Opinion
CV156056927S
02-21-2018
Long Name: Jose Santana v. Yingying Hu
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION
Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff Jose Santana (plaintiff), commenced this premises liability action by service of writ, summons and complaint against the defendant, YingYing Hu (defendant). The complaint was returned to court on September 2, 2015, and alleges the following facts. The defendant is the owner of residential property located at 71 Smith Street, West Haven, Connecticut. On October 20, 2014, the defendant was in control of the property including the common areas and exterior stairway leading up to the front door of the property and therefore had a duty to maintain the premises to render it safe. At all relevant times the defendant and her agents, servants and/or employees knew, or with reasonable diligence should have known that pedestrians heavily traveled the subject premises. On or about October 20, 2014, the plaintiff was lawfully on the premises as a tenant residing at said premises and on that date the plaintiff was descending said exterior stairway, when a step suddenly and without warning, gave way causing the plaintiff to fall to the ground which resulted in the plaintiff sustaining severe injuries.
The plaintiff further alleges that the defendant and her agents, servants and/or employees knew, or with the exercise of reasonable care should have known that said defective step existed, that the exterior stairway was defective, rotted and/or in a state of disrepair, thereby creating a hazardous and dangerous condition that posed a serious risk of injury to persons who were likely to be present upon the premises. The plaintiff claims he suffered injuries and damages to his right knee which resulted in the need for surgery and injuries to his lower back.
The defendant denied the allegations in the plaintiff’s complaint and further claimed during trial that the plaintiff’s slip and fall was contrived in retaliation against the defendant for commencing an eviction action against the plaintiff. The defendant also asserted the special defense of comparative negligence and alleged that the plaintiff’s injuries were caused by his own negligence in that he failed to make reasonable use of his faculties; he failed to be watchful of his surroundings and general conditions prevailing; and he knew or should have known of the condition then there existing but failed to use reasonable care for his own safety. The plaintiff denied the allegations in the defendant’s special defense. The case was tried to the court on September 6 and 7, 2017. The court ordered the parties to submit proposed findings and briefs on October 10, 2017. At the request of the plaintiff, an extension of time was granted to November 7, 2017.
II
STANDARD OF REVIEW
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ... Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007); see also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness’s credibility. See State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness’s credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. Nothing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
" It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. See Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).
" The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some- of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
III
BURDEN OF PROOF/STANDARD OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint and on the defendant to prove all of the essential elements of its affirmative defenses. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " 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 ... The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of [its] cause of action by a fair preponderance of the evidence." Gulyez v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, " [a] special defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendant must prove all of the essential elements of its affirmative defense by a fair preponderance of the evidence.
The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
IV
FINDINGS OF FACT
From the credible testimony and evidence presented, the court finds the following facts to have been proven by a fair preponderance of the evidence. On September 19, 2012, the defendant purchased the property located at 71 Smith Street, West Haven, Connecticut through foreclosure proceedings and was the owner of the property on October 20, 2014. The defendant was responsible for the maintenance of the property, and the common areas thereon, including the front porch area. The defendant delegated the responsibility for maintaining the property to her husband, John Wei. Wei went to the property located at 71 Smith Street every week or every other week and walked up and down the front stairs of 71 Smith Street prior to October 20, 2014. Wei was primarily the one with whom the tenants would interact regarding concerns relating to the property. The tenants would primarily call or text defendant’s cell phone which was held by Wei, if they had complaints about the property. If the tenants at 71 Smith Street called for repairs, Wei would go to the property, look at the problem and try to find contractors to perform the repair work. Wei would in turn report any tenant complaints about the property to the defendant. In fact, the plaintiff testified that he thought Wei was the owner of the property.
The defendant rented the first floor apartment to the plaintiff sometime in late 2013 by way of a written lease agreement. The plaintiff signed a written lease to rent the first floor of the premises for $1,325 per month. The plaintiff’s girlfriend Veronica Brandisi was also on the lease and resided at the premises with the plaintiff and their minor son. In early September 2014, the defendant commenced an eviction proceeding against the plaintiff and the plaintiff received notification of the eviction complaint shortly before his alleged fall on October 20, 2014.
