Sandra Elstein v. Town of Fairfield et al. (2011)

MEMORANDUM OF DECISION

The issue to be decided in this case tried to the court is whether the plaintiff has proven the essential elements of her claim for personal injuries against the defendants under the highway defect statute, General Statutes § 13a-149.¹  For the reasons hereinafter discussed, judgment is rendered in favor of the defendants on the plaintiff's amended complaint.

This incident took place at the Southport train station in Southport, Connecticut.   The station is small in scope.   It consists of a parking area, a station house, and a passenger platform that is accessible by a stairway adjacent to the building and a ramp at the far, or east end, of the platform.

The court finds the following facts to be credibly proven.   The plaintiff is a very pleasant, articulate and credible seventy-four-year-old woman who sustained personal injuries as a consequence of falling at the Southport train station on Monday, January 7, 2008.   She was seventy-one years old at the time of the fall.

The train station sustained significant fire damage to its building on the preceding Friday.   As a result, the platform stairway adjacent to the station house was closed.   The plaintiff arrived at the station intending to take the 8:19 train into New York City, which she did two times a week in furtherance of volunteer work that she performed at a library.²  The plaintiff's husband dropped her off at her usual place in the parking area and, as was her habit, she walked towards the stairway nearest to the station house.   Due to the fire and the closure of that stairway, the plaintiff and other passengers were directed to access the platform by way of the concrete ramp.   The ramp is located a relatively short distance from the station house in an easterly direction parallel to the platform and tracks.

In order to proceed to the ramp, the plaintiff walked along a paved area between the handicap parking area and the platform.   The plaintiff walked for a distance of a little more than five parking spaces when she came to a very large, electrical transmission wire pole seated atop a concrete pedestal.   The pole prevented the plaintiff from continuing on her course of travel.   At that point, there was a small, square dirt and grass area immediately to the left of the plaintiff, which was partially bounded by concrete blocks.   The plaintiff walked across the grass area in order to continue towards the ramp.   The plaintiff testified that she believed that was the only way she could walk at that point.   As noted in the M.T.A. Police Department Incident Report, the area “was wet and muddy.”   The plaintiff testified that the area was “mucky,” “mud,” “soggy” and “mushy.”   Although the weather on the date and at the time of the plaintiff's fall was clear and dry, it had rained a day or two prior to that day.   The plaintiff was walking at her normal pace, which she described as quickly.   She was wearing high heeled boots about an inch to an inch and one-half in height.   Her heels became stuck in the ground, causing her to fall forward and sustain serious injuries.

“Historically ․ municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control ․ The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed.   The statutory provisions of § 13a-149 have two components that must be met in order to trigger its application:  (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair.”  (Citation omitted;  internal quotation marks omitted.)  Bartlett v. Metropolitan District Commission, 125 Conn. 149, 157-58, 7 A.3d 414 (2010).

The defendants concede that the plaintiff provided the requisite statutory notice of injury and that they were the parties responsible for the area at issue.³  The defendants deny that the plaintiff has proven the other elements necessary to establish her claim under the highway defect statute.

“To recover under § 13a-149, a plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed;  (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect;  (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so;  and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.”  (Citation omitted;  internal quotation marks omitted.)  Nicefaro v. New Haven, 116 Conn.App. 610, 612-13, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009);  Prato v. City of New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998).

The defendants do not dispute that the grass area falls within the purview of the highway defect statute.   The defendants claim, however, that the plaintiff failed to prove that the area was defective and, further, that as a matter of public policy, “soft or moist ground is not a defect for purposes of a highway defect.”   The court finds that the public policy argument lacks merit and warrants no discussion.   The court disagrees that the plaintiff has failed to prove that the grass area was defective.

“[A] highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.”  Bartlett v. Metropolitan District Commission, supra, 125 Conn. 161.   The court finds that the plaintiff has proven that the grass area was defective.   At the time that the plaintiff traversed it, the area was “wet and muddy.”   Because of the fire that occurred at the railroad station, the plaintiff and others were directed away from the closed stairway towards the ramp at the east end of the platform.   The grass area was located near ramp, and was not reasonably safe to be crossed by passengers such as the plaintiff who were guided in its direction.   The defendants should have reasonably anticipated that passengers would cross the area as they walked towards the ramp.   The area was not blocked off or otherwise made reasonably safe by the defendants.   Under the circumstances, the area was defective.

