Kim Stevenson v. Alex Velezis (2013)

MEMORANDUM OF DECISION

On January 20, 2011 Kim Stevenson was a tenant in the first-floor apartment of a four-unit apartment building owned by the defendant located at 75 Pinehurst Avenue, Waterbury CT. Ms. Stevenson slipped and fell on icy steps outside her apartment suffering harm.   She claims the negligence of the defendant proximately caused her harm.

The defendant admits owning the building, Answer paragraph 1, but denies possession, control or maintenance responsibilities for the exterior stairs/porch on which Ms. Stevenson fell.   The defendant pled three affirmative defenses and a counterclaim.

Ms. Stevenson rented the first-floor apartment from the defendant.   The written lease, Ex. 6, describes the term of the lease as running from November 1, 2010 through December 31, 2011, with a monthly rent of $735.00, a security deposit of $735.00, and paragraph 7 of the Lease, “Care and Condition of the Premises,” describes the Lessee's care and maintenance obligations but makes no mention of the exterior stairs/porch where she fell and was injured.   In short, the Lease does not impose a duty on the tenant, Ms. Stevenson, to maintain the exterior stairs/porch where she fell.

Ms. Stevenson slipped on ice on the exterior porch/stairs leading to her apartment and injured her left wrist, head, neck, left shoulder, mid and low back, see St. Mary's Hospital ER report 1/20/11, Ex. 1, Dr. Rosa, D.C. office note of 1/24/11, Ex. 1, Dr. Matza, M.D., 2/16/11 office note, Ex. 1, and Access Rehab.   Centers 3/30/11 note, Ex. 1. She saw Dr. Matza, orthopedist, on 5 office visits from 2/16/11 through 6/15/11, for left wrist pain.   He examined the wrist, confirmed no fractured bones as indicated by the ER, prescribed a splint and medication, later he prescribed physical therapy at Access Rehab.   In April 2011 he also noted complaints of low back pain.   In May 2011 he noted that Ms. Stevenson was being followed along for left carpal tunnel release and epineurotomy.”   No testimony was offered concerning this topic and the court is uncertain of the accuracy of the note or the relationship of that procedure to the instant matter.   In June of 2011 Dr. Matza's notes state, “She is still having pain in her left wrist from last summer.”   He notes an MRI showed “an old fracture of the left distal radius, a cyst in the carpal bones.”   There was no testimony concerning these matters and the court is uncertain of the accuracy of the note or the relationship of that image and diagnosis to the instant matter.   No competent medical evidence was offered to establish a fractured wrist or a carpal tunnel surgery related to or caused by the 1/20/11 fall.   No testimony was elicited concerning the conditions in the left wrist pre-existing the January 20, 2011 slip and fall.

In the Access Rehab intake 3/30/11 note the history is:  “Fell in January 2011, since fall felt decreased hearing on L side (illegible word), ․” and notes that she was seen by Dr. Winicki for a hearing exam and a ENG test, refer to P.T. for vertigo symptoms.   No notes or reports from Dr. Winicki or an ENG test were produced.   The therapist noted ‘obvious motion sensitivity’ causing headaches and vertigo and tenderness in the left temporal area.   These findings are consistent with Ms. Stevenson's testimony that she struck the left side of her head when she slipped and fell.   She was seen on 3 follow-up visits and discharged from Access' care on 4/29/11 for non-compliance—having missed 7 scheduled visits.

Dr. Rosa, D.C., treated Ms. Stevenson from 1/24/11 to 5/16/11 for headaches, cervical, thoracic and lumbar pain, stiffness and immobility.   Ms. Stevenson described the 12 treatments as ‘cracking her back and massaging the spine.’   Dr. Rosa concluded that Ms. Stevenson's health, with respect to his medical specialty, was restored to her pre-accident state by 5/16/11.

Ms. Stevenson incurred $4,975.00 in medical expenses.   Counsel stipulated and agreed that all bills were fully paid by ‘collateral sources,’ except for the $1,849.00 chiropractic bill, consequently any award of economic damages could be reduced by such collateral source payments.   In sum, Ms. Stevenson seeks economic damages of $1,875.00.

Ms. Stevenson testified that she suffered substantial pain, inconvenience, limitation and inability to engage in her usual activities of daily living because of the pain in her head, neck, shoulder, hand, wrist and back.   Photos, Ex. 4, showed a swollen left wrist and Ms. Stevenson wearing soft case or splint on her left arm and wrist.   She described an acute phase of treatment necessitated by the above-described pain and a continuing interference with restful sleep due to continuing low back pain.

Ms. Stevenson described that the landlord was responsible for shoveling snow and treating ice on the exterior steps and porch where she fell.   She claimed that she complained to the landlord about a broken gutter, with the break immediately above the involved exterior stairs/porch, which after rain or melting snow, dripped water onto the porch and stairs.

The weather records for the Waterbury area, Ex.2, indicate that the air temperatures were below freezing on 1/20/11, no precipitation, and scattered clouds during the daytime hours.

The photos, Ex. 4, of the subject property, taken on 1/21/11, show snow and ice largely covering the porch and two concrete exterior steps on which the plaintiff fell.   The same photos show a broken gutter with icicles dangling and dripping immediately above the subject stairs/porch.

