Nilsa Cordero v. University of Connecticut Health Center et al. (2011)

MEMORANDUM OF DECISION

Plaintiff brings this action, alleging negligence and res ipsa loquitur, against the University of Connecticut Health Center and State of Connecticut for injuries suffered and damages incurred by reason of a television set in the emergency room of the University of Connecticut Health Center falling upon her.   Defendant interposes the special defense of contributory negligence and also interposes a setoff in the amount of $73,981.00 for public assistance and medical care expended to the plaintiff by the State of Connecticut.   Hartford Elderly Services, LLC filed an intervening complaint to be reimbursed for worker's compensation payments made to the plaintiff from the damages defendant may be liable to plaintiff in this suit.   Parties agree to bifurcate defendant's claim for a set-off until the main action is decided.

The plaintiff applied for and was granted permission by the State of Connecticut Office of the Claims Commissioner to sue the State of Connecticut, pursuant to General Statutes § 4–160.

The facts are as follows.

Plaintiff worked as a driver for Hartford Elderly Services, LLC transporting elderly persons to their destination.   On May 4, 2006, plaintiff drove a patient to the emergency room of the UCONN Health Center.   After delivering the patient, she waited in the waiting room of the health center.   A lady asked her to turn on the television set.   The television set was suspended approximately 6–7 feet from the floor on the wall.   There was no remote control so plaintiff pressed the power button with her right pointer finger and the television fell on her, striking her head, neck, shoulder, chest and fingers.   The set is a 27” box television that weighs approximately fifty pounds.   The health center police report of the incident stated:

This television has a 20” screen and it was attached to a wall mounted television bracket by a threaded spindle, which was then attached to the wall in the UCHC Emergency Department waiting room.   All the parts on this bracket and spindle look like they were in operational condition.   The television looked like it had been held in place by the last thread on the spindle and when Ms. Cordero went to turn it on, it fell off onto her.   It appeared that the reason for the television being on the last thread of the spindle was because of the television being turned on and off so often that over time it loosened, so it had no where to go, but down.

The officer making the report testified at trial that the threads on the three inch spindle were worn and that “given the size of the spindle ․ and the thread started on top ․ I come to the conclusion that it [the set falling] wasn't over night that it happened.

The evidence was that the television set had been installed in or about 1996 and that over that ten-year period it had never been inspected.   It is also clear from the evidence that the television set was offered for the use of the occupants of the waiting room and UCONN Health Center expected occupants to utilize it and turn the set on and off.

Plaintiff was on the defendant's premises as a business invitee.   A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the owner of the land.  Kurti v. Becker, 54 Conn.App. 335, 338 (1999).   Plaintiff went to the defendant's premises on May 4, 2006 for a purpose that was directly connected with the defendant's business dealings, namely to deliver an injured patient to the emergency room for the purpose of receiving medical treatment.   The 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.  Warren v. Stancliff 157 Conn. 216, 218 (1968);  Morin v. Bell Court Condominium Ass'n., Inc., 223 Conn. 323, 327 (1992).   Moreover, that duty is non-delegable.   As stated in Lanzi v. The Great Atlantic & Pacific Tea Company, 25 Conn. L. Rptr. 342, superior court, judicial district of New Haven, docket no.   CV 95–0050551 (Sept. 13, 1999, Corradino, J.), “The possessor of land has a non-delegable duty to keep his or her land safe for invitees who are invited to enter the land for the owner's profit.”

However, for plaintiff to recover for a breach of duty owed to her as a business invitee, she has to prove that defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her injuries.  LaFaive v. DiLoreto, 2 Conn.App. 58, 60 (1984).  “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.”  Hall v. Burns, 213 Conn. 446, 479 (1990).   It is well settled that circumstantial evidence can establish constructive notice.  Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 287 (1991).   A determinate question of fact is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it.  Id., 286–87.

The court concludes from the fact that the spindle holding the television set had many threads and at the time of the accident was at its last thread, that the spindle loosened over a considerable period of time and in the exercise of reasonable care the defendant should have discovered the unloosening of the spindle and remedied it.

Defendant cites Wilson v. Bridgestone Firestone, Inc., superior court, CV 05–5000125, judicial district of Middletown at Middletown (Mar. 9, 2007, Dubay, J.), for the proposition that a plaintiff cannot prove constructive notice of a defective chain because after it collapsed a screw was found on the floor.   However, here the spindle holding the television unit had visibly worn threads and was on its last thread when the television set fell.   This court concludes that the defendant had constructive notice of the defect, and its failure to remedy it constituted a failure to keep its premises in a reasonable, safe condition for its business invitees.   As a consequence, plaintiff proved by a fair preponderance of the evidence its claim of negligence against the defendant.

