piano and Organ Company v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982). The court proceeded with the hearing because all of the witnesses were present with an interpreter, but it held decision on the merits of the application in reserve pending disposition of the Motion to Dismiss.
any person desiring to secure a prejudgment remedy shall attach [to the application] . . . the following documents:
(2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of the facts sufficient to show that there is probable case 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 known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff.
General Statutes § 52-278c(d).
Since the plaintiff in that case filed no affidavit, as clearly required by the statute that created the remedy, the court concluded that the defect deprived the court of subject matter jurisdiction and ordered that the application be denied. Lauf v. James, supra, 33 Conn.App. 228-29.
The instant case is readily distinguishable. In this case, the plaintiff, Olga Rivera has filed an affidavit with a proper acknowledgement. Nevertheless, the defendant argues that it is defective because it does not, in direct words, state that the affiant has personal knowledge of all of the facts stated in the affidavit. Indeed, in a recent case where the affiant was an attorney who compiled records made by others, and was not a plaintiff, and did not have personal knowledge of the events, the court found that an affidavit from that person used to support an application was an invalid affidavit not satisfying the statute. See, State v. Sunrise Herbal Remedies, Inc., Superior Court, judicial district of Hartford, Docket Nos. HHD CV 07-4028460-S and HHD CV 07-4029220-S, (March 13, 2009, Bentivegna, J.) [47 Conn. L. Rptr. 455]. That case is also distinguishable. In that case, the affiant was a disinterested file collector with no personal knowledge of the events. The affiant in the instant case is the mother of the injured child who lived with the child at the apartment at the time in question. She describes the ownership of the apartment, the events that caused the accident and the injuries to her child. Her familiarity with the events and the injuries described in the affidavit cannot be seriously doubted. She either has personal, first hand knowledge, or she became familiar as any involved parent would, or both. Moreover, the statute allows an affidavit by a plaintiff. Olga Rivera is one of the plaintiffs in the case. Her affidavit is in compliance with the statute.
Moreover, the statute allows an affidavit by a competent witness. One can be a competent witness without having personal knowledge of all of the facts as an eye-witness to all of the events as they were occurring. A competent witness can acquire personal knowledge by eye-witness observation, personal investigation, and by hearing admissions of other witness. See C. Tait and E. Prescott, Tait's Handbook of Connecticut Evidence (4th Ed., 2008) § 6.4 citing State v. Ferrone, 97 Conn. 258, 264, 116 A. 336 (1922) and Gray v. Mossman, 91 Conn. 430, 437-38, 99 A. 1062 (1917). Although she may not be able to testify at trial as to certain points because her knowledge is based on inadmissible hearsay, in such a situation, Olga Rivera is still a competent witness, and, in such circumstances, our Appellate Court has held that even if an affidavit alone is insufficient to support a finding of probable cause, evidence at the hearing can be used to buttress the facts contained in the affidavit. See Doe v. Rapoport, 80 Conn.App. 111, 117, 833 A.2d 926 (2003); see, e.g. Perez v. Lane, Superior Court, judicial district of Fairfield, Docket No. CV 04-4001316 (August 19, 2005, Doherty, J.) [39 Conn. L. Rptr. 821]. The evidence at the hearing in the instant case showed that Olga Rivera was present at the apartment when her child was injured, she immediately responded, she knows of the events from her own observations and the confessions of the actors, she brought her child to the hospital for care and continues to obtain medical care for her child. She has sufficient personal involvement to be a plaintiff and sufficient personal knowledge to be a competent witness. Her affidavit is, therefore, in compliance with the statute. Further admissible evidence at the hearing can buttress her claims. Consequently, the Motion to Dismiss is denied.