The defendant engaged the services of Attorney James Wittstein in early September 2014, to evict the plaintiff by commencing eviction proceedings. All occupants of the apartment, and named on the lease, which included the plaintiff and Brandisi, were named in the eviction initiated by attorney Wittstein. Attorney Wittstein obtained a judgment of eviction against the plaintiff and Brandisi. Brandisi was allowed to remain at the premises by stipulated agreement until December 31, 2014. A final judgment against the plaintiff was entered by default on October 16, 2014. Pursuant to General Statutes § 47a-35(a), for all grounds, summary process actions are stayed for five days from the date of judgment, not counting the date of judgment and any intervening Sundays or legal holidays. In addition, according to attorney Wittstein in accordance with housing law, the plaintiff would have five days to vacate the premises following judgment of eviction.
According to the testimony of both the plaintiff and Wei, the plaintiff had already moved out of the apartment in May 2014, however formal eviction proceedings did not commence until early September 2014. Prior to the commencement of the eviction proceedings, in May 2014 the plaintiff and Wei had a good relationship. After the plaintiff received the eviction notice in early September, he contacted Wei and indicated that he received the eviction papers, however he did not understand why he was being evicted because he had already moved out of the apartment in May. According to Wei, the plaintiff threatened him at this time. Although the plaintiff had moved out in May 2014, and eviction proceedings were commenced in early September, he would visit the property on several occasions prior to his fall in October 2014, to take care of his son. Prior to October 20, 2014, Nicaury Baez, a third floor tenant at the premises, observed the plaintiff come in and out of the premises and take his son " a lot of times." Baez observed that the plaintiff cared a lot for his son and he was at the property a lot to pick up his son.
In August 2014, a piece of the wood on the stairs on the left side had cracked, which Baez observed and reported to Wei. Baez’ father temporarily repaired the step and thereafter Wei sent a contractor to replace it. Baez testified that, with the exception of the cracked piece of wood she observed in August 2014, she did not have a problem with the stairs and had traversed them many times with her son, who was 1 1/2 years of age in October 2014. Baez further testified that she observed other tenants traverse the stairs where the plaintiff fell and she did not observe them have a problem with the stairs. Carmen Hernandez, another tenant that resided at 73 Smith Street testified that she had been living at 73 Smith Street which is within the same building as 71 Smith Street since June 2014. Hernandez testified that from June 2014 through October 20, 2014, the front stairs appeared fine. Hernandez testified that exhibit 10, a photograph of the stairs was not an accurate representation of the condition of the stairs on or around October 20, 2014.
The court carefully reviewed the photographs that depict the area where the plaintiff fell, and considered all of the witnesses testimonies relating to these photographs. The photographs submitted into evidence depict the edge of the porch/top step that gave out where the plaintiff fell. All four photographs, exhibits 10, 11, 12 and 16 show the edge of the porch/top step which appears to be rotted and cracked. Also depicted is a gap in the top stairs to the left of the cracked edge of the porch/top step close to the left railing. Right underneath the cracked and rotted edge of the porch/top step on the step just below, there appears to be chips of wood/debris, which suggests to the court that the cracked wood from the edge of the porch/top step had fallen off. The plaintiff identified the defect that caused his fall as the edge of the porch/top step which gave out from under him and caused him to stumble down the stairs and to land on his hands and knees on the concrete walkway at the bottom of the stairs. Several months after the plaintiff moved into the premises, and prior to the fall, the plaintiff complained to Wei that the stairs were " loose and dangerous to him and his family." The plaintiff knew the stairs were rotted and complained to Wei in person about the condition of the stairs, prior to his fall. The plaintiff’s description of the stairs where he fell is consistent with all of the photographs admitted into evidence depicting the area where he fell. In particular, the back of exhibit 16 indicates that the " [p]hotographs obtained on 10-29-14 at 12:00 P.M. at 71 Smith Street in West Haven, Connecticut. Showing the front steps of number 71 Smith Street. Showing the location of Mr. Jose Luis Santana’s fall on 10-20-14 ... Photograph provided by Anthony Massaro of A.M.T. Consultants." Indeed, this court observes that all four photographs, exhibits 10, 11, 12, and 16 look identical except that, exhibits 10, 11 and 12 are an enlargement of exhibit 16. Even the paint markings depicted on the steps on all of the photographs are exactly the same which further suggests to this court that exhibits 10, 11, and 12 are enlargements of exhibit 16 which was taken only nine days after the plaintiff’s accident. " A picture is worth a thousand words" and there is no credible evidence to suggest that these photographs were taken prior to August 2014, or on some date other than October 29, 2014, as indicated on the back of exhibit 16, or that, as the defendant suggests, the plaintiff somehow fabricated when these pictures were taken. Moreover, from the photographic evidence submitted, the court concludes that the physical condition of the edge of the porch/top step that gave out and caused the plaintiff to fall, appears rotted and cracked and had been present for a sufficiently long period of time to provide Wei, and in turn, the defendant, with constructive notice of it. Additionally, this rotted, cracked, dangerous and defective condition on the edge of the porch/top step is readily evident and apparent. The court finds that Wei and the defendant had constructive notice of the defective condition and therefore, the defendant had a duty to remedy the defect, by repairing the cracked edge of the porch/top step, which she failed to do.