While the parties dispute whether the landlord had an obligation to maintain the involved exterior stairs/porch, there is no dispute that the landlord was responsible for maintenance and repair of the gutter immediately above the stairs nor that the gutter was broken and directed water, from rain or melting snow, so as to fall and land on the stairs/porch.

Mr. Velezis testified that the gutter had broken some weeks or months before 1/20/11 and that he had removed the broken piece of gutter that was hanging off the fascia board beneath the roofline, but had not taken any measures to prevent the remaining gutter from directing the water it contained to anyplace other than the exterior stairs.

An invitee is one who either expressly or impliedly has been invited to go on the premises of the defendant.   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.

Ms. Stevenson was an invitee on the property.   Consequently, the defendant owed her the following duties:

1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe;

2) the duty to warn or guard the visitor from being injured by reason of any defects that the invitee could not reasonably be expected to discover;

3) the duty to conduct activities on the premises in such a way so as not to injure the visitor.  Fleming v. Garnett, 231 Conn. 77, 83–84 (1994);  Warren v. Stancliff, 157 Conn. 216, 218 (1968);  cf.  Morin v. Bell Court Condominium Ass'n., Inc., 223 Conn. 323, 327 (1992).

In this instance, Mr. Velezis failed to maintain the premises in a reasonably safe condition by allowing the broken gutter to direct the water in the gutter to drip onto the exterior porch/stairs that serviced Ms. Stevenson's property.

The legal responsibility for maintaining premises in a reasonably safe condition depends upon who has control of those premises.  “Control” means the power or authority to manage, superintend, direct, oversee, restrict or regulate.

In considering whether a party is one who controls the premises, the court considered evidence of the following:

1) acts of maintenance, such as fixing, repairing, cleaning, painting, performing upkeep—or the power to direct those activities;

2) acts of inspection such as conducting or directing inspections or surveys of the property;

3) acts restricting or allowing entry onto the premises;

4) acts warning others of conditions on the property, or setting or laying out rules for conduct upon the property;

5) using the premises or property to store things, or to receive mail, visitors, customers or deliveries.   See LaFlamme v. Dallessio, 261 Conn. 247, 256–57 (2002);  Panaroni v. Johnson, 158 Conn. 92, 98–100 (1969);  Kirby v. Zlotnick, 160 Conn. 341, 344 (1971).

The plaintiff has proved that the defendant was in control of the premises, particularly the gutter above the exterior stairs/porch that led to her apartment door at the relevant time.

The plaintiff has proved that the defendant had a reasonable opportunity to repair the dripping gutter and failed to timely do so.

The plaintiff has proved that the leaking/dripping water from the broken gutter created a defective and dangerous condition which caused her to fall and suffer harm.

Consequently the plaintiff has proved that the icy/snowy condition on the steps/porch leading to her apartment was caused by the negligent conduct of the defendant and proximately caused her fall, injuries and harm.   The defendant raised three affirmative or special defenses.   The essential defense is the comparative negligence of the plaintiff for failing to use reasonable care in exiting the property.   The defendant did establish that Ms. Stevenson was aware of the icy condition created by the dripping gutter—in fact, Ms. Stevenson testified that well before 1/20/11 she complained to Mr. Velezis about that problem.   Mr. Velezis denied that complaint, but later asserted that Ms. Stevenson was aware of the dripping gutter problem.   His testimony that he visited the property several times every day and that Ms. Stevenson was aware of the gutter dripping onto the stairs/porch leading to her apartment, but that he was not aware of that condition is inconsistent.

The court does find that Ms. Stevenson was aware of the dripping gutter problem and that she was comparatively negligent when she exited the steps/porch knowing that the ice and snow were present.   She offered no explanation for her failure to exit through a different means.   She is required to use her senses and faculties to observe what is there to be observed and take reasonable precautions to assure her own safety.  Sitnik v. National Propane Corp., 151 Conn. 62, 65 (1963);  Olshefski v. Stenner, 26 Conn.App. 220, 222–25 (1991).

Wherefore, the court finds the following:

1.  The plaintiff has established that the defendant is legally responsible for the harm caused to her by the 1/20/11 fall.

2. Fair just and reasonable compensation for injuries and losses proximately caused by the defendant's negligence are:

a.  Economic damages:  $1,845.00

b. Non–Economic damages:  $4,500.00

c. Total damages:  $6,345.00

3.  Comparative negligence:  the defendant has established that the plaintiff is legally responsible for the harm caused to her by the 1/20/11 fall in the amount of 35%.

4. Wherefore, judgment enters for the plaintiff on the complaint against the defendant in the sum of $4,124.25.

COUNTERCLAIM

The parties, by agreement, joined a counterclaim, unrelated to the involved transaction, involving unpaid rent, to the subject case.   The evidence established that Ms. Stevenson failed to pay two months' rent, at the rate of $735.00/month, but that Mr. Velezis had retained the $735.00 security deposit.   No claim was asserted by Ms. Stevenson with respect to the failure to timely return the security deposit.

Wherefore, judgment enters for Mr. Velezis against Ms. Stevenson on-the counterclaim in the amount of $735.00.

Zemetis, J.

Zemetis, Terence A., J.