Desiree Rodriguez v. Isabelo Morales et al. (2011)

MEMORANDUM OF DECISION

FACTS

This is a fall down case in which it is alleged that the plaintiff fell on a front porch step on the first floor leading to the sidewalk at 1141-1143 Broad Street, Hartford, Connecticut.   The plaintiff, (hereinafter also “Rodriguez”), went to a birthday party that a friend of hers was giving on the second floor of said address on February 24, 2008, a Sunday afternoon.   She arrived between 3:30 p.m. and 4:00 p.m. and mounted the steps to the first landing and then went up to the second floor where the party was being held by her friend, Ivette Sanchez.   The property was owned, possessed, controlled and maintained by the two defendants (hereinafter as to both defendants “the Morales”).   This was by the admission during the trial by Isabelo Morales.   The plaintiff had no trouble going up the stairs from the sidewalk to the first landing when she arrived.   However, when she was leaving she slipped on the first step from the top and fell injuring her lumbar spine and her buttocks.   She testified that she left the birthday party at approximately 6:30 p.m. to 7:00 p.m. She claims to have fallen on a wet surface even though she was wearing construction type rubber soled and heeled boots on a mixture of water and ice which had accumulated on the step on which she fell.¹  Trial was held before this Court on February 9, 2011 and February 10, 2011.   There were closing arguments by both counsel but briefs have not been filed.

STANDARD OF REVIEW

“The plaintiff in a civil case (and a defendant in a counterclaim) sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probably than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove her allegations by a preponderance of the evidence.   The burden is on the defendants to prove their special defense, comparative negligence, by a preponderance of the evidence.

ISSUES AND FINDINGS

1. Credibility

The Court finds that the plaintiff was credible in her testimony and was more credible than the testimony of the defendant husband Isabelo Morales.   His wife did not testify.   On the whole Mr. Morales was candid and forthright, but the Court found a problem with his claim that the stairs were not slippery when wet.   This statement alone reduces his credibility.

2. Are the Defendants Liable to the Plaintiff for Negligence in not Properly Maintaining the Stairs on which She Fell?

The short answer is Yes.

a. By his own admission, Isabelo Morales had for some time noticed as did his wife the dripping of water from the snow that had accumulated on the roof and gutters of the building and that it had been dripping down onto the stairs on which the plaintiff fell.   Ivette Sanchez who also testified stated that it was very common for water to drip from the roof and gutters attached to the roof, so it is obvious that the defendants had notice of the defect.

b. Mr. Morales testified that he left that morning, Sunday, February 24, 2008 to give a bath to his incapacitated brother-in-law and returned to the subject property and to his apartment by 10:00 a.m. He further testified that he did not go out subsequent to 10:00 a.m. and had not, therefore, inspected the property at the crucial time, in the late afternoon/early evening.

The Court is convinced based upon the testimony of the plaintiff that when she fell her hand went back to where she had fallen and she felt the combination of water and ice.   This Court concludes by a preponderance of the evidence that the presence of that ice and wetness was what caused her to fall and sustain her injuries as described, and the Court finds that even though the defendants had notice of the dripping water and that the temperature was likely to go below freezing in the late afternoon to early evening on February 24, 2008, they did nothing to remove the water and ice from the step on which the plaintiff fell.   Accordingly, the Court finds that the proximate cause of the plaintiff's injuries was the negligence of the defendants with a long period of notice of the dripping of the water from the roof and the gutters in failing to clear the water and the ice from the steps on which the plaintiff, an invitee of the tenant on the second floor, would be using and did use.   This failure to adequately inspect and clear the steps of water and ice was the proximate cause of the plaintiff's fall and injuries.