V
LIABILITY
A
Negligence- Generally
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ... We have stated that the 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 anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
B
Premises Liability
" In premises liability, [t]he law is clear that [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." (Citations omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 48, 58 A.3d 293 (2013).
(i)
Control
Our Supreme Court has made it clear that in a premises liability case, " the dispositive issue in deciding whether a duty exists is whether the [defendant] ... ha[d] any right to possession and control of the property." (Emphasis added.) LaFlamme v. Dallessio, 261 Conn. 247, 252, 802 A.2d 63 (2002).
" The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee ... [T]he question of whether a defendant maintains control over property sufficient to subject [her] to ... liability normally is a ... question [of fact] ... Where the evidence is such that the minds of fair and reasonable persons could reach ... different conclusions on the question [of control], then the issue should properly go to the [trier of fact] for its determination ... [I]n order to prevail ... on the theory of premises liability, the plaintiff [i]s required to plead and to prove that [the defendant] ... was in possession and control of the premises at the time [the plaintiff was injured] ..." (Citations omitted; emphasis added; internal quotation marks omitted.) Alfano v. Randy’s Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773-74, 881 A.2d 379 (2005).
Here, there is no dispute that the defendant exercised control over the front exterior steps. The defendant directed her agents to make repairs to the front steps after she purchased the property in 2012. The agents of the defendant again made repairs to the front steps in August 2014, shortly before the plaintiff’s fall in October 2014. Because the defendant admitted that the maintenance of the front steps was her responsibility as landlord and she demonstrated her control over the front steps of the premises on multiple occasions by directing her agents to repair the steps, the plaintiff has proven by a fair preponderance of the evidence that the defendant had possession and control over the front exterior steps of the premises.
(ii)
Duty- Plaintiff’s Status
" In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiff’s status on the premises at the time of the alleged injury. See Morin v. Bell Court Condominium Ass’n, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992)." Pinto v. King, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-16-6054517-S, (April 25, 2017, Krumeich, J.).
" Connecticut’s premises liability law has long provided that ‘[t]he status of an entrant on another’s land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner’s property.’ Salaman v. Waterbury, 246 Conn. 298, 304-05; 717 A.2d 161 (1998); see Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 330-31, 612 A.2d 1197 (1992) (Connecticut ‘continue[s] to adhere to the proposition that the defendant’s duty is based on the entry status of the particular person in question’). ‘Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact.’ Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959); Morin v. Bell Court Condominium Association, 25 Conn. .App. 112-15, 593 A.2d 147 (1991), aff’d 223 Conn. 323, 612 A.2d 1197 (1992). ‘Where, however, the facts essential to the determination of plaintiff’s status are not in dispute, a legal question is presented.’ Morin v. Bell Court Condominium Association, supra, 25 Conn.App. at 115.
