James Cleveland v. Staples, Inc. (2013)

MEMORANDUM OF DECISION

This case is a premises liability action by the plaintiff, James Cleveland (“plaintiff”), against the defendant, Staples, Inc. (“defendant”).  The plaintiff alleges that he was injured when he was hit on the head by falling ice while working outdoors at the warehouse shipping yard owned by the defendant, Staples, Inc. in Dayville, Connecticut on February 3, 2011.   He seeks compensatory damages for his injuries and costs.   The plaintiff's employer, JB Hunt Transport Services, was allowed to intervene as a party plaintiff to seek reimbursement for workers' compensation benefits paid to the plaintiff in the matter.   The case was tried to the court.   For the following reasons, the court renders judgment for the defendant and against the plaintiffs.

Following pretrial proceedings, the only remaining claim in the case is Count One of the plaintiff's Amended Complaint, which alleges negligence.   The plaintiff alleges that on February 3, 2011, at approximately 7 p.m., he “was chocking a 48 foot trailer on the shipping side at Staples Warehouse located at 155 Tracey Road, Dayville, Ct, when a piece of ice fell from the roof above the bay and hit him on the head.”   Amended Complaint, para. 4.

The case was tried to the court on October 16, 17 and 18, 2013.   The court heard the testimony of the following witnesses:  James Cleveland, Jr., plaintiff;  Elizabeth Dorval, loss prevention manager at the Staples warehouse in Dayville;  and Larry Utz, facilities manager at the Staples warehouse, Dayville.   It also watched a video recording of the testimony of Dr. Joseph Aferzon, plaintiff's neurological surgeon.   It has also reviewed numerous photographs of the scene, diagrams, medical records and other reports and records that were admitted into evidence.   The parties also supplied the court with briefs and reply briefs in support of their respective positions.

I

The court finds the facts as follows:  The plaintiff is 53 years old.   He is a high school graduate and a Marine Corps veteran.   He was a tractor trailer driver for 27 years and, prior to his injury, he worked for JB Hunt Transportation Services.   In 2010, he was employed by JB Hunt as a “yard jockey” at the Staples warehouse in Dayville, CT. JB Hunt had a contract to provide shipping services for Staples at that location.   As a yard jockey, the plaintiff's job was to move trucks and trailers around the warehouse parking lot and drive them to and from the shipping and receiving bays of the facility as needed.   It was his responsibility to inspect the vehicles that he moved about the yard for the condition of equipment, including the lights, tires, etc.   In January and February 2011, Connecticut experienced very heavy snowfall, and JB Hunt employees were under orders to be especially vigilant for ice and snow accumulations on the tops of the trailers.   The ice and snow needed to be removed so that it would not fly off trucks during transportation and become a safety hazard for other drivers.   It was not the yard jockey's responsibility to remove ice and snow from the trailer roofs, but it was his responsibility to look for such conditions.   It was the responsibility of drivers to remove the ice and snow.   JB Hunt supplied ladders and snow rakes for the purpose of inspection and ice and snow removal.

On the night of February 3, 2011, the plaintiff was required to move a 48–foot tractor trailer from where it was parked in the yard to shipping bay No. 5, located along an outside wall of the warehouse.   The vehicle had a roll up door at the back of the trailer.   The plaintiff inspected the vehicle, started it, then backed the trailer up to the shipping bay door.   An overhead, awning-type structure protruded from the building wall over the top of the rear of the truck at that bay.   The plaintiff got out of the truck cab and walked along the side of the trailer, to the tandem (rear) wheels of the trailer.   There, he stooped down by the wheels to insert chocks to prevent the trailer from moving while it was parked.   It was dark outside that night, and he was working between his trailer and another trailer parked at the adjacent shipping bay, but there was a light under an awning above the bay illuminating the area.   At that moment he was hit on the head from above and lost consciousness for an undetermined amount of time.   He heard and saw nothing prior to losing consciousness.   When he regained consciousness he found broken ice on and about him.   There were no witnesses to the accident.

After regaining consciousness, the plaintiff went to the JB Hunt office on site and reported what happened to his supervisor, Ryan Kennedy.   Kennedy did not testify, but his injury investigation report was in evidence.   The report form contained questions and Kennedy supplied responses.   To the question “Type of injury:” he reported “Head, concussion.”   To the questions “How did the injury occur?” and “What caused injury” he reported “ice fell off the roof of the trailer and struck.”   To the question “Activity at time of injury?” he reported “Driver was chocking the trailer wheels.”   To the question “Factors that contributed to the incident” he reported “ice was not cleaned from top of the trailer.”   To the inquiry about any “Prevention plan” he reported “Driver may need to wear a bump cap during the winter.”   The incident was not reported to Staples.