Plaintiff also alleges that “the condition causing the injury is one that in the ordinary course of events no injury would have occurred unless defendant had been negligent ․” This is a claim of res ipsa loquitur.   The doctrine of res ipsa loquitur, literally “the thing speaks for itself” permits an inference of negligence when no direct evidence of negligence has been introduced.   Barretta v. Otis Elevator Co., 242 Conn. 169, 173 (1997).   As that case said:  “[The] doctrine of res ipsa loquitur is the rule of common sense and not a rule of law which dispenses with proof of negligence.   It is the convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.”  (Italics as in the quote).   The doctrine satisfies the defendant's duty of proving evidence sufficient to permit the trier of fact to draw an inference of negligence.  Ruerat v. Stevens, 113 Conn. 333, 337 (1931).

As further stated in Barretta v. Otis Elevator Co., supra, 173, the doctrine of res ipsa loquitur applies only “when two prerequisites are satisfied, first, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent.   Second, at the time of the injury both inspection and operation must have been in control of the party charged with neglect.”

In this case, both prerequisites were established.   Plaintiff's injury would not have occurred in the ordinary course of events without the defendant's negligence.   A television set suspended six feet from the floor is not expected to fall on a person turning it on.   The defendant had control of inspection and operation of the television set in its waiting room, which it offered to occupants of the waiting room and expected them to use.   Further evidence of defendant's control was that it repaired the set and rehung it in the waiting room.

Thus, under the doctrine of res ipsa loquitur, the court infers plaintiff was negligent and its negligence caused the accident.

As the result of the accident plaintiff sustained injuries to her neck, right breast, right shoulder and right hand.   Prior to the accident plaintiff had never sustained injuries to those portions of her body.   Plaintiff saw Dr. Jeffrey Steckler for injuries to her right shoulder and neck.   He injected her neck and right shoulder and operated on her right shoulder rotator cuff.   She also sought treatment from Dr. Duffield Ashmead who operated on her right hand for carpal tunnel symptoms and for interior decompression with acromioplasty.   Dr. Steckler assigned a five percent permanent impairment to the right shoulder and a fourteen percent permanent impairment to the neck.   Dr. Ashmead assigned a two percent permanent partial impairment to the right hand.   Both doctors stated that plaintiff's injuries are causally related to the accident.

Plaintiff was in two subsequent motor vehicle accidents in October 2006 and February 2008.   Both accidents were minor.   When the doctors were informed of them, they both reiterated that plaintiff's injuries sustained and the surgeries incurred were with reasonable medical probability the result of the television incident on May 4, 2006.   The medical bills, associated with all the medical treatment relating to the May 4, 2006 accident, totaled $46,998.87.

Plaintiff was totally disabled for 67 weeks and temporarily partially disabled and unable to work for a period of 46 weeks, for a total time out of work of 113 weeks.   Her average weekly pay was $336.92.   Thus, plaintiffs total lost wages were 113 weeks x $336.92 equaling $38,071.96.

A senior claims representative for Travelers Insurance Company testified that he handled plaintiff's claims for workers' compensation related to the television incident.   He testified further that Travelers insured the plaintiff's employer, Hartford Elderly Services, LLC. At the time of this action Travelers made payments for medical treatment of $39,964.87 and for indemnity $27,295.35, totaling $67,260.22.   Hartford Elderly Services, LLC has intervened as the co-plaintiff in this matter and is seeking reimbursement from the plaintiff and the defendant for all benefits paid to the plaintiff.

Plaintiff testified that the injuries she suffered as a result of the action has affected her life and ability to perform her daily tasks, including using her dominate right hand and arm.   She said she cannot carry heavy items with her right hand, she cannot drive long distances, and she cannot do mundane household tasks such as laundry, carrying groceries, vacuuming and cleaning.   She also has a permanent scar on her right shoulder.   Plaintiff is 44 years old and has a life expectancy of 37.96 years.

The court concludes the plaintiff is entitled to damages as follows:

ECONOMIC DAMAGES:

Medical Bills $ 46,998.87

Loss of Wages 38,071.96

NON ECONOMIC DAMAGES:

Pain, suffering, scarring and disability $150,000.00

TOTAL:  $235,070.83

Intervening plaintiff, Hartford Elderly Services, LLC seeks reimbursement of $69,668.22 from the amount awarded the plaintiff.   Defendant interposes the defense of sovereign immunity to this claim.   Defendant moved to dismiss the claim of Hartford Elderly Services, LLC on that ground of sovereign immunity and Judge Scholl denied the motion.   Not only is her decision the law of the case, but this court finds it is the correct one and adopts it.   The court concludes that the intervening plaintiff, Hartford Elderly Services, LLC is entitled to be reimbursed the sum of $69,668.22 by the defendant from the award of damages made to the plaintiff.

At the convenience of the parties, the court will hear defendant's claim for set-off for sums paid to the plaintiff for public assistance and medical assistance.

R. Satter, J.T.R.

Satter, Robert, J.T.R.