" ‘In general, there is an ascending duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.’ (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). A trespasser ‘is one who enters upon land without the consent of the possessor to do so.’ Shaprio v. Hillside Village Condominium Assn., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274597 (March 7, 2003, Wiese, J.) (34 Conn.L.Rptr. 262, 264); see also 2 Restatement (Second), Torts § 329 (1965). ‘One in possession of property ordinarily owes no duty to trespassers, either infant or adult, to keep the property in a reasonably safe condition for their use, since he may properly assume that they will not be there.’ Greene v. DiFazio, 148 Conn. 419, 422, 171 A.2d-411 (1961). An intermediate duty is owed by a possessor of land to a licensee, ‘a person who is privileged to enter to remain upon land by virtue of the possessor’s consent ... The duty that a landowner owes to a licensee does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them ... If the licensor actually or constructively knows of the licensee’s presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe.’ (Citation omitted; internal quotation marks omitted.) Salaman v. Waterbury, supra, 246 Conn. at 305.
" A possessor of land owes the highest duty to an invitee. ‘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.’ (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 294, 791 A.2d 602 (2002), aff’d, 263 Conn. 378, 819 A.2d 795 (2003). Connecticut recognizes three distinct types of invitee: ‘Invitees fall into certain general categories. A public invitee " is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public." Restatement (Second), 2 Torts § 332. A business invitee " is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land." Restatement (Second), 2 Torts § 332. Section 52-557a of the General Statutes, which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee,’ in effect, recognizes a third kind of invitee, namely, the social invitee." Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). While at common law social guests were generally considered licensees; see 2 Restatement (Second), supra, § at 330, comment (h); ‘[t]he language of § 52-557a indicates rather that the legislature intended to require a landowner to exercise the same standard of care toward every person whom he " invited" onto his premises, whether the owner extended such an invitation for business or for pleasure.’ Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991)." Buttrick v. Wilson, Superior Court, judicial district of New Haven, Docket No. CV-095026936 (April 17, 2012, Wilson, J.).
There is no question in the present case, that the plaintiff was an invitee at the time of his fall. The defendant suggested, though did not prove, that the plaintiff was a trespasser at the time of his fall. However, the evidence is clear that the plaintiff’s eviction became effective after October 20, 2014, and the family protective order that Brandisi had filed against the plaintiff expired on October 10, 2014. The evidence establishes that at the time of his fall, the plaintiff was legally on the premises located at 71 Smith Street, West Haven, Connecticut as an invitee.
(iii)
Notice
" ‘Typically, under traditional premises liability doctrine, [for [a] plaintiff to recover for the breach of a duty owed to [him] as [an] 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). [Possessors of land] 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)." Olsen v. Norwalk Hosp. Ass’n., Superior Court, judicial district, Docket No. FST-CV-136019793S, (June 3, 2016, Heller, J.).
In order to prove that the defendant had actual notice, the plaintiff must establish that the defendant actually knew of the unsafe condition long enough before the plaintiff’s injury to have taken steps to correct the condition or to take other suitable precautions. See Zarembski v. Three Lakes, Park, Inc., 177 Conn. 603. If the condition is one that was created by the defendant (or one of the defendant’s employees), then that constitutes actual notice. See id. ; Tuite v. Stop & Shop Cos., 45 Conn.App. 305, 308 (1997). " A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was create by the defendant’s employee; see Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 607, 419 A.2d 339 (1979); or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition. See Derby v. Connecticut Light & Power Co., 167 Conn. 136, 141-42, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1659, 44 L.Ed.2d 88 (1975)." Hellamns v. Yale-New Haven Hosp., Inc., 147 Conn.App. 405, 412, 82 A.3d 677 (2013). Moreover, " [w]hile circumstantial evidence can establish constructive notice, a plaintiff’s assertion that an employee walked past the defect, absent evidence that the employee actually did see the defect, is insufficient. See Gulycz v. Stop & Shop Cos., supra, 29 Conn.App. at 522, 615 A.2d 1087 (evidence insufficient to establish constructive notice when evidence established that plaintiff saw defect but failed to establish that defendant’s employees saw defect prior to plaintiff’s injury)." Id., 413.
There was testimony from the plaintiff that he had notified Wei of the defective condition of the stairs prior to his fall on October 20, 2014, however, the evidence was lacking to prove that Wei or the defendant actually saw the cracked portion of the stairs prior to the plaintiff’s fall. Nor was there credible evidence that the defendant and/or her agents created the defective condition. The court therefore concludes that the evidence in the present case is not sufficient to establish that prior to October 20, 2014, the defendant actually knew of the defective condition at the top of the stairs which gave out and resulted in the plaintiff’s fall, or that the defendant created the defective condition. Thus, the evidence is insufficient to establish that the defendant had actual notice of the defect.