Larry Utz, the facilities manager at the Staples warehouse, testified about the defendant's response to the ice and snow conditions prior to the accident.   The court finds that ice and snow were a problem at the facility, as it was throughout Connecticut, in late January, early February 2011.   Of particular concern to the defendant was the accumulation of ice and snow on the roof of the building.   The facility is a very large, box-like structure with a flat roof.   There was concern that the weight of the ice and snow could cause the roof to collapse.   Utz inspected the roof on January 31, 2011, and measured the snow depth and snow drainage systems.   He observed that the gutters were 75 per cent full of ice, but there was no ice damning, and the downspouts were flowing.   The company decided to hire a snow removal crew to remove a snow drift that had accumulated along the middle of the roof to reduce the weight on the roof in that area.

On February 1, 2011, 3 more inches of snow fell.   On February 2, 2011, late in the afternoon, a hired crew arrived to evaluate the job.   Utz went on the roof with the crew to show them where to work.   Freezing rain was falling at that time.   Again, he reported the gutters were running fine.   The crew returned the following morning and removed the snow, using shovels and a drop cloth.   Utz saw no ice or snow overhanging the building during this time period.   The plaintiff was injured the next evening.

The plaintiff suffered neck injuries in this accident.   He experienced neck pain and subsequently underwent neck surgery—an anterior cervical fusion—where two cervical discs were replaced, and a metal plate was attached to help stabilize the spine.   Three of his teeth broke during the anesthetic procedure used during the disc surgery.   The surgery did not eliminate his neck pain.   He continues to complain of severe neck pain.   He has not returned to work since the accident.   Prior to this accident, he had back and knee and carpal tunnel surgeries due to pre-existing injuries or conditions, and he continues to suffer from back pain unrelated to the accident.

The plaintiff testified that he cannot drive as a result of this accident.   However, his doctor testified that he drove himself to all medical appointments with him, and, after the accident, the record reflects that the plaintiff was involved in an unrelated motor vehicle accident where the car he was driving flipped over.

The plaintiff wore a cervical collar throughout the trial.   His doctors have been struggling to wean him off the addictive pain medications which he has been taking since this accident.

The plaintiff blames the defendant for his injuries and insists that he observed ice and snow overhanging the building, that Staples employees saw it, too;  and that he reported it to Staples and asked them to remove the overhanging ice and snow, but they failed to respond.   He reported the accident after he regained consciousness to his supervisor, Mr. Kennedy, and he insists that he reported that he had been hit from ice falling from the building roof, not from the truck roof, but the report indicates otherwise.   In the medical records, he reported that he was struck on the top of the head with 200 pounds of ice.   The court does not find his testimony on these points to be credible.   The plaintiff's testimony was inconsistent, and was not corroborated by the other evidence.   At the Day Kimball Hospital emergency room on February 3, 2011, the night of the accident, he presented with a large, eccymotic lump to the left forehead, but he sustained no skull fracture or intracranial hemorrhage.   Prior to that, on January 7, 2011, while at the same emergency room complaining of double vision caused by medication reaction, he became dizzy and fell down while trying to use the commode, hitting his right frontal area of the head.   Moreover, the only report of this accident, prepared by his supervisor, Mr. Kennedy, indicates that the plaintiff was hit by ice falling from the roof of the truck, not the roof of the building.   Thus, his explanation as to how this accident happened is suspect, and was contradicted by the other, more credible evidence.

Plaintiff argues that the Kennedy report, which he identifies as Exhibit WW, is not credible because it was not written or subscribed by him, and because the defendant failed to lay a proper foundation for its introduction into evidence as a full exhibit in this case.   The argument is not persuasive.   The report was also marked as Exhibit AAA and he had no objection to the admissibility of Exhibit AAA as a full exhibit during the trial.   See Transcript of October 17, 2013.

Plaintiff also argues that a certain first injury report, marked as Exhibit NN, is also not credible.   However, the court sustained his objection to that exhibit during trial and it was not admitted into evidence as a full exhibit.   Exhibit NN is not being considered by the court in this case.

During trial, the plaintiff additionally argued that the court should draw an adverse inference against the defendant due to spoliation of evidence.   He alleged, but did not prove, that there was a video recording of the events or scene of the accident which the defendant failed to secure.   The court required the parties to address the point in their respective briefs in chief.   The plaintiff did not address the point in his brief or his reply brief.   The issue, therefore, is deemed abandoned.   See Feliciano v. Autozone, Inc., 142 Conn.App. 756, 762, 66 A.3d 911, cert. granted, 76 A.2d 625 (2013).

The plaintiff argues that the defendant made admissions in a withdrawn third-party complaint against the roofers hired to clear the snow from the roof.   The court observes no admissions dispositive of this case in that withdrawn document.

The plaintiff also argues that the defendant should be estopped from contesting any issue of causation of injury because, in its trial management report, it only identified liability and damages as issues in the case.   The court is not persuaded.   In a general sense, there are only two issues in a civil trial:  liability and damages.   Connecticut Judicial Branch Civil Jury Instructions § 2.7–1. In this light, the defendant, in its trial management report, expressed its intent to contest all issues.   In fact, in addition to contesting the plaintiff's case in its entirety, the defendant has raised the special defense of comparative negligence.   See Answer, Special Defense.

