Victoria Sylvanno v. LLC (2011)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

The plaintiff (hereinafter also “Sylvanno”) became a tenant of property at 1254 Main Street, East Hartford, Connecticut also known as 1252–1256 Main Street, East Hartford, Connecticut (hereinafter also the “Premises”).   She moved into said Premises in July of 2007.   There are approximately 20 apartments in the building.   The building was and is owned by the defendant Yenwood Realty, LLC (hereinafter also “Yenwood”).   Plaintiff's initial lease was for 12 months at $580 per month.   She stayed there for eight months.   There were no bed bugs but there were cockroaches.   Subsequently in March of 2008 she moved into apartment 10 of said premises where she cleaned the entire apartment.   Eight weeks later the apartment became infested with bed bugs resulting in her breaking out in sores as a result of being bitten by the bed bugs.   In order to avoid the bed bugs she slept on the couch but suffered bed bug bites and sores approximately eight weeks following tenancy in that apartment.   It was not only embarrassing to her but made her uncomfortable and by July 2008 she was fainting and was weak as a result of the sores on her entire body caused by bed bug bites.   She was seen at Manchester Memorial Hospital by a dermatologist in September 2008.

In October 2008 the plaintiff was examined at the University of Connecticut Health Center by Michael Murphy, M.D., dermatopathologist (his report is plaintiff's Exhibit Six), and she was diagnosed with sores on the plaintiff's body as being caused by bed bug bites.   He referred to them as arthropod bites, but according to Webster's Dictionary Ninth Edition they are bug bites.   The plaintiff then used a spray to eradicate the bed bugs but was unsuccessful.   She then moved into another room to sleep and admitted that everything was fine for eight weeks, but then the bed bugs came back.   Despite requests of Mr. Downey (hereinafter also “Downey”) who was the manager of the property, nothing was ever done to eradicate the bed bugs so she finally moved out on May 18, 2009.   However, on February 25, 2009 she was seen by osteopathic physician Laura Benedetto (her report is plaintiff's Exhibit Five).   Dr. Benedetto of Dermatology Associates of Eastern Connecticut, LLC confirmed that she had seen the plaintiff as a result of the plaintiff going to Manchester Memorial Hospital in September of 2008.   In her report Dr. Benedetto concluded that after a skin biopsy these sores were caused by a reaction to bed bugs and that she had seen and examined these bugs.¹  Dr. Benedetto examined her again on February 24, 2009 finding a recurrence of bed bug bites on her legs and noted that the bugs needed to be eradicated.  “This is a health risk to her and anyone else similarly affected” she said.   During the trial which was held on October 5, 2011 before this Court, the Court reviewed photographs, plaintiff's Exhibits One, Two, Three and Four that were taken in May of 2009 after she had left the premises showing her right arm, left arm and her right and left legs.   They showed white dots now on the arms and pink dots now on the legs.   She stated that she was embarrassed by the open sores and the resulting scars as a result of which people kept away from her, in particular where she worked and her family did not want to be near her all of which caused emotional problems for her.²

STANDARD OF REVIEW:

“The plaintiff in a civil case (and a defendant in Special Defenses and 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 probable 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.

ISSUES AND FINDINGS:

1. Credibility:

The Court finds that the plaintiff was very credible in her testimony.   She volunteered that for eight weeks she was able to move into another room and did not have a problem with bed bugs during that time.   The defendant, James Downey, was not as credible.   Mr. Downy was evasive, inconsistent and non specific.   At some point he denied that there were any bed bugs in apartment 10 even though he knew of all the evidence that had been produced.   Mr. Downey maintained that the reports from the medical people did not show any bed bugs and that she had not been bitten by bed bugs, which is contrary to the other evidence, and he maintained contrary to the report of Dr. Benedetto that the bed bug problem is not a health risk.   His responses to questions while testifying were somewhat evasive and contradictory, and the Court does not believe his excuse that he had to wait for the plaintiff to move her pets (birds) before he could eradicate the bed bugs.³  If he did, as he claimed, have an application for the entire building for eradication of bed bugs done after she left, it apparently didn't work because according to the East Hartford Health Department summary on August 22, 2011, this year there was a report from the East Hartford Fire Department regarding massive bed bug infestation in Unit 1 and according to Nancy Wheeler's report there was currently an order issued for Unit 20 and she strongly recommended evaluation of the entire building.   The report also shows (plaintiff's Exhibit Eleven–Three) that on August 23, 2011 a tenant had been taken to the hospital with bed bug infestation and that she has bed bugs and lice.   On September 7, 2011 the landlord had applied treatment at three units.   It is apparent that bed bugs are a continuing problem at this location which gives credence to the plaintiff's claims and undercuts the credibility of James Downing.

2. Is James Downing Liable for any Damages Suffered by the Plaintiff?

The short answer is No.