Nevertheless, in order for the plaintiff to recover in the absence of proof that the defendant created the condition or actually knew of it, the plaintiff must prove that the defendant had notice of the defective condition by demonstrating that the defendant had constructive notice of it. " The 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. (Citation omitted.) Pollack v. Gampel, 163 Conn. 462 469-70, 313 A.2d 73 (1972); see also Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163-64, 914 A.2d 529 (2007); Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946)." (Internal quotation marks omitted.) Hellamns v. Yale-New Haven Hospital supra, 147 Conn.App. 413.
A possessor of land is charged with constructive notice of a dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk. See Considine v. City of Waterbury, 279 Conn. 830, 870-72, 905 A.2d 70 (2006); White v. E&F Const. Co., 151 Conn. 110, 112-13, 193 A.2d 716 (1963). " There could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it because, had they exercised a reasonable inspection of their premises, they would have discovered it; Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822; White v. E&F Construction Co., 151 Conn. 110, 112, 193 A.2d 716; and it was the defendants’ duty to make a reasonable inspection of premises in their control to discover possible defects therein. Klahr v. Kostopoulos, supra, 138 Conn. 655, 88 A.2d 332." Cruz v. Drezek, 175 Conn. 230, 235, 397 A.2d 1335 (1978). " 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" ; DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 118, 49 A.3d 951(2012); which can be established through circumstantial evidence. See Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 286-87 (1991). " Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects, keeping in mind that in an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier’s mind a reasonable belief that it is more probable than otherwise that the fact or issue is true. Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473. In many cases [including the present case] circumstantial evidence is the only evidence available to a party to prove a fact material or essential to his cause of action. Hennessey v. Hennessey, supra, 215, 140 A.2d 473." Cruz v. Drezek, supra, 175 Conn. 235-36.
Here, the dangerous and defective condition at issue, the top of the exterior stairs/edge of the front porch, is apparent to the human eye. Exhibit 16 shows that the wood at top of the stairs/edge of the porch is cracked, rotted, worn and broken, which gave out, resulting in the plaintiff’s fall. The rotted, cracked, broken and worn nature of the stairs/edge of the porch suggests to the court that the stairs had been in this defective condition for a sufficient length of time for Wei, the defendant’s agent and/or servant, to observe it, inspect it and fix it, particularly since he goes to the property at least every other week. Like the trial court in Rockhill v. Danbury Hospital, 176 Conn.App. 39, 44, 168 A.3d 630 (2017), this court concludes that the evidence established that the wood at the top of the stairs/edge of the porch was " ‘well worn’ and that the defect ‘is a specific condition which existed for a sufficient length of time as to give the defendant constructive notice of its existence.’ ... [Moreover the wood at the top of the stairs/edge of the porch] " is easily visible when looked upon directly and ... there [were] no express signs or paint or other warnings located in its proximity to point it out." Id., 45; see also, Rodrigues v. City of Bridgeport, Superior Court, judicial district of Bridgeport, Docket No. CV-95-0324353S, (July 11, 2001, Gormley, J.) (" Any fair review of the plaintiff’s description of the sidewalk in the area of her fall, along with a view of the photograph of the exact area of the fall which was attached to her notice, leads to the inescapable conclusion that the sidewalk was in a deplorable state-cracked, depressed, uneven and widespread. It had existed in that condition for two years before she fell. It is obvious from reviewing the photo that the deterioration was cause over time, had existed for a long time before the fall and the defendant knew of or should have known of its existence. It was in plain sight." ). Accordingly, the court finds that the rotted, worn, cracked and broken condition of the top of the stairs/edge of the porch as depicted in exhibit 16 leads to the inescapable conclusion that the defective condition had existed for a long time prior to the plaintiff’s fall and the defendant should have known of its existence, again, particularly since the defendant’s agent and/or servant, Wei, visited the property at least every other week, if not every week. The court therefore finds that both Wei and the defendant had constructive knowledge of the defective and dangerous condition of the top of the stairs/edge of the porch which gave way and resulted in the plaintiff’s fall, and failed to repair it. Accordingly, the court finds that the plaintiff has proven by a fair preponderance of the evidence that the defendant was negligent on October 20, 2014, C
Special Defense- Comparative Negligence
The defendant has alleged the special defense of comparative negligence and has alleged a number of ways the plaintiff was negligent. The defendant alleges in her special defense that if the plaintiff was injured as alleged in the complaint, then such injury was as a result of the plaintiff’s own negligence in that he failed to make reasonable use of his faculties; failed to be watchful of his surroundings and general conditions prevailing; and he knew, or should have known of the condition then and there existing but failed to use reasonable care for his own safety.