The court finds that the plaintiff has proven that the defendants had constructive knowledge of the defect.   A major fire occurred at the train station on the prior Friday.   It rained over the weekend.   The dirt and grass area near the ramp at the east end of the platform became wet and muddy by the time the plaintiff walked on it.   The station was open for business on the Monday after the fire.   Passengers were necessarily directed away from the stairway next to the station house and towards the ramp at the east end of the platform.   A portion of the paved area leading toward that ramp, in front of the handicap parking spaces, is blocked by the large pole.   In order to continue on to the ramp, passengers such as the plaintiff can either walk across the dirt and grass area, or turn and walk around the pavement surrounding three sides of the area.   Under the circumstances of the major fire and its adverse effects on the normal operations of the train station, the defendants had constructive knowledge of the defective area.

The court finds that the plaintiff has proven that the defendant failed to remedy the defective condition despite having a reasonable time to do so.   Cindy Placko, the manager of the defendant, Fairfield Parking Authority, testified on cross-examination that the Authority took “no action” relating to the grass area that morning.   Given that the stairway to the platform was closed due to the fire on Friday, forcing passengers to use the ramp, and that it had rained on one or both days over the weekend, the defendants had a reasonable time to take some action to remedy the wet and muddy grass area located near the passenger ramp.

In furtherance of her claim that she was in the exercise of due care at the time of her fall, the plaintiff claims in her post-trial memorandum of law that she “traversed around the pole by entering the only pathway she could from the end of the paved portion of the sidewalk.”   The evidence belies the plaintiff's claim.   The court finds that the plaintiff has failed to prove that the defect was the sole proximate cause of her injuries.   Stated another way, the court finds that the plaintiff has failed to prove that she was free from any negligence.

In making this finding, the court cannot ignore the following evidence.   When the plaintiff arrived at the train station she was confronted with the situation that fire damage closed part of the station.   Although the plaintiff had been to the station many times before, this time she could not use her usual stairway to access the platform.   She was attempting to make an 8:19 a.m. train to Manhattan.   The plaintiff fell at approximately 8:13 a.m., and was dropped off at the station by her husband shortly before she fell.   As a result of being directed to the concrete ramp servicing the east end of the platform, the plaintiff came to a dead end at a large pole.   At that point, the plaintiff walked around the pole and, instead of remaining on the pavement to walk around the grass area towards the ramp, she decided to directly cross the area.⁴  The area was wet and muddy, by her own admission the plaintiff was walking at her normally quick pace, and she had on high heels.   As noted by the plaintiff in her post-trial memorandum and demonstrated by the photographs in evidence, “the cause of the incident was the heel getting stuck in the ground.”   The plaintiff bears some responsibility for it getting stuck.   She was wearing footwear that was reasonably foreseeable to become embedded in the type of ground the plaintiff chose to walk over.   It was winter and it had recently rained.   The plaintiff herself notes in her memorandum that “[i]t is common knowledge and indisputable that when earth, soil and grass get wet, it softens.”

A plaintiff seeking recovery under § 13a-149 must prove that she “suffered injury while using the defective highway with due care and skill.”  Nicefaro v. New Haven, supra, 116 Conn.App. 621.   The plaintiff failed to establish that she fell and was injured while she was crossing the defective area in the exercise of due care.⁵  In view of the foregoing, judgment is rendered in favor of the defendants on the plaintiff's amended complaint.

TYMA, J.

FOOTNOTES

FN1. The plaintiff's amended complaint dated July 23, 2010 contains two counts.   In the first count, the plaintiff claims that the defendants are liable to her based on § 13a-149.   In the second count, she claims that the defendants are liable to her for a public nuisance.   The plaintiff withdrew the nuisance count at the conclusion of the evidence..  FN1. The plaintiff's amended complaint dated July 23, 2010 contains two counts.   In the first count, the plaintiff claims that the defendants are liable to her based on § 13a-149.   In the second count, she claims that the defendants are liable to her for a public nuisance.   The plaintiff withdrew the nuisance count at the conclusion of the evidence.

