Mary Lawrence v. City of New Haven et al. (2013)

MEMORANDUM OF DECISION ON MOTION TO SET ASIDE # 131

This action for money damages was commenced by writ, summons and complaint returnable on or about September 26, 2008.   The plaintiff, Mary Lawrence, sought damages against the above captioned defendants as a result of an event that occurred on October 9, 2006, which resulted in injuries and other losses claimed by the plaintiff.   Prior to trial, the plaintiff's claim against the City of New Haven was withdrawn.

The plaintiff claimed the defendant, H.N.S. Management Company, Inc. (the defendant), doing business as Connecticut Transit, was negligent.   The plaintiff claimed she suffered injuries after she fell while walking on a public sidewalk in the City of New Haven, Connecticut.   The plaintiff claimed that the area where she fell was within a designated bus stop.   The plaintiff further claimed the defendant was negligent in that its agents, servants and/or employees:  poorly maintained a hazardous and defective area that was dangerous and unsafe, permitted and allowed the area to remain dangerous and hazardous, failed and neglected to inspect the area for defects and other hazards, failed and neglected to correct the aforementioned defective and hazardous condition, failed and neglected to adequately warn the plaintiff and others of the hazardous and unsafe condition that then and there existed, failed to place warning signs, flashing lights and or barricades around the defective condition to prevent the plaintiff and others from walking or traveling in the area, failed to employ sufficient personnel to inspect and maintain the area between the sidewalk and the curb in order to prevent risk of injury to those lawfully in the area such as the plaintiff, the defective dangerous and hazardous condition constituted an unreasonable risk of causing injury to the plaintiff and others walking in said area;  the defendant failed to repair the sidewalk;  the defendant knew or should have known that there was a raised brick in said sidewalk, yet failed to take sufficient precautions to make the area less hazardous;  the defendant and/or its driver stopped in an area to pick up passengers where it was not safe for said passengers to board the bus;  and the defendant allowed its drivers to pick up passengers in an area where it was not safe.  (Complaint, dated March 23, 2010.)

The defendant bus company denied it was negligent.  (Answer and Special Defenses to Second Amended Complaint, dated April 22, 2010.)   In addition, the defendant alleged in its special defenses that it did not own, possess or control the area where the plaintiff fell, and that the plaintiff's own negligence contributed to her injuries in the following respects:  the plaintiff failed to keep a proper lookout, failed to avoid an open and obvious condition, failed to be attentive to her surroundings, and failed to make reasonable use of her faculties.  (Id.) The plaintiff denied the special defenses raised by the defendant.

The matter was tried before a jury on May 29, 2013.   The plaintiff testified as did Anna Senberg, a senior claims manager for the defendant.   The plaintiff introduced substantial medical records and bills and two photographs of the location where she fell.   The defendant introduced into evidence a videotape that showed the plaintiff during the time leading to and including the time she fell, and that she fell before she ever entered the defendant's bus.   After the plaintiff rested her case, the defendant moved for a directed verdict.   The defendant argued the plaintiff provided insufficient proof to establish the defendant owed a duty of care to the plaintiff, and there was insufficient evidence that it had notice, actual or constructive, with respect to any claim regarding a defective premises.   The defendant also argued that it did not have a duty to warn the plaintiff regarding any condition of the sidewalk, which it did not own.   The court, Nazzaro, J., denied the defendant's motion.   The defendant rested its case without presenting further evidence.   The court held a charge conference on the record.   The jury heard the closing arguments of counsel.   The court then charged the jury.   The defendant took exception to the court's charge as to premises liability.   The court was disinclined to recharge the jury to delete allegations with respect to whom the alleged defect could be attributed to and the negligence of the defendant.   The jury deliberated and then returned a verdict in favor of the plaintiff, awarding damages as follows:  Plaintiff's verdict May 30, 2013:  Economic damages:  $33,312.01, noneconomic damages:  $100,000.00, total damages:  $133,312.01. The verdict was ordered accepted and recorded.   The defendant moved to set aside the verdict on or about June 11, 2013.   The plaintiff filed a memorandum in opposition to setting aside the verdict.   The parties appeared for argument in court on July 11, 2013.

DISCUSSION

Before addressing the merits of the defendant's claims and the plaintiff's response to same, it is helpful to understand the circumstances of this event.   The jury could very well have determined the facts as follows.   On October 9, 2006, the plaintiff, who was then sixty-eight years of age, was shopping in the downtown New Haven area.   The plaintiff was a resident of Canada and Jamaica and had been visiting her daughter in the Elm City. At approximately 12:40 p.m., the plaintiff was at a bus stop in the Broadway section of New Haven.   As the plaintiff was walking on a brick walkway adjacent to a bus shelter, she intended to board a bus owned and operated by the defendant H.N.S. Management Corporation.   The defendant neither owned nor inspected the walkway or the bus shelter.   Each was owned, inspected and maintained by the City of New Haven, Connecticut.   The City determines the location of the bus stops.   The defendant designs the bus routes within the City. The City maintains the stops.   The defendant does not own the stops, nor does the defendant or its agents inspect the stops.   The environment of the bus stops are not owned or maintained by the defendant.