As the court just discussed, the plaintiff alleged and demonstrated that the defective condition of the wood at the top of the stairs/edge of the porch was visually apparent. In addition, the plaintiff himself was aware of the condition of the stairs and had complained to Wei about it prior to his fall. The defect was visually present on the day of the plaintiff’s fall and as such, plaintiff knew, or should have known of the condition then and there existing but failed to use reasonable care for his own safety. The court therefore finds that there is merit to this specific allegation of negligence in the defendant’s special defense and, consequently, the doctrine of comparative negligence is applicable.
VI
DAMAGES
" It is axiomatic that the burden of proving damages is on the party claiming them ... When damages are claimed they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). " In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).
The court finds that as a result of his fall due to the defective and dangerous condition of the stairs, the plaintiff sustained a right knee sprain/strain and a meniscal injury of the right knee which required surgery. The court further finds that the plaintiff sustained a temporary aggravation/exacerbation of his prior low back condition. The plaintiff treated with Dr. Connair for his right knee injury and for his low back condition. The defendant had a records review performed by Dr. David Brown who opined that the plaintiff’s treatment to the right knee, including surgery was the result of the plaintiff’s fall on October 20, 2014, and that the plaintiff’s treatment was reasonable and necessary. Dr. Brown opined that the plaintiff sustained a meniscal tear injury to his right knee as a result of the October 20, 2014 fall. Dr. Brown opined that as a result of the plaintiff’s fall on October 20, 2014, and resulting injury to the right knee, which resulted in the need for surgery, the plaintiff sustained a 5% permanent partial impairment to the right knee. Dr. Brown further opined that he would expect the plaintiff to have some degree of knee pain and that the pain would persist into the future.
The plaintiff had prior injuries to his low back from a slip and fall and a motor vehicle accident for which he received chiropractic care and lumbar steroid injections. Dr. Brown opined that the plaintiff sustained a temporary exacerbation of his prior low back condition as a result of the October 20, 2014 fall and that as a result, it was reasonable for the plaintiff to have a repeat MRI which took place on September 3, 2015. Dr. Brown further opined that the plaintiff’s repeat epidural injections to the lumbar spine on May 4, 2015, and July 17, 2015, were also related to the temporary exacerbation and were reasonable.
The plaintiff testified to his limitations as a result of the injuries he sustained on October 20, 2014. The plaintiff was born on December 29, 1961, and has a life expectancy of 25.4 years. The court finds that the plaintiff, Jose Santana, has proven by a fair preponderance of the evidence that on October 20, 2014, he did sustain an injury to his right knee, and a temporary exacerbation of his prior low back condition, and that the injuries were caused by the negligence of the defendant, YingYing Hu. Based upon the medical records, the plaintiff’s right knee complaints, and the fact that the right knee symptoms have continued since the date of the accident, and the 5% permanent impairment of the right knee assessed by Dr. Brown, the court finds that the plaintiff’s right knee injury is permanent in nature. The court finds that the plaintiff sustained a temporary exacerbation of his pre-existing low back condition and that as a result underwent two repeat steroid injections in May 2015, and July 2015, and a repeat MR1 in September 2015.
Accordingly, the court finds the plaintiff’s economic damages to be $41,482. The court finds the plaintiff’s non-economic damages to be $75,000. The total amount of damages is therefore found to be $116,482. The court further finds that the plaintiff was contributorily negligent in one of the ways alleged in the defendant’s special defenses in that the plaintiff knew, or should have known of the condition then and there existing but failed to use reasonable care for his own safety. Accordingly, the plaintiff is found to be 25% at fault for his own injuries and losses. Consequently, the award of judgment to the plaintiff is reduced by the sum of $28,485 to a total award of $87,361.50 plus taxable costs. It is so ordered.