IV
As for the merits of the application, and based on the affidavit of the plaintiff and the evidence admitted at the hearing, the court finds that it is probable that the facts will be found as follows: The defendant is the owner of a three-story, six-unit apartment building located at 138 North Street in New Britain, CT. The apartments have an open deck in the back overlooking the backyard. In the backyard of the building is a fenced-in area, accessible by a gate, containing a parking lot and a grassy area where children who live in the apartment regularly play. Several children live in the apartment and many of the tenants are related to each other. The plaintiff, Adriana Ruiz, who was seven years old on the date of the accident, was one of the children. She lived in a third-floor apartment with her mother, Olga Rivera, Olga's other son Adrian Ruiz, and Adrian's father Jose Rivera. Olga was working at Macy's, a department store business, on the afternoon in question until 3:45 p.m. While she was working, her sister, Joannie Rivera, was babysitting for Adriana at the apartment.
On the day of the accident, May 14, 2008, Adriana was playing in the backyard with numerous other children from the neighborhood. That day, there were up to 14 children playing in the backyard, ages 4 to 11 and about 5 adults were watching them, including Delis Cabrera, Sarabella Cruz and Joannie Rivera. That was not unusual. Visiting children and their parents or supervisors were related to the other tenants and would often come to the apartment to visit and play.
The back of the apartment was, thus, a virtual playground for children. It was also a dilapidated area containing discarded home furnishings and appliances, an abandoned car in a state of disassembly. There were concrete sidewalks and retaining walls in the backyard that were deteriorated and broken apart with chunks of concrete and cinder blocks lying about, and there were piles of construction material including numerous pieces of broken concrete blocks piled up in places. The defendant's owner and apartment manager, known to the tenants as Ronald, was aware of these facts for a long time as he visited the property monthly to personally collect the rent. Tenants would repeatedly complain of the conditions in the backyard and other problems, including the lack of light bulbs in the common hallways, but Ronald did nothing to improve the conditions, saying he could not afford to make repairs. No one regularly performed maintenance at the building for years. The broken concrete was a concern for the parents as the children would play with the material. Potential for injury was obvious and parents would tell children to put the material down, but the children would forget to obey.
Luis Cruz, then age 10, and other children were seen moving blocks of concrete in the backyard on the morning in question. As dinner time approached, several children went home. Sarabella and Joannie went indoors to start preparing food for their children. Olga arrived home from work and she and Joannie were in Olga's third-floor apartment preparing the food, looking out from above into the backyard from time to time checking on Adriana. Delis was downstairs, watching the children from the back hallway of the building and looking out from time to time into the backyard.
At approximately 4 p.m., Delis heard a boy from a deck above say, "Move back. I'm going to throw the rock." Seconds later, she saw a large concrete block fall from above and strike Adriana on the heard. Unnoticed by the parents and babysitters, Luis Cruz had picked up an 18-pound chunk of concrete from the play area and carried it up three flights of stairs and had dropped it off the back deck of his third-floor apartment and down into the backyard below in order to break it. Adriana, playing three flights below in the backyard near the decks above had moved in response to his warning, but she moved the wrong way, and was hit on the head. Olga and Joannie responded to the horrific scene immediately.
The police and an ambulance were called. Olga went with Adriana to the Connecticut Children's Medical Center in Hartford, CT. Adriana's skull had been crushed, and surgeons were required to clean broken cement from her brain. Adriana had two surgeries. The accident left her with a paralysis to her right side. She also suffered a traumatic brain injury. She could not speak, walk or write, and she lost hearing. She was discharged on July 10, 2008. She still gets physical therapy, occupational therapy and speech therapy at school, where she attends the second grade at Lincoln School in New Britain with the help of a paraprofessional. Her medical bills to date total $640,385.38. Olga Rivera testified that medical care costs are covered by "the State."