c. The plaintiff submitted plaintiff's Exhibit Seven which was the weather report compiled by Wonderground.com for the history of precipitation and temperature in Hartford, Connecticut.   It shows that it snowed on Friday, February 22, 2008 into February 23, 2008 until 10:53 a.m. It also showed some snow between 8:53 a.m. and 9:53 a.m. on Sunday, February 24, 2008 which the plaintiff who was out taking care of his brother-in-law would have noticed but did nothing to correct any problems that the snow might have caused.   This document shows that when the plaintiff arrived at the party described above between 3:30 and 4:00 p.m. on February 24, 2008, the temperature was 39 degrees and when she left at approximately 7:00 p.m. the temperature was below freezing.   The defendants knew of the dripping, had ample notice of it and were well aware that in February the temperature could go down considerably once it become dark in the early evening as it did, yet they did nothing to take care of the subject steps.   It was negligent on their part not to examine the steps after 10:00 a.m. and not to do anything to correct the problem of the accumulation of water and ice.   What is particularly telling in this matter is the testimony of the plaintiff, which the Court believes, that when she fell her hand went back as she was lying on her back to the step on which she fell, and she felt ice as well as wetness.²

The defendant submitted one exhibit, defendant's Exhibit A which is a report from the U.S. Department of Commerce, NOAA, National Climatic Data Center.   However, this report is for Windsor Locks at Bradley International Airport and not for Hartford.   Although this report shows freezing weather in the early morning and a little above or at freezing by 10:00 in the morning, it does not appear to show the temperature for the afternoon.   Accordingly, for both reasons the Court deems the exhibit irrelevant.

3. Did the Defendants Sustain their Burden to Prove Comparative Negligence?

The short answer is No.

There was no credible evidence brought forth that in any way indicated that the plaintiff had herself contributed to the accident.

4. Damages

a. The plaintiff has submitted medical bills from various healthcare providers per plaintiff's Exhibit Three in the total amount of $3,557.91.   This has not been contested by the defendants so the Court finds after reviewing the bills that they are fair, just and reasonable.

b. The testimony from the plaintiff produced evidence that the plaintiff had undergone pain and suffering for at least three months subsequent to the accident.   Apparently she did not lose time from work.   Therefore, the Court awards damages of $500 for each of the three months for a total of $1,500.

c. Permanent Injury.

The plaintiff has a life expectancy of 53 years as shown on the life expectancy table in plaintiff's Exhibit Six. The 5% permanent partial disability or permanent partial impairment of the lumbar spine is from the Shaw Chiropractic Group of East Hartford.   Because it is from a chiropractor, the Court will assess a disability of 4%. This may not seem that much but what raises the permanency damages is the fact that the plaintiff has a 53-year life expectancy.

Accordingly, the Court assesses damages against the defendants in favor of the plaintiff as follows:

1. Medical Bills $ 3,557.91

2. Pain and Suffering $ 1,500.00

3. Permanent Injury $21,200.00

Total $26,257.91

CONCLUSION

The Court finds from the totality of the evidence that the defendants are 100% liable for the damages suffered by the plaintiff as a result of the subject accident and hereby enters judgment in favor of the plaintiff against both defendants in the amount of $26,257.91.

Rittenband, J.T.R.

FOOTNOTES

FN1. The Court has also reviewed the photographs submitted by the plaintiff showing the steps and showing the severe bruises resulting from the plaintiff's fall.   This is plaintiff's Exhibit 1..  FN1. The Court has also reviewed the photographs submitted by the plaintiff showing the steps and showing the severe bruises resulting from the plaintiff's fall.   This is plaintiff's Exhibit 1.

FN2. What is of particular note is that the defendant, Isabelo Morales, has and did have on the day of the accident a full-time job as a maintenance superintendent for a subdivision of residential homes in Vernon, and, therefore, should have been acutely aware of the need to keep steps in his supervision of his own building from accumulations of ice..  FN2. What is of particular note is that the defendant, Isabelo Morales, has and did have on the day of the accident a full-time job as a maintenance superintendent for a subdivision of residential homes in Vernon, and, therefore, should have been acutely aware of the need to keep steps in his supervision of his own building from accumulations of ice.

Rittenband, Richard M., J.T.R.