As the plaintiff proceeded to walk toward a stationary bus with the intent to board it, she tripped on the brick sidewalk and fell on the ground.   One brick, the plaintiff testified, had been raised and was uneven.   As a result, she sustained serious injuries including a fractured right hand, fractured left knee, fractured left big toe and multiple fractures to one of her arms.   The event was captured on a videotape that was played before the jury.   After the plaintiff fell, the bus driver did nothing to assist her.   Someone, a passerby, presumably, stopped and said something to the effect of, “[B]etter call an ambulance because she is hurt.”   Indeed, the plaintiff went by ambulance to St. Raphael's Hospital.   X rays confirmed that she had various fractures.   Three days later, the plaintiff underwent an open reduction and internal fixation with steel pins and screws to her right arm.   She required general anesthesia.   She continued to treat at the hospital.   She had a cap put on her knee, physical therapy, and was fitted with a special shoe and a knee immobilizer.   She could not brush her teeth or hair.   She put a stool in the bathtub.   She had the assistance of both a nurse and her daughter, with whom she stayed for an unspecific period in a second story dwelling.   For a time, the plaintiff wore a sling.   The plaintiff had been unemployed.   As a result of this event, she was, however, interrupted in many of her activities of daily living, including bathing and dressing herself.   She remained in the United States with her daughter while her condition worsened.   Eventually, she returned to Canada, where she lived alone in a seniors living facility, and she struggled with everyday tasks such as showering, dressing and cleaning up after herself.   Since this event, the plaintiff has employed a cane to assist her with getting about.   She suffered pain and discomfort right up to and including the time of trial.   The plaintiff's medical bills totaled $33,312.01.   At trial, the parties stipulated that the plaintiff's average life expectancy was twelve point six years, according the life tables published by the United States Government.

The defendant seeks to have this court set aside the jury's verdict and order a new trial.   The defendant avers the following:  (1) the verdict was against the weight of evidence and is contrary to the law;  (2) the jury failed to follow the court's instructions about substituting a lawyer's comments for evidence;  (3) the jury was swayed by feelings of sympathy or partiality towards the plaintiff;  (4) the court improperly charged the jury as to the status of the plaintiff as an invitee or charged the jury as to the duties owed to an invitee;  and (5) the court submitted certain issues to the jury that were unsupported by the evidence.

For reasons set forth below, the court grants the defendant's motion to set aside the verdict and directs that judgment enter in favor of the defendant.

“A court may set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.”  (Internal quotation marks omitted.)  Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 414, 857 A.2d 936 (2004).  “The setting aside of a verdict because of an error of the trial court should be exercised with great caution and never done unless the reviewing court is satisfied entirely that the error is unmistakable and unquestionably must have been harmful.”  Id., 416.   In considering a motion to set aside a jury verdict, the court must be mindful of the parties' constitutional right to have the facts of the case determined by the jury, and therefore must be careful not to infringe on that right.   Young v. Data Switch Corp., 231 Conn. 95, 100–01, 646 A.2d 852 (1994).   A jury “verdict will be set aside and judgment directed only if [the court] find [s] that the jury could not reasonably and legally have reached their conclusion.”  (Internal quotation marks omitted.)  Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006).  “[T]he [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict.”  (Internal quotation marks omitted.)  Cheryl Terry Enterprises, Ltd v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004).

At trial, the defendant moved for a directed verdict claiming, among other things, that as a matter of law, the plaintiff had not shown that it breached a duty that it owed to the plaintiff.   In addition, the defendant took exception to the entirety of the court's charge on premises liability.   In the brief memo it submitted in support of its motion for a directed verdict, the defendant noted, “[E]ssential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Winn v. Posades, 91 Conn.App. 610 (2005).”  (Defendant's Motion for a Directed Verdict” (undated and un-captioned).)   The defendant argued unsuccessfully that the plaintiff failed to introduce any evidence that the defendant had any legal duty to the plaintiff before she boarded the bus at Broadway.   The unchallenged evidence was that the bus shelter, bus stop and walkway leading to the bus were all owned and maintained by the City of New Haven.   The court charged the jury on the duty a common carrier owes to passengers as follows:

Here the parties agree that the defendant H.N.S. Management Company, Inc ․ is a common carrier.   Under our law, common carriers of passengers for hire such as the defendant, are required to exercise the highest degree of care and skill which may reasonably be expected of an intelligent and prudent person engaged in that business of carrying passengers for hire on an established bus line, in view of the instrumentalities employed and the dangers reasonably to be apprehended.   The defendant, as a common carrier of passengers, was bound to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur in view of all the circumstances.   A common carrier is not an insurer of the safety of all its passengers and is not bound absolutely in all events to carry them safely and without injuries.   A common carrier is liable if it has breached the duty owed to a passenger in accordance with my instructions to you.   In order for you to find that this is applicable here, you must conclude that the plaintiff has proven she was a passenger on a bus of Connecticut Transit at the time of this occurrence.   A person becomes a passenger on a vehicle when she boards the bus and ceases to be such at the end of her trip when she leaves the vehicle and steps on the highway.