The plaintiff alleged in his amended complaint that the defendant was negligent and responsible for his injuries because it failed to keep its premises in a reasonably safe condition and/or failed to warn the plaintiff of dangerous conditions.   In particular, he alleges that the defendant was negligent in one or more of the following ways:

a.  In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control failed to clear snow and ice from the roof;

b. In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control were aware that the subject roof had snow and ice on it and therefore was unreasonably dangerous;

c. In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control failed to exercise reasonable care, in that the condition of the roof created an unreasonable danger of snow and ice falling and hitting someone;

d. In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control failed to warn or otherwise provide notice by signs or otherwise to the plaintiff of the snow and ice on the roof;

e.  In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control failed to inspect the roof and overhangs of the building for ice and snow buildup;

f. In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control inspected the roof and failed to act on the inspection;

g. In that the defendant individually and/or through their agents, servants, and/or employees and/or independent contractors under their control failed to clean ice and snow buildup from the roof and overhang.

Amended Complaint dated October 17, 2013.

The issues are resolved, seriatim:

II

The law on point is not in dispute.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”(Internal quotation marks omitted.)   Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).  “The plaintiff has the burden of proving each essential element of [his] complaint.   The [defendant does not] have to present evidence to disprove any of the plaintiff's claims.”  (Citations omitted;  internal quotation marks omitted.)   Moran v. Eastern Equipment Sales, Inc., 76 Conn.App. 137, 154, 818 A.2d 848 (2003).

In this case, it is undisputed that the plaintiff was a business invitee of the defendant.   In such cases, the defendant has a duty to keep the premises in a reasonably safe condition for the benefit of its business invitees.   See, e.g., Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002).   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 ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”   (Citations omitted;  internal quotation marks omitted.)  Morin v. Bell Court Condominium Assn., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “The duty to warn, however, does not arise if an invitee already has actual knowledge of the dangerous condition.”  (Citations omitted.)  Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994);  see also, Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008).

“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 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.”  (Citations omitted;  internal quotation marks omitted.)  Kelly v. Stop & Shop, 281 Conn. 768, 777, 918 A.2d 249 (2007).

“If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary ․ That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.”  (Citations omitted;  internal quotation marks omitted.)  Meek v. Wal–Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002);  see also Tuite v. Stop & Shop Cos., 45 Conn.App. 305, 308–09, 696 A.2d 363 (1997);  Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 301, 661 A.2d 110 (1995).   When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that “[t]he controlling question [becomes] that of constructive notice:  whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it.”  Morris v. King Cole Stores, Inc., 132 Conn. 489, 492–93, 45 A.2d 710 (1946).  “What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case ․ The nature of the business and the location of the foreign substance would be factors in this determination ․” Id., 494.   “[M]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty.   In such a case as this, the burden rests upon the plaintiff;  first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the [trier of fact] to find that a defective condition in fact existed;  and, secondly, to offer evidence from which the [trier of fact] could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice.”  (Citation omitted;  internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Association, Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007).

Under the comparative negligence rules, if the defendant proves, by a fair preponderance of the evidence, that the plaintiff was in fact negligent, then the fact finder must reduce the amount of plaintiff's damages based on his percentage of negligence, or abrogate completely a plaintiff's ability to recover in cases in which the plaintiff is found to be more than 50 percent negligent.  General Statutes § 52–572h(b), (f);  Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 294 n.4, 786 A.2d 1214 (2001);  see also Meek v. Wal–Mart Stores, Inc., supra, 72 Conn.App. 490.

III

Applying this law to the facts, the court concludes that the plaintiff has failed to prove all the necessary elements of his complaint.   First, the court finds that he has failed to prove that he was injured by ice and snow falling from the defendant's building.   There was no persuasive evidence that ice and snow fell from the building, particularly in view of the fact that there was an overhang in the bay area that would have caught or diverted any such falling ice and snow in the location where the plaintiff was working on the truck on the evening in question.   To the contrary, the court finds that the plaintiff was, most likely, struck by ice and snow that fell from the roof of the truck, as reported in the only written report of the incident recorded on the evening of the incident.   That material, most likely, had become loose when the plaintiff moved the truck, and it fell from the roof of the trailer while he was chocking the wheels.   Additionally, it was plaintiff's responsibility to inspect the roof of the truck to avoid such a hazard.   On the other hand, the court finds that the defendant was otherwise taking reasonable precautions to prevent ice and snow hazards in the time period considering all of the circumstances, and that there were no hazards, unknown to the plaintiff, concerning which the defendant might have owed the plaintiff a duty to warn.

Accordingly, the court finds that the plaintiff has failed to prove, by a preponderance of the evidence, notice, breach of duty, causation and, therefore, any liability in the plaintiff.   Having so determined, it is unnecessary to decide the defendant's special defense.

IV

For all of the foregoing reasons, the court renders judgment for the defendant, and against the plaintiffs.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.