Elzbieta Serwicka v. Town of Greenwich (2009)

MEMORANDUM OF DECISION

This case comes to this court as a court trial.   The court heard the evidence of the parties and the witnesses, and has reviewed the exhibits introduced into evidence.

The plaintiff claims that on February 3, 2007 at approximately 5:50 a.m. as the plaintiff Elzbieta Serwicka was exiting from her motor vehicle in the general northeast corner of the public parking lot known as the “Arcadia Lot” in Old Greenwich after parking her motor vehicle, she was caused to fall because of the dangerous and defective conditions of the parking lot, particularly the presence of black ice on the pavement or ground, thereby causing her to sustain and suffer the personal injuries and losses claimed in the case.

The court finds that the plaintiff was in the exercise of due care and not contributorily negligent in causing such fall.

The court finds the statutory notice complied with § 13a-149.   The City admits it had the duty to maintain the parking lot in a safe condition, and the claim is that they did that on the night in question.

The court recognizes that the City does not guarantee the safety of travelers in its parking lots.   The task of making parking lots safe at all times and under all circumstances, is not imposed upon our cities.   The duty of the City is to use reasonable care to keep its parking lots in a reasonably safe condition.   The duty to use reasonable care takes into account the variety of conditions and circumstances that are created by the rigors of our winters.

As to the question of notice, the plaintiff must prove that the City knew, or in the exercise of due care in inspecting its parking lot, should have known that the parking lot was in a defective condition.   The plaintiff must prove that the defendant had notice of the particular defect itself which caused the injury, and not merely notice of the conditions that in fact produced it.   The plaintiff must prove that the defendant had either actual or constructive notice of the condition that is claimed to be the defect.   Constructive notice comes about when the condition that is claimed to be a defect was present for a sufficient length of time, so that the defendant should have discovered it using reasonable care to inspect parking lots.   If this is established, then the defendant had constructive notice.

Thereafter, the plaintiff must prove that after having notice, and having had a reasonable opportunity to do so, the City failed to take reasonable care to remedy the defect.   In determining the care that a reasonably prudent person would use in the same circumstances, the court must consider all of the circumstances which were known, or should have been known to the defendant at the time of the conduct in question.

The plaintiff must prove that the defect in the sidewalk was not just one cause among many causes of her fall, but that it was the sole proximate cause, that is, the only substantial factor causing her fall.   The plaintiff must prove that the injuries claimed were caused solely by the defect in the parking lot, “the black ice.”   The plaintiff must prove that she used reasonable care for her own safety;  that is, the degree of care that a reasonably prudent person would use to avoid injury.

The plaintiff claims she was injured and that the conduct of the Town was the proximate cause of the injuries.

The court finds that the procedure used by the Town of Greenwich was to salt the parking lot.   The testimony by the defendant is that the parking lot was salted.   The testimony was that if it had been salted, there would have been no ice patches.   There were ice patches in the area she parked and walked on to get to her place of work at the post office.   Black ice is an unsafe condition.

The entrance road to the area where she parked was described as dry and clear.   It is clear that the Town of Greenwich called out its crews at 9:30 p.m. on February 2, 2005 and worked though the morning until approximately 3:30 or 4:00 a.m. Ice properly applied with salt would abate the condition of the black ice.   Had that been done, this incident would not have occurred.   The court finds no negligence on the part of the plaintiff.   Black ice in dark conditions is dangerous.   It appears the Town inadvertently failed to take care of the ice in this area.

It is clear to this court that there was ice in this lot, and that they addressed this problem which was brought to their attention about 9:30 p.m. on February 2, 2007.   It appears that they simply missed this area in doing the salting.

The court finds the elements of responsibility have been proven as set forth above.   The court finds based on the evidence that her economic loss as set forth in Exhibits # 4 the medical expenses, and Exhibit # 7, the wage loss calculation was $18,738.26 worth of economic loss.   Accordingly, the court awards the plaintiff that amount as economic damages.

As to the non-economic damages, the plaintiff does not claim any future disability.   She has followed the directions of the doctor with conservative care, and has recovered from the injuries.   She was out of work for 15 weeks.   She had substantial pain, suffering, and inconvenience.   Shortly after the fall, (note her knee did not hit the ground, but it was wrenched) her knee began to swell.   The doctor treating her, Dr. George McGinnis essentially found that she had a tibial plateau fracture.   It was not displaced.   In order to recuperate she was required to limit her walking, to use a cane, and only have partial weight bearing.   On the day of the accident, she tried working, but her knee swelled large enough that her pant leg was tight.   She communicated with her supervisor.   The police were called, and an ambulance was called thereafter.   She was taken to Stamford Hospital.   She received conservative care and was told to take Motrin and cold packs.   She tried to get back to work, and took a taxi.   She had difficulty getting in and out of the taxi.   She went back to work, but was unable to work and left for home.   She had pain going up the stairs at home, and spent some time in bed with ice packs.   Her doctor ordered her to have physical therapy.   There were knee-bends and step-ups, and the bike.   When peddling the bike, it hurt.   Her last treatment was with the doctor in June of 2007.

On return to work, she did a lot of sitting and avoided some of the things that she had previously done at work.   She had difficulty or pain when cooking, cleaning, doing the laundry and anything beyond a little walk.   She was not able to work in the yard.   When there was a family emergency with a death in Poland, she was unable to travel with her husband to Poland because of the long air flight.   In addition, she was concerned about luggage and walking the airports.

The court finds for the plaintiff and enters orders as follows:

1. Economic damages in the amount of $18,738.26.

2. Non-economic damages in the amount of $20,000.

3. Total verdict $38,738.26.

SO ORDERED.

EDWARD R. KARAZIN, JR.

SENIOR JUDGE

Karazin, Edward R., S.J.