Walter Petz v. Alegna Corp. et al. (2011)

MEMORANDUM OF DECISION

A court trial was held in this premises liability action in which the plaintiff's executrix is claiming the plaintiff sustained injuries to his back, neck, arm and leg from a fall inside the premises located at 273 Canal Street, Shelton, Connecticut and owned by the defendant Alegna ¹ Corp. The plaintiff claims the fall was due to insufficient lighting, and that the area was unmarked and unprotected.   The defendant admitted possession and control of the premises, but contended that they exercised reasonable care in inspecting and maintaining the premises, making them reasonably safe.   The defendant further contends that any injuries sustained by the plaintiff were caused by his own negligence in failing to exercise reasonable care to avoid the injury.

The court finds the following facts to have been proven by a preponderance of the evidence.   On May 26, 2005, Walter Petz accompanied his daughter Judith Petz to 273 Canal Street, in order to pick up some t-shirts from Yankee Screen Printing, a tenant in the building.   After obtaining the shirts, Ms. Petz intended to go to an art gallery also located in the building.   She asked her father, who was admiring an ironwork circular stairway in a common area, to wait for her.

273 Canal Street is a former industrial building which was converted to mixed use by Mr. John Watts, the president and owner of Alegna Corp. The building was originally two separate buildings, but prior to Watts' purchase, the building had been converted into a single unit.   In order to compensate for the different floor elevations of the two original buildings, a concrete ramp was built.   This ramp located in the area referred to as the loading dock, and this interior area was used by the tenants to move their goods.   The area was also open to the public.   One side of the ramp was flush to the wall;  the other side was adjacent to the loading dock floor.   The ramp did not have any railing between it and the loading dock floor.   A circular PVC pipe ran along the floor from the area where the ramp and the floor were level and extended several feet toward the circular staircase.   It did not, however, extend the entire length of the floor along the ramp.

Mr. Watts admitted the defendant's control of this area at trial.   Mr. Watts was aware of the danger of a fall from the floor onto the ramp.   He admitted that he did not want to take the chance that someone would fall off the floor onto the ramp.   Watts acknowledged that he had the ability to, but did not, install a railing along the floor/ramp boundary, but explained that he placed furniture on the floor area along the ramp in order to prevent a fall.   That furniture consisted of an old trunk, a wooden wagon wheel and what was described as two rocking chairs.²  The chairs were positioned on either side of the trunk, with the wheel resting upright on the right side of the trunk.   As previously noted, neither the PVC pipe nor the furniture extended to the highest drop off the floor onto the ramp, which was located in the area of the spiral staircase.

No one saw Mr. Petz fall off the ramp.   Ms. Petz found her father on his back, on the ramp, with his upper back resting along the wall floor/ramp boundary.   Emergency room records indicated that the “patient fell backwards.”   The court finds it reasonable to infer that, in admiring the ironwork of the staircase, the plaintiff stepped backwards to obtain a better view, and fell off the floor onto the ramp.

“It is undisputed that the owner of a ․ store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers ․ Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees:  Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove, in addition to control by the defendant, that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it ․ [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ․ In the absence of allegations and proof of any facts that would give rise to an enhanced duty ․ [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.”  (Citation omitted;  internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).

In order to recover on the theory of premises liability, the plaintiff must show, first, the existence of an unsafe condition on the premises and, second, that the defendant was on actual or constructive notice of such a defect.   The plaintiff must of course prove his exercise of due care.

The court finds that the defendant owed a duty to the plaintiff, as an invitee, and owed a duty of reasonable care to keep the ramp in a safe condition.   The defendant admitted he owned and controlled the premises where the plaintiff fell, and was responsible for the maintenance of that area.   The defendant did not install railing along the floor in the ramp area, but chose to position furniture along the floor.   The court finds that the drop off between the floor and the ramp was a known, foreseeable danger of which the defendant was obligated to protect the plaintiff.

The court further finds that the defendant had notice of the danger of a fall from the floor onto the ramp.   Mr. Watts admitted that he did not want anyone to fall onto the ramp.   His actions, in positioning furniture along the boundary of the floor and ramp, constituted his attempt to protect invitees from any falls.   His efforts, however, were insufficient.   As previously noted, the evidence showed that the PVC pipe on the floor did not extend the entire length of the floor/ramp boundary.   Yellow paint had been painted along the boundary, but the court's observations of that paint, as depicted in the photographs admitted into evidence, showed that it was old, chipped and faded.   The precise location of the furniture that had been set up as a barrier was a matter in dispute.   Mr. Watts testified that the furniture barrier extended to the spiral staircase, thereby blocking anyone from getting close to the edge.   He contended that on the day of the plaintiff's fall, someone had moved the furniture and created the situation of danger leading to the fall.   Photographs were entered into evidence, which depicted the area in question on the day after the fall.   Ms. Petz testified that the location of the furniture in the photographs was the same as it had been on the prior day.   Mr. Watts opined that Mr. Petz moved the furniture in order to get closer to the spiral staircase.   The court finds credible the testimony of Ms. Petz as to the location of the furniture.   Ms. Petz' testimony as to location was corroborated by the photographs taken the day following the fall.   The court finds persuasive the presence of visible dust on the cement floor around and on the furniture, which leads the court reasonably to infer that the furniture had been in the locations depicted for a long period of time.   Accordingly, the court finds that there was no protection from a possible fall off the floor at the area of the highest difference in elevation between the floor and the ramp.   The defendant did not meet his duty of protecting invitees from this known, foreseeable danger.

The defendant raised the defense of the plaintiff's failure to exercise reasonable care.   The court finds that the defendant has not met his burden.   The evidence established that the plaintiff and his daughter entered the loading dock area through a door way that entered directly into the loading dock area.   The color of the cement floor and the cement ramp were the same, which failed to alert anyone to the difference in height.   The condition of the yellow stripe was insufficient to alert the reasonable person to the height difference.   Neither the PVC pipe, nor the furniture barrier, extended the entire length of the ramp side of the floor.   The plaintiff was not aware of the defective condition which was the unprotected access from the floor down to the ramp The court finds that the plaintiff exercised due care, and was not himself negligent.

There was no dispute as to the medical bills incurred by the plaintiff.   Therefore, the court awards the plaintiff the amount of $15,392.62 in economic damages.   There was credible evidence presented as the pain and suffering endured by the plaintiff, which was causally related to his fall, and credible evidence as to the emotional toll that the injuries took on the plaintiff.   The court awards $50,000.00 in noneconomic damages.   The total award to the plaintiff is $65,392.62.

Maureen M. Keegan, J.

FOOTNOTES

FN1. The defendant Yankee Screen Printing was a tenant at 273 Canal Street, and the action against them was withdrawn on 7/26/11..  FN1. The defendant Yankee Screen Printing was a tenant at 273 Canal Street, and the action against them was withdrawn on 7/26/11.

FN2. Here, the court finds that the chairs were not rocking chairs in the traditional sense, but rather, were wooden chairs that would have been used at a desk.   One chair had four legs, and the other was a “swivel” type chair that had four legs that may have, at one time, had rolling casters in them.   Perhaps these chairs had a rocking capacity, but they were not traditional rocking chairs..  FN2. Here, the court finds that the chairs were not rocking chairs in the traditional sense, but rather, were wooden chairs that would have been used at a desk.   One chair had four legs, and the other was a “swivel” type chair that had four legs that may have, at one time, had rolling casters in them.   Perhaps these chairs had a rocking capacity, but they were not traditional rocking chairs.

Keegan, Maureen M., J.