(Court Exhibit A, Jury Charge at 20–21.)   Simply put, the duty owed to an individual stems from the bus carrier's relationship with a “passenger” on board the bus.   Here, the evidence was irrefutable that the plaintiff never actually boarded the bus.   The plaintiff so testified.   The video in evidence corroborated the testimony.   The video shows the plaintiff falling well before she reached the threshold of the bus, let alone boarded the vehicle.   There was no evidence she paid a fare or even touched the vehicle prior to her fall on the city owned sidewalk.  “His (the carrier's) special duty begins when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of passenger to carrier is assumed.”  (Internal quotation marks omitted.)  Vaughn v. Healy, 120 Conn. 589, 592, 182 A. 166, (1935).  “A present intention to become a passenger does not make the person who is approaching the car with that intention a passenger, nor change as to him the degree of care to be exercised by a street railway company with reference to others who are using the highway.”  Id., 592–93.

Here, it was also undisputed that the brick walkway and bus shelter leading up to the bus were owned by the City of New Haven.   The premises was not that of the defendant H.N.S. Management Company, Inc. Inasmuch as the premises was owned by another, the defendant did not have a duty to warn, even assuming, arguendo, the defendant knew or should have known about any defect in the walkway.   Under these circumstances, the court ought to have granted the defendant's motion for directed verdict.   As a matter of law, the defendant established that no duty was owed to the plaintiff.   There being no duty owed to the plaintiff, ergo, there could not be breach of that duty or causation for the damages complained about.  “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Internal quotation marks omitted.)   Hollister v. Thomas, 110 Conn.App. 692, 699, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).   Any finding by the jury that the defendant owed the plaintiff a duty of care where it is indisputable that the plaintiff was not a passenger is contrary to law and not supported by the weight of the evidence.   The defendant was entitled to a verdict directed in its favor on this ground alone.

In addition, the court instructed the jury to determine whether the plaintiff was an “invitee” of the defendant.   A review of the record reveals no evidence upon which the jury could deduce that the plaintiff was an invitee.   The court charged the jury that an “invitee goes upon the premises at the express or implied invitation of the possessor for the possessor's benefit or for the mutual benefit of both.”  (Court Exhibit A, Jury Charge at 21.)   Here, the plaintiff offered no evidence that the defendant possessed the premises in question.   An employee of the defendant, Anna Senberg, testified that the land, walkway, and bus shelter were all owned and maintained by the City of New Haven.   The City of New Haven determined the location of the bus stops.   The defendant did not designate the stops, inspect them or affect any repairs to the property.   The defendant, in its motion for a directed verdict, argued unsuccessfully that the plaintiff offered insufficient evidence to warrant the jury being instructed on the duty owed to an invitee.   In hindsight, a detached review of the record demonstrates that the plaintiff did not offer sufficient evidence to permit a finder of fact, to wit the jury, to conclude that the defendant was a possessor of land giving rise to a duty owed to the plaintiff.   A finding that the defendant possessed and controlled the premises including the brick walkway is contrary to the law and the weight of the evidence.   The motion for a directed verdict ought to have been granted on this ground.

The defendant also argues that, as a matter of law, there was insufficient evidence that it had notice with respect to the claimed defect in the brick walkway.   When a plaintiff brings a negligence claim that is based on a defective condition on the defendant's premises, “the burden rests upon the plaintiff ․ to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice.”  (Internal quotation marks omitted.)   Riccio v. Harbour Village Condominium Assn, Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007).   Accordingly, the court instructed the jury that, in order for the defendant to be liable, the jury would have to conclude that the defendant had actual or constructive notice about any defect stemming from the brick walkway.   The record is bereft of any evidence, testimony or exhibit that touched upon, let alone was sufficient to establish, that the defendant knew or should have known about any claimed defect with the brick walkway.   It was plaintiff's counsel who argued the jury could take note of “New England” weather and deduce the brick was raised as a result of the weather.   There was no objection simultaneous or subsequent to closing argument.   Although the jury is permitted to make inferences, there was simply no evidence upon which the jury could deduce how long a period of time any defect existed.   There being no evidence of notice, actual or constructive, regarding the claimed defect, the defendant was entitled to a directed verdict on this ground.

Because the plaintiff did not present sufficient evidence that the defendant owed a duty of care to the plaintiff, or any evidence upon which the jury could determine that the defendant had notice of the defect, assuming one could establish a duty of care and breach of said duty, the defendant was entitled to a directed verdict in its favor.   The court need not address the remainder of the defendant's claims.   It was trial court error to have not granted the defendant's motion for directed verdict.   The jury's verdict is contrary to law and against the great weight of the evidence.   The jury's verdict is infirm.   The motion to set aside is granted.   Judgment may enter in favor of the defendant.

It is so ordered,

Nazzaro, J.

Nazzaro, John J., J.