FN2. There was conflicting evidence as to what time the plaintiff arrived at the train station, although the plaintiff claims that the evidence establishes that she exited her vehicle at 8:11 a.m. The plaintiff testified that “it was sometime after eight o'clock in the morning” when she was dropped off at the station by her husband.   Her husband testified that he was not certain of the exact time that he dropped her off, but believed that it was about 8:15 a.m. The incident report prepared by the M.T.A. Police Department reflects that it was notified of the fall at 8:13 am.   The Fairfield Fire Department Basic Incident Report indicates that it was notified at 8:19 a.m. and arrived at the scene at 8:23 a.m. The court cannot make a finding as to the time that the plaintiff arrived at the station and exited her vehicle to proceed to the platform.   The court can only find that the plaintiff arrived at the station and exited her vehicle a short time prior to 8:13 a.m..  FN2. There was conflicting evidence as to what time the plaintiff arrived at the train station, although the plaintiff claims that the evidence establishes that she exited her vehicle at 8:11 a.m. The plaintiff testified that “it was sometime after eight o'clock in the morning” when she was dropped off at the station by her husband.   Her husband testified that he was not certain of the exact time that he dropped her off, but believed that it was about 8:15 a.m. The incident report prepared by the M.T.A. Police Department reflects that it was notified of the fall at 8:13 am.   The Fairfield Fire Department Basic Incident Report indicates that it was notified at 8:19 a.m. and arrived at the scene at 8:23 a.m. The court cannot make a finding as to the time that the plaintiff arrived at the station and exited her vehicle to proceed to the platform.   The court can only find that the plaintiff arrived at the station and exited her vehicle a short time prior to 8:13 a.m.

FN3. The statute provides, in relevant part, that “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury ․ shall be brought except within two years from the date of such injury.   No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to [the town, city corporation or borough].”.  FN3. The statute provides, in relevant part, that “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury ․ shall be brought except within two years from the date of such injury.   No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to [the town, city corporation or borough].”

FN4. The plaintiff testified on direct examination that she believed that once she came to the pole she could only proceed over the grass area.   Her belief is inconsistent with the evidence.   Ms. Placko testified that the handicap parking spaces that the plaintiff walked in front of are wider than the normal parking space.   One of the handicap spaces abuts an edge of the grass area that is bounded by the concrete block.   A handicap person getting out of his or her car would essentially be confronted with the same situation that presented itself to the plaintiff when she reached the pole;  that being, that being, the decision to walk around the grass area and stay on the asphalt pavement to proceed to the concrete handicap ramp, or to cross the grass area.   Based on the evidence, the court finds that the handicap spaces were wide enough for the plaintiff to walk through if she chose to walk around the grass area..  FN4. The plaintiff testified on direct examination that she believed that once she came to the pole she could only proceed over the grass area.   Her belief is inconsistent with the evidence.   Ms. Placko testified that the handicap parking spaces that the plaintiff walked in front of are wider than the normal parking space.   One of the handicap spaces abuts an edge of the grass area that is bounded by the concrete block.   A handicap person getting out of his or her car would essentially be confronted with the same situation that presented itself to the plaintiff when she reached the pole;  that being, that being, the decision to walk around the grass area and stay on the asphalt pavement to proceed to the concrete handicap ramp, or to cross the grass area.   Based on the evidence, the court finds that the handicap spaces were wide enough for the plaintiff to walk through if she chose to walk around the grass area.

FN5. The plaintiff properly cites to the case of Rodriguez v. City of New Haven, 183 Conn. 473, 479, 439 A.2d 421 (1981) for the proposition that a plaintiff is “not required to take an alternate route or detour because of his knowledge of [a specific defect], he [is] bound to take the precautions that an ordinary prudent man would take to avoid the dangerous condition.”   The court's conclusion is in accordance with that proposition..  FN5. The plaintiff properly cites to the case of Rodriguez v. City of New Haven, 183 Conn. 473, 479, 439 A.2d 421 (1981) for the proposition that a plaintiff is “not required to take an alternate route or detour because of his knowledge of [a specific defect], he [is] bound to take the precautions that an ordinary prudent man would take to avoid the dangerous condition.”   The court's conclusion is in accordance with that proposition.

Tyma, Theodore R., J.