To prevail on their negligence claims, plaintiffs must prove the essential elements of their cause of action. Those essential elements are: duty, breach of that duty, causation and actual injury. Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 31, 946 A.2d 839 (2008). Ordinarily, in a premises liability case such as the instant case, a landowner (landlord in this case) is held to owe three separate duties to its invitees (tenants in this case): a duty to inspect and maintain the premises to render them reasonably safe; a duty to warn of dangers that the tenants could not reasonably be expected to discover; and a duty to conduct activities on the premises in such a way as not to injure the tenant. See, Gargano v. Azpiri, 110 Conn. 502, 510, 955 A.2d 593 (2008); Fleming v. Garnett, 231 Conn. 77, 83-84, 646 A.2d 1308 (1994); Warren v. Stancliff, 157 Conn. 216, 218, 541 A.2d 74 (1968); cf. Morrin v. Bell Court Condominium Ass'n., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). That is not to imply any guarantee on the part of the landlord that no harm will come to a tenant, as the tenants must still use their own senses to avoid injury. See Aprile v. Colonial Trust Co., 118 Conn. 573, 578, 173 A. 237 (1934). Nor is a landlord placed in the category of an insurer when dealing with children. See Bears v. Hovey, 159 Conn. 358, 361, 269 A.2d 77 (1970). Rather, landlords owe a duty of reasonable care as to those parts of the property over which they have retained control. Baldwin v. Curtis, 105 Conn.App. 844, 848, CT Page 14328 939 A.2d 1249 (2008).
Defendant argues that this reasonableness test should not apply here, and it should be held that the defendant owed no duty to the plaintiffs, as a matter of law, because this catastrophe was caused by another child, and was simply unimaginable. On this point, "[t]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would have anticipated that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy, of whether the defendant's responsibility for its negligent conduct should extend to the particular circumstances or particular plaintiff in this case." (Internal quotation marks omitted; citations omitted.) Ryan Transportation v. M G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).
Concerning the first part of the test, which invokes the question of foreseeability, this court believes that the defendant should remain subject to a duty of reasonable care. It permitted the backyard of its tenement to remain littered with dangerous debris knowing the same location was used as a playground for children of the tenement and their playmates. Indeed, the area was fenced in, thus containing children at play with the debris. No effort was made to make the area child-proof or to cordon off the debris to keep children out. The defendant knew or should have known that a child would get hurt eventually. Where an invitee is injured by physical contact with dangerous conditions on property, the injury will be considered to be within the scope of the risk created by negligent conduct that caused the conditions in the first instance. Doe v. Manheimer, 221 Conn. 748, 764 563 A.2d 699 (1989); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 28, 266 A.2d 370 (1969); Lombardi v. Wallad, 98 Conn. 510, 519, 120 A. 291 (1923). "If the owner of anything capable in its nature of doing injury, negligently leaves it unguarded and exposed in a public place, and it be set in motion by a negligent person, the owner will be held responsible for the injuries consequently suffered by a third person not himself careless." (Citation omitted.) Id. "[S]o long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre or unforeseeable." (Citations omitted.) Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). "[A] negligent actor should foresee the intervention of certain outside forces. Thus, it was held that the acts of children . . . should be guarded against, and a landowner who left an unguarded fire in a neighborhood where children were wont to play was held liable when one child set another child on fire." D. Wright, J. Fitzgerald and W. Ankerman, Connecticut Law of Torts (3 Ed.) § 34 citing Lombardi v. Wallad, supra. So, too, here, this general type of harm should have been anticipated. Consequently, the landlord should be held to a duty to use reasonable care.
Concerning the public policy test, defendant argues that no duty should be applicable here because plaintiffs' injuries were due to the intentional act of Luis Cruz, and defendant had no duty to protect the plaintiffs from a co-tenant, over whom it had no control. The argument is inapposite. Plaintiffs have not alleged, and are not claiming, that defendant failed to protect them from the intentional acts of Luis Cruz. They have alleged, and are claiming, that the defendant neglected his property and left it in a dangerous condition that caused a foreseeable injury to the plaintiffs. There is no public policy against imposing a duty of reasonable care in that circumstance. Such has long been a part of the common law in this state. See State v. White, 204 Conn. 410, 427, 528 A.2d 811 (1987).
The defendant's argument does suggest invocation of a superseding cause doctrine defense. Under that doctrine, a defendant is not liable for the unforeseeable intentional torts and criminal acts of third persons. That is a valid special defense, presenting questions of fact. See Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 165 (2009). Under the facts of this case, and in particular light of the fact that Luis Cruz yelled out a warning before he let the rock drop, the court believes that it will probably be found that Luis Cruz did not intend to cause harm to anyone. Certainly, he and other adult supervisors must share in the blame for the injury. Nevertheless, it is probable that it will be found that this was an accident, not an intentional, willful or malicious misdeed. Consequently, this defense, although legally available, is not likely to prevail, either.
Defendant further argues that one of the plaintiffs' grounds for claiming negligence in this case is based on the doctrine of attractive nuisance, and that this cannot be considered as it is not applicable in Connecticut. That doctrine provides that "a possessor of land who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child of tender years who is injured therefrom." Connecticut Law of Torts, supra at § 51. Connecticut has never adopted that doctrine per se. See Neal v. Shields, Inc., 166 Conn. 3, 11, 347 A.2d 102 (1974). Accordingly, the court agrees with the defendant on this point that no liability can rest on that doctrine. However, in determining reasonable care, our caselaw recognizes the propensity of children to under appreciate dangerous conditions, and this is to be taken into account in evaluating whether a defendant, who creates or allows such a condition on its premises, exercised reasonable care when children are known to be involved. See, e.g., Duggan v. Esposito, 178 Conn. 156, 162, 422 A.2d 287 (1979) (pipes protruding from back of parked truck); Neal v. Shields, Inc., supra, 166 Conn. 11 (ice cream truck calling children into the street); Wolfe v. Rehbein, 123 Conn. 110, 116, 193 A. 608 (1937) (negligently piled stack of lumber). That rule will provide the standard in the instant case. The inapplicability of the attractive nuisance doctrine does not immunize defendant from being subject to a duty to use reasonable care in this case.
Whether the plaintiffs will ultimately prevail in this case remains to be seen. At this point, however, the court is only concerned with probable cause. Considering the above, the court finds that it is probable that it will be found that the defendant was negligent because it failed to use reasonable care in maintaining its premises. It allowed unguarded, potentially dangerous debris in an area actively used by children for play that resulted in the injury to the plaintiffs. That children would be playing with, and be injured by, the material should have been foreseen, and precautions should have been taken. No precautions were taken in this case. The landlord was aware of the danger for a long time, yet one regularly performed maintenance, and the premises were neglected for a long time. That the plaintiffs were injured in the amount of $1 million claimed is not doubted. Medical bills alone exceed $640,000.00 to date. However, the court doubts that it will ultimately be found that the defendant should be liable for the full amount. This is because, first, its share of the blame will probably be considered minor under the circumstances of this case. Luis Cruz knew he was creating a danger by dropping the concrete because he yelled out a warning in advance. He will probably be found to share in the blame. The other adult supervisors and care givers on the scene will probably be found to share in the blame, also. They knew children were playing with the material, and one even saw Luis Cruz moving material on the day of the accident. They were not vigilant. While the defendant is to blame for allowing the material on the property unguarded, the adult supervisors failed to properly supervise and instruct the children. Assuming the availability of an apportionment of liability under General Statutes §§ 52-572h(c) and 52-102b(a), the court believes that the defendant will be found to be only ten percent responsible. Therefore, its share of the liability under the prejudgment remedy request should amount to $100,000.00.
It is unknown at this time whether all of the medical bills charged were paid by the State, partially paid by the State, or which State program was involved, although the plaintiff's brief indicates that a Medicaid lien is expected. Ascertaining and calculating a collateral source reduction under these circumstances would be speculative. Since the burden is on the defendant to prove the availability of a collateral source reduction, see Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 9, 848 A.2d 373 (2004), and since the defendant has not established the availability of a collateral source reduction, none will be considered at this time.
Accordingly, the court finds that there is probable cause that judgment will be rendered for the plaintiffs and against the defendant in the amount of $100,000.00, taking into account all defenses, counterclaims or set-offs. There was no evidence of property exempt from execution nor was there evidence of insurance nor was there any request for bonds.
V
For all of the foregoing reasons, the defendant's Motion to Dismiss is denied, and the plaintiffs' application for a prejudgment remedy to attach property of the defendant is granted up to the amount of $100,000.00 only. The plaintiffs will not be required to post a bond.