He is a managing partner and member with his son of the defendant Yenwood, but he is individually not liable, which was conceded by plaintiff's counsel at the time of the trial.

3. Is Yenwood Liable to the Plaintiff for its Negligence in Allowing Bed Bugs to Infest the Plaintiff's Apartment Causing Damages and Injuries to Her?

The short answer is Yes.

There is no question that bed bugs infested the plaintiff's apartment as a result of the negligence of Yenwood in allowing the bed bugs to become infested and not taking appropriate action to eradicate them.   The plaintiff has sustained her burden of proof as to the complaint by a preponderance of the evidence, and Yenwood is, therefore, liable for damages and injuries to the plaintiff.   Yenwood had a duty to the plaintiff to keep her apartment clear of bugs that bite so that she could have quiet enjoyment of her apartment without being subject to health hazards, and by permitting infestation of bed bugs and not eradicating them, it violated and did not fulfill that duty by being negligent which was the proximate cause of the plaintiff's injuries and damages.

4. Damages

The following damages were suffered by the plaintiff and Yenwood is liable for them:

1. Medical bills:  $971.86 shown in plaintiff's Exhibit Eight ․ $971.86

2. The plaintiff had to throw out or otherwise dispose of certain of her personal property as a result of the bed bug infestation.   Those damages are listed below:

DEPRECIATION

BASED UPON

ITEM PURCHASE PRICE DATE OF PURCHASE NET VALUE

a. Sofa $750 20% $ 600.00

b. Books $750 80% $ 150.00

c. Book Case $150 50% $ 75.00

d. Coffee Table $150 10% $ 135.00

e. Pocketbook $ 75 10% $ 67.50

f. Shoes $200 30% $ 140.00

g. Vacuum $ 75 30% $ 52.50

h. Plants $ 45 100%

Total $ 1,220.00

3. Pain and suffering ⁴ $27,000.00

Total $29,191.86

Based upon the totality of the evidence, judgment is hereby entered for the plaintiff against the defendant Yenwood in the amount of $29,191.86.

Rittenband, JTR

FOOTNOTES

FN1. The plaintiff testified that she had caught some of these bugs, put them in a container and presented them to Dr. Benedetto..  FN1. The plaintiff testified that she had caught some of these bugs, put them in a container and presented them to Dr. Benedetto.

FN2. It should be noted that Nancy Wheeler of the East Hartford Health Department testified and her summary from her notes which came from Plaintiff's Exhibit 11 is that on February 27, 2009 she inspected apartment 10 (which was the apartment being utilized by the plaintiff).   She pointed out that she was unable to locate the bed bugs but did not find that surprising because when she was there it was probable that the bed bugs were hiding at that point.   She did notice many bites on the arms and legs of the plaintiff and noted that the next door neighbor reported seeing bed bugs in his apartment also.   He also reported having cockroaches.   She also testified from her summary that on March 4, 2009 the plaintiff called to report that nothing had been done regarding the bed bugs and she had requested the landlord to give her two weeks to make arrangements for pets before pest control applications were initiated.   However, no pest control application was done during the time she resided there.   Downey, as the manager, of the landlord, had every right to move in, remove the birds and eradicate the bed bugs.   He didn't have to wait for the plaintiff's permission.   Further, it makes no sense to hold off fumigating the entire building to wait for removal of bugs in one apartment.   The Court does not accept Downey's excuse/reason for delaying the eradication..  FN2. It should be noted that Nancy Wheeler of the East Hartford Health Department testified and her summary from her notes which came from Plaintiff's Exhibit 11 is that on February 27, 2009 she inspected apartment 10 (which was the apartment being utilized by the plaintiff).   She pointed out that she was unable to locate the bed bugs but did not find that surprising because when she was there it was probable that the bed bugs were hiding at that point.   She did notice many bites on the arms and legs of the plaintiff and noted that the next door neighbor reported seeing bed bugs in his apartment also.   He also reported having cockroaches.   She also testified from her summary that on March 4, 2009 the plaintiff called to report that nothing had been done regarding the bed bugs and she had requested the landlord to give her two weeks to make arrangements for pets before pest control applications were initiated.   However, no pest control application was done during the time she resided there.   Downey, as the manager, of the landlord, had every right to move in, remove the birds and eradicate the bed bugs.   He didn't have to wait for the plaintiff's permission.   Further, it makes no sense to hold off fumigating the entire building to wait for removal of bugs in one apartment.   The Court does not accept Downey's excuse/reason for delaying the eradication.

FN3. He could have conferred with her and arranged for a time to remove the birds and do the application for eradication..  FN3. He could have conferred with her and arranged for a time to remove the birds and do the application for eradication.

FN4. The Court cannot go beyond the 31/212 years between May of 2008 and September of 2011 because there is no medical report that the scarring will be permanent..  FN4. The Court cannot go beyond the 31/212 years between May of 2008 and September of 2011 because there is no medical report that the scarring will be permanent.

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