Marsha Sockwell v. Brian Merrell (2010)

MEMORANDUM OF DECISION

This case came on for trial before the Court on June 11, 2010.   Thereafter, the plaintiff's post-trial memorandum was filed on June 16, 2010, and the defendant's post trial memorandum on June 24, 2010.

The evidence disclosed that on November 17, 2006 the plaintiff Marsha Sockwell and her husband were visiting her sister-in-law residing on the first floor of a two-family house at 93 Ward Street in New Haven, when she was caused to fall in the hallway of said property very near the doorway to the front porch.   The parties stipulated that on the date of the plaintiff's fall, the defendant owned, controlled and had a duty to maintain the common areas in reasonably safe condition for visitors lawfully upon said premises.   Furthermore, the parties stipulated that the plaintiff was an invitee on the premises on the date and time of her fall and claim of injury.   The plaintiff's husband drove plaintiff to the Yale New Haven Hospital Emergency room from the place of her fall.

The plaintiff claims that she was caused to fall because her left shoe got caught on a nail protruding from the floor, the nail extending between a half an inch to an inch in height above the floor surface.   She described the nail as “looking like it was rusted and painted over,” and that it caused her “left foot to rollover.”   The plaintiff testified that “before the accident I weighed a good 500 pounds.”   This weight, together with the twisting action of the foot as she fell caused a “non-displaced fracture at the base of the left fifth metatarsal with adjacent soft tissue swelling.”   According to the Yale New Haven Hospital patient discharge instructions “these fractures can be caused by twisting or crush injuries.”

Plaintiff continued to experience pain in the foot following discharge from the emergency room although she was non-weight bearing on crutches.   She was being followed by Johnathan Key, DPM, who on October 10, 2007 readmitted her for surgery because of continuous pain, which surgery consisted of “debridement of the fifth metatarsal base.”

Thereafter, on January 30, 2007 plaintiff underwent a second surgery because of nonunion of the fifth metatarsal fracture, which surgery consisted of “excision of the fracture fragments and debridement of the fifth metatarsal bone.”

An owner of property has a duty to an invitee, such as the plaintiff, to reasonably inspect and maintain the premises in order to render them reasonably safe for invitees such as social guests, as was the plaintiff.   In addition, such an owner must warn an invitee of any danger that the invitee could not reasonably be expected to discover himself or herself.

The controlling question in deciding whether the defendant had constructive notice of the “defective condition,” the nail in this case, “is whether the condition existed for such a length of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it.  “What constitutes a reasonable time is largely a question fact to be determined in the light of the particular circumstances.”  Morris v. King Cole Stores, Inc. 132 Conn. 481, 494, 45 A.2d 710 (1946).

After her fall the nail in question was not only observed by the plaintiff but also, her husband James Bryant and his sister Bridgette Roberts the tenant in the building that the plaintiff and her husband were visiting.   Her husband was behind the plaintiff when she fell, observed the fall, and described the nail as “looked old, rusty and it was a little tarnished from whatever, paint or something like that.”   T 71.   Bridget Roberts saw the plaintiff fall and described the nail as “brown with old paint up there, like a rusted old, it was hanging out.”   T 115.   Therefore, three people including the plaintiff testified that the nail protruding from the floor was a cause of plaintiff's fall.   The court, absent evidence based on a timely inspection that no such nail existed, is forced to conclude that the nail was responsible for plaintiff losing her balance and causing her to fall.

Furthermore, all three witnesses described the nail as being “rusty.”   The Court believes in the scientific fact that metal nails or metal generally rusts only if allowed to be exposed to the air for an extended period of time, and would not rust if the nail shaft remained imbedded in the wood floor and not exposed to the air.   Consequently, time above the floor surface was required before the nail shaft rusted, and therefore, it is reasonable to infer that the nail was elevated for a reasonable period prior to plaintiff's fall, and a reasonable inspection would have discovered said nail, and the nail could have been hammered back in prior to plaintiff encountering it providing a timely inspection had been made.

This surgery consisted of “Excision of fracture fragment of nonunion, fifth metatarsal and debridement of fifth metatarsal bone.”   Postoperative instructions were once more were “non-weight bearing with crutches.”

At the time of plaintiff's fall the property in question was owned by Brian Knedsen who resided in New Haven and Brian Merrell residing on the west coast.   Knudsen testified that his arrangement with Merrell was that he, Knudsen would be on site to collect the rents and manage the property.   Knudsen testified that he was a part-time student and worked at Unica Service Company “full time.”   When asked whether he ever did any maintenance work on the premises his response was “No, ․ there was no maintenance, no repair that needed to be made.”   T 161.   Knudsen failed to identify an inspection that he made of the hallway floor at any time prior to the plaintiff's fall.   He did state that he would visit the property once a month to collect the rent.   Whether his attention was directed to the floor area in the hallway in the vicinity of the nail location remains an unknown.   Therefore, the court is persuaded that the more credible testimony leads the court to conclude that the nail in question could have been discovered had a timely reasonable inspection been done prior to the plaintiff's fall, and the defect easily remedied with the mere swing or two of a hammer.

The court does not believe that it can attribute any contributory negligence to the plaintiff due to the color of the hall floor (Defendant's Ex. B), which is a brownish-red, and quite similar to the color of a “rusted nail.”   Consequently, as plaintiff was walking over the hall floor she would not be likely to notice a rusted nail against such a background unless she knew that such a nail was there.

At the time of her fall and resulting injuries plaintiff was employed as a Certified Nurse Assistant (CNA) at Rose Garden Health Care earning $532.40 per week.   She missed a total of 19 weeks due to her injuries a total loss of earnings in the amount of $10,115.00.  (Plaintiffs Ex. 8.) Her medical bills total $29,070.12.  (Plaintiffs Ex. 8.)

Accordingly, judgment may enter in favor of the plaintiff to recover of the defendant Brian Merrell as follows:

Economic Damages-$39,185.12

Non-Economic Damages-20,000.00

Total Damages-$59,185.12

Skolnick, J.T.R.

Skolnick, David W